COMPILATION OF THE

LABOR LAW AND SOCIAL

LEGISLATION BAR
EXAMINATIONS
QUESTIONS AND
SUGGESTED ANSWERS
(1994-2017)

*I do not own any of the materials I’ve compiled in this pdf file. It’s all found in the
internet, just have the patience to look for it since it’s scattered. Giving credits to the
authors of these materials. So sharing all of it for free to all my fellow law students. - Bek
MATERIALS COMPILED:
1) 1994-2006 -> Bar Questions and Answers Labor Law - https://
www.academia.edu/7839049/
Bar_Questions_and_Answers_Labor_Law_1994_to_2006

2) 2007-2013-> A Compilation of the Questions and Suggested

Answers in the Philippine Bar Examinations 2007-2013 in Labor Law
- http://www.pinayjurist.com/wp-content/uploads/
2017/10/2007-2013- Labor-Law-Philippine-Bar-Examination-
Questions-and-Suggested- Answers.pdf

3) 2014 -> Answers of a Bystander to the 2014 Bar Questions in Labor

Law (With Comments) - https://www.scribd.com/document/
243171197/2014-Labor-Law-Answers#

4) 2015-> 2015 Bar Q and A Comments For UST - https://

www.scribd.com/ document/293020409/2015-Bar-q-and-a-
Comments-For-Ust

5) 2016 -> Suggested Answers To The 2016 Bar Examinations in

Labor Law - https://edoc.site/2016-bar-suggested-answer-in-labor-
law-pdf- free.html

6) 2017 -> Suggested Answers to the 2017 Bar Examinations in Labor

and Social Legislation by Atty Voltaire Duano (Phil Atty Atty) Part
One - https://www.facebook.com/voltsphil.atty/posts/
145938306135870

Part Two - https://www.facebook.com/voltsphil.atty/posts/
146115086118192
LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006

ANSWERS TO BAR
EXAMINATION QUESTIONS
IN

LABOR LAW
&

SOCIAL LEGISLATION
ARRANGED BY TOPIC
(1994 – 2006)

Edited and Arranged by:

Atty. Janette Laggui-Icao and
Atty. Alex Andrew P. Icao
(Silliman University College of Law)
July 26, 2005

Updated by:
Romualdo L. Señeris II, LLB.
(Silliman University College of Law)
April 27, 2007

From the ANSWERS TO BAR EXAMINATION QUESTIONS

in POLITICAL LAW by the
UP LAW COMPLEX and
PHILIPPINE ASSOCIATION OF LAW SCHOOLS

Page 1 of 108
LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006

FORWARD
This work is not intended for sale or commerce. This work is freeware. It may be

freely copied and distributed. It is primarily intended for all those who desire to

have a deeper understanding of the issues touched by the Philippine Bar

Examinations and its trend. It is specially intended for law students from the

provinces who, very often, are recipients of deliberately distorted notes from other

unscrupulous law schools and students. Share to others this work and you will be

richly rewarded by God in heaven. It is also very good karma.

We would like to seek the indulgence of the reader for some Bar Questions which

are improperly classified under a topic and for some topics which are improperly or

ignorantly phrased, for the authors are just Bar Reviewees who have prepared this

work while reviewing for the Bar Exams under time constraints and within their

limited knowledge of the law. We would like to seek the reader’s indulgence for a

lot of typographical errors in this work.

The Authors

Page 2 of 108
LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006

Table of Contents
GENERAL PRINCIPLES................................................................ 10
Constitutional Provisions on Labor (1998).............................................................................. 10
Interpretation of Labor Laws (1998)......................................................................................... 10
Interpretation of Labor Laws; Liberal Approach (2006) ........................................................ 10
Labor Legislations; Purpose (2006)......................................................................................... 11
Labor Standard vs. Labor Relation (1997).............................................................................. 11
Labor Standard vs. Labor Relation (2003).............................................................................. 11
Labor Statutes; Classification (1995 No. 1:)........................................................................... 11
Labor Statutes; Principle of Solutio Indebiti; Not Applicable (1994) ................................... 12
Labor vs. Social Legislation ...................................................................................................... 12
Labor; as Property Right (2006) ............................................................................................... 12
Rights of Employer/Employee (1996)...................................................................................... 12
Rights of the Employer; Management Prerogative (2000)................................................... 12
Rights of the Employer; Management Prerogative; Benefits; Unilaterally Given (2005). 13
Rights of the Employer; Management Prerogative; Contracting Out Services (1994) .... 13
Rights of the Employer; Management prerogatives (1994) ................................................. 14
Rule; Injunction in Labor Cases (2000)................................................................................... 15
Social Justice as Guiding Principles in Labor (2003)............................................................ 15
JURISDICTION............................................................................ 15
CBA; Implementation & Interpretation (1995) ........................................................................ 15
Damages; Absence of E-E Relationship (1995) .................................................................... 15
Damages; Not arising from the E-E Relations (1999)........................................................... 16
Dismissal; Int’l Agency (1994) .................................................................................................. 16
Intra-corporate Matters/Officers (1996)................................................................................... 17
Intra-corporate Matters/Officers (1997)................................................................................... 17
Labor Arbiter (1995) ................................................................................................................... 17
Labor Arbiter; Appeals (2001)................................................................................................... 17
Labor Dispute ( 2001) ................................................................................................................ 17
Med-arbiter (1996) ...................................................................................................................... 18
Money Claims; Reinstatement (1996) ..................................................................................... 18
Nat’l Labor Relations Commission (1995) .............................................................................. 18
Nat’l Labor Relations Commission (2001) .............................................................................. 18
Nat’l Labor Relations Commission (2001) .............................................................................. 19
Nat’l Labor Relations Commissions (2001) ............................................................................ 19
Overseas Employment; Claim; Torts (2004) .......................................................................... 19
Overseas Employment; Mandatory Remittance; Foreign Exchange (2006)..................... 20
Recovery of Wages (1994)........................................................................................................ 20
Remedies; illegal dismissal (1999) .......................................................................................... 20
Secretary of Labor; Authority (1998)........................................................................................ 21
Secretary of Labor; Dismissal of Employees (1998)............................................................. 21
Voluntary Arbitrator (1997) ........................................................................................................ 21
Voluntary Arbitrator (2003) ........................................................................................................ 21
LABOR RELATIONS..................................................................... 22
CBA; Appropriate Bargaining Unit (1998)............................................................................... 22
CBA; Arbitral Award; Retroactive Effect (2001) ..................................................................... 22
CBA; Arbitral Awards; Effectivity (1994).................................................................................. 22
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LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
CBA; Automatic Renewal Clause (1999) ................................................................................ 23
CBA; Automatic Renewal Clause (2001) ................................................................................ 23
CBA; Bargaining Representative (2000)................................................................................. 23
CBA; Certification Election (2005)............................................................................................ 23
CBA; Certification Election; “No-Union" Win (2006).............................................................. 24
CBA; Certification Election; Consent Election; Run-Off Election (2000) ........................... 24
CBA; Certification Election; Freedom Period (1999)............................................................. 24
CBA; Certification Election; Probationary Employees (1999).............................................. 24
CBA; Closed Shop Provision; When not applicable (1999) ................................................. 25
CBA; Closed Shop vs. Agency Shop (1997) .......................................................................... 25
CBA; Contract Bar Rule vs. Deadlock Bar Rule (1999)........................................................ 25
CBA; Coverage; Non-Union Members; Religious Sect (2005)............................................ 25
CBA; interpretation (2004)......................................................................................................... 26
CBA; Jurisdictional Pre-Conditions (1996) ............................................................................. 26
CBA; Lock-out vs. Closed Shop (2004) .................................................................................. 26
CBA; Mandatory Subjects of Bargaining (1996) .................................................................... 26
CBA; Registration Requirement; Contract Bar-Rule (2000) ................................................ 27
CBA; Run-Off Election (2006)................................................................................................... 27
CBA; Sale of Establishment; Effect (1994)............................................................................. 27
CBA; Social Security vs. Union Security (2004) .................................................................... 27
CBA; Substitutionary Doctrine (2000)...................................................................................... 27
CBA; Union Security Clause (2004) ........................................................................................ 28
CBA; Union Security Clause; Closed Shop Provision (1995).............................................. 28
CBA; Union; Representation Issue (1999).............................................................................. 28
CBA; Wage Increase Coverage; Non-Union Employees (2005) ........................................ 29
CBU; Company Union vs. Union Shop (2004)....................................................................... 29
CBU; Confidential Employees (1994)...................................................................................... 29
CBU; Consent Election vs. Certification Election (2004)...................................................... 30
CBU; Managerial Employees; Supervisory Employees (1995)........................................... 30
CBU; Managerial Employees; Supervisory Employees (1999)........................................... 30
CBU; Modes; Determination of Exclusive Bargaining Agreement (2006) ......................... 31
Due Process; Disciplinary Cases (1995) ................................................................................ 31
Employees; groups of employees (1996) ............................................................................... 32
Employees; Managerial Employee vs. Managerial Staff (1994) ........................................ 32
Employees; managerial employees vs. supervisory employees (2002) ............................ 32
Employees; Managerial vs. Supervisory vs. Rank-and-File Employees (2003)............... 32
Right to Strike: Sympathy vs. General Strike (2004) ............................................................ 33
Right to Strike; Assumption Power .......................................................................................... 33
Right to Strike; Compulsory Arbitration; Certification to NLRC (1995)............................... 34
Right to Strike; Effects; Hired Replacements (2006) ............................................................ 34
Right to Strike; Effects; illegal strike (1995)............................................................................ 34
Right to Strike; Effects; illegal strike (1995)............................................................................ 34
Right to Strike; Effects; illegal strike (2000)............................................................................ 34
Right to Strike; Effects; Strikers’ illegal Acts (2006) .............................................................. 34
Right to Strike; illegal dismissal (2003) ................................................................................... 34
Right to Strike; illegal lockout (1995) ...................................................................................... 35
Right to Strike; illegal strike; Loss of Employment (1994).................................................... 35
Right to Strike; Industries Vital to National Interest (2004) .................................................. 36
Right to Strike; Industries Vital to National Interest; Return to Work Order (1996).......... 36
Right to Strike; Lawful Strike; Effect on Participants (1997) ................................................ 37
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LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
Right to Strike; Lawful; Right to Reinstatement (2006)......................................................... 37
Right to Strike; Limitations (2000) ............................................................................................ 37
Right to Strike; National Interest; DOLE Sec. intervention (2004) ...................................... 38
Right to Strike; Picketing Activity (2000) ................................................................................. 38
Right to Strike; Picketing Activity; illegal dismissal (2004) .................................................. 38
Right to Strike; Return to Work Order (1994)......................................................................... 39
Right to Strike; Return to Work Order (1997)......................................................................... 39
Right to Strike; Return to Work Order (1998)......................................................................... 39
Right to Strike; Return to Work Order; Assumption Order (2003) ...................................... 40
Right to Strike; Statutory Requisites; Procedural Requirements (2004)............................ 40
Right to Strike; Temporary Stoppage (2002).......................................................................... 41
Right to Strike; Wildcat Strike (1997)....................................................................................... 41
Right to Strike; Work Slowdown (1998) .................................................................................. 41
Self Organization; Acquisition of Legal Personality (2003) .................................................. 42
Self Organization; Appropriate Bargaining Unit; Confidential Employees (2002) ............ 42
Self Organization; BLR Certification; Certification Election (1998)..................................... 42
Self Organization; Certification Election (2001) .................................................................... 43
Self Organization; Certification Election; Bystander Rule (1996) ....................................... 43
Self Organization; Certification Election; Unorganized Establishment (2003) .................. 44
Self Organization; E-E Relationship; Certification Election (1998).................................... 44
Self Organization; Gov’t Employees (2004) ........................................................................... 44
Self Organization; Importance (1996)...................................................................................... 45
Self Organization; Membership Policy (1998)........................................................................ 45
Self Organization; Right to Disaffiliate from the Local Union; illegal dismissal (1994) .... 45
Self Organization; Right to Self-Organization of Coop Employees (2002)........................ 46
Self Organization; Union Dues; Assessment (2002)............................................................ 46
Self Organization; Union Dues; Assessments (1997).......................................................... 46
Self Organization; Unions; Assessments (2001) ................................................................... 47
Self Organization; Unions; Financial Records (1999).......................................................... 47
Self Organization; Unions; Financial Records (2001).......................................................... 48
Self Organization; Unions; Membership; Dismissal in Bad Faith (2002) ........................... 48
Self-Organization (2002)............................................................................................................ 48
Self-Organization; Dismissal due to Union Activities (2004)................................................ 48
Self-Organization; Gov’t vs. Private Employees (1996) ....................................................... 49
Self-Organization; Right to Join (2000) ................................................................................... 49
ULP; Awards of Damages (2001) ............................................................................................ 49
ULP; Contracting Out Labor (2001) ......................................................................................... 50
ULP; Definition & Examples of ULP (1996) ............................................................................ 50
ULP; Jurisdiction; Labor Arbiter (1997) ................................................................................... 50
ULP; Refusal to Negotiate (1997) ............................................................................................ 51
ULP; Rights & Obligations; Workers’ Association (2004)..................................................... 51
ULP; Subject to Criminal Prosecution (2005)......................................................................... 52
LABOR STANDARDS ................................................................... 52
E-E Relationship; Corporation (1999) .................................................................................... 52
E-E Relationship; Determined by Facts & Laws (2000) ....................................................... 53
E-E Relationship; Elements (1996).......................................................................................... 53
E-E Relationship; GRO’s & Night Clubs (1999).................................................................... 53
E-E Relationship; Security Guards; Floating Status (1999)............................................... 53
E-E Relationship; Self-Employed (2003) ................................................................................ 54

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LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
E-E Relationship; Workers paid by Results (2004) .............................................................. 54
E-E Relationship; Working Student & School (1997)............................................................ 55
Employment; Aliens; Requisites (1995) .................................................................................. 55
Employment; Children; Below 15 yrs old (2004).................................................................... 56
Employment; Driver as Househelper & in a Commercial Establishment (1998) .............. 56
Employment; Handicapped Employee (1998) ....................................................................... 56
Employment; Handicapped Employee (2000) ....................................................................... 56
Employment; Handicapped Workers; Contractual Employees (2006)............................... 57
Employment; Homeworkers (2000) ......................................................................................... 57
Employment; Househelpers (2000) ......................................................................................... 57
Employment; Minors (2006) ...................................................................................................... 57
Employment; Minors; Hazardous Work (2002) ...................................................................... 58
Employment; Radio-TV Show Host; Expiration of Term (2005).......................................... 58
Employment; Women; Anti-Sexual Harassment Act (2000) ................................................ 59
Employment; Women; Anti-Sexual Harassment Act (2000) ................................................ 59
Employment; Women; Anti-Sexual Harassment Act (2004) ................................................ 59
Employment; Women; Anti-Sexual Harassment vs. Discrimination against Women (2003)
....................................................................................................................................................... 60
Employment; Women; Discrimination by reason of Age (1998) ......................................... 60
Employment; Women; Discrimination by reason of Marriage (1995)................................. 60
Employment; Women; discrimination; illegal dismissal (1997)............................................ 60
Employment; Women; Sexual Harassment Act (2005) ........................................................ 61
Employment; Women; Sexual Harassment Act (2006) ........................................................ 61
Independent Contractor (2001) ................................................................................................ 62
Independent Contractor (2002) ................................................................................................ 62
Independent Contractor vs. Labor-Only Contracting; Four-Fold Test (2000) .................. 63
Independent Contractor; Liabilities (2004).............................................................................. 63
Labor-Only Contract vs. Job Contracting (1997)................................................................ 63
Labor-Only Contractor (2002)................................................................................................... 64
Labor-Only Contractor vs. Independent Contractor (1994).................................................. 64
Recruitment & Placement; Cancellation; Certificate of Registration; Travel Ban (2004) 65
Recruitment & Placement; illegal recruitment to economic sabotage (2005) ................... 65
Recruitment & Placement; illegal recruitment; Economic Sabotage (2002) ..................... 65
Recruitment & Placement; Large Scale Illegal Recruitment (2005) ................................... 66
Recruitment & Placement; Non-Transferability of License (1998)...................................... 66
Recruitment & Placement; Recruitment Agencies (2002).................................................... 66
Recruitment & Placement; Travel Agency; Prohibition (2006) ............................................ 66
Wage Distortion (2002) .............................................................................................................. 67
Wage; Reduction of Minimum Pay & Wages (2006)............................................................. 67
Wage; Wage Distortion; Definition & Elements (2006)......................................................... 67
Wage; Wage Distortion; Means of Solving (2006) ................................................................ 67
Wage; Wage Distortion; Not a ground for Strike/Lockout (2006)........................................ 67
Wages; 13th month pay (1994) ................................................................................................ 68
Wages; 13th month pay (1998) ................................................................................................ 68
Wages; Bonus (2002) ................................................................................................................ 68
Wages; Bonus (2003) ................................................................................................................ 69
Wages; Bonus; Nature (1995) .................................................................................................. 69
Wages; Computation of Basic Salary (1997) ......................................................................... 69
Wages; Computation; Holiday Pay (2002).............................................................................. 69
Wages; Computation; Holiday Pay; Overtime Pay (2002) ................................................... 70
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LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
Wages; Holiday Pay (2005) ...................................................................................................... 70
Wages; Money Claims (1998) .................................................................................................. 70
Wages; Money Claims; Attorney’s Fees; Damages (2001) ................................................. 71
Wages; Paid by Results; Holiday Pay (2002) ........................................................................ 71
Wages; Teachers; ECOLA (1997) ........................................................................................... 71
Wages; Unpaid Wages; Preference of Credit in favor of Employees (1995) .................... 72
Wages; Unpaid Wages; Preference of Credit in favor of Employees (2003) .................... 72
Wages; Unpaid Wages; Preference of Credit in favor of Employees (1995) .................... 72
Wages; Unpaid Wages; Preference of Credit in favor of Employees (1999) .................... 73
Wages; Wage Distortion (1997) ............................................................................................... 73
Wages; Wages vs. Salary; Subject to Attachment (1994) ................................................... 73
Wages; Waiver of Compensation (1996) ................................................................................ 74
Working Hours; Charitable Institution; Overtime Pay (2002)............................................... 74
Working Hours; Charitable Institution; Weekly Rest Period; (1998)................................... 74
Working Hours; Compressed Work Week (2005) ................................................................. 74
Working Hours; Night Shift Differential (2002) ....................................................................... 74
Working Hours; Saturday Work (2003) ................................................................................... 75
Working Hours; Sick Leave; Overtime Pay (1997)................................................................ 75
Working Hours; When Compensable; “While on Call” (2004) ............................................. 75
Working Hours; When Compensable; “While on Call”; Waiting Time (1997).................... 76
TERMINATION OF EMPLOYMENT ................................................. 76
Backwages (2002) ...................................................................................................................... 76
Backwages vs. Unpaid Wages (1994) .................................................................................... 76
Backwages; Basis (2001) .......................................................................................................... 77
Backwages; Basis (2001) .......................................................................................................... 77
Backwages; Basis (2001) .......................................................................................................... 77
Dismissal; Authorized Causes (2002) ..................................................................................... 78
Dismissal; Authorized Causes vs. Just Cause (2004) .......................................................... 78
Dismissal; Authorized Causes; Closure & Cessation (2001)............................................... 78
Dismissal; Authorized Causes; Closure & Cessation of Business; Old Age (2006) ........ 78
Dismissal; Authorized Causes; Closure & Cessation of Business; Separation Pay (2006)
....................................................................................................................................................... 79
Dismissal; Authorized Causes; Downsizing Employees (2001).......................................... 79
Dismissal; Authorized Causes; Redundancy (1999)............................................................. 79
Dismissal; Authorized Causes; Redundancy (2000)............................................................. 79
Dismissal; Authorized Causes; Retrenchment & Redundancy (2001)............................... 80
Dismissal; Authorized Causes; Retrenchment (1998) .......................................................... 80
Dismissal; Authorized Causes; Retrenchment (2003) .......................................................... 81
Dismissal; Authorized Causes; Seniority Rule (2001) .......................................................... 81
Dismissal; Authorized Causes; Sickness (2004) ................................................................... 81
Dismissal; Constructive Dismissal; Floating Status (2004).................................................. 82
Dismissal; Constructive Dismissal; Transfer (1996).............................................................. 82
Dismissal; Damages Recoverable (2001) ............................................................................. 83
Dismissal; Due Process; Requirements (1994) ..................................................................... 83
Dismissal; Due Process; Requirements (2006) ..................................................................... 83
Dismissal; Just Cause; Immoral Conduct (1996) ................................................................. 84
Dismissal; Just Cause; Independent Contractor (2005)....................................................... 84
Dismissal; Just Cause; Misconduct (1996)............................................................................. 85
Dismissal; Just Cause; Probationary Employees; Rights (2006)........................................ 85

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LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
Dismissal; Just Cause; Requirements (1999) ........................................................................ 85
Dismissal; Just Cause; Separation Pay (1996)...................................................................... 86
Dismissal; Just Causes (2001) ................................................................................................. 86
Dismissal; Just Causes vs. Authorized Causes (2000) ........................................................ 87
Dismissal; Just Causes; Disobedience (1995)....................................................................... 87
Dismissal; Just Causes; Disobedience (2003)....................................................................... 88
Dismissal; Just Causes; Insubordination (1999).................................................................... 88
Dismissal; Just Causes; Misconduct (1995)........................................................................... 88
Dismissal; Just Causes; Quitclaims (1999) ............................................................................ 89
Dismissal; Liability; Corporate Officers (1997)....................................................................... 89
Dismissal; Payroll Reinstatement (2005) ................................................................................ 89
Dismissal; Payroll Reinstatement; Reinstatement Order (1999)......................................... 90
Dismissal; Reinstatement (1994) ............................................................................................. 90
Dismissal; Reinstatement (1995) ............................................................................................. 90
Dismissal; Requirements (1998) .............................................................................................. 91
Dismissal; Requirements (1999) .............................................................................................. 91
Dismissal; Requirements; Suspension of Termination (1994) ............................................ 92
Dismissal; Requisites; Reinstatement ..................................................................................... 93
Dismissal; Separation Pay; Backwages (2002) ..................................................................... 93
Employee; Contractual Employees; Seafarers (2002).......................................................... 94
Employee; Contractual Worker vs. Casual Worker (2005) .................................................. 94
Employee; Probationary Employees (1998)........................................................................... 95
Employee; Probationary Employees (2001)........................................................................... 95
Employee; Project Employee vs. Regular Employee (1996)............................................... 95
Employee; Project Employees vs. Casual Employees (2005) ............................................ 95
Employee; Regular Employee; Constructive Dismissal (2005)........................................... 96
Employee; Regular Employees (1994).................................................................................... 96
Employee; Regular Employees (1995).................................................................................... 97
Employee; Regular Employees vs. Project Employee (1998) ............................................. 97
Employee; Regular vs. Project Employees (2002)................................................................ 98
Prescriptive period; illegal dismissal (1994) .......................................................................... 98
Prescriptive period; illegal dismissal (2002) .......................................................................... 99
Prescriptive period; illegal dismissal (1997) ........................................................................... 99
Resignation; Voluntary; Quitclaim (1994) ............................................................................. 100
Resignation; Voluntary; Quitclaims (1999) ........................................................................... 100
Retirement; Optional Retirement (2005) ............................................................................... 101
Retirement; Retirement Benefits (1994)................................................................................ 101
Retirement; Retirement Pay (2001) ....................................................................................... 101
SOCIAL LEGISLATIONS ............................................................. 102
Employees Compensation Act; Work-Connected Disability (1996).................................. 102
GSIS; Benefits (2004) .............................................................................................................. 103
GSIS; Death Benefit (1999) .................................................................................................... 103
GSIS; Death Benefits; Dependent; 24-hour Duty Rule (2005) .......................................... 103
Maternity Benefits (2000) ........................................................................................................ 104
Paternity Leave (2002)............................................................................................................. 104
Paternity Leave; Maternity Leave (2005) .............................................................................. 104
SSS; Compulsory Coverage (1995) ...................................................................................... 105
SSS; Compulsory Coverage (1999) ...................................................................................... 105
SSS; Compulsory Coverage (2000) ...................................................................................... 105

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LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
SSS; Compulsory Coverage (2002) ...................................................................................... 105
SSS; GSIS; Beneficiality; Portability Provisions of RA 7699 (2005)................................. 106
SSS; GSIS; Jurisdiction; Benefit Claims (1995) ................................................................. 106
SSS; Prescriptive Period; Benefit Claims (2001)................................................................. 106
SSS;GSIS; Employees Compensation Act (1997) .............................................................. 107
State Insurance Fund (1994) .................................................................................................. 107
State Insurance Fund (1995) .................................................................................................. 107
Stray Questions ......................................................................... 108
Stray Problem; Political Law; Power of the President; FTAA (2006)................................ 108

Page 9 of 108
LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
GENERAL PRINCIPLES
Constitutional Provisions on Labor (1998)
What are the salient features of the protection to
labor provision of the Constitution? [5%]
SUGGESTED ANSWER:
The salient features of the Protection to Labor
provision of the Constitution (Article XIII. Section 3)
are as follows:
1. Extent of Protection - Full protection to labor;
2. Coverage of Protection - Local and overseas,
organized and unorganized;
3. Employment Policy - Full employment and
equality of employment opportunities for all;
4. Guarantees
4.1. Unionism and Method of Determination
Conditions of Employment - Right of all
workers to self-organization, collective
bargaining and negotiations.
4.2. Concerted Activities - Right to engage in
peaceful concerted activities, including the
right to strike in accordance with law.
4.3. Working Conditions - Right to security of
tenure, humane conditions of work and a living
wage.
4.4. Decision Making Processes - Right to
participate hi policy and decision making
processes affecting their rights and benefits as
way to provided by law.
5. Share in Fruits of production - Recognition of
right of labor to its just share in fruits of
production.
ANOTHER SUGGESTED ANSWER:
o The Constitution (In Article XIII, Section 3)
provides that the State shall afford protection
to labor, local and overseas, organized and
unorganized.
o The State shall afford protection to labor by
promoting full employment and equality of
employment opportunities for all.
o Workers are entitled to security of tenure,
humane conditions of work and a living wage.
o The State shall guarantee the right of all
workers to self organization, collective
bargaining and negotiations, and peaceful
concerted activities, including the right to
strike, in accordance with law.
o Workers shall also participate in policy and
decision making processes affecting their
rights and benefits as may be provided by law.
o The State shall promote the principle of shared
responsibility between workers and employers
and the preferential use of voluntary modes in
settling labor disputes, including conciliation,
and shall enforce mutual compliance therewith
to foster industrial peace.
o The State shall regulate the relations between
workers and employers, recognizing the right
of labor to its just share in the fruits of
production and the right of enterprises to
reasonable returns on investments, and to
expansion and growth.
Interpretation of Labor Laws (1998)
3. Article 4 of the Labor Code provides that in case
of doubt in the implementation and interpretation of
the provisions of the Code and its Implementing
Rules and Regulations, the doubt shall be resolved
in favor of labor. Article 1702 of the Civil Code also
provides that in case of doubt, all labor legislation
and all labor contracts shall be construed in favor
of the safety and decent living for the laborer.
Mica-Mara company assails the validity of these
statutes on the ground that they violate its
constitutional right to equal protection of the laws.
Is the contention of Mica Mara Company tenable?
Discuss fully
SUGGESTED ANSWER:
No, the Constitution provides that the state shall
afford full protection to labor. Furthermore, the
State affirms labor as a primary economic force. It
shall protect the rights of workers and promote
their welfare.
ALTERNATIVE ANSWER:
a) No, because a law which promotes a
constitutional mandate does not violate the equal
protection clause. The constitutional mandate is
for the State to afford full protection to labor such
that, when conflicting interests of labor and capital
are to be weighed on the scales of justice, the
heavier influence of the latter should be counter-
balanced by the sympathy the law should accord
the underprivileged.
b) The contention of Mica-Mara Company is not
tenable. The constitutional right to equal protection
of the laws is not violated by reasonable
classification. Thus, it is constitutionally possible to
treat workers differently from employers.
The social justice principle embodied in the
Constitution could be the basis for treating workers
more favorably than employers, in the
implementation and interpretation of the provisions
of the Labor Code and of its implementing rules
and regulations.
Interpretation of Labor Laws; Liberal
Approach (2006)
What is the concept of liberal approach in
interpreting the Labor Code and its Implementing
Rules and Regulations in favor of labor? (2.5%)
SUGGESTED ANSWER:
The workers' welfare should be the paramount
consideration in interpreting the Labor Code and
its Implementing Rules and Regulations. This is
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rooted in the Constitutional mandate to afford full
protection to labor. Article 4 of the Labor Code
provides that "all doubts in the implementation and
interpretation of the provisions of the Labor Code
including its implementing rules and regulations
shall be resolved in favor of labor" (PLOT v. NLRC,
G.R No. 111933, July 23,1997). It underscores the
policy of social justice to accommodate the
interests of the working class on the humane
justification that those who have less in life shall
have more in law (PAL v. Santos, G.R. No. 77875,
February 4, 1993).
Labor Legislations; Purpose (2006)
What is the purpose of labor legislation? (2.5%)
SUGGESTED ANSWER:
Labor legislation is an exercise of police power.
The purpose of labor legislation is to regulate the
relations between employers and employees
respecting the terms and conditions of
employment, either by providing for certain
standards or for a legal framework within which
better terms and conditions of work could be
negotiated through collective bargaining. It is
intended to correct the injustices inherent in
employer-employee relationship.
Labor Standard vs. Labor Relation (1997)
Differentiate labor standards law from labor
relations law. Are the two mutually exclusive?
SUGGESTED ANSWER:
LABOR STANDARDS law is that labor law which
prescribes terms and conditions of employment
like Book in Book IV, Title I and Book VI of the
Labor Code. These Books of the Labor Code deal
with working conditions, wages, working conditions
for women, minors, househelpers and home-
workers, medical and dental services, occupational
health and safety, termination and retirement.
On the other hand, LABOR RELATIONS law is that
labor law which regulates the relations between
employers and workers like Book V of the Labor
Code which deals with labor organizations,
collective bargaining, unfair labor practices and
strikes and lockouts.
Labor standards laws and labor relations laws are
not mutually exclusive; they are complement to
each other. Thus, the law on strikes and lockouts
which is an example of labor relations law includes
some provisions on the security of tenure of
workers who go on strike or who are locked out.
These provisions are examples of labor standards
law.
Labor Standard vs. Labor Relation (2003)
How do the provisions of the law on labor relations
interrelate, if at all, with the provisions pertaining to
labor standards? 5%
SUGGESTED ANSWER:
LABOR RELATIONS law focuses its provisions on
the collective aspects of employer-employee
relationship. Its legal provisions deal with
employees organizing unions and how through
these unions, employees are able to have
collective bargaining with their employer.
On the other hand, LABOR STANDARDS law
focuses on the terms and conditions of
employment of employees as individual employees
or those legal provisions dealing with wages, hours
of work and other terms and conditions of
employment.
There may be instances when the provisions of
labor relations law may interrelate with provisions
of labor standards law. Thus, a CBA which is dealt
with in labor relations law may have provisions that
improves upon the minimum terms and conditions
of employment prescribed in labor standards law,
like a CBA providing for a higher minimum wage,
or for the computation of a higher overtime pay or
the payment of holiday pay not only for regular
holidays but also for certain special holidays.
Labor Statutes; Classification (1995 No. 1:)
1. What are the three (3) general classifications of
labor statutes? Describe and give an example of
each classification.
SUGGESTED ANSWER:
The three (3) general classifications of labor
statutes are:
a) Labor Relations Laws;
b) Labor Standards Laws; and
c) Social Security Laws.
LABOR RELATIONS Laws are those labor statutes
that deal with the relations of labor and
management, like the laws on unions, collective
bargaining, unfair labor practices, strikes, lockouts
and picketing.
LABOR STANDARDS are those labor statutes that
prescribe standards relating to terms and
conditions of employment for compliance by
employers, like the laws on hours of work, weekly
rest periods, holiday pay, wages, and laws dealing
with women, minors, house-helpers, and industrial
home-workers.
SOCIAL SECURITY Laws are those labor statutes
that provide protection not only to a worker but also
to members of his family in case of loss of income
or when there is need for medical care brought
about by contingencies like sickness, disability,
death, and old age. Examples of social security
laws are the Social Security Law, Revised
Government Service Insurance Act, the Articles of
the Labor Code on Employees Compensation, the
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State Insurance Fund, and the National Health
Insurance Act.
Labor Statutes; Principle of Solutio Indebiti;
Not Applicable (1994)
Concepcion Textile Co. included the overtime pay,
night-shift differential pay, and the like in the
computation of its employees' 13th-month pay.
Subsequently, with the promulgation of the
decision of the Supreme Court in the case of San
Miguel Corporation vs. Inciong (103 SCRA 139)
holding that these other monetary claims should
not be included in the computation of the 13th-
month pay, Concepcion Textile Co. sought to
recover under the principle of solutio indebiti its
overpayment of its employees' 13th-month pay, by
debiting against future 13th-month payments
whatever excess amounts it had previously made.
1) Is the Company's action tenable?
SUGGESTED ANSWER:
1) The Company's action is not tenable. The
principle of salutio indebiti which is a civil law
concept is not applicable in labor law. Thus, solutio
indebiti is not applicable to the instant case,
(Davao Fruits Corporations vs. National Labor
Relations Commission, et at. 225 SCRA 562)
ALTERNATIVE ANSWERS:
a) The Company's action would be tenable if
payment was done by mistake, In which case
recovery can be done under the principle of solutio
indebiti. But if there was no mistake, the
Company's action would be untenable because it
would violate Article 100 of the Labor Code which
prohibits elimination or diminution of benefits.
Labor vs. Social Legislation
2. Is there any distinction between labor legislation
and social legislation? Explain.
SUGGESTED ANSWER:
LABOR LEGISLATION is sometimes distinguished
from social legislation by the former referring to
labor statutes, like Labor Relations Law and Labor
Standards, and the latter to Social Security Laws.
Labor legislation focuses on the rights of the
worker in the workplace.
SOCIAL LEGISLATION is a broad term and may
include not only laws that give social security
protection, but also those that help the worker
secure housing and basic necessities. The
Comprehensive Agrarian Reform law could also be
considered a social legislation.
ALTERNATIVE ANSWER:
Yes. Labor Legislation is limited in scope, and
deals basically with the rights and duties of
employees and employers. Social Legislation is
more encompassing and includes such subjects as
agrarian relations, housing and human settlement,
protection of women and children, etc. All labor
laws are social legislation, but not all social
legislation is labor law.
Labor; as Property Right (2006)
What property right is conferred upon an employee
once there is an employer-employee relationship?
Discuss briefly. (5%)
SUGGESTED ANSWER:
His employment is not merely a contractual
relationship. One's employment is a property right
within the mantle of constitutional protection
(Callanta v. Carnation Phil., No. L-70615, October
28, 1986). Hence, the employee enjoys security of
tenure and he cannot be dismissed except for
cause and only after due process. The worker is
thus protected and insulated against any arbitrary
deprivation of his job (Philips Semi Conductors
[Phils.] v. Fadriquela, G.R. No. 141717, April 14,
2004).
Rights of Employer/Employee (1996)
2) What are the rights of an employer and an
employee?
SUGGESTED ANSWER:
The Constitution in Art. XIII, Section 3 provides for
the following rights of employers and employees:
A. Employers Right to a reasonable return on
investments, and to expansion and growth.
1. To a just share in the fruits of production;
2. Right to self organization, collective bargaining
and negotiations and peaceful concerted
activities, including the right to strike in
accordance with law;
3. To security of tenure, humane conditions of
work, and a living wage; and
4. To participate in policy and decision-making
processes affecting their rights and benefits as
may be provided by law,
ALTERNATIVE ANSWER:
In an employer-employee relationship, it is the right
of the employer to use the services of an employee
who is under his (employer's) orders as regards
the employment. On the other hand, it is the right
of the employee to receive compensation for the
services he renders for the employer.
Rights of the Employer; Management
Prerogative (2000)
a) An exclusive school for girls, run by a religious
order, has a policy of not employing unwed
mothers, women with live-in partners, and
lesbians. Is the policy violative of any provision of
the Labor Code on employment of women? (3%)
b) The same school dismissed two female faculty
members on account of pregnancy out of wedlock.
Did the school violate any provision of the Labor
Code on employment of women? (3%)
SUGGESTED ANSWER:
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a) No, the policy does not violate the Labor
Code. The practice is a valid exercise of
management function. Considering the nature and
reason for existence of the school, it may adopt
such policy as will advance its laudable objectives.
In fact, the policy accords with the constitutional
precept of inculcating ethical and moral values in
schools. The school policy does not discriminate
against women solely on account of sex (Art. 135,
Labor Code) nor are the acts prohibited under Art.
137 of the Labor Code.
ALTERNATIVE ANSWER:
The school violated Art. 137 (2) of the Labor Code
which states that: "It shall be unlawful for any
employer to discharge such woman on account of
pregnancy". The pregnancy here could obviously
have resulted from love and such only lends
substance to the saying that "the heart has
reasons of its own which reason does not know", a
matter that cannot "be so casually equated with
immorality". [Chua-Qua v. Clave, 189 SCRA 117
(1990)].
SUGGESTED ANSWER:
b) No, because to tolerate pregnancy out of
wedlock will be a blatant contradiction of the
school's laudable mission which, as already stated,
accords with high constitutional precepts.
This answer does not contradict the ruling in Chua-
Qua where the teacher merely fell in love with a
bachelor student and the teacher, also single, did
not get pregnant out of wedlock.
Rights of the Employer; Management
Prerogative; Benefits; Unilaterally Given
(2005)
Little Hands Garment Company, an unorganized
manufacturer of children's apparel with around
1,000 workers, suffered losses for the first time in
history when its US and European customers
shifted their huge orders to China and Bangladesh.
The management informed its employees that it
could no longer afford to provide transportation
shuttle services. Consequently, it announced that a
normal fare would be charged depending on the
distance traveled by the workers availing of the
service.
Was the Little Hands Garments Company within its
rights to withdraw this benefit which it had
unilaterally been providing to its employees?
Select the best answer(s) and briefly explain your
reason(s) therefor.
(a) Yes, because it can withdraw a benefit that
is unilaterally given;
(b) Yes, because it is suffering losses for the
first time;
(c) Yes, because this is a management
prerogative which is not due any legal or
contractual obligation;
(d) No, because this amounts to a diminution of
benefits which is prohibited by the Labor
Code;
(e) No, because it is a fringe benefit that has
already ripened into a demandable right or
entitlement. (10%)
ALTERNATIVE ANSWER:
(b) Yes, because it is suffering losses for the first
time;
(c) Yes, because this is a management
prerogative which is not due any legal or
contractual obligation;
An employer cannot be forced to continue giving a
benefit, being given as a management prerogative,
when it can no longer afford to pay for it. To hold
otherwise, would be to penalize the employer for
his past generosity. (Producer's Bank of the
Philippines v. NLRC, G.R. No. 100701, March 28,
2001)
ALTERNATIVE ANSWER:
(d) No, because this amounts to a diminution of
benefits which is prohibited by the Labor Code;
(e) No, because it is a fringe benefit that has
already ripened into a demandable right or
entitlement.
A company practice favorable to employees had
indeed been established and the payments made
pursuant thereto, ripened into benefits enjoyed by
them. And any benefit and supplement being
enjoyed by the employees cannot be reduced,
diminished, discontinued or eliminated by the
employer by virtue of Article 100 of the Labor Code
of the Philippines which prohibits the diminution or
elimination of the employer of the employees'
existing benefits. (Sevilla Trading Co. v. Semana,
G.R. No. 152456, April 28, 2004)
ALTERNATIVE ANSWER:
(b) Yes, because it is suffering losses for the first
time;
(d) No, because this amounts to a diminution of
benefits which is prohibited by the Labor Code.
You cannot compel an employer to continue
paying the benefits if it is suffering from serious
business losses. However, the benefit has already
ripened into an employer practice or policy, and
therefore it cannot be withdrawn without violating
Article 100 of the Labor Code on non-diminution of
benefits.
Rights of the Employer; Management
Prerogative; Contracting Out Services (1994)
Harbor View Hotel has an existing Collective
Bargaining Agreement (CBA) with the union of
rank-and-file employees consisting, among others,
of bartenders, waiters, roomboys, housemen and
stewards. During the lifetime of the CBA, Harbor
View Hotel, for reasons of economy and efficiency,
decided to abolish the position of housemen and
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stewards who do the cleaning of the hotel's public
areas. Over the protest of the Union, the Hotel
contracted out the aforementioned job to the City
Service Janitorial Company, a bonafide
independent contractor which has a substantial
capital in the form of Janitorial tools, equipment,
machineries and competent manpower.
Is the action of the Harbor View Hotel legal and
valid?
SUGGESTED ANSWER:
The action of Harbor View Hotel is legal and valid.
The valid exercise of management prerogative,
discretion and judgment encompasses all aspects
of employment, including the hiring, work
assignments, working methods, time, place and
manner of work, tools to be used, processes to be
followed, supervision of workers, working
regulations, transfer of employees, work
supervision, lay-off of workers, and the discipline,
dismissal and recall of workers, except as provided
for, or limited by special laws.
Company policies and regulations are, unless
shown to be gross oppressive or contrary to law,
generally binding and valid on the parties and must
be complied with until finally revised or amended
unilaterally or preferably through negotiation or by
competent authority. (San Miguel Corporation vs.
Reynaldo R. Ubaldo and Emmanuel Noel A. Cruz,
Chairman and Member respectively of the
Voluntary Arbitration Panel, et al G.R No. 92859, 1
February 1993. J. Campos, Jr., 218 SCRA 293)
ALTERNATIVE ANSWER:
a) The action of the Harbor View Hotel is legal and
valid. CONTRACTING OUT SERVICES or
functions being performed by union members is
not illegal per se. In fact, it is the prerogative of
management to adopt cost-saving measures to
ensure economy and efficiency. Contracting out
services or functions being performed by Union
members becomes illegal only when it interferes
with, restrains or coerces employees in the
exercise of their right to self-organization.
b) The action of Harbor View Hotel would, at first
glance, appear to be an unfair labor practice under
Article 248(c), e.g.. "to contract out services or
functions being performed by union members if
such will interfere with, restrain or coerce
employees in the exercise of their right to self-
organization."
Considering, however, that in the case at bar, there
is no showing that the contracting out of services
would violate the employees right to self-
organization, it is submitted that the hotel's action
is a valid exercise of its management prerogatives
and the right to make business judgments in
accordance with law.
Rights of the Employer; Management
prerogatives (1994)
Bulacan Medical Hospital (BMH) entered into a
Collective Bargaining Agreement (CBA) with its
Union, wherein it is expressly stipulated in the
Management Prerogative Clause that BMH shall,
in the exercise of its management prerogatives,
have the sole and exclusive right to promulgate,
amend and modify rules and regulations for the
employees within the bargaining unit. A year after
the contract was signed, BMH issued its Revised
Rules and Regulations and furnished a copy
thereof to the Union for dissemination to all
employees covered by the CBA. The Union wrote
BMH demanding that the Revised Rules and
Regulations be first discussed with them before its
implementation. BMH refused. So, the Union filed
an action for unfair labor practice (ULP) against
BMH.
1. Is the Union correct?
2. Assuming that the CBA was signed "or
executed before the 1987 Constitution was
ratified, would your answer to the preceding
question be different?
SUGGESTED ANSWER:
1) The Union is correct. A provision in the
collective bargaining agreement concerning
management prerogatives, may not be interpreted
as cession of the employees right to participate in
the deliberation of matters which may affect their
right and the formulation of policies relative thereto,
such as the formulation of a code of discipline.
A line must be drawn between management
prerogatives regarding business operations per se
and those which affect the rights of the employees,
and in treating the latter, management should see
to it that its employees are at least properly
informed of its decisions or modes of action.
The attainment of a harmonious labor-
management relationship and the existing state
policy of enlightening workers concerning their
rights as employees demand no less than the
observance of transparency in managerial moves
affecting employees' rights. [Philippine Airlines,
Inc. vs. National Labor Relations Commission, et
al, G.R No. 85985, 13 August 1993. J. Melo. 225
SCRA 258, 301.)
ALTERNATIVE ANSWER:
a) The Union is correct. Workers have the right to
participate in policy and decision-making
processes affecting their rights, benefits and
welfare. (Art. 255J.
b) Yes. The Union is correct in asking for
discussion of the revised rules prior to their
effectivity. The reason is Art. XIII, Sec. 3 of the
1987 Constitution, allowing workers the right to
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participate in policy and decision-making on
matters related to their welfare and benefits.
The Union's remedy however should not be to file
a ULP case but to initiate a GRIEVANCE
proceeding, and if unresolved, submit the matter to
voluntary arbitration.
SUGGESTED ANSWER:
2) The answer would be the same even if the CBA
was signed or executed before the ratification of
the 1987 Constitution because it has always been
the policy of the State to promote the
enlightenment of workers concerning their rights
and obligations as employees. (Art. 211; PAL vs.
NLRC, GR 85985, August 13, 1993)
Rule; Injunction in Labor Cases (2000)
Professor Juan dela Cruz, an author of the
textbook Commentaries on the Labor Code of the
Philippines, citing an American case, wrote: It is
said that the prohibition against the issuance of a
writ of Injunction in labor cases creates substantive
and not purely procedural law." Is there any
statutory basis for the statement/comment under
Philippine law? (5%)
SUGGESTED ANSWER:
Yes. The statutory basis is Article 254 of the Labor
Code. It prohibits issuance of injunction, as a
matter of policy, to resolve disputes except as
otherwise provided in Articles 218 and 264 of the
Labor Code. [Caltex Filipino Managers and
Supervisors Association v. CZR, 44 SCRA 350
(1972)]
Social Justice as Guiding Principles in Labor
(2003)
May social justice as a guiding principle in labor
law be so used by the courts in sympathy with the
working man if it collides with the equal protection
clause of the Constitution? Explain. 5%
SUGGESTED ANSWER:
Yes. The State is bound under the Constitution to
afford full protection to Labor; and when conflicting
interests collide and they are to be weighed on the
scales of social justice, the law should accord more
sympathy and compassion to the less privileged
workingman. (Fuentes v. NLRC. 266 SCRA 24 f
19971) However, it should be borne in mind that
social justice ceases to be an effective instrument
for the "equalization of the social and economic
forces" by the State when it is used to shield
wrongdoing. (Corazon Jamer v. NLRC. 278 SCRA
632 F1 99711
ANOTHER SUGGESTED ANSWER:
No, social justice as a guiding principle in law may
not be used by the courts if it collides with the
equal protection clause of the Constitution. Social
justice is not a magic wand applicable in all
circumstances. Not all labor cases will be
automatically decided in favor of the worker.
Management has also rights which are entitled to
recognition and protection; justice must be
dispensed according to facts and law; and social
justice is not designed to destroy or oppress the
employer.
ANOTHER SUGGESTED ANSWER:
Social justice as a guiding principle in Labor Law
can be implemented side by side with the equal
protection clause of the Constitution.
In implementation of the principle of social justice,
the Constitution commands that the State shall
afford protection to labor. Thus Labor Law may be
pro-labor in the sense that labor is given certain
benefits not given to management. But this is not
necessarily violative of the equal protection clause
of the Constitution because said clause allows
reasonable classification.
JURISDICTION
CBA; Implementation & Interpretation (1995)
How are cases arising from the Interpretation or
implementation of collective bargaining
agreements handled and disposed?
SUGGESTED ANSWER:
Through the grievance machinery and if not
resolved by the grievance machinery, through
voluntary arbitration.
Damages; Absence of E-E Relationship
(1995)
Pablo Bagsakin. a law graduate who got tired of
taking the bar examinations after several
unsuccessful attempts, joined the Investigation
Division of Warak Transport Company. From the
very beginning Pablo never liked his manager
because the latter always made fun of the former's
accident reports. When Pablo's patience ran out he
walked up to his manager who was reviewing the
investigator's assignments and workload and
boxed him until the latter collapsed. The incident
happened during office hours at the Investigation
Division in the presence of his co-employees.
Pablo was dismissed without any investigation and
was no longer allowed to enter the company
premises.
The manager filed a complaint for damages
against Pablo before the Pasig Regional Trial
Court (RTC). In turn, Pablo filed a case for illegal
dismissal with the Labor Arbiter against the
manager and the transport company. Pablo asked
for reinstatement without loss of seniority rights
with full back wages. Pablo also filed before the
Pasig RTC a motion to dismiss the damage suit
against him alleging that the Labor Arbiter before
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whom the case for illegal dismissal was pending
had exclusive jurisdiction over both cases.
Resolve the motion to dismiss. Discuss fully.
SUGGESTED ANSWER:
The motion to dismiss filed by Pablo before the
Pasig RTC should be denied.
The damage suit filed by the manager against
Pablo does not arise from employer-employee
relationship. While the case involves an employer
and his employee. It is not the employer- employee
relationship between the two that gives rise to the
damage suit. Instead, it is based solely on an
alleged tort which could give rise to a damage suit
under the Civil Code. Thus, the Labor Arbiter has
no jurisdiction over the damage suit.
Damages; Not arising from the E-E Relations
(1999)
FACTS: Mariet Demetrio was a clerk-typist in the
Office of the President of a multi-national
corporation. One day she was berated by the
President of the company, the latter shouting
invectives at her in the presence of employees and
visitors for a minor infraction she committed. Mariet
was reduced to tears out of shame and felt so
bitter about the incident that she filed a civil case
for damages against the company president before
the regular courts. Soon thereafter, Mariet received
a memorandum transferring her to the Office of the
General Manager without demotion in rank or
diminution in pay. Mariet refused to transfer.
With respect to the civil suit for damages, the
company lawyer filed a Motion to Dismiss for lack
of jurisdiction considering the existence of an
employer-employee relationship and therefore, it is
claimed that the case should have been filed
before the Labor Arbiter.
2. Rule on the Motion to Dismiss. Should it be
granted or denied? Explain briefly (3%).
SUGGESTED ANSWER:
The Motion to Dismiss should be denied. It is a
regular court and not a Labor Arbiter that has
jurisdiction on the suit for damages.
The damages are not arising from the employer-
employee relations which would have placed the
suit under the jurisdiction of a Labor Arbiter. The
suit arises from the fact that the President of the
company shouted invectives at Marlet Demetrio in
the presence of employees and visitors. Her
complaint for damages is against an officer of the
Company based on slanderous language allegedly
made by the latter. This falls under the Jurisdiction
of the ordinary courts. There is here a simple
action for damages for tortious acts allegedly
committed by the defendant. Such being the case,
the governing statute is the Civil Code and not the
Labor Code. (Medina v. Castro-Bartolome, 116
SCRA 597)
ALTERNATIVE ANSWER:
The Motion to dismiss should be granted.
According to the Labor Code (in Article 217 (a) 4),
the Labor Arbiter has original and exclusive
jurisdiction to hear and decide, among others,
claims for actual, moral, exemplary and other
forms of damages arising from the employer-
employee relations.
The claim for damages in the case in question
arose from the fact that the President of the
Company shouted invectives at Marlet Demetrio in
the presence of employees and visitors for a minor
infraction she committed. If the infraction has
something to do with her work, then, the claim for
damages could be considered as arising from
employer-employee relations. Thus, the claim is
under the exclusive jurisdiction of the Labor
Arbiter.
Dismissal; Int’l Agency (1994)
In 1990, Vic Garcia was hired by the International
Labor Organization (ILO) Office in Manila as a
bookkeeper for five years. On January 5. 1994, he
was advised that his services were being
terminated for loss of confidence. Garcia
questioned his dismissal by ILO-Manila as arbitrary
and without benefit of due process.
1) If you were counsel for ILO, what defense/s
should you put up?
2) If you were the Labor Arbiter, how would you
decide the case?
SUGGESTED ANSWER:
1) The defense that I will put up will be to claim
that being an international agency, the ILO enjoys
immunity, namely functional independence and
freedom from control of the state in whose territory
its office is located and is thus beyond the
jurisdiction of the Labor Arbiter. (Southeast Asian
Fisheries Development Center - Aqua Culture
Department, et al vs. National Labor Relations
Commission, et al G.R No, 86773, 14 February
1992)
2) If I were the Labor Arbiter. I will grant the
motion to dismiss. The ILO being an International
agency, the same is beyond the jurisdiction of the
Labor Arbiter and immune from the legal writs and
processes of the administrative agencies of the
country, where it is found, for the reason that the
subjection of such an organization to the authority
of the local agencies would afford a convenient
medium through which the host government may
interfere in its operations or even influence or
control its policies and decisions, and besides,
such subjection to local jurisdiction would Impair
the capacity of such body to impartially discharge
its responsibilities.
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Intra-corporate Matters/Officers (1996)
Diego, Executive Vice-President of Evergreen
Development Corporation (EDC) was dismissed by
the Board of Directors for his involvement in
irregularities prejudicial to EDC's interests. He filed
a complaint for illegal dismissal with the Labor
Arbiter, praying for reinstatement with back-wages,
P5 million pesos as moral damages, P1 million
pesos as exemplary damages and attorney's fees.
EDC questioned the Jurisdiction of the Labor
Arbiter. Diego, in turn contended that the Labor
Arbiter has jurisdiction over the case as it involves
the termination of an employee and claims for
backwages, benefits and damages. Decide.
SUGGESTED ANSWER:
The dismissal of an Executive Vice-president of a
Corporation, who is a corporate officer, by the
Board of Directors of the corporation is not a
termination dispute under the Jurisdiction of a
Labor Arbiter. It is an intra-corporate dispute that is
under the jurisdiction of the Securities and
Exchange Commission.
Intra-corporate Matters/Officers (1997)
Mr. Jonathan Pe, a registered stockholder of New
Wave Beauty Shop, Inc. was elected Vice-
President of New Wage at a regular monthly
meeting. At a subsequent meeting of the Board of
Directors, it was resolved to dismiss Jonathan as
Vice-president due to loss of trust and confidence.
Jonathan Pe filed with the National Labor
Relations Commission a complaint for illegal
dismissal with damages against New Wage
claiming that he was dismissed without due
process. New Wage filed a Motion to Dismiss
based on lack of jurisdiction.
Resolve the motion.
SUGGESTED ANSWER:
The Motion to Dismiss should be granted. The
election of Jonathan Pe as Vice President of New
Wave Beauty Shop, Inc, made him a corporate
officer.
His subsequent dismissal as such corporate officer
is considered an intra-corporate matter. Thus, the
dismissal of Pe is not a case of a termination
dispute which is under the Jurisdiction of a
Regional Branch of the NLRC. Instead, it is under
the Jurisdiction of the Securities and Exchange
Commission, it having jurisdiction over intra-
corporate matters.
Labor Arbiter (1995)
1. Give the original and exclusive jurisdiction of
Labor Arbiters.
SUGGESTED ANSWER:
Labor Arbiters have original and exclusive
jurisdiction over:
1. unfair labor practices;
2. termination disputes;
3. cases accompanied with a claim for
reinstatement, and involving wages, rates of
pay, hours of work, and other terms and
conditions of employment;
4. claims for actual, moral, exemplary and other
forms of damages arising from
employer-employee relations:
5. cases arising from any violation of Article 264
of the Labor Code, including questions
involving the legality of strikes and lockout; and
6. except claims of Employees Compensation,
Social Security. Medicare and maternity
benefits, all other claims arising from
employer-employee relations including those
persons in domestic or household service,
Involving an amount exceeding five thousand
pesos (P5,000 00) regardless of whether
accompanied with a claim for reinstatement.
Labor Arbiter; Appeals (2001)
The affected members of the rank and file elevated
a labor arbiter's decision to the NLRC via a petition
for review filed after the lapse of the ten-day
reglementary period for perfecting an appeal.
Should the NLRC dismiss the petition outright or
may the NLRC take cognizance thereof? (5%).
SUGGESTED ANSWER:
The NLRC should dismiss the appeal outright
because the same was filed beyond the
reglementary period of appeal. Article 223 of the
Labor Code reads:
"Decisions, awards, or orders of the Labor
Arbiter are final and executory unless
appealed to the Commission by any or
both parties within ten (10) calendar days
from, receipt of such decisions, awards, or
orders."
ANOTHER SUGGESTED ANSWER:
The NLRC could dismiss outright the appeal for
being filed out of time. But if there are good
reasons that may justifiably explain why there was
a delay in the filing of the appeal, substantial
justice may be the basis for the NLRC to take
cognizance of the appeal.
Labor Dispute ( 2001)
"A" was able to obtain a Judgment against his
former employer, Company "B", for P750,000.00.
In executing the judgment in favor of A, the Labor
Arbiter sought to levy on B's office equipment. B
filed an action for damages and injunction against
the Labor Arbiter before the Regional Trial Court of
the province where B's offices are located. Is B's
action tenable? Why? (5%).
SUGGESTED ANSWER:
B's action is not tenable. In the case of Delta
Ventures Resources vs. Hon. Fernando P. Labato,
G.R. No. 118216, March 9, 2000, the Supreme
Court ruled that the regular courts have no
jurisdiction to act on labor cases or various
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incidents arising therefrom, including the execution
of decisions, awards or orders.
ANOTHER SUGGESTED ANSWER:
Yes, B's action before the Regional Trial Court is
tenable if said action is limited to the filing of a
damage suit against the Labor Arbiter because
there exists no employer-employee relationship
between "B" and the Labor Arbiter, and there is no
labor dispute between them. In Agricultural
Development Corporation vs. Court of Appeals,
G.R. No. 112139. January 31, 2000, the Supreme
Court, ruled:
"It is well settled in law and jurisprudence
that where NO employer-employee
relationship exists between the parties and
no issue is involved which may be
resolved by reference to the Labor Code,
other labor statutes or any collective
bargaining agreement, it is the Regional
Trial Court that has jurisdiction."
Med-arbiter (1996)
The national council of X Union, the exclusive
bargaining representative of all daily paid workers
of Z Corp., called a general meeting and passed a
resolution which provides that each union member
was to be assessed P 1,000 to be deducted from
the lump sum of P10,000.00 which each employee
was to receive under the CBA. Sergio, a Union
member, protested and refused to sign the
authorization slip for the deduction. X Union then
passed a resolution expelling Sergio from the
union. Sergio filed a complaint before the Labor
Arbiter for illegal deduction and expulsion from the
union. Will the complaint prosper? Explain.
SUGGESTED ANSWER:
The complaint will not prosper before the Labor
Arbiter because there is here an intra-union conflict
which is under the Jurisdiction of the Med-Arbiter.
(See Art, 226 and Rule V of Book V of the Rules
and Regulations Implementing the Labor Code).
Money Claims; Reinstatement (1996)
Sara has been working as housemaid for the
Bojilov spouses for three (3) years. In the early
morning of July 28, the spouses and Sara were
watching the live coverage of the finals of an
Olympic boxing match between a Bulgarian and a
Filipino which the foreign fighter won on points.
Peeved by Sara's angry remarks that the scoring
was unfair, the Bojilov spouses fired her on the
spot.
Sara thereafter filed a complaint with the Regional
Director of the DOLE for unpaid salaries totalling
P5,500.00. The Bojilov spouses moved to dismiss
the complaint on the belief that Sara's claim falls
within the Jurisdiction of the Labor Arbiter. Sara,
however, claimed that the Regional Director can
decide on her claim by virtue of his plenary
visitorial powers under Art. 128 and of Art. 129 of
the Labor Code, as amended, which empowers the
Regional Director to hear and decide, among
others, matters involving recovery of wages.
1. Whose position will you sustain? Explain.
2. Will your answer be the same if Sara's claim is
P4,500.00 with reinstatement? Explain.
SUGGESTED ANSWER:
1) I will sustain the position of the Bojilov spouses.
Art. 128 is not applicable because the case did not
arise as a result of the exercise of visitorial and
enforcement powers by the Regional Director, as
the duly authorized representative of the Secretary
of Labor and Employment. Instead, the case is a
simple money claim under Art. 129, which could be
under the jurisdiction of the Regional Director if the
claim does not exceed P5,000.
But the claim exceeds P5,000.00. Thus, it is the
Labor Arbiter who has jurisdiction under Art. 217(a)
of the Labor Code.
2) I will still hold that it is the Labor Arbiter that has
jurisdiction. It is true that the money claim no
longer exceeds P5,000. But there is a claim for
reinstatement. Thus, this claim is under the
jurisdiction of a Labor Arbiter, per Art. 129 of the
Labor Code.
Nat’l Labor Relations Commission (1995)
3. What is the jurisdiction of the National Labor
Relations Commission?
SUGGESTED ANSWER:
Jurisdiction of the NLRC:
1. exclusive appellate jurisdiction over all cases
decided by Labor Arbiter;
2. exclusive appellate jurisdiction over all cases
decided by Regional Directors or hearing
officers involving the recovery of wages and
other monetary claims and benefits arising
from employer-employee relations where the
aggregate money claim of each employee or
househelper does not exceed five thousand
pesos (P5,000.00);
3. original Jurisdiction to act as a compulsory
arbitration body over labor disputes certified to
NLRC by the Secretary of Labor and
Employment; and
4. power to issue a labor injunction.
Nat’l Labor Relations Commission (2001)
Company "A" and Union "B" could not resolve their
negotiations for a new CBA. After conciliation
proceedings before the NCMB proved futile, B
went on strike. Violence during the strike prompted
A to file charges against striker-members of B for
their illegal acts. The Secretary of Labor assumed
Jurisdiction, referred the strike to the NLRC and
issued a return-to-work order. The NLRC directed
the parties to submit their respective position
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papers and documentary evidence. At the Initial
hearing before the NLRC, the parties agreed to
submit the case for resolution after the submission
of the position papers and evidence.
Subsequently, the NLRC issued an arbitral award
resolving the disputed provisions of the CBA and
ordered the dismissal of certain strikers for having
knowingly committed Illegal acts during the strike.
The dismissed employees elevated their dismissal
to the Court of Appeals claiming that they were
deprived of their right to due process and that the
affidavits submitted by A were self-serving and of
no probative value. Should the appeal prosper?
State the reason(s) for your answer clearly. (5%).
SUGGESTED ANSWER:
The appeal should not prosper. The Supreme
Court, in many cases, has ruled that decisions
made by the NLRC may be based on position
papers. In the question, it is stated that the parties
agreed to submit the case for resolution after the
submission of position papers and evidence. Given
this fact, the striker-members of B cannot now
complain that they were denied due process. They
are in estoppel. After voluntarily submitting a case
and encountering an adverse decision on the
merits, it is too late for the loser to question the
jurisdiction or power of the court. A party cannot
adopt a posture of double dealing. (Marquez vs.
Secretary of Labor, 16 March 1989).
ANOTHER SUGGESTED ANSWER:
No, the appeal will not prosper. In CMP Federal
Security Agency vs. NLRC, G.R. No. 125298,
February 11, 1999, the Supreme Court ruled:
"The standard of due process that must be met
in administrative tribunals allows a certain
degree of latitude as long as fairness is not
ignored. Hence, it is not legally objectionable for
being violative of due process, for the labor
arbiter to resolve a case based solely on the
position papers, affidavits or documentary
evidence submitted by the parties. The affidavits
of witnesses in such case may take the place of
direct testimony."
Nat’l Labor Relations Commission (2001)
Some disgruntled members of Bantay Labor,
Union filed with the Regional Office of the DOLE a
written complaint against their union officers for
mismanagement of union funds. The Regional
Director did not rule in the complainants' favor. Not
satisfied, the complainants elevated the Regional
Director's decision to the NLRC. The union officers
moved to dismiss on the ground of lack of
Jurisdiction. Are the union officers correct? Why?
(3%).
SUGGESTED ANSWER:
Yes, the union officers are correct in claiming that
the NLRC has no jurisdiction over the appealed
ruling of the Regional Director. In Barles vs.
Bitonio, G.R. No. 120220, June 16, 1999, the
Supreme Court ruled:
'Appellate authority over decisions of the
Regional Director involving examination of union
accounts is expressly conferred on the BLR
under the Rule of Procedure on Mediation-
Arbitration.
xxx
Section 4. Jurisdiction of the Bureau — (b) The
Bureau shall exercise appellate jurisdiction over
all cases originating from the Regional Director
involving .... Complaints for examination of
union books of accounts.
The language of the law is categorical. Any
additional explanation on the matter is superflous."
Nat’l Labor Relations Commissions (2001)
Company "A", within the reglementary period,
appealed the decision of a Labor Arbiter directing
the reinstatement of an employee and awarding
backwages. However, A's cash bond was filed
beyond the ten day period. Should the NLRC
entertain the appeal? Why? (5%).
SUGGESTED ANSWER:
No, the NLRC should not entertain the appeal, as
the same was not perfected for failure to file a
bond. Art. 223 of the Labor Code reads:
"In case of a judgment involving a monetary
award, an appeal by the employer may be
perfected only upon the posting of cash or
surety bond... In the amount equivalent to the
monetary award in the judgment appealed
from."
In ABA vs. NLRC, G.R. No. 122627. July 18, 1999,
the Supreme Court ruled:
"An appeal bond is necessary......the appeal
may be perfected only upon the posting of cash
or surety bond issued by a reputable bonding
company duly accredited by the Commission in
the amount equivalent to the monetary award in
the judgment appealed from."
ANOTHER SUGGESTED ANSWER:
The NLRC may still entertain the appeal.
It is true that the Labor Code (in Art. 223) provides
that appeal is perfected only upon the posting of a
cash or surety bond. But if Company A filed a
motion for the reduction of the bond, and said
motion was only acted upon after the reglementary
period, then, the NLRC, in the interest of
substantial justice, may still take cognizance of the
appeal.
Overseas Employment; Claim; Torts (2004)
A. Under a seaman’s contract of employment with
a local manning agent of a foreign shipping
company, Capt. TROY embarked on an ocean-
going vessel in good health. One stormy night at
sea, he was drenched with rainwater. The
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following morning, he contracted fever which lasted
for days. He suffered loose bowel movement, lost
his appetite, and eventually he died before a
scheduled airlift to the nearest port.
Subsequently, the widow of Capt. TROY
complained against the local manning agent and
its foreign principal before the Regional Arbitration
Branch of DOLE, for actual and exemplary
damages and attorney’s fees. She invoked the
Labor Code provision which requires the employer
to provide all necessary assistance to ensure the
adequate and necessary medical attendance and
treatment of the injured or sick employee in case of
emergency.
Respondents moved to dismiss the complaint on
the ground that the Labor Arbiter has no
jurisdiction over the complaint for damages arising
from illness and death of Capt. TROY abroad.
Resolve the motion with reasons. (5%)
SUGGESTED ANSWER:
In Tolosa v. NLRC, (G.R. 149578, April 10,2003),
the Supreme Court held that what we have in this
case is a claim arising from tort or quasi-delict. In
such a situation, the seaman who died on
November 18, 1992, cannot sue before the Labor
Arbiter. But this will not apply now, as under Sec.
10, R.A. 8042, [effective June 7, 1995], what we
have is a claim "arising out of an employer-
employee relationship or by virtue of any law or
contract involving Filipino workers for overseas
deployment including claims for actual, moral,
exemplary and other forms of damages",
cognizable by the "Labor Arbiters of the National
Labor Relations Commission" (NLRC) who have
the original and exclusive jurisdiction thereon.
Overseas Employment; Mandatory
Remittance; Foreign Exchange (2006)
Can an overseas worker refuse to remit his
earnings to his dependents and deposit the same
in the country where he works to gain more
interests? Explain. (5%)
SUGGESTED ANSWER:
NO. Art. 22 of the Labor Code provides that it shall
be mandatory for all Filipino workers abroad to
remit a portion of their foreign exchange earnings
to their families, dependents, and/or beneficiaries
in accordance with the rules and regulations
prescribed by the Secretary of Labor and
Employment. Executive Order No. 857 prescribes
the percentage of foreign exchange remittance
from 50% to 80% of the basic salary, depending on
the worker's kind of job.
Hence, an overseas worker cannot refuse to remit
his earnings. Otherwise, he shall be suspended or
excluded from the list of eligible workers for
overseas employment and in cases of subsequent
violations; he shall be repatriated at his own
expense or at the expense of his employer as the
case may be.
Recovery of Wages (1994)
Tina Aquino, a domestic helper in the household of
Fidel Aldeguer, filed an action In the Regional
Office of the Department of Labor and Employment
(DOLE) for recovery of unpaid wages amounting to
P3,500.00 and P1,499.00 as moral damages.
Aquino claimed that the amount of P3,500.00 is
equivalent to the P500.00 a month she failed to
receive for the last seven months of her
employment with Aldeguer, based on their agreed
P2,500,00 monthly salary. Aldeguer moved to
have Aquino's complaint dismissed, alleging that
as a domestic helper Ms. Aquino should have first
brought the matter to the Lupong Barangay.
If you were the Regional Director, how would you
resolve the matter?
SUGGESTED ANSWER:
As Regional Director, I will assume Jurisdiction.
The provisions of P.D. No. 1508 requiring the
submission of disputes before the Barangay
Lupong Tagapayapa prior to their filing with the
court or other government offices are not
applicable to labor cases.
Article 129 of the Labor Code empowers the
Regional Director to hear and decide any matter
involving the recovery of wages and other
monetary claims and benefits owing to an
employee or person employed in domestic or
household service, provided that the money claim
does not exceed P5.OOO.OO. (Montoya vs
.Escayo, G.R. Nos, 82211-12, March 21. 1989)
Remedies; illegal dismissal (1999)
The Labor Arbiter dismissed the complaint for
illegal dismissal filed by Genevieve Cruz against
Bulag Optical Inc. (BOI) which denied her prayer
for reinstatement but awarded financial assistance
in her favor. BOI appealed the decision of the
Labor Arbiter to the NLRC within the reglementary
period. Genevieve filed an opposition to the
appeal. The NLRC affirmed in toto the decision of
the Labor Arbiter. Both the BOI and Genevieve are
not satisfied with the decision of the NLRC,
1. What is the remedy, if any, of BOI and before
what forum? Explain briefly. (3%)
SUGGESTED ANSWER:
BOI can file a Motion for Reconsideration with the
NLRC after ten (10) calendar days from receipt of
the decision.
If the NLRC denies the Motion for Reconsideration,
BOI can file a petition for certiorari with the Court of
Appeals under Rule 65 of the Rules of Court since
the decision of the NLRC is final and executory.
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2. Can Genevieve Cruz avail herself of the same
remedy as that of BOI? Why? (2%)
SUGGESTED ANSWER:
Genevieve Cruz can avail herself of the same
remedy as that of the BOI. The remedies described
for the BOI are also the same remedies available
to Genevieve Cruz as a party to the case, pursuant
to the Labor Code (Article 223) and the Rules of
Court (Rule 65).
Panel: But the facts of the case indicates that
Genevieve did not appeal. She therefore cannot
avail of the remedy.
Secretary of Labor; Authority (1998)
An airline which flies both the international and
domestic routes requested the Secretary of Labor
and Employment to approve the policy that all
female flight attendants upon reaching age forty
(40) with at least fifteen (15) years of service shall
be compulsorily retired; however, flight attendants
who have reached age forty (40) but have not
worked for fifteen (15) years will be allowed to
continue working in order to qualify for retirement
benefits, but in no case will the extension exceed
four (4) years.
Does the Secretary of Labor and Employment
have the authority to approve the policy? [5%|
SUGGESTED ANSWER:
Yes, the Secretary of Labor and Employment has
the authority to approve a policy dealing with the
retirement of flight attendants of airlines.
Article 132 (d) of the Labor Code provides that the
Secretary of Labor and Employment shall establish
standards that will ensure the safety and health of
women employees, including the authority to
determine appropriate minimum age and other
standards for retirement or termination in special
occupations such as those of flight attendants and
the like.
CAVEAT:
It could be argued that Article 132 (d) may be
unconstitutional because this may constitute
discrimination in violation of the spirit of
Section 14 of Article XIII of the Constitution
which provides that the State shall protect
working women by providing safe and healthful
working conditions, taking into account their
maternal functions, and such facilities and
opportunities that will enhance their welfare and
enable them to realize their full potential in the
service of the nation.
Secretary of Labor; Dismissal of Employees
(1998)
The Secretary of Labor and Employment, after
receipt of a Notice to Terminate Employment of
one hundred (100) workers, enjoined the employer
from implementing their termination. Has the
Secretary of Labor and Employment the authority
to enjoin the employer from terminating the
employment of the workers? If so, on what
grounds? [5%1
SUGGESTED ANSWER:
The Secretary of Labor and Employment has the
authority to enjoin an employer from terminating
the employment of workers.
The Labor Code (in Article 377(b) provides that the
Secretary of Labor and Employment may suspend
the effectivity of the termination of workers pending
the resolution of a labor dispute in the event of a
prima facie finding of an appropriate official of the
Department of Labor and Employment before
whom such dispute is pending that the termination
may cause a serious labor dispute or is in
implementation of a mass lay off.
Voluntary Arbitrator (1997)
State the cases when a labor dispute would fall
under the Jurisdiction of voluntary arbitrators or
panel of voluntary arbitrators.
SUGGESTED ANSWER:
A labor dispute falls under the jurisdiction of a
voluntary arbitrator or a panel of voluntary
arbitrator if a labor disputes arises from an
unresolved grievance which in turn arises from the
interpretation or implementation of a Collective
Bargaining Agreement or of company personnel
policies. [Art. 261)
Upon agreement of parties, a voluntary arbitrator
or panel of voluntary arbitrators may also hear and
decide all other labor disputes including unfair
labor practices and bargaining deadlock. (Art. 262)
Voluntary Arbitrator (2003)
The employer company, in a directive to the union
president, ordered the transfer of some of its
employees, including a number of union officials, to
its plant offices. The order was opposed by the
union. Ultimately, the union filed an unfair labor
practice against the company alleging that the
purported transfer of its union officials was unjust
and in violation of the Collective Bargaining
Agreement (CBA), Pursuant to the terms of the
CBA, the dispute was referred to a voluntary
arbitrator who later ruled on the issues raised by
the parties. Could it later be validly asserted that
the "decision" of the voluntary arbitrator would
have no "compulsory" effect on the parties?
Explain.
SUGGESTED ANSWER:
No. A voluntary arbitrator chosen under the
Grievance Machinery of a CBA can exercise
jurisdiction not only on disputes involving
interpretation/implementation of a CBA and/or
company rules, personnel policies (Art. 261, Labor
Code) but also, upon agreement of the parties, "all
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other labor disputes including unfair labor practice'
(Art. 262, Labor Code). As no objection was raised
by any of the parties when 'the dispute was
referred to a voluntary arbitrator who later ruled on
the issues raised by the parties", it follows that
what we have is voluntary arbitration agreed upon
by the parties. His decision is binding upon the
parties and may be enforced through any of the
sheriffs, including those of the NLRC, he may
deputize.
ANOTHER SUGGESTED ANSWER:
No. The award of voluntary arbitrators acting within
the scope of their authority determines the rights of
the parties, and their decisions have the same
legal effects as a judgment of the Court. Such
decisions on matters of fact or law are conclusive,
and all matters in the award are thenceforth res
judicata on the theory that the matter has been
adjudged by the tribunal which the parties have
agreed to make final as tribunal of last resort.
[Volkschel Labor Union v. NLRC. 98 SCRA 314
(1980).
LABOR RELATIONS
CBA; Appropriate Bargaining Unit (1998)
What is an appropriate bargaining unit for
purposes of collective bargaining? [5%]
SUGGESTED ANSWER:
An APPROPRIATE BARGAINING UNIT is a group
of employees of a given employer comprised of all
or less than all of the entire body of employees,
which the collective interest of all the employees,
consistent with the interest of the employer,
indicate to be the best suited to serve reciprocal
rights and duties of the parties under the collective
bargaining provisions of the law. (See, e.g.,
University of the Philippines v. Ferrer-Calleja, 211
SCRA 451 (1992).
CBA; Arbitral Award; Retroactive Effect
(2001)
Company A and Union B had a 3-year CBA that
expired on June 12, 1990. Negotiations proved
futile so the unresolved issues were referred to an
Arbiter who rendered a decision on March 15,
1992 retroactive to December 14, 1990. Is the
Arbiter's decision providing for retroactivity tenable
or not? Why? (5%)
SUGGESTED ANSWER:
The referral of the unresolved issues of the
collective bargaining negotiations to an Arbiter is
not within the jurisdiction of the Arbiter.
But assuming that the unresolved issues in the
collective bargaining negotiations were properly
referred to the Arbiter pursuant to the provision of
the Labor Code (Art. 262} that states that a
Voluntary Arbitrator may hear and decide any labor
dispute, including bargaining deadlocks, the
Arbiter's decision providing for retroactivity is
tenable. Exercising his compulsory arbitration
power, the Arbiter could decide the issue of
retroactivity in any way which is not contrary to law,
morals, good customs, public order or public
policy.
But in a case (Manila Electric Co vs. Secretary of
Labor Leonardo Quisumbing, G.R. No. 127598,
February 22, 2000), the Supreme Court said that
an arbitral award shall retroact to the first day after
the six-month period following the expiration of the
last day of the CBA that was being re-negotiated.
ANOTHER SUGGESTED ANSWER:
The retroactive Order of the Labor Arbiter is void
for want of jurisdiction. Jurisdiction is conferred by
law. Nowhere in the Labor Code, more specifically,
Article 217, is the Labor Arbiter given jurisdiction
over unresolved issues in collective bargaining,
including determining the period or duration of a
Collective Bargaining Agreement.
CBA; Arbitral Awards; Effectivity (1994)
Company X, a transportation company, and Union
Y were in the process of negotiating a new
Collective Bargaining Agreement (CBA) to replace
the one which expired on March 15. 1990. The
negotiations reached an impasse on economic
issues on June 30, 1990. The Secretary of Labor
assumed Jurisdiction over the dispute and certified
the same to the NLRC for proper disposition.
Proceedings before the NLRC ended on
November 30. 1990 and a decision was rendered
on December 15, 1990, The said decision made
retroactive to March 15, 1990 the new CBA
containing the issues resolved by the NLRC, as
well as those concluded and agreed upon by the
parties prior to their arriving at a deadlock in their
negotiations. Company X questioned the
retroactivity of the CBA alleging that the same
contravenes Art. 253-A of the Labor Code, which
provides for the automatic retroactivity of the
renewed CBA only if the same is entered into
within six (6) months from its expiry date, and, if
not, the parties must agree on the duration of
retroactivity.
1) Is Company X's position correct?
2) Would your answer be different if the
assumption of jurisdiction by the Secretary of
Labor was at the request or instance of Company
X?
SUGGESTED ANSWER:
1) The Company's position is not correct. In the
absence of a specific provision of law prohibiting
retroactivity of the effectivity of arbitral awards
issued by the Secretary of Labor, the same is
deemed vested with plenary and discretionary
powers to determine the effectivity thereof, (St
Luke's Medical Center, Inc. vs. Hon. Ruben O.
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Torres, etal,-G.R. No. 99395, 29 June 1993, J.
Melo. 222 SCRA 779)
2) No. Regardless of which party sought the
assumption by the Labor Secretary, the effect
would be the same. An assumption case gives the
Labor Secretary the plenary arbitration powers to
rule on the issues presented for resolution,
including the retroactivity of the new CBA.
CBA; Automatic Renewal Clause (1999)
What is the "automatic renewal clause" in a
collective bargaining agreement? (2%)
SUGGESTED ANSWER:
The "AUTOMATIC RENEWAL CLAUSE" in a CBA
refers to that provision of the Labor Code (Article
253) which states that "It shall be the duty of both
parties (to a CBA) to keep the status quo and to
continue in full force and effect the terms and
conditions of the existing agreement during the 60-
day (freedom) period and/or until a new agreement
is reached by the parties."
CBA; Automatic Renewal Clause (2001)
Company "A" and Union "B" negotiated the last
two years of their five-year CBA on April 1, 1990 to
expire on March 31, 1992. Considering the
amicable relations between the parties, neither one
moved for the extension or termination of the
agreement.
Sometime in 1995. some disgruntled employees
filed a complaint demanding that they be paid the
annual salary increases and other related annual
increases specified in the CBA of April 1990, citing
the provision in Art. 253 of the Labor Code which
requires the parties to "xxx keep the status quo
and to continue in full force and effect the terms
and conditions of the existing agreement during
the 60 day period and/or until a new agreement is
reached by the parties".
A, however, maintained that the annual salary
increases and related benefits specifically provided
for in the CBA were, pursuant to contract and law,
effective only for the term specified therein,
namely, until March 31, 1992 only. Who is correct?
State the reason(s) for your answer. (5%)
SUGGESTED ANSWER:
The disgruntled employees are correct in their
claim that the expired CBA remains in full force
and effect until a new CBA is signed in accordance
with Article 253 of the Labor Code.
The SC ruled in New Pacific Timber and Supply
Co, Inc. us. NLRC, GR No. 124224. March 17,
2000:
"Article 253 of the Labor Code explicitly
provided that until a new Collective Bargaining
Agreement has been executed by and between
the parties, they are duly bound to keep the
status quo and to continue in full force and
effect the terms and conditions of the existing
agreement. The law does not provide for any
exception or qualification as to which of the
economic provisions of the existing agreement
are to retain force and effect, therefore, it must
be understood as encompassing all the terms
and conditions in the said agreement."
ANOTHER SUGGESTED ANSWER:
With Art. 253 of the Labor Code as basis, the
disgruntled employees should be paid the annual
salary increases and other related annual
increases provided in the 1990-1992 CBA even
after the expiration of said CBA as long as said
CBA did not provide that said increases were to be
paid only for certain specific years.
CBA; Bargaining Representative (2000)
The Ang Sarap Kainan Workers Union appointed
Juan Javier, a law student, as bargaining
representative. Mr. Javier is neither an employee
of Ang Sarap Kainan Company nor a member of
the union. Is the appointment of Mr. Javier as a
bargaining representative in accord with law?
Explain, (3%)
SUGGESTED ANSWER:
Yes, the law does not require that the bargaining
representative be an employee of the company nor
an officer or member of the union. {Art 212 (j),
Labor Code}.
CBA; Certification Election (2005)
As Human Resources Department (HRD) manager
of EZ Components, an unorganized manufacturer
of electric and electronic components for
household appliances, you are suddenly
confronted with demands for recognition and
collective bargaining negotiations from two
competing labor unions. They both claim to
represent all the rank-and-file employees. Union A
is led by a moderate faction, while Union B is
affiliated with a militant federation identified with
leftist ideology.
Which of the following courses of action should you
take to best protect the interests of your company
and employees?
(a.) Recognize Union A as the rightful bargaining
representative because it will be more
reasonable to deal with;
(b.) Recognize Union B because you do not want
to antagonize its leftist connections and
foment inter-union conflicts;
(c.) Ignore the demands of either union since you
cannot be compelled legally to deal with them
at this stage; or
(d.) Petition the Bureau of Labor Relations to
conduct a certification election to determine
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which union really represents the majority of
the employees in the bargaining unit. (10%)
ALTERNATIVE ANSWER:
(d) Petition the Bureau of Labor Relations to
conduct a certification election to determine which
union really represents the majority of the
employees in the bargaining unit. (Haw at Buklod
ng Manggagaiva [IBM] v. Calleja, G.R. No. 84685,
February 23,1990)
ALTERNATIVE ANSWER:
(c) Ignore the demands of either union since you
cannot be compelled legally to deal with them at
this stage.
CBA; Certification Election; “No-Union" Win
(2006)
Can a "no-union" win in a certification election?
(2.5%)
SUGGESTED ANSWER:
YES. Sec. 20, Rule 9, Book V provides that where
the votes cast results in "no union" obtaining the
majority, the med arbiter shall declare such fact in
the order. Hence, the employees may choose not
to be represented by anyone (Reyes-Trajano v.
Trajano, G.R. No 84433, June 2, 1992).
CBA; Certification Election; Consent
Election; Run-Off Election (2000)
Distinguish between "Certification Election",
"Consent Election," and "Run-off Election", (6%)
SUGGESTED ANSWER:
CERTIFICATION ELECTION requires a petition for
a Certification Election filed by a union or
employer. A Med-Arbiter grants the petition and an
election officer is designated by the regional
director to supervise the election. (Art. 256, 257,
258, Labor Code).
CONSENT ELECTION is held by agreement of the
unions with or without participation of the med-
arbiter. [Warren Manufacturing Workers Union v.
Bureau of Labor Relations, 159 SCRA 387 (1988)]
RUN-OFF ELECTION takes place between the
unions who received the two highest number of
votes where not one of the unions obtained the
majority of the valid votes cast, provided that the
total union votes is at least 50% of the votes cast.
(Art. 256, Labor Code).
CBA; Certification Election; Freedom Period
(1999)
1. In what instance may a petition for certification
election be filed outside the freedom period of a
current collective bargaining agreement? (3%).
SUGGESTED ANSWER:
As a general rule, in an establishment where there
is in force and effect a CBA, a petition for
certification election may be filed only during the
freedom period of such CBA.
But to have the above-mentioned effect, the CBA
should have been filed and registered with the
Department of Labor and Employment (See Article
231, 253-A and 256)
Thus, a CBA that has not been filed and registered
with the Department of Labor and Employment
cannot be a bar to a certification election and such
election can be held outside of the freedom period
of such CBA.
ALTERNATIVE ANSWER:
A petition for certification election may be filed
outside the freedom period of a current CBA if
such CBA is a new CBA that has been prematurely
entered into, meaning, it was entered into before
the expiry date of the old CBA. The filing of the
petition for certification election shall be within the
freedom period of the old CBA which is outside of
the freedom period of the new CBA that had been
prematurely entered into.
CBA; Certification Election; Probationary
Employees (1999)
2. Are probationary employees entitled to vote in a
certification election? Why? (2%).
SUGGESTED ANSWER:
In a certification election, all rank-and-file
employees in the appropriate bargaining unit are
entitled to vote. This principle is clearly stated in
Article 255 of the Labor Code which states that the
"labor organization designated or selected by the
majority of the employees in such unit shall be the
exclusive representative of the employees in such
unit for the purpose of collective bargaining."
Collective bargaining covers all aspects of the
employment relation and the resultant CBA
negotiated by the certified union binds all
employees in the bargaining unit. Hence, all rank-
and-file employees, probationary or permanent,
have a substantial interest in the selection of the
bargaining representative. The Code makes no
distinction as to their employment status as basis
for eligibility to vote in the petition for certification
election. The law refers to "all" the employees in
the bargaining unit. All they need to be eligible to
vote is to belong to the "bargaining unit," (Airtime
Specialists, Inc. v. Ferrer-Calleja, ISO SCRA 749)
ALTERNATIVE ANSWER:
PROBATIONARY EMPLOYEES may not be
entitled to vote in a certification election where only
regular employees belong to a bargaining unit and
probationary employees do not belong to such
bargaining unit. It is the belonging to a bargaining
unit that entitles an employee to vote in a
certification election.
ANOTHER ALTERNATIVE ANSWER:
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YES. Any employee, whether employed for a
definite period or not, shall, beginning on his first
day of service, be considered an employee for
purposes of membership in any labor union (Art.
277(c)).
CBA; Closed Shop Provision; When not
applicable (1999)
FACTS: In a certification election conducted by the
Department of Labor, Associated Workers
Organization in Laguna (AWOL) headed by Cesar
Montanyo, won over Pangkat ng mga
Manggagawa sa Laguna (PML), headed by Eddie
Graciaa. Hence, AWOL was certified as the
exclusive bargaining agent of the rank-and-file
employees of the Laguna Transportation Company
(LTC).
Shortly, thereafter, a Collective Bargaining
Agreement was concluded by LTC and AWOL
which provided for a closed shop. Consequently,
AWOL, demanded that Eddie Graciaa and all the
PML members be required to become members of
AWOL as a condition for their continued
employment: otherwise, they shall be dismissed
pursuant to the closed shop provision of the CBA.
The union security clause of the CBA also provided
for the dismissal of employees who have not
maintained their membership in the union. For one
reason or another, Francis Magallona, a member
of AWOL, was expelled from the union
membership for acts inimical to the interest of the
union. Upon receipt of the notice that Francis
Magallona failed to maintain his membership in
good standing with AWOL, LTC summarily
dismissed him from employment.
1. Can Eddie Graciaa and all the PML members
be required to become members of the AWOL
pursuant to the closed shop provision of the
CBA? Why? (3%)
SUGGESTED ANSWER:
Eddie Gracla and all the PML members can not be
required to become members of AWOL pursuant to
the closed shop provision of the CBA. According to
the Labor Code (Article 248(e), a closed shop
provision cannot be applied to those employees
who are already members of another union at the
time of the signing of the CBA.
2. Is the termination from employment of Francis
Magallona by LTC lawful? Why? (2%)
SUGGESTED ANSWER:
Pursuant to the closed shop provision of the CBA
entered into by AWOL with LTC, membership in
AWOL has become a condition of employment in
LTC. As long as the expulsion of Francis
Magallona from AWOL was done in accordance
with applicable provisions of law and with the
Constitution and By-laws of the AWOL, then it was
lawful for LTC to terminate Magallona.
Panel: The termination is unlawful (Ferrer v. NLRC).
CBA; Closed Shop vs. Agency Shop (1997)
(a) Describe a "closed shop agreement, does it
differ from an "agency shop agreement."
(b) Are the above agreements legal?
SUGGESTED ANSWER:
(a) A "CLOSED SHOP AGREEMENT" is that
agreement embodied in a collective bargaining
agreement (CBA) whereby the employer binds
itself not to hire any person unless he is first a
union member of the collective bargaining
representative.
An "AGENCY SHOP AGREEMENT" is different
from a closed shop agreement in that under the
former, the employer does not bind itself not to hire
a person unless he is first a union member of the
collective bargaining representative. Instead, the
employer binds itself to check off from those who
are not union members of the collective bargaining
representative a reasonable fee equivalent to the
dues and other fees paid by union members if the
non-union members accept the benefits of the
CBA.
(b) The above agreements are legal or they are
expressly allowed by the Labor Code.
CBA; Contract Bar Rule vs. Deadlock Bar
Rule (1999)
Distinguish between "contract bar rule" and
"deadlock bar rule". (3%)
SUGGESTED ANSWER:
Under the "CONTRACT BAR RULE," a certification
election cannot be held if there is in force and in
effect a collective bargaining agreement that has
been duly registered with the Department of Labor
and Employment except during the freedom period
of such CBA which is the 60-day period prior to the
expiry date of said CBA. (See Articles 231, 253-A
and 256)
Under the "DEADLOCK BAR RULE" a certification
election can not be held if a bargaining deadlock to
which an incumbent or certified bargaining agent is
a party had been submitted to conciliation or
mediation or had become the subject of a valid
notice of strike or lockout. (See Section 3, Rule XI,
Book V of the Implementing Rules and Regulations
of the Labor Code)
CBA; Coverage; Non-Union Members;
Religious Sect (2005)
A group of employees in XYZ Factory belonging to
a religious sect, in conformity with the teachings
and dictates of their religion, refused to join the
labor union in the factory. The labor union was
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able to negotiate a substantial wage increase in its
collective bargaining agreement with management.
A provision therein stated that the wage increase
would be paid to the members of the union only in
view of a "closed shop" union security clause in the
new agreement. The members of the sect
protested and demanded that the wage increase
be extended to them. The officers of the union
countered by demanding their termination from the
company pursuant to the "closed shop" provision in
the just-concluded CBA. (6%)
(a) Is the CBA provision valid?
SUGGESTED ANSWER:
No, the CBA provision is not valid. The benefits of
a CBA are extendible to all employees regardless
of their membership in the union because to
withhold the same from non-union members would
be to discriminate against them. (National Brewery
& Allied Industries Labor Union of the Philippines v.
San Miguel Brewery, Inc., G.R. No. L-18170,
August 31,1963)
(b) Should the company comply with the
union's demand of terminating the members of
the religious sect?
SUGGESTED ANSWER:
No. The right to join includes the right not to join by
reason of religious beliefs. Members of said
religious sect cannot be compelled or coerced to
join the labor union even when the union has a
closed shop agreement with the employer; that in
spite of any closed shop agreement, members of
said religious sect cannot be refused employment
or dismissed from their jobs on the sole ground
that they are not members of the collective
bargaining union. (Victoriano v. Elizalde Rope
Workers' Union, G.R. No. L-25246, September
12,1974)
CBA; interpretation (2004)
B. The CBA between the Company and the rank-
and-file Union contained the following provision:
“Section 3. MEAL ALLOWANCE. The
Company agrees to grant a MEAL
ALLOWANCE of TEN PESOS (P10.00) to all
employees who render at least TWO (2) hours
or more of actual overtime work on a workday,
and FREE MEALS, as presently practiced, not
exceeding TWENTY FIVE PESOS (P25.00)
after THREE (3) hours of actual overtime work.”
Dispute in the interpretation of the above provision
arose as the Company asserts that the phrase
“after three (3) hours of actual overtime work” does
not mean after exactly three (3) hours of actual
overtime work; it means after more than three (3)
hours of actual overtime work. The Union, on the
other hand, maintained that “after three (3) hours
of actual overtime work” simply means after
rendering exactly, or no less than, three (3) hours
of actual overtime work.
Which interpretation do you think should prevail?
Why? (5%)
CBA; Jurisdictional Pre-Conditions (1996)
2) What jurisdictional pre-conditions must be
present to set in motion the mechanics of a
collective bargaining?
SUGGESTED ANSWER:
To set in motion the mechanics of collective
bargaining, these jurisdictional pre-conditions must
be present, namely:
1. The employees in a bargaining unit should
form a labor organization;
2. The labor organization should be a legitimate
labor organization;
3. As such legitimate labor organization, it should
be recognized or certified as the collective
bargaining representative of the employees of
the bargaining unit; and
4. The labor organization as the collective
bargaining representative should request the
employer to bargain collectively. (See Arts.
243, 234, 255 and 250 of the Labor Code)
ALTERNATIVE ANSWER:
The mechanics of collective bargaining are set in
motion only when the following Jurisdictional pre-
conditions are met:
(1) possession of the status of majority
representation of the employees'
representative in accordance with any of the
means of selection or designation provided
for by the Labor Code;
(2) proof of majority of representation; and
(3) a demand to bargain under Art. 251(g), of the
Labor Code. (Kiok Loy v. NLRC. 141 SCRA
179 [1986])
CBA; Lock-out vs. Closed Shop (2004)
Distinguish clearly but briefly between Lock-out
and Closed Shop.
SUGGESTED ANSWERS:
LOCKOUT refers to the temporary refusal of an
employer to furnish work as a result of a labor or
industrial dispute. CLOSED SHOP, on the other
hand, refers to a union security clause in a
collective bargaining agreement whereby the
employer agrees not to employ any person who is
not a member of the exclusive collective bargaining
representative of the employees in a bargaining
unit.
CBA; Mandatory Subjects of Bargaining
(1996)
1) What matters are considered mandatory
subjects of collective bargaining?
SUGGESTED ANSWER:
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Wages, hours of work and all other terms and
conditions of employment including proposals for
adjusting any grievances or questions arising from
the collective bargaining agreement are
considered mandatory subjects of collective
bargaining. (See Art. 252 of the Labor Code)
CBA; Registration Requirement; Contract
Bar-Rule (2000)
A Collective Bargaining Agreement was signed
between the Ang Sarap Kainan Company and the
Ang Sarap Kainan Workers Union. Should the
Collective Bargaining Agreement be registered
with the Bureau of Labor Relations? If so, why?
(3%)
SUGGESTED ANSWER:
So that the contract-bar rule may apply the CBA
should be registered, assuming it has been validly
ratified and contains the mandatory provisions.
(Art. 232, Labor Code).
CBA; Run-Off Election (2006)
When does a "run-off' election occur? (2.5%)
SUGGESTED ANSWER:
A run-off election occurs when the following
elements occur:
1. Between three (3) or more choices, and no
choice receiving a majority of the valid votes
cast;
2. The total number of votes for all contending
unions is at least 50% of the number of vote
cast; and
3. Between the labor unions receiving the two
highest number of votes (Article 256, Labor
Code).
CBA; Sale of Establishment; Effect (1994)
Coronet Records Phil. (CRP) manufactures
audio/video record players, compact discs, video
discs, cassettes and the like. CRPs shareholdings
is 40% foreign and 60% domestic. CRP signed a
Collective Bargaining Agreement (CBA) with its
rank-and-file workers for three years starting from
January 1, 1990 and ending on December 31,
1993.
Before the expiration of the CBA, CRP decided to
sell all its assets to Lyra Music Corporation
effective September 30, 1993. In this regard,
notice was sent on August 30, 1993 to each
employee advising them of the sale of the
Company's assets to Lyra Music Corporation and
the closure of the company's operations effective
September 30, 1993. CRP, likewise, requested
that each employee receive his separation pay
equivalent to one-and-one-half (1 & 1/2) month's
pay per year of service, exclusive of all unused
leaves which were also converted to cash, and his
13th-month pay for 1993.
The employees received their respective
separation pay under protest and thereafter filed
an action against CRP and Lyra Music Corporation
for unfair labor practice (ULP). The Arbiter ruled in
favor of the workers and ordered Lyra Music
Corporation to absorb the former workers of CRP.
Was the Labor Arbiter correct in his decision?
SUGGESTED ANSWER:
No. The Labor Arbiter is not correct. As held in the
case of San Felipe Neri School of Mandaluyong vs.
NLRC, when there is a legitimate sale of a
company's assets, the buyer in good faith cannot
be legally compelled to absorb the employees of
the seller in good faith. In the case at bar, the
employees of the CRP were validly terminated
based on Article 284, e.g. closure of operations
and separation pay was paid at a rate much higher
than the law.
Furthermore, the case filed by the employees was
UNFAIR LABOR PRACTICE. It is highly irregular
to order absorption of employees in a ULP case.
CBA; Social Security vs. Union Security
(2004)
Distinguish clearly but briefly between Social
security and union security
SUGGESTED ANSWERS:
SOCIAL SECURITY is the protection given by
social insurance programs such as the programs of
the SSS, GSIS and PHIC undertaken pursuant to
their respective charters, including the employees
compensation program provided for in the Labor
Code. The aforesaid programs provide income
benefits and/or medical care when contingencies
like sickness, (also maternity in the case of SSS)
disability, death, or retirement, including in the
case of the GSIS, separation and unemployment
benefits.
On the other hand, UNION SECURITY refers to a
clause in a collective bargaining agreement
whereby the employer agrees to employ or
continue in employment only workers who are
members of the exclusive collective bargaining
representative of the employees of said employer
in a bargaining unit.
CBA; Substitutionary Doctrine (2000)
a) The Samahan ng Mga Manggagawa sa Pids
and Co. Inc. lost its majority status in the
bargaining unit one year after the signing of the
Collective Bargaining Agreement. Bickerings
among all the three other unions in the bargaining
unit were a daily occurrence, with each union
asserting majority status. To resolve this pestering
problem, the Company and the three other unions
agreed to hold a consent election under the
supervision of the Bureau of Labor Relations. In
the consent election, Pids and Co, Worker's Union
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won, and was accordingly recognized by the
Company as the exclusive bargaining
representative in the bargaining unit. Is the Pids
and Co. Workers Union bound by the Collective
Bargaining Agreement signed between the
Company and the Samahan ng Mga Manggagawa
Sa Pids and Co. Inc.? Explain. (3%)
b) Shortly after the consent election, Pids and Co.
Inc. sold the Groceries Division to Metro Manila
Grocery Inc. The employees of the sold division
formed part of the bargaining unit described in the
Collective Bargaining Agreement, and all were
absorbed by Metro Manila Grocery Inc. Is Metro
Manila Grocery Inc., as the new employer, bound
by the Collective Bargaining Agreement existing at
the time of the sale? Explain. (3%)
SUGGESTED ANSWER:
a) Yes, because the Collective Bargaining
Agreement is not invalidated by the change of the
bargaining agent while the CBA is still effective.
The "substitutionary doctrine'' applies. (Benguet
Consolidated Inc. v. BCI Employees, 23 SCRA 465
(1968))
b) No. There are no indications that the sale is
simulated or intended to defeat the employees'
right to organize. A bona fide sale terminates the
employment relationship between the selling
company and its employees. The CBA does not
bind the purchaser in good faith because the CBA
is a personam contract, unless the buyer agrees to
be bound. [Sundowner Dev. Corp. v. Drilon, 180
SCRA 14 (1989); Associated Labor Union v.
NLRC, 204 SCRA 913 (1993)].
CBA; Union Security Clause (2004)
A. MPH Labor Union is the duly certified bargaining
representative of the rank-and-file employees of
MM Park Hotel since the 1970’s. The collective
bargaining agreement contained union shop
security provisions. After the signing of the 2000–
2005 CBA, the Union demanded the dismissal of 3
employees, XX, YY and ZZ, pursuant to the union
security clause in the CBA.
The Hotel Management replied that it was legally
impossible to comply with the demand of the
Union. It might even be construed as unfair labor
practice. For it appeared that XX, YY and ZZ had
been recently promoted as supervisors and
resigned from the Union. But according to the
Union, the three submitted their resignations
outside the freedom period after the 1996–2000
CBA expired on June 30, 2000. The Union argued
that the Hotel Management could not skirt its
obligation to respect and implement the union
security clause by promoting the three employees.
That could be viewed as rewarding employees for
their disloyalty to the union, said the union officers.
Does the union security clause sufficiently justify
the demand for dismissal of the three employees
or not? May the Hotel Management validly refuse
the Union’s demand? (5%)
CBA; Union Security Clause; Closed Shop
Provision (1995)
Reconcile the compulsory nature of the closed
shop provision in a Collective Bargaining
Agreement with the constitutional guarantee of
freedom of association. Discuss fully.
SUGGESTED ANSWER:
Among the policies of the State in the field of labor
relations is to promote trade unionism and to foster
the organization of a strong and united labor
movement. UNION SECURITY CLAUSES, like a
closed shop agreement, is one way of
implementing the aforementioned labor relations
policy. Implementing to some extent the concept of
freedom of association, an employee who is
already a member of a union could not be
compelled to become a member of a bargaining
union, even if there is a closed shop agreement.
ALTERNATIVE ANSWER:
It could be argued that a closed shop provision in a
Collective Bargaining Agreement, because it
requires that a person should first be a member of
the bargaining union before he is employed, is
violative of the right to freedom of association,
because said right subsumes not only a right to
join, but also a right not to join a union.
On the other hand, it could be argued that the
exercise of the freedom of association means that
workers should join unions. A closed shop
agreement, as a union security clause, encourages
the joining of unions.
CBA; Union; Representation Issue (1999)
FACTS: Jenson & Jenson (J & J) is a domestic
corporation engaged in the manufacturing of
consumer products. Its rank-and-file workers
organized the Jenson Employees Union (JEU), a
duty registered local union affiliated with PAFLU, a
national union. After having been certified as the
exclusive bargaining agent of the appropriate
bargaining unit, JEU-PAFLU submitted its
proposals for a Collective Bargaining Agreement
with the company.
In the meantime, a power struggle occurred within
the national union PAFLU between its National
President, Manny Pakyao, and its National
Secretary General, Gabriel Miro. The
representation issue within PAFLU is pending
resolution before the Office of the Secretary of
Labor.
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By reason of this intra-union dispute within PAFLU,
J & J obstinately and consistently refused to offer
any counterproposal and to bargain collectively
with JEU-PAFLU until the representation issue
within PAFLU shall have been resolved with
finality. JEU-PAFLU filed a Notice of Strike. The
Secretary of Labor subsequently assumed
jurisdiction over the labor dispute.
1. Will the representation issue that has arisen
involving the national union PAFLU, to which the
duty registered local union JEU is affiliated, bar
collective bargaining negotiation with J & J?
Explain briefly. (3%)
2. Can the Secretary of Labor decide the labor
dispute by awarding the JEU CBA Proposals as
the Collective Bargaining Agreement of the
parties? Explain briefly. (2%)
SUGGESTED ANSWER:
1. The representation issue that has arisen
involving the national union PAFLU should not bar
collective bargaining negotiation with J and J. It is
the local union JEU that has the right to bargain
with the employer J and J, and not the national
union PAFLU.
It is immaterial whether the representation issue
within PAFLU has been resolved with finality or
not. Said squabble could not possibly serve as a
bar to any collective bargaining since PAFLU is not
the real party-in-interest to the talks; rather, the
negotiations are confined to the corporation and
the local union JEU. Only the collective bargaining
agent, the local union JEU, possesses the legal
standing to negotiate with the corporation. A duly
registered local union affiliated with a national
union or federation does not lose its legal
personality or Independence (Adamson and
Adamson, Inc. v. The Court of Industrial Relations
and Adamson and Adamson Supervising Union
(FFW), 127 SCRA 268 [1984]).
2. Yes. It is within assumption power.
CBA; Wage Increase Coverage; Non-Union
Employees (2005)
(b) May a rank-and-file employee, who is not a
member of the union representing his bargaining
unit, avail of the wage increases which the union
negotiated for its members? (4%)
SUGGESTED ANSWER:
Yes, because the bargaining representative
(union) does not act for its members alone. It
represents all the employees covered by the
bargaining unit. (Mactan Workers Union v. Aboitiz,
G.R. No. L-30241, June 30, 1972) However, non-
members who avail of CBA benefits are required
under the law to pay agency fees.
CBU; Company Union vs. Union Shop (2004)
Distinguish clearly but briefly between Company
union and union shop.
SUGGESTED ANSWERS:
A COMPANY UNION is a union of employees
dominated or under the control of the employer of
said employees. A UNION SHOP, on the other
hand, refers to a union security clause in a
collective bargaining agreement whereby the
employer agrees to terminate the employment of
an employee who has not become a member of
the union which is the exclusive collective
bargaining representative of the employees in a
bargaining unit within a certain period after the
employment of said employee or has ceased to
become a union member.
CBU; Confidential Employees (1994)
1. Can an employer legally oppose the inclusion
of confidential employees in the bargaining unit
of rank-and-file employees?
2. Would your answer be different if the
confidential employees are sought to be
included in the supervisory union?
SUGGESTED ANSWER:
1) Yes, an employer can legally oppose the
inclusion of confidential employees in the
bargaining unit of the rank-and-file. This issue has
been settled in the case of Golden Farms vs.
Calleja, and reiterated in the case of Philips
Industrial Dev. Inc. vs. NLRC.
ALTERNATIVE ANSWERS:
a) Yes, an employer can legally oppose the
inclusion of the confidential employees in the
bargaining unit of rank-and-file employees
because confidential employees are ineligible to
form, assist or join a labor union. By the nature of
their functions, they assist and act in a confidential
capacity to, or have access to confidential matters
of, persons who exercise managerial functions in
the field of labor relations, and the union might not
be assured of their loyalty in view of evident
conflict of interest.
b) An employer can legally oppose the inclusion
of confidential employees in the bargaining unit of
rank -and-file employees because confidential
employees are considered part of management.
(Philtranco vs. BLR, 174 SCRA 388).
SUGGESTED ANSWER:
2) The answer would be the same if confidential
employees are sought to be included in the
supervisory union because confidential employees,
being a part of management would not qualify to
join, much less form a labor union. (Philtranco vs.
BLR, 174 SCRA 388),
ALTERNATIVE ANSWER:
My answer would remain the same, even if the
confidential employees were sought to be included
in the supervisory union. Confidential employees
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would have the same adverse impact on the
bargaining unit of supervisors: Confidential
employees' access to highly sensitive information
may become the source of undue advantage by
the union over the employer. (Philips Industrial
Development Inc., vs. National Labor Relations
Commission, et. al, G.R No. 88957, 25 June 1992)
CBU; Consent Election vs. Certification
Election (2004)
Distinguish clearly but briefly between Consent
election and certification election.
SUGGESTED ANSWERS:
A certification election and a consent election are
both elections held to determine through secret
ballot the sole and exclusive representative of the
employees in an appropriate bargaining unit for the
purpose of collective bargaining or negotiations.
There is this difference, however, a money received or expended, and comptrollers
CERTIFICATION ELECTION is ordered by the
Department of Labor and Employment while a
CONSENT ELECTION is voluntarily agreed upon
by the parties, with or without the intervention of
the Department of Labor and Employment.
CBU; Managerial Employees; Supervisory
Employees (1995)
A supervisor's union filed a petition for certification
election to determine the exclusive bargaining
representative of the supervisory employees of
Farmers Bank. Included in the list of supervisory
employees attached to the petition are the
Department Managers, Branch Managers,
Cashiers and Comptrollers. Farmers Bank
questioned this list arguing that Department
Managers, Branch Managers, Cashiers and
Comptrollers inherently possess the powers
enumerated in Art. 212, par. (m), of the Labor
Code, i.e., the power and prerogative to lay down
and execute management policies and/or to hire,
transfer, suspend, lay-off, recall, discharge, assign
or discipline employees.
1. Is the contention of Farmers Bank correct?
Discuss fully.
SUGGESTED ANSWER:
The contention of the Farmers Bank is not correct,
if, on examination of the actual powers exercised
by the Department Managers, Bank Managers,
Cashiers and Comptrollers, they are not vested
with powers or prerogatives to lay down and
execute management policies or to hire, transfer,
suspend, lay-off, recall, discharge, assign or
discipline employees. If their powers are to carry
out their duties and responsibilities in accordance
with the policies promulgated by the Board of
Directors of the Bank, or by external authorities,
like the Central Bank, then, they are not
managerial but may be supervisory personnel.
But this may be noted: The Bank officials
mentioned in the case, have control, custody
and/or access to confidential matters. Thus, they
are confidential employees and in accordance with
earlier Supreme Court decisions, as confidential
employees, the Branch Manager, Cashier,
Controller are disqualified from joining or assisting
the supervisor's union of the Bank.
ALTERNATIVE ANSWER:
The contention of the Fanners Bank is partially
correct. The Department managers and Branch
managers, if they in fact have the powers implied
by their titles, are managerial personnel. In
accordance with the Labor Code, managerial
personnel are not eligible to join and form labor
unions.
On the other hand, cashiers who are in charge of
who examine and supervise expenditures, are not
managerial personnel, and if they supervise
personnel, they could be supervisors, and are
therefore to be included in the bargaining unit of
supervisors.
2. Is there any statutory basis for the petition of the
union? Explain.
SUGGESTED ANSWER:
There is statutory basis for the petition of the
supervisors' union. Under the Labor Code,
supervisors have the right to form and join unions,
but only unions of supervisory employees.
CBU; Managerial Employees; Supervisory
Employees (1999)
FACTS: Samahan ng mga Manggagawa sa
Companya ng Tabaco (SMCT) filed a Petition for
Certification Election among the supervisory
employees of the Tabaco Manufacturing Company
(Tabaco) before the NCR Regional Office of the
Department of Labor and Employment. It alleged,
among other things, that it is a legitimate labor
organization, a duly chartered local of NAFLU; that
Tabaco is an organized establishment; and that no
certification election has been conducted within
one year prior to the filing of its petition for
certification election.
The Petition filed by SMCT showed that out of its
50 members, 15 were rank-and-filers and two (2)
were managers.
Tabaco filed a Motion to Dismiss on the ground
that SMCT union is composed of supervisory and
rank-and-file employees and, therefore, cannot act
as bargaining agent for the proposed unit.
SMCT filed an opposition to the said Motion
alleging that the infirmity, if any, in the membership
of the union can be remedied in the pre-election
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conference thru the exclusion-inclusion
proceedings wherein those employees who are
occupying rank-and-file positions will be excluded
from the list of eligible voters.
1. Should the Motion to Dismiss filed by the
Tabaco be granted or denied? Explain. (3%)
SUGGESTED ANSWER:
The Motion to Dismiss filed by Tabaco should be
granted. According to the Labor Code (in Article
245), supervisory employees shall not be eligible
for membership in a labor organization of rank-
and-file employees but may join or form separate
labor organizations of their own.
Because of the above-mentioned provision of the
Labor Code, a labor organization composed of
both rank-and-file and supervisory employees is no
labor organization at all. It cannot, for any guise or
purpose, be a legitimate labor organization. Not
being a legitimate labor organization, it cannot
possess the requisite personality to file a petition
for certification election. (See Toyota Motor
Philippines Corp. vs. Toyota Motor Philippines
Corp. Labor Union, 268 SCRA 573)
ALTERNATIVE ANSWER:
The Motion to Dismiss should be denied. In the
first place, the general rule is that in a certification
election the employer is a mere bystander. An
employer has no legal standing to question a
certification election as it is the sole concern of the
workers. The exceptions to the general rule of
which are 1) when the existence of an employer-
employee relationship is denied; and 2) when the
employer questions the legal personality of the
union because of irregularities in its registration are
not present in this case.
2. Can the two (2) Managers be part of the
bargaining unit? Why? (2%)
SUGGESTED ANSWER:
No, the two (2) Managers cannot be part of the
bargaining unit composed of supervisory
employees. A bargaining unit must effect a
grouping of employees who have substantial,
mutual interests in wages, hours, working
conditions and other subjects of collective
bargaining. (San Miguel Corp. Supervisors and
Exempt Employees Union v. Laguesma, 227
SCRA 37O)
The Labor Code (in Article 245) provides that
managerial employees are not eligible to join,
assist or form any labor organization.
The above provision shows that managerial
employees do not have the same interests as the
supervisory employees which compose the
bargaining unit where SMCT wishes to be the
exclusive collective bargaining representative.
CBU; Modes; Determination of Exclusive
Bargaining Agreement (2006)
The modes of determining an exclusive bargaining
agreement are:
a. voluntary recognition
b. certification election
c. consent election
Explain briefly how they differ from one another.
(5%)
SUGGESTED ANSWER:
(a.) VOLUNTARY RECOGNITION — is the
voluntary recognition by the employer of the
status of the union as the bargaining
representative of the employees [Section
l(bbb), Rule I, Book V, Rules to Implement
the Labor Code, as amended by Department
Order No. 40-03, Series of 2003 (17 February
2003)].
(b.) CERTIFICATION ELECTION is the process
of determining the sole and exclusive
bargaining agent of the employees in an
appropriate bargaining unit [Section l(h), Rule
I, Book V, Rules to Implement the Labor
Code, as amended by Department Order No.
40-03, Series of 2003 (17 February 2003)].
(c.) CONSENT ELECTION is an agreed election,
conducted with or without the intervention of
the DOLE to determine the issue of majority
representation of all the workers in the
appropriate bargaining unit (Algire v. De
Mesa, G.R. No. 97622, October 19, 1994).
Due Process; Disciplinary Cases (1995)
1. Gary, a salesman of Astro Chemical Company
(ASTRO), was reported to have committed some
serious anomalies in his sale and distribution of
company products. ASTRO designated its Chief
Legal Officer to investigate Gary. Instead of
submitting to the investigation, Gary filed a petition
to enjoin the investigation on the ground that
ASTRO would appear to be his accuser,
prosecutor and judge at the same time. Will the
petition to enjoin the investigation prosper?
Discuss fully.
SUGGESTED ANSWER:
The petition to enjoin the investigation will not
prosper. It is inevitable that in disciplinary cases,
the employer would appear to be accuser,
prosecutor, and judge at the same time since it is
the employer who charges an employee for the
commission of an offense; he is also the person
who directs the investigation to determine whether
the charge against the employee is true or not and
he is the one who will judge if the employee is to
be penalized or not. But if the employee is given
ample opportunity to defend himself, he could not
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validly claim that he was deprived of his right to
due process of law.
ALTERNATIVE ANSWER:
No. The employer is merely complying with the
legal mandate to afford the employee due process
by giving him the right to be heard and the chance
to answer the charges against him and accordingly
to defend himself before dismissal is effected.
Employees; groups of employees (1996)
1) Who are the managerial, supervisory and rank-
and-file employees?
SUGGESTED ANSWER:
"MANAGERIAL EMPLOYEE" is one who is vested
with powers or prerogatives to lay down and
execute management policies or to hire, transfer,
suspend, layoff, recall, discharge, assign or
discipline employees.
SUPERVISORY EMPLOYEES are those who, in
the interest of the employer, effectively recommend
such managerial actions if the exercise of such
authority is not merely routinary or clerical in nature
but requires the use of independent judgment.
All employees who are neither managerial or
supervisory employees are considered RANK-
AND-FILE EMPLOYEES. (Art. 212(m) of the Labor
Code)
Employees; Managerial Employee vs.
Managerial Staff (1994)
Distinguish the rights of managerial employees
from members of a managerial staff.
SUGGESTED ANSWER:
MANAGERIAL EMPLOYEES have no collective
bargaining rights because, they cannot join or form
any other labor organization while officers of a
managerial staff are not prohibited from joining,
assisting or forming or arresting a supervisor's
union; hence, they can bargain collectively. (Art.
245, Labor Code; National Sugar Refineries Corp.
vs. NLRC, 220 SCRA 452).
ALTERNATIVE ANSWER:
MANAGERIAL EMPLOYEES, under Article 212(m)
of the Labor Code are vested with the prerogatives
to lay down and execute management policies
and/or to hire, fire, transfer, promote, lay-off and
discipline employees. They are not eligible for the
right to self-organization for purposes of collective
bargaining.
Upon the other hand, members of MANAGERIAL
STAFF, under Article 82 of the Labor Code, are not
vested with the above-cited prerogatives. They
are not entitled to overtime pay and other benefits
under Book III, Title 1 of the Code.
Employees; managerial employees vs.
supervisory employees (2002)
Distinguish managerial employees from
supervisory employees, (3%)
SUGGESTED ANSWER:
A MANAGERIAL EMPLOYEE is one who is vested
with powers or prerogatives to lay down and
execute management policies and/or to hire,
transfer, suspend, lay-off, recall, discharge, assign
or discipline employees. SUPERVISORY
EMPLOYEES, on the other hand, are those who in
the interest of the employer, effectively recommend
such managerial actions, if the exercise of such
authority is not merely routinary or clerical in nature
but requires the use of independent judgment [Art.
212 (m), Labor Code]
In a case, the Supreme Court said: "In the petition
before us, a thorough dissection of the job
description of the concerned supervisory
employees and section heads indisputably show
that they are not actually managerial but only
supervisory employees since they do not lay down
company policies. PICOP's contention that the
subject section heads and unit managers exercise
the authority to hire and fire is ambiguous and
quite misleading for the reason that any authority
they exercise is not supreme but merely advisory
in character. Theirs is not a final determination of
the company policies Inasmuch as any action
taken by them on matters relative to hiring,
promotion, transfer, suspension and termination of
employees is still subject to confirmation and
approval by their respective superior. [See Atlas
Lithographic Services, Inc. v. Laguesma, 205
SCRA 12, 17 (1992)] Thus, where such power,
which is in effect recommendatory in character, is
subject to evaluation, review and final action by the
department heads and higher executives of the
company, the same, although present, is not
effective and not an exercise of independent
judgment as required by law. [Philippine Appliance
Corp. v. Laguesma, 229 SCRA 730, 737 (1993)
citing Franklin Baker Company of the Philippines v.
Trajano, 157 SCRA 416, 422-433 (1988)]." (Paper
Industries Corp. of the Philippines v. Bienvenido E.
Laguesma 330 SCRA 295, (2000)]
Employees; Managerial vs. Supervisory vs.
Rank-and-File Employees (2003)
The Labor Code treats differently in various
aspects the employment of (i) managerial
employees, (ii) supervisory employees, and (iii)
rank-and-file employees. State the basic
distinguishing features of each type of
employment.
SUGGESTED ANSWER:
Under Book Three of the Labor Code, a
MANAGERIAL EMPLOYEE refers to one whose
primary duty consists of the management of the
establishment in which he is employed or of a
department or subdivision thereof, and to other
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officers or members of the managerial staff. A
supervisor and a rank and file employee can be
considered as members of the managerial staff,
and therefore, a managerial employee if their
primary duty consists of work directly related to
management policies; if they customarily and
regularly exercise discretion and independent
judgment; regularly and directly assist a proprietor
or a managerial employee whose primary duty
consists of the management of the establishment
in which they are employed or a subdivision
thereof; or execute under general supervision work
along specialized or technical lines requiring
special training, experience, or knowledge; or
execute under general supervision special
assignments and tasks; and who do not devote
more than 20 percent of their hours worked in a
work-week to activities which are not directly and
closely related to the performance of the work
described above. All others are rank and file
employees under said Book (Art. 82, Labor Code,
Sec. 2 (c), Rule I, Bk. III, Omnibus Rules
Implementing the Labor Code).
Under Book Five of the Labor Code,
"MANAGERIAL EMPLOYEE" is one who is vested
with powers or prerogatives to lay down, and
execute management policies and/or to hire,
transfer, suspend, lay-off, recall, discharge, assign
or discipline employees. A SUPERVISORY
EMPLOYEE is one who, in the interest of the
employer, effectively recommends such
managerial actions if the exercise of such authority
is not merely routinary or clerical in nature but
requires the use of independent judgment. All
employees not falling within any of the above
definitions are considered rank-and-file employees
for purposes of this Book (Art. 212 (M), Labor
Code).
On the matter of right to self-organization, a
managerial employee cannot exercise such right;
while a supervisor and a rank and file employee
can (Arts. 245, 243, Labor Code).
Right to Strike: Sympathy vs. General Strike
(2004)
Distinguish clearly but briefly between: Sympathy
strike and general strike.
SUGGESTED ANSWERS:
In both a sympathy strike and in a general strike,
there is a stoppage of work by the concerted action
of employees. In both kinds of strike, the strike is
not the result of a labor or industrial dispute.
As the name implies, workers go on a SYMPATHY
STRIKE to show their sympathy for certain workers
who are on strike. On the other hand, in a
GENERAL STRIKE, workers in the country or in a
region, province, or city or municipality go on a
strike to publicly protest a certain policy or action
taken by the government. Thus, for instance, a
general strike may be declared by workers to
publicly protest the stand of President Arroyo that
she is against an increase of the minimum wage at
this time.
Right to Strike; Assumption Power
FACTS: Jenson & Jenson (J & J) is a domestic
corporation engaged in the manufacturing of
consumer products. Its rank-and-flle workers
organized the Jenson Employees Union (JEU), a
duty registered local union affiliated with PAFLU, a
national union. After having been certified as the
exclusive bargaining agent of the appropriate
bargaining unit, JEU-PAFLU submitted its
proposals for a Collective Bargaining Agreement
with the company.
In the meantime, a power struggle occurred within
the national union PAFLU between its National
President, Manny Pakyao, and its National
Secretary General, Gabriel Miro. The
representation issue within PAFLU is pending
resolution before the Office of the Secretary of
Labor.
By reason of this intra-union dispute within PAFLU,
J & J obstinately and consistently refused to offer
any counterproposal and to bargain collectively
with JEU-PAFLU until the representation issue
within PAFLU shall have been resolved with
finality. JEU-PAFLU filed a Notice of Strike. The
Secretary of Labor subsequently assumed
jurisdiction over the labor dispute.
1) Will the representation issue that has arisen
involving the national union PAFLU, to which
the duty registered local union JEU is affiliated,
bar collective bargaining negotiation with J &
J? Explain briefly. (3%)
2) Can the Secretary of Labor decide the labor
dispute by awarding the JEU CBA Proposals
as the Collective Bargaining Agreement of the
parties? Explain briefly. (2%)
SUGGESTED ANSWER:
1. Representation issue in this case is not a bar...
2. Yes. The Secretary of Labor can decide the
labor dispute by awarding the JEU CBA proposals
as the Collective Bargaining Agreement of the
parties because when the Secretary of Labor
(under Article 263[g]) assumes jurisdiction over a
labor dispute causing or likely to cause a strike or
lockout in an industry indispensable to the national
interest, the Secretary of Labor exercises the
power of compulsory arbitration over the labor
dispute, meaning, that as an exception to the
general rule, the Secretary of Labor now has the
power to set or fix wages, rates of pay, hours of
work or terms and conditions of employment by
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determining what should be the CBA of the parties.
(See Divine Word University vs. Secretary of
Labor, 213 SCRA 759)
ALTERNATIVE ANSWER:
What is involved in the case in the question is a
corporation engaged in the manufacturing of
consumer products. If the consumer products that
are being manufactured are not such that a strike
against the company cannot be considered a strike
in an Industry indispensable for the national
interest, then the assumption of Jurisdiction by the
Secretary of Labor is not proper. Therefore, he
cannot legally exercise the powers of compulsory
arbitration in the labor dispute.
Right to Strike; Compulsory Arbitration;
Certification to NLRC (1995)
What are the objectives of the Secretary of Labor
and Employment in certifying a labor dispute to the
NLRC for compulsory arbitration? Explain.
SUGGESTED ANSWER:
The objectives of the Secretary of Labor and
Employment in certifying a labor dispute to the
NLRC for compulsory arbitration is to prevent a
work stoppage that may adversely affect the
national interest and to see to it that a labor
dispute is expeditiously settled.
Right to Strike; Effects; Hired Replacements
(2006)
If due to the prolonged strike, ROSE Corporation
hired replacements, can it refuse to admit the
replaced strikers?
SUGGESTED ANSWER:
No. While present law recognizes the right of the
employer to continue his business in the course of
an economic strike, it assures the right of the
strikers to return to their former positions at the
expense of the replacements. Art. 264(a) of the
Labor Code provides that mere participation of a
worker in a lawful strike shall not constitute
sufficient ground for termination of his employment,
even if a replacement had been hired by the
employer during such lawful strike (PT&T v. NLRC,
G.R. No. 109281, December 7, 1995; Diwa ng
Pagkakaisa v. Filtex International Corporation,
Nos. L-23960 & L-23961, February 26, 1968).
Right to Strike; Effects; illegal strike (1995)
Are the strikers in an illegal strike entitled to
reinstatement under the Labor Code? Explain.
SUGGESTED ANSWER:
NO. Union officers and members who commit
illegal acts lose their employment status. Any union
officer who knowingly participates in an illegal
strike, and 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. Participants (not a union
officer and did not commit any illegal act) may be
entitled to reinstatement.
Right to Strike; Effects; illegal strike (1995)
If the strike is declared illegal, will the strikers be
entitled to their wages for the duration for the
strike? Explain,
SUGGESTED ANSWER::
NO. The applicable doctrine will be: No work, no
pay, unless there is an agreement to pay strike
duration pay.
Right to Strike; Effects; illegal strike (2000)
A division manager of a company taunted a union
officer two days after the union submitted to the
Department of Labor and Employment (DOLE) the
result of the strike vote. The division manager said:
The union threat of an unfair labor practice strike is
phony or a bluff. Not even ten percent (10%) of
your members will join the strike." To prove union
member support for the strike, the union officer
immediately instructed its members to cease
working and walk out. Two hours after the walkout,
the workers voluntarily returned to work.
A. Was the walkout a strike? And if so, was it a
valid activity? (3%)
B. Can the union officer who led the short walk-
out, but who likewise voluntarily led the
workers back to work, be disciplined by the
employer? (3%)
SUGGESTED ANSWERS:
a) Yes, it was a strike because there was a work
stoppage by concerted action and there is an
existing labor dispute. It was not a valid activity
because the requisites for a valid strike were not
observed, (Art. 212, (o), (l) Labor Code).
b) Yes, the employer may discipline the union
officer. An illegal strike is a cause for the union
officer to be declared to have lost his employment
status. [Art 263 (c), (d),(e), (f); Art 264 (a), Labor
Code].
Right to Strike; Effects; Strikers’ illegal Acts
(2006)
Assuming the company admits all the strikers, can
it later on dismiss those employees who committed
illegal acts?
SUGGESTED ANSWER:
No, when the company admits all the strikers, it is
deemed to have waived the issue and condoned
the strikers who committed illegal acts (Citizen's
Labor Union v. Standard Vacuum Oil Co., G.R. No.
L-7478, May 6,1955; TASLI-ALU v. CA, G.R. No.
145428, July 7, 2004).
Right to Strike; illegal dismissal (2003)
Magdalo, a labor union in Oakwood, a furniture
manufacturing firm, after failing in its negotiations
with Oakwood. filed with the Department of Labor
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and Employment (DOLE) a notice of strike. The
DOLE summoned Magdalo and Oakwood for
conciliation hearings to resolve the deadlock.
Unable to agree despite efforts of the DOLE,
Magdalo called a strike participated in by its
officers and union members including Cesar Trinio,
a rank-and-file employee, who led the "walk out."
Oakwood filed a petition to declare illegal the strike
which Magdalo staged without observing the
seven-day ban under the Labor Code. Oakwood
claimed that the strike being illegal, all those who
participated therein, including Cesar Trinio, could
be dismissed as, in fact, they were so dismissed by
Oakwood. Decide the case.
SUGGESTED ANSWER:
When Oakwood dismissed all the officers and
members of the union who participated in the strike
which was declared illegal because it was staged
without observing the seven-day ban under the
Labor Code.
Oakwood illegally dismissed the union members,
including Cesar Trinio. The Labor Code provides
that a union officer who knowingly participates in
an illegal strike loses his employment status. Thus,
the union officers were legally dismissed. But for a
union member to lose his employment status, he
should have committed illegal acts during the
strike, like acts of violence, coercion or intimidation
or obstruction of ingress to or egress from the
employer's premises for lawful purposes or
obstruction of public thoroughfares. The union
members, including Cesar Trino, did not commit
any of these acts. Thus, it would be illegal to
dismiss them.
Right to Strike; illegal lockout (1995)
Fifty percent (50%) of the employees of Grandeur
Company went on strike after negotiations for a
collective bargaining agreement ended in a
deadlock. Grandeur Company, being a public
utility, immediately petitioned the Secretary of
Labor and Employment to assume jurisdiction and
certify the case to the NLRC. On the fourth day of
the strike and before the DOLE Secretary could
assume jurisdiction or certify the case to the
NLRC, the strikers communicated in writing their
offer to return to work. Grandeur Company refused
to accept the offer of the strikers because it
realized that they were not at all capable of
paralyzing the operations of the company. The
strikers accused Grandeur Company of illegal
lockout.
Has Grandeur Company committed the act
charged by refusing to accept the offer of the
strikers to return to work? Discuss fully.
SUGGESTED ANSWER:
There is no law that prohibits strikers to decide not
to continue with a strike that they have started.
Thus, the company committed an illegal lockout in
refusing to accept the offer of the strikers to return
to work. Under the set of facts in the question, the
Company did not give the required notice to
lockout, much less did it observe the necessary
waiting period, nor did it take a needed vote on the
lockout. Thus, the lockout is illegal.
Right to Strike; illegal strike; Loss of
Employment (1994)
Union A filed a Notice of Strike with the National
Conciliation and Mediation Board (NCMB) of the
Department of Labor and Employment. Upon a
motion to dismiss by the Company on the ground
that the acts complained of in the notice of strike
are non-strikeable. The NCMB dismissed the
Notice of Strike but continued to mediate the
issues contained therein to prevent the escalation
of the dispute between the parties. While the
NCMB was conducting mediation proceedings, the
Union proceeded to conduct a strike vote as
provided for under the Labor Code. After
observance of the procedural processes required
under the Code, the Union declared a strike.
1. Is the strike legal?
2. Can the employer unilaterally declare those
who participated in the strike as having lost
their employment status?
3. What recourse do these employees (declared
by the employer to have lost their employment
status) have, if any?
SUGGESTED ANSWER:
1) NO. The strike is not legal. The Labor Code
provides that no labor organization shall declare a
strike without first having bargained collectively in
accordance with its Title VII of Book V, which in
turn provides that during conciliation proceedings
at the NCMB, the parties are prohibited from doing
any act that may disrupt or impede the early
settlement of the dispute. (Arts. 264(a), also
250(d); Labor Code)
ALTERNATIVE ANSWER:
a) The strike is not legal, considering that it was
declared after the NCMB dismissed the Notice of
Strike. Hence, it is as if, no notice of strike was
filed. A strike declared without a notice of strike is
illegal, (GOP-CCP vs. CIR, 93 SCRA 118).
b) No. The strike is illegal. It is already settled in
the case of PAL vs. Secretary of Labor (Drilon) that
the pendency of a mediation proceedings is a bar
to the staging of a strike even if all the procedural
requirements were complied with.
SUGGESTED ANSWER:
2) The employer may unilaterally declare those
who participated in the strike as having lost their
employment status but such unilateral declaration
does not necessarily mean that thereby the strikers
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are legally dismissed. The strikers could still file a
case of illegal dismissal and prove, if they can, that
there was no just cause for their dismissal.
ALTERNATIVE ANSWER:
a) The employer cannot unilaterally declare those
who participated in the Illegal strike as having lost
their employment status. Only the union officers
who knowingly participated In the strike and
workers who knowingly participated in the
commission of illegal acts. If any, may be declared
to have lost their employment status. (Art. 264).
b) The employer has two options:
1. It may declare the strikers as having lost
their employment status pursuant to Art.
264 of the Labor Code, or
2. It may file a case before the Labor Arbiter,
under Art, 217, to have the strike declared
illegal and after that proceed to terminate
the strikers.
SUGGESTED ANSWER:
3) They could file a case of illegal dismissal. The
strikers who are union officers may contend that
the strike is not illegal. The strikers who are mere
union members may contend that they did not
commit any Illegal acts during the strike. (Art, 264,
Labor Code)
ALTERNATIVE ANSWER:
a) The employees who were declared to have lost
their employment status can file a complaint for
illegal dismissal with the NLRC, or seek the
assistance of the NCMB for conciliation/ mediation.
b) The recourse of the workers whose employment
status are declared to have been lost is to file a
case of illegal dismissal under Art. 217 of the
Code, and to pray for the suspension of the effects
of termination under Article 277(b) of the said Code
because this involves a mass lay-off.
Right to Strike; Industries Vital to National
Interest (2004)
Which of the following may be considered among
industries most vital to national interest as to be
the subject of immediate assumption of jurisdiction
by the Secretary of Labor and Employment or
certification for compulsory arbitration in case of
strike or work stoppage arising from a labor
dispute?
(1) Bulletin daily newspaper publishing
company.
(2) Local franchise of Jollibee and Starbucks.
(3) Shipping and port services in Cebu and
Manila.
(4) Enchanted Kingdom, Elephant Island and
Boracay Resort.
(5) LBC, DHL and FedEx centers.
Justify your answer or choice. (5%)
SUGGESTED ANSWER:
Certification of labor dispute for immediate
assumption of jurisdiction by the Secretary of the
Department of Labor and Employment, as
indispensable to national interest. (Art. 263 [g],
Labor Code).
1. Bulletin Daily Newspaper. Access to information,
e.g., local, foreign, or otherwise are requirements
for an informed citizenry.
2. Shipping and port services in Cebu and Manila.
The country needs domestic sea transport due to
our topography and for the smooth flow of
business and government operations.
3. LBC, DHL, FEDEx Centers. Couriers are
essential to foreign and domestic business and
government operations.
Right to Strike; Industries Vital to National
Interest; Return to Work Order (1996)
A deadlock in the negotiations for the collective
bargaining agreement between X College and the
Union prompted the latter, after duly notifying the
DOLE, to declare a strike on November 5 which
totally paralyzed the operations of the school.
The Labor Secretary immediately assumed
Jurisdiction over the dispute and issued on the
same day (November 5) a return to work order.
Upon receipt of the order, the striking union officers
and members on November 7, filed a motion for
reconsideration thereof questioning the Labor
Secretary's assumption of jurisdiction, and
continued with the strike during the pendency of
their motion.
On November 30, the Labor Secretary denied
reconsideration of his return to work order and
further noting the striker's failure to immediately
return to work terminated their employment.
In assailing the Labor Secretary's decision, the
Union contends that:
1. the Labor Secretary erroneously assumed
jurisdiction over the dispute since X College
could not be considered an industry
indispensable to national interest;
2. the strikers were under no obligation to
immediately comply with the November 5
return to work order because of their then
pending motion for reconsideration of such
order: and
3. the strike being legal, the employment of the
striking Union officers and members cannot be
terminated.
Rule on these contention. Explain.
SUGGESTED ANSWERS:
1} The Supreme Court has already ruled that
educational institutions are in an industry
indispensable to the national interest, considering
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the grave adverse effects that their closure entails
on their students and teachers.
2) The striking workers must immediately comply
with a Return to Work Order even pending their
motion for reconsideration. Compliance is a duty
imposed by law, and a Return to Work Order is
immediately executory in character.
The nature of a Return to Work Order, was
characterized by the Supreme Court in Sarmiento
v. Juico, 162 SCRA 676 (1988) as:
It is also important to emphasize that the return
to work order not so much confers a right as it
imposes a duty. It must be discharged as a
duty even against the workers' will. Returning
to work in this situation is not a matter of
options or voluntariness but of obligation.
In Baguio Colleges Foundation v. NLRC, 222
SCRA 604 (1993) the Court ruled:
Assumption and certification orders are
executory in character and are to be strictly
complied with by the parties even during the
pendency of any petition questioning their
validity.
3) The continuing strike is illegal because it is in
defiance of a return to work order of the Secretary
of Labor and Employment, hence, termination of
employment of all those who participated whether
officer or member, is legal.
In Sta. Scholastica's College v. Torres. 210 SCRA
565 (1992), the Court ruled:
Any worker or union officer who knowingly
participates in a strike defying a return to work
order may, consequently, be declared to have
lost his employment status in accordance with
Art. 246 of the Labor Code.
Right to Strike; Lawful Strike; Effect on
Participants (1997)
A strike was staged in Mella Corporation because
of a deadlock in CBA negotiations over certain
economic provisions. During the strike, Mella
Corporation hired replacements for the workers
who went on strike. Thereafter, the strikers decided
to resume their employment.
Can Mella Corporation be obliged to reinstate the
returning workers to their previous positions?
SUGGESTED ANSWER:
YES. Mella Corporation can be obligated to
reinstate the returning workers to their previous
positions. Workers who go on strike do not lose
their employment status except when, while on
strike, they knowingly participated in the
commission of illegal acts. The Labor Code
expressly provides: Mere participation of a worker
in a lawful strike should not constitute sufficient
ground for termination of his employment, even if a
replacement had been hired by the employer
during such lawful strike.
Right to Strike; Lawful; Right to Rein-
statement (2006)
As a result of bargaining deadlock between ROSE
Corporation and ROSE Employees Union, its
members staged a strike. During the strike, several
employees committed illegal acts. The company
refused to give in to the union's demands.
Eventually, its members informed the company of
their intention to return to work. (10%)
1. Can ROSE Corporation refuse to admit all the
strikers?
SUGGESTED ANSWER:
Rose Corporation cannot refuse to admit all the
strikers. Participants in a lawful strike generally
have the right to reinstatement to their positions
upon the termination of the strike (Insular Life
Assurance Co. Employees Assn. v. Insular Life
Assurance Co., G.R. No. L-25291, January 30,
1979; Consolidated Labor Assn. of the Phil. v.
Marsman & Co., Inc., G.R. No. L-17038, July 31,
1964). However, the Labor Code provides that any
worker or union officer who knowingly participates
in the commission of illegal acts during a strike
may be deemed to have lost his employment
status (Bascon v. CA, G.R. No. 144899, February
5, 2004; First City Interlink Trans. Co., Inv. v.
Confessor, G.R. No. 106316, May 5,1997;
Lapanday Workers' Union v. NLRC, G.R. Nos.
95494-97, September 7, 1995; Art. 264, Labor
Code).
Right to Strike; Limitations (2000)
A. What is the rationale for the State regulation of
strike activity and what are the interests
involved that the State must balance and
reconcile? (3%)
B. Cite two (2) examples on how the law
regulates the use of the strike as a form of
concerted activity. (2%)
SUGGESTED ANSWER:
a) The first rationale is the constitutional provision
that the right to strike is to be exercised "in
accordance with law". Another rationale is the Civil
Code provision that the relations between
employer and employee are imbued with public
interest and are subject to the provisions of special
law. A third rationale is the police power of the
state.
The interests to be balanced are the rights of the
workers, as primary socio-economic force, to
protection of the law, to security of tenure, to
concerted activities, etc. These should be
balanced with the right of the employer to
reasonable return on investment and to expansion
and growth. General welfare or the general peace
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and progress of society should also be considered.
This is why assumption of Jurisdiction and
certification to NLRC are allowed in "national
interest" cases. {Art. 263, Labor Code; Raw at
Buklod ng Manggagawa v. NLRC, 198 SCRA 586
(1991); Lapanday Workers Union v. NLRC, 248
SCRA 96 (1995)}
EXAMPLES: (1) procedural requirements should
be observed, namely, filing of notice of strike,
observance of cooling-off period, taking of strike
note, and report of the strike vote; (2) use of
violence, intimidation or coercion and blockade of
ingress-egress are not allowed. (Art 263
(b)(c)(f)(g), Labor Code).
Right to Strike; National Interest; DOLE Sec.
intervention (2004)
Employees of ABC declared a strike after filing a
Notice of Strike with the DOLE. They barricaded
company gates and damaged vehicles entering
company premises. On the second day of the
strike, ABC filed a petition with the DOLE
Secretary to intervene through the issuance of an
assumption of jurisdiction order that the Secretary
may issue when a strike or lock-out will adversely
affect national interest. ABC furnished the
Secretary with evidence to show that company
vehicles had been damaged; that electric power
had been cut off; and equipment and materials
were damaged because electric power was not
immediately restored. ABC forecast that the
country’s supply of chlorine for water treatment
(which the company produces) would be affected
adversely if ABC’s operations were closed down by
the strikers.
Could the DOLE Secretary intervene, assume
jurisdiction and issue a TRO (Temporary
Restraining Order)? Briefly justify your answer.
(5%)
Right to Strike; Picketing Activity (2000)
The workers engaged in picketing activity in the
course of a strike.
a) Will picketing be legal if non-employees of the
strike-bound employer participate in the activity?
(3%)
b) Can picketing activity be curtailed when illegal
acts are committed by the picketing workers in the
course of the activity? (3%)
SUGGESTED ANSWER:
Yes, the picketing is legal even though non-
employees join it. Picketing is a form of the
exercise of freedom of speech. Picketing, provided
it is held peacefully, is a constitutional right. The
disputants in a legal dispute need not be employer-
employee of each other. [De Leon v. National
Labor Union, 100 Phil 789 (1957): Cruz v. Cinema
Stage, etc., 101 Phil 1259 (1957}]
ALTERNATIVE ANSWER:
No, the picketing activity itself cannot be curtailed.
What can be curtailed are the Illegal acts being
done in the course of the picket. However, if this is
a "national Interest" case under Art 263(g), the
strike or work stoppage may be stopped by the
power of assumption of Jurisdiction or certification
of the case to the National Labor Relations
Commission. {Nagkakaisang Mangagawa sa
Cuison Hotel v. Libron, 124 SCRA 448 (1983);
Free Telephone Workers Union v. PLDT, 113
SCRA 662 (1982)].
Right to Strike; Picketing Activity; illegal
dismissal (2004)
B. President FX, head of a newly formed labor
union composed of 1/3 of the total number of rank-
and-file employees in Super Stores, Inc., agitated
his fellow employees to demand from management
pay increases and overtime pay. His supervisor
summoned him to explain his tardiness and refusal
to obey regulations. Feeling threatened, he
gathered 20 of his members and staged a 2-day
picket in front of the shopping mall. Security staff
arrived and dismantled the placards and
barricades blocking the employees’ entry to the
mall. In retaliation, FX threw stones at the guards,
but the other striking workers just stood by
watching him. Seven days after the picket, FX who
had gone absent without leave returned to the mall
and announced that he had filed a complaint for
illegal dismissal and unfair labor practice against
SSI.
SSI learned that FX’s group was not registered.
No strike vote and strike notice were filed prior to
the picket. The guards were told not to allow FX
entry to the company premises as management
considered him effectively terminated. Other union
members were accepted back to work by SSI.
Was the dismissal of FX for a valid cause? Was
due process observed? (5%)
SUGGESTED ANSWER:
There is a valid cause for the dismissal of FX, but
due process was not observed.
Peaceful picketing is part of the constitutional
freedom of speech. The right to free speech,
however, has its limits, and picketing as a
concerted activity is subject to the same limitations
as a strike, particularly as to lawful purpose and
lawful means. But it does not have to comply with
the procedural requirements for a lawful strike, like
the notice of strike or the strike vote.
However, in the problem given, picketing became
illegal because of unlawful means, as barricades
blocked the employees' entry to the mall, and
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violence, ensued when FX threw stones at the
guards. There was thus, valid cause for the
dismissal of FX, however, due process was not
observed because SSI did not comply with the twin
requirements of notice and hearing.
Right to Strike; Return to Work Order (1994)
The Secretary of Labor assumed jurisdiction over a
strike under Art. 263(g) of the Labor Code and
issued a return-to-work order. The Union defied the
return-to-work order and continued the strike. The
Company proceeded to declare all those who
participated in the strike as having lost their
employment status.
1) Was the Company's action valid?
2) Was the Company still duty bound to observe
the requirements of due process before declaring
those who participated in the strike as having lost
their employment status?
SUGGESTED ANSWER:
1) The Company's action is valid. Any
declaration of a strike after the Secretary of Labor
has assumed jurisdiction over a labor dispute is
considered an illegal act, and any worker or union
officer who knowingly participates in a strike
defying a return-to-work order may consequently
be declared to have lost his employment status
and forfeited his right to be readmitted, having
abandoned his position, and so could be validly
replaced.
For the moment a worker defies a return-to-work
order, he is deemed to have abandoned his job, as
it is already in itself knowingly participating in an
illegal act, otherwise the worker will simply refuse
to return to his work and cause a standstill in
company operations while returning the position he
refuses to discharge or allow management to fill.
(St. Scholastica's College vs. Hon. Ruben Torres,
Secretary of Labor, etal., G.R. No. 100158. 29
June 1992.)
SUGGESTED ANSWER:
2) Considering that the workers who defied the
return-to-work order are deemed to have
abandoned their employment, the only obligation
required of an employer is to serve notices
declaring them to have lost their employment
status at the worker's last known address. (Sec. 2
Rule XIV, Book V, Rules Implementing the Labor
Code)
Right to Strike; Return to Work Order (1997)
The Secretary of Labor assumed Jurisdiction over
a strike in Manila Airlines and eventually issued a
return-to-work. The Manila Airlines Employees
Union defied the return-to-work order and
continued with their strike. The management of
Manila Airlines then declared all the employees
who participated in the strike dismissed from
employment.
(a) Was the act of Manila Airlines' management in
dismissing the participants in the strike valid?
(b) What are the effects of an assumption of
jurisdiction by the Secretary of Labor upon the
striking employees and Manila Airlines?
SUGGESTED ANSWER:
(a) Yes. The act of Manila Airlines' management
in dismissing the participants in the strike is valid,
in a number of Supreme Court decisions, it has
ruled that the defiance by workers of a return to
work order of the Secretary of Labor issued when
he assumes jurisdiction over a labor dispute is an
illegal act and could be the basis of a legal
dismissal. The return to work order imposes a duty;
it must be discharged as a duty even against the
workers' will.
(b) When the Secretary of Labor assumes
jurisdiction over a strike, all striking employees
shall 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. [Art. 263(q)].
Right to Strike; Return to Work Order (1998)
The Secretary of Labor and Employment, after
assumption of jurisdiction over a labor dispute in
an airline issued a Return to Work Order. The
airline filed a Motion for Reconsideration of the
Order and pending resolution of the motion,
deferred the implementation of the Order.
Can the airline defer the implementation of the
Return to Work Order pending resolution of the
motion for reconsideration? [5%]
SUGGESTED ANSWER:
The airline cannot defer the implementation of the
Return to Work Order on the basis of there being a
pending Motion for Reconsideration re: the
assumption of jurisdiction by the Secretary of
Labor and Employment of a labor dispute.
According to the Supreme Court, the Return to
Work Order issued by the Secretary of Labor and
Employment upon his assumption of jurisdiction
over a labor dispute in an industry indispensable
for the national interest is immediately executory.
ANOTHER SUGGESTED ANSWER:
No, the airline cannot defer the implementation of
a return to work order pending resolution of a
Motion for Reconsideration.
The Labor Code reads –
Art. 263. Strikes, picketing, and lockouts. - xxx
(g) When, in his opinion, there exists a labor
dispute causing or 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
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Commission for compulsory arbitration. Such
assumption or certification shall have the effect
of automatically enjoining the intended or
impending strike... as specified in the
assumption or certification order. If one has
already taken place at the time of assumption
or certification, all striking employees ...shall
immediately return to work, (underscoring
supplied)
The Supreme Court, in Baguio Colleges
Foundation V NLRC. 222 SCRA 604 (1995), ruled
- not be strikeable. No strike or lockout may be
xxx assumption and certification orders are
executory in character and are to be strictly
complied with by the parties even during the
pendency of any petition questioning their
validity.
Being executory in character, there was
nothing for the parties to do but implement the
same, (underscoring supplied)
Right to Strike; Return to Work Order;
Assumption Order (2003)
In a labor dispute, the Secretary of Labor issued
an "Assumption Order". Give the legal implications
of such an order.
SUGGESTED ANSWER:
Under Art. 263(g) of the Labor Code, such
assumption shall have the effect of automatically
enjoining the intended or impending strike or
lockout as specified in the assumption order. If one
had already taken place at the time of assumption,
all striking or lockout employees shall immediately
return to work and the employer shall immediately
resume operations and re-admit all workers under
the same terms and conditions prevailing before
the strike or lockout.
The Secretary of Labor and Employment may seek
the assistance of law enforcement agencies to
ensure compliance with this provision as well as
with such orders as he may issue to enforce the
same.
The mere issuance of an assumption order by the
Secretary of Labor automatically carries with it a
return-to-work order, even if the directive to return
to work is not expressly stated in the assumption
order. Those who violate the foregoing shall be
subject to disciplinary action or even criminal
prosecution. Under Art. 264 of the Labor Code, no
strike or lockout shall be declared after the
assumption of jurisdiction by the Secretary.
Right to Strike; Statutory Requisites;
Procedural Requirements (2004)
Enumerate and discuss briefly:
1. What are the statutory requisites for a valid
strike by the workers? Should these requisites
be complied with substantially or strictly?
SUGGESTED ANSWERS:
The STATUTORY REQUISITES for a valid strike
are the following:
1. A strike may be declared only in cases of
bargaining deadlocks or unfair labor practices.
Violations of Collective bargaining agreements,
except flagrant and/or malicious refusal to
comply with its economic provisions, shall not
be considered unfair labor practice and shall
declared on grounds involving inter-union and
intra-union disputes.
2. No strike may be declared without first having
filed a notice of strike or without the necessary
strike vote having been obtained and reported
to the National Conciliation and Mediation
Board. A strike may actually take place only
after a 30-day waiting period after notice was
filed for a strike arising from a bargaining
deadlock or after & 15-day waiting period for
an unfair labor practice strike. Notice about a
strike vote should be given seven days before
the intended strike.
3. No strike can be declared after assumption of
jurisdiction by the Secretary of Labor and
Employment or after certification or submission
of the dispute to compulsory or voluntary
arbitration or during the pendency of cases
involving the same grounds for the strike or
lockout.
The above requisites are to be complied with
strictly. Thus, the Supreme Court has ruled that
non-compliance of the requirements of notice or a
strike vote or of the waiting periods makes a strike
an illegal strike.
ANOTHER SUGGESTED ANSWER:
STATUTORY REQUIREMENTS for a Valid Strike
A. STATUS OF STRIKING UNION -
For a ULP strike or bargaining deadlock
strike, only a duly-certified or -recognized
bargaining representative may declare
such strike.
B. PROCEDURAL REQUIREMENTS -
(1) Notice of Intent. Filing of Notice of Intent
to Strike with the NCMB.
(2) Cooling-off Period.- Observance of
Cooling-off Period.
(a) ULP - 15 days before intended date of
strike
(b) Bargaining Deadlock - 30 days before
intended date of strike.
(3) Strike Vote and Filing of the same with the
NCMB and the observance of the seven
(7) days strike ban. [Art. 263 (c-f), Labor
Code].
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C. CAUSE -
The cause of a strike must be a labor or industrial
dispute. [Art. 212fo). Labor Code. Compliance with
all legal requirements are meant to be and should
be mandatory. (National Federation of Sugar
Workers v. Ovajera, 114 SCRA 354 [1982]).
Right to Strike; Temporary Stoppage (2002)
Eaglestar Company required a 24-hour operation
and embodied this requirement in the employment
contracts of its employees. The employees agreed
to work on Sundays and Holidays if their work
schedule required them to do so for which they
would be paid additional compensation as
provided by law. Last March 2000, the union filed a
notice of strike. Upon Eaglestar's petition, the
Secretary of Labor certified the labor dispute to the
NLRC for compulsory arbitration. On April 20, 2000
(Maundy Thursday), while conciliation meetings
were pending, the union officers and members who
were supposed to be on duty did not report for
work. Neither did they report for work on April 21
(Good Friday) and on April 22 (Black Saturday),
disrupting the factory's operations and causing it
huge losses. The union denied it had gone on a
strike because the days when its officers and
members were absent from work were legal
holidays. Is the contention of the union correct?
Explain briefly. (5%)
SUGGESTED ANSWER:
The contention of the union is NOT correct. In the
case, it is clear that the employees agreed to work
on Sundays and Holidays if their work schedule
required them to do so for which they would be
paid additional compensation as provided by law.
The above-mentioned agreement that the
employees voluntarily entered into is valid. It is not
contrary to law. It is provided in the agreement that
if they will work Sundays or Holidays that they will
be paid additional compensation as provided by
law. Neither is the agreement contrary to morals,
good customs, public order or public policy.
Thus, when the workers did not report for work
when by agreement they were supposed to be on
duty, there was a temporary stoppage of work by
the concerted action of the employees as a result
of an Industrial or labor dispute because they were
on strike. [See Interphil Laboratories Employees
Union-FFW v. Interphil Laboratories Inc., GR No.
142824, December 19, 2001}
Right to Strike; Wildcat Strike (1997)
The Kilusang Kabisig, a newly-formed labor union
claiming to represent a majority of the workers in
the Microchip Corporation, proceeded to present a
list of demands to the management for purposes of
collective bargaining. The Microchips Corporation,
a multinational corporation engaged in the
production of computer chips for export, declined
to talk with the union leaders, alleging that they
had not as yet presented any proof of majority
status.
The Kilusang Kabisig then chained Microchip
Corporation with unfair labor practice, and declared
a "wildcat" strike wherein means of ingress and
egress were blocked and remote and isolated acts
of destruction and violence were committed.
a) Was the strike legal?
b) Was the company guilty of an unfair labor
practice when it refused to negotiate with the
Kilusang Kabisig?
SUGGESTED ANSWERS:
(a) Because what was declared is a "wildcat"
strike, the strike is illegal. A "wildcat" strike is one
that is one declared by a group of workers without
formal union approval. Thus, it is illegal because
the Labor Code requires that for a strike to be
legal, among others, the decision to declare a
strike must be approved by a majority of the total
union membership in the bargaining unit
concerned, obtained by a secret ballot in meetings
or referenda called for that purpose.
ALTERNATIVE ANSWERS:
a.l) The strike is illegal. The Labor Code
recognizes only one of two (2) grounds for a strike
to be legal: bargaining deadlock or unfair labor
practice. A strike to compel an employer to
recognize a union is not allowed by law.
2) The strike is not illegal. For the strike to be
illegal because of violence, it should be
characterized by pervasive violence. Here, there
were only remote and violated acts of destruction
and violence. But even if the strike is not illegal,
those strikers who committed illegal acts, namely,
those who blocked the means of ingress and
egress and who committed acts of destruction and
violence, these strikers can be legally dismissed.
Right to Strike; Work Slowdown (1998)
The day following the workers' voluntary return to
work, the Company Production Manager
discovered an unusual and sharp drop in workers'
output. It was evidently clear that the workers are
engaged in a work slowdown activity.
Is the work slowdown a valid form of strike activity?
[5%]
SUGGESTED ANSWER:
A WORK SLOWDOWN is not a valid form of strike
activity. If workers are to strike, there should be
temporary stoppage of work by the concerted
action of employees as a result of an industrial or
labor dispute (See Article 2l2(o) of the Labor Code)
ANOTHER SUGGESTED ANSWER:
No, a slowdown is not a valid form of strike activity.
The Supreme Court in Ilaw at Buklod ng
Manggagawa v. NLRC 198 SCRA 586 (1991) ruled
- The Court is in substantial agreement with the
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petitioner's concept of a slowdown as a "strike on
the installment plan", as a willful reduction in the
rate of work by conceited action of workers for the
purpose of restricting the output of the employer, in
relation to a labor dispute, as an activity by which
workers, without a complete stoppage of work
retard production or their performance of their
duties... The Court also agrees that such slowdown
is generally condemned as inherently illicit and
unjustifiable, because while the employees
"continue to work and remain at their positions,
and accept wages paid to them", they at the same
time select what part of their alloted tasks they
care to perform of their own volition or refuse
openly, or secretly, to the employers damage, to
do other work; in other words, they work on their
own terms.
Likewise, a slowdown is not a valid form of
concerted activity, absent a labor dispute between
the parties. The Labor Code reads - Art. 212. . –
xxx Co) "Strike" means any temporary stoppage of
work by the concerted action of employees as a
result of an industrial or labor dispute.
ANOTHER SUGGESTED ANSWER:
No. It is a prohibited activity. It can be said to be a
violation of the duty to bargain collectively. The
union is guilty of bad faith. The workers should
resume operations under the same terms and
conditions prevailing prior to the strike.
Self Organization; Acquisition of Legal
Personality (2003)
At what particular point does a labor organization
acquire a legal personality?
a) On the date the agreement to organize the
union is signed by the majority of all its
members; or
b) On the date the application for registration is
duly filed with the Department of Labor or
c) On the date appearing on the Certificate of
Registration; or
d) On the date the Certificate of Registration is
actually issued; or
e) None of the above, Choose the correct
answer.
SUGGESTED ANSWER:
d.) On the date the Certificate of Registration is
actually issued.
Any applicant labor organization, association or
group of unions or workers shall acquire legal
personality and shall be entitled to the rights and
privileges granted by law to legitimate labor
organizations upon issuance of the certificate of
registration.
ANOTHER SUGGESTED ANSWER:
(c) "On the date appearing on the Certificate of
Registration."
When the law provides that a "labor organization
xxx shall acquire legal personality xxx upon
issuance of the certificate of registration", the date
appearing therein is legally presumed - under the
rule on presumption of regularity - to be its date of
issuance. Actual issuance is a contentious
evidentiary issue that can hardly be resolved, not
to mention that the law does not speak of "actual"
issuance.
Self Organization; Appropriate Bargaining
Unit; Confidential Employees (2002)
Malou is the Executive Secretary of the Senior
Vice-president of a bank while Ana is the Legal
Secretary of the bank's lawyer. They and other
executive secretaries would like to join the union of
rank and file employees of the bank. Are they
eligible to join the union? Why? Explain briefly.
(3%)
SUGGESTED ANSWER:
The following rules will govern the right of self-
organization of Malou, Ana, and the other
Executive Secretaries;
1. No Right to Self-Organization — Confidential
employees who act in a confidential capacity to
persons who formulate, determine, and effectuate
management policies in the field of labor-
management relation. The two criteria are
cumulative and both must be met [San Miguel
Corporation Union v. Laguesma, 277 SCRA 370
(1997)]
2. With Right to Self-Organization — When the
employee does not have access to confidential
labor relations information, there is no legal
prohibition against confidential employees from
forming, assisting, or joining a labor organization.
[Sugbuanon Rural Bank, Inc. v. Laguesma, 324
SCRA 425 (2000)]
3. No right of self-organization for Legal
Secretaries — Legal Secretaries fall under the
category of confidential employees with no right to
serf-organization. [Pier & Arrastre Stevedoring
Services, Inc. v, Confesser, 241 SCRA 294 (1995)]
Self Organization; BLR Certification;
Certification Election (1998)
Can the Bureau of Labor Relations certify a union
as the exclusive bargaining representative after
showing proof of majority representation thru union
membership cards without conducting an election?
[5%]
SUGGESTED ANSWER:
The Bureau of Labor Relations CANNOT certify a
union as the exclusive collective bargaining
representative after showing of proof of majority
representation thru union membership cards
without conducting a certification election.
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The Labor Code (In Arts. 256, 257 and 258}
provides only for a certification election as the
mode for determining the exclusive collective
bargaining representative if there is a question of
representation in an appropriate bargaining unit.
ANOTHER SUGGESTED ANSWER:
No, the Bureau of Labor Relations cannot certify a
union as the exclusive bargaining representative
without conducting a certification election.
The Supreme Court, in Colgate Palmolive
Philippines Inc. v. Ople. 163 SCRA 323 (1988),
ruled -
The procedure for a representation case is
outlined [in the] Labor Code ... the main purpose
of which is to aid in ascertaining majority
representation. The requirements under the law
... are all calculated to ensure that the certified
bargaining representative is the true choice of
the employees against all contenders. xxx When
an ... official by-passes the law on the pretext of
retaining a laudable objective, the intendment or
purpose of the law will lose its meaning as the
law itself is disregarded. When the [Bureau of
Labor Relations] directly [certifies] a union, he in
fact disregarded this procedure and its legal
requirements. There was therefore failure to
determine with legal certainty whether the union
indeed enjoyed majority representation.
Self Organization; Certification Election
(2001)
UNIDAD, a labor organization claiming to
represent the majority of the rank and file workers
of BAGSAK Toyo Manufacturing Corp. (BMTC),
filed a petition for certification election during the
freedom period obtaining in said corporation.
Despite the opposition thereto by SIGAW
Federation on the ground that UNIDAD was not
possessed with all the attributes of a duly
registered union, the Med-Arbiter issued an Order
calling for a certification election on July 25, 2001.
This Order was promulgated and served on the
parties on July 12, 2001. On July 14, 2001,
UNIDAD submitted and served the required
documents for its registration as an independent
union, which documents were approved by the
DOLE on July 15, 2001.
During the elections, UNIDAD won over SIGAW.
SIGAW questioned UNIDAD's victory on the
ground that UNIDAD was not a duly registered
union when it filed the petition for a certification
election. Shall SIGAWs case prosper or not? Why?
(5%).
SUGGESTED ANSWER:
No, SIGAW's case will not prosper. The application
of technicalities of procedural requirements in
certification election disputes will serve no lawful
objective or purpose. It is a statutory policy that no
obstacles should be placed on the holding of a
certification election, (Samahang ng Manggagawa
sa Pacific Plastic vs. Laguesma 267 SCRA 203,
(1997) and that the law is indisputably partial to the
holding of a certification election. (Western Agusan
vs. Trajano, 196 SCRA 622 (1991).
At any rate, UNIDAD completed all the
requirements for union registration on July 14,
2001, and legitimate union status was accorded on
July 15, 2000, or at least ten (10) days before the
scheduled date for holding the Certification
Election.
Self Organization; Certification Election;
Bystander Rule (1996)
PT & T Supervisory Employees Union filed a
petition for the holding of a certification election
among the supervisory employees of the PT & T
Company. The company moved to dismiss the
petition on the ground that Union members were
performing managerial functions and were not
merely supervisory employees. The company also
alleged that a certified bargaining unit existed
among its rank and file employees which barred
the filing of the petition.
1. Does the company have the standing to file the
motion to dismiss? Explain.
2. If you were the Med-Arbiter, how would you
resolve the petition.
3. What is the proper remedy of an employer to
ensure that the employees are qualified to hold
a certification election?
SUGGESTED ANSWER:
1) No, the company has no standing to file the
Motion to Dismiss as the employer has no right to
interfere in a purely union matter or concern.
(Philippine Fruits and Vegetable Industries, Inc.. vs
Torres, 211 SCRA 95 (1992)
The Court would wish to stress once more the rule
which It has consistently pronounced in many
earlier cases that a certification election is the sole
concern of the workers and the employer is
regarded as nothing more than a bystander with no
right to interfere at all in the election.
2) As the MED ARBITER I will:
a) Deny, for lack of merit, the employer's
Motion to dismiss the Union's Petition for
Certification Election.
b) Proceed to hear the merits of the petition,
especially:
1. the appropriation of the claimed
bargaining unit;
2. inclusion and exclusion of voters, or
the proposed voter list; and
3. if the petition is in order, to set the
date, time and place of the election.
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3) The employer has no remedy. The petition for
certification election was initiated by the Union;
hence, the employer is a total stranger or a
bystander in the election process. (Philippine Fruits
and Vegetable Industries, Inc. v. Torres, 211
SCRA 95 [1992]). To allow an employer to assert a
remedy is an act of interference in a matter which
is purely a concern of the Union.
ALTERNATIVE ANSWER:
1) The company does not have the standing to
file a motion to dismiss the petition for certification
election, but it could move for the exclusion of the
employees it alleged to be managerial employees
from the bargaining unit for which a petition for
certification election has been filed.
As a general rule, an employer has no standing in
a petition for certification election because the
purpose of a certification election is to determine
who should be the collective bargaining
representative of the employees. Thus, a
certification election is the concern of the
employees and not of the employer.
But in the case at bar, the employer may have a
standing because the petition for certification
election involves personnel which the employer
alleges to be managerial employees. And
managerial employees under the Labor Code are
not eligible to form, assist or Join labor
organizations, implying that they cannot be part of
the bargaining unit for which a petition for
certification election has been filed.
2) As the MED-ARBITER, I will order the holding
of the certification election. The fact that there is
already a certified collective bargaining
representative of the rank and file employees of
the Company is not a bar to the holding of a
certification election for the determination of the
collective bargaining representative of the
supervisory employees. But I will exclude those
employees found to be managerial from
participating in the certification election.
3) The proper remedy of an employer to ensure
that only the employees are qualified to hold a
certification election is to move for the exclusion of
those whom he alleges to be managerial
personnel.
Self Organization; Certification Election;
Unorganized Establishment (2003)
There are instances when a certification election is
mandatory. What is the rationale for such a legal
mandate?
SUGGESTED ANSWER:
According to the Labor Code, in any establishment
where there is no certified bargaining agent, a
certification election shall automatically be
conducted by the Med-Arbiter upon the filing of a
petition by a legitimate labor organization.
In the above-described situation, a certification
election is made mandatory because if there is no
certified bargaining agent as determined by a
certification election, there could be no collective
bargaining in the said unorganized establishment
Self Organization; E-E Relationship;
Certification Election (1998)
Is it required that an employer-employee
relationship exists between an employer and the
employees in the appropriate bargaining unit
before a certification election can be ordered? If
so. why? [5%]
SUGGESTED ANSWER:
Yes. it is required that an employer-employee
relationship is existing between the employer and
the employees in the appropriate bargaining unit
before a certification election can be ordered for
the simple reason that a certification election is
held for the purpose of determining which labor
organization shall be the exclusive collective
bargaining representative of the employees in an
appropriate bargaining unit. There could be no
collective bargaining between persons who do not
have any employer-employee relationship.
ANOTHER SUGGESTED ANSWER:
Yes. the Supreme Court has ruled that the
existence of an employer-employee relationship is
required before a certification election can be held.
The Supreme Court in Allied Force Waters Union
v. Campania Maritime 19 SCRA 268 (1967). ruled -
xxx There being no employer-employee
relationship between the parties disputants, there
is neither "a duty to bargain collectively" to speak
of. And there being no such duty, to hold
certification elections would be pointless. There is
no reason to select a representative to negotiate
when there can be no negotiations in the first
place. Where there is no duty to bargain
collectively, it is not proper to hold certification
elections in connection therewith.
Self Organization; Gov’t Employees (2004)
B. Because of alleged “unfair labor practices” by
the management of GFI System, a government-
owned and controlled financial corporation, its
employees walked out from their jobs and refused
to return to work until the management would grant
their union official recognition and start
negotiations with them.
The leaders of the walk-out were dismissed, and
the other participants were suspended for sixty
days. In arguing their case before the Civil Service
Commission, they cited the principle of social
justice for workers and the right to self-organization
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and collective action, including the right to strike.
They claimed that the Constitution shielded them
from any penalty because their walk-out was a
concerted action pursuant to their rights
guaranteed by the basic law.
Is the position taken by the walk-out leaders and
participants legally correct? Reason briefly. (5%)
SUGGESTED ANSWER:
The position taken by the walk-out leaders and
participants is not legally correct. They are
government employees, and as such, they do not
have the right to strike. According to the actual
wording of Section 3 of Article XIII of the
Constitution, the State "shall guarantee the rights
of all workers to self-organization, collective
bargaining and negotiations, and peaceful
concerted activities including the right to strike in
accordance with law."
Thus, the last clause of the above-quoted provision
of the Constitution makes it very clear: the right to
strike is not constitutional, it is statutory because
the right should be "in accordance with law". And
there is as yet no law giving government
employees the right to strike.
ANOTHER SUGGESTED ANSWER:
NO. What Art. XIV, Sec. 3 of the 1987 Constitution
guarantees is "the right to strike in accordance with
law." Assuming that what we have is a chartered
government-owned and controlled corporation,
they cannot, under EO 180 and related
jurisprudence, stage such walk-out which is
basically a case of strike.
Even if GFI was organized under the corporation
law, still no such walk-out is allowed without the
employees' complying with the requirements of a
valid strike, among which is that said strike or walk-
out should be validly grounded on a (a) deadlock in
collective bargaining, or (b) unfair labor practice,
either of which is not present here.
Self Organization; Importance (1996)
1) What is the importance of labor organizations?
SUGGESTED ANSWER:
A labor organization exists in whole or in part for
the purpose of collective bargaining or of dealing
with employers concerning terms and conditions of
employment. Employees may form labor
organizations for their mutual aid and protection.
(See Arts. 212(a) and 243 of the Labor Code)
ALTERNATIVE ANSWER:
The importance of labor unions are:
a) The enhancement of democracy and the
promotion of social justice and development.
b) As instrumentalities through which worker
welfare may be promoted and fostered,
(Mactan Workers Union v. Aboitiz, 45 SCRA
577 (1972|)
c) It is the instrumentality through which an
individual laborer who is helpless as against a
powerful employer may, through concerted
effort and activity, achieve the goal of
economic well-being. (Gullarno v. CIR, 32
SCRA 307 [1993]).
Self Organization; Membership Policy (1998)
A labor union lawyer opined V. that a labor
organization is a private and voluntary
organization; hence, a union can deny
membership to any and all applicants.
Is the opinion of counsel in accord with law? [5%]
SUGGESTED ANSWER:
NO, the opinion of counsel is not in accord with
law. The Labor Code (in Article 249 (a and b)
provides that a labor organization has the right to
prescribe its own rules for the acquisition or
retention of membership, but it is an unfair labor
practice act for a labor organization to restrain or
coerce employees in the exercise of their right to
self-organization. Thus, a labor organization
cannot discriminate against any employee by
denying such employee membership in the labor
organization on any ground other than the usual
terms and conditions under which membership or
continuation of union membership is made
available to other members.
ANOTHER SUGGESTED ANSWER:
Yes, the legal opinion of counsel, on the nature of
a labor union and its admission policy is in accord
with law, but must be qualified. The Supreme Court
ruled in Salunga v. CIR, 21 SCRA 216 (1967) as
follows:
Generally, a state may not compel ordinary
voluntary association to admit thereto any given
individual, because membership therein maybe
accorded or withheld as a matter of privilege.
The same case further ruled that the law can
compel a labor union to admit an applicant for
membership when the union is -
The rule is qualified in respect of labor unions
holding a monopoly in the supply of labor, either
in a given locality or as regards a particular
employer with which it has a closed-shop
agreement. The reason is that [union security
provisions] cause the admission requirements of
trade unions to be affected with public interest.
Self Organization; Right to Disaffiliate from
the Local Union; illegal dismissal (1994)
In the Collective Bargaining Agreement (CBA)
between Royal Films and its rank-and-file Union
(which is directly affiliated with MFF, a national
federation), a provision on the maintenance of
membership expressly provides that the Union can
demand the dismissal of any member employee
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who commits acts of disloyalty to the Union as
provided for In its Constitution and By-Laws. The
same provision contains an undertaking by the
Union (MFF) to hold Royal Films free from any and
all claims of any employee dismissed.
During the term of the CBA, MFF discovered that
certain employee members were initiating a move
to disaffiliate from MFF and join a rival federation,
FAMAS. Forthwith, MFF sought the dismissal of its
employee members initiating the disafiliation
movement from MFF to FAMAS. Royal Films,
relying on the provision of the aforementioned
CBA, complied with MFFs request and dismissed
the employees Identified by MFF as disloyal to it.
(1) Will an action for Illegal dismissal against
Royal Films and MFF prosper or not?
(2) What are the liabilities of Royal and MFF to the
dismissed employees, if any?
SUGGESTED ANSWER:
1) The action for illegal dismissal will prosper. The
right of a local union to disaffiliate from its mother
federation is well-settled. A local union, being a
separate and voluntary association, is free to serve
the interest of all its members including the
freedom to disaffiliate when circumstances warrant
this right is consistent with the constitutional
guarantee of freedom of association. Thus, the Act
of initiating move to disaffiliate is not an act of
disloyalty. (Tropical Hut. Employee's Union-CGW,
et al. vs. Tropical Hut Food Market, Inc., etal, G.R.
Nos. L-^3495-99, January 20. 1990)
ALTERNATIVE ANSWER:
The action for illegal dismissal will prosper.
Disaffiliation cannot be considered an act of
disloyalty. The very essence of self-organization is
for the workers to form a group for the effective
enhancement and protection of common interest.
(PICEWO v. People Industrial & Commercial
Corp., 112 SCRA 440)
2) MFF can be held liable to pay the backwages
of the dismissed employees. Royal can be held
jointly and severally liable for backwages if it acted
with undue haste in dismissing the employees
(Manila Cordage Co. v. CIR, 78 SCRA 398). In
addition, Royal can be ordered to reinstate the
dismissed employees.
Self Organization; Right to Self-Organization
of Coop Employees (2002)
Do employees of a cooperative have a right to form
a union? Explain briefly. (2%)
SUGGESTED ANSWER:
Employees who are members of a cooperative
cannot form a union because, as members, they
are owners and owners cannot bargain with
themselves. However, employees who are not
members of the cooperative can form a union.
[San Jose Electric Service Cooperative v. Ministry
of Labor, 173 SCRA 697 (1989)]
Self Organization; Union Dues; Assessment
(2002)
The union deducted P20.00 from Rogelio's wages
for January. Upon inquiry he learned that it was for
death aid benefits and that the deduction was
made pursuant to a board resolution of the
directors of the union. Can Rogelio object to the
deduction? Explain briefly. (5%)
SUGGESTED ANSWER:
Yes. In order that the special assessment (death
aid benefit) may be upheld as valid, the following
requisites must be compiled with: (1) Authorization
by a written resolution of the majority of all the
members at the general membership meeting duly
called for the purpose; (2) Secretary's record of the
meeting; and (3) Individual written authorization for
the check-off duly signed by the employee
concerned. [ABS-CBN Supervisors Employees
Union Members v. ABS-CBN Broadcasting Corp,
and Union Officers, 304 SCRA 489 (1999)]
In the problem given, none of the above requisites
were complied with by the union. Hence, Rogelio
can object to the deduction made by the union for
being Invalid.
Self Organization; Union Dues; Assessments
(1997)
Arty. Facundo Veloso was retained by Welga
Labor Union to represent it in the collective
bargaining negotiations. It was agreed that Atty.
Veloso would be paid in the sum of P20,000.00 as
attorney's fees for his assistance in the CBA
negotiations.
After the conclusion of the negotiations. Welga
Labor Union collected from its individual members
the sum of P100.00 each to pay for Atty. Veloso's
fees and another sum of Pl00 each for services
rendered by the union officers. Several members
of the Welga Labor Union approached you to seek
advice on the following matters.
a) Whether or not the collection of the amount
assessed on the individual members to answer
for the Attorney's fees was valid.
b) Whether or not the assessment of Pl00 from
the individual members of the Welga Labor
Union for services rendered by the union
officers in the CBA negotiations was valid.
SUGGESTED ANSWER:
(a) The assessment of P100.00 from each union
member as attorney's fees - for union negotiation,
is not valid. Art. 222(b) of the Labor Code, reads:
"No attorneys fees, negotiation fees or similar
charges of any kind arising from any collective
bargaining negotiations or conclusion of the
collective agreement shall be imposed on any
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individual member of the contracting union;
Provided, however, that attorneys fees may be
charged against union funds in an amount to
be agreed upon by the parties. Any contract,
agreement or arrangement of any sort to be
contrary shall be null and void."
(b) The assessment of P 100.00 as negotiation
fees charged to each individual union member and
payable to union officers is also not valid, for the
same reason as stated above. The assessment is
an act violative of Art. 222(b).
ALTERNATIVE ANSWER:
(a) The collection of the amount assessed on the
individual members to answer for the attorney's
fees would be valid if it was authorized by a written
resolution of a majority of all the members in a
general membership meeting called for the
purpose.
(b) The assessment of P100.00 from the Individual
members of the Welga Labor Union for services
rendered by the union officers in the CBA
negotiations would be valid if it was authorized by
a written resolution of a majority of all the members
in a general membership meeting duly called for
the purpose. (Art. 241(N)].
Self Organization; Unions; Assessments
(2001)
(b) What requisites must a Union comply with
before it can validly impose special assessments
against its members for incidental expenses,
attorney's fees, representation expenses and the
like? (3%).
SUGGESTED ANSWER:
The Labor Code (in Art. 241(n)) provides that "no
special assessments or other extraordinary fees
may be levied upon the members of a labor
organization unless authorized by a written
resolution of a majority of all the members at a
general membership meeting duly called for the
purpose."
ANOTHER SUGGESTED ANSWER:
In the case of ABS-CBN Employees Supervisors
Union vs. ABS-CBN Boardcasting Corp., and
Union Officers, G.R. No. 106518, March 11,1999,
the Supreme Court ruled that the following are the
requisites:
(1) Authorization by a written resolution of the
majority of all the members at the general
membership meeting duly called for the
purpose;
(2) Secretary's record of the minutes of the
meeting; and
(3) Individual written authorization for check-off
duly signed by the employee concerned.
(See also: Gabriel vs. Secretary of Labor, G.R.
No. 115949, March 16* 2000).
Self Organization; Unions; Financial Records
(1999)
FACTS: Polaris Drug Company had an existing
Collective Bargaining Agreement with Polaris
Workers Union (PWU) which was due to expire on
May 31, 1999. PWU had a total membership of
one hundred [100] rank-and-file employees of the
company. Mike Barela, a militant member of the
union, suspected that the union officers were
misappropriating union funds as no financial report
was given to the general membership during the
union's general assembly. Hence, Mike Barela
prepared a sworn written complaint and filed the
same with the Office of the Secretary of Labor on
May 10, 1999, petitioning for an examination of the
financial records of PWU.
1. Is the Secretary of Labor authorized by law to
examine the financial records of the union? If so,
what power? If not, why not? (3%)
SUGGESTED ANSWER:
The Secretary of Labor is expressly authorized by
the Labor Code (in Article 274} to examine the
financial records of the unions to determine
compliance or non-compliance with the pertinent
provisions of the Labor Code and to prosecute any
violation of the law and the union constitution-and-
by-laws. But this authority may be exercised only
upon the filing of a complaint under oath and duly
supported by the written consent of at least twenty
percent (20%) of the total membership of the labor
organization concerned.
ALTERNATIVE ANSWER:
Among the rights and conditions of membership in
a labor organization is the right implied by the
proviso in the Labor Code (Article 241 (m)) stating
that the books of accounts and other records of the
financial activities of any labor organization shall
be open to inspection by any officer or member
thereof during office hours.
As a union member, Mike Barela could file an intra-
union case that may entail the act of the Secretary
of Labor examining the financial records of the
union. (See La Tondena Workers Union v.
Secretary of Labor and Employment, 239 SCRA
117)
2. Under the facts given above, could an
examination or audit of the financial records of the
union be ordered? Why? (2%)
SUGGESTED ANSWER:
Under the facts given in the question, an
examination or audit of the financial records of the
union can not be ordered because for such
examination or audit to take place, there should be
a complaint under oath and duly supported by
written consent of at least twenty (20%) per cent of
the total membership of the labor organization
concerned. In this case, the aforementioned
requirement was not fulfilled. It was only a sworn
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written complaint by one union member that was
filed.
Also, the Labor Code provides that an examination
of the books of a union shall not be conducted
during the sixty (60) day freedom period nor within
thirty (30) days immediately preceding the date of
election of union officials.
In the case, the complaint was filed on May 10,
1999 which is within the freedom period of the
current CBA which was to expire on May 31. 1999.
Self Organization; Unions; Financial Records
(2001)
(a) Under what conditions may the Secretary of
Labor or his duly authorized representative inquire
into the financial activities or legitimate labor
organizations? (2%).
SUGGESTED ANSWER:
The Labor Code (in Art. 274), the Secretary of
Labor and Employment or his duly authorized
representative is empowered to inquire into the
financial activities of legitimate labor organizations
upon the filing of a complaint under oath and duly
supported by the written consent of at least twenty
(20%) percent of the total membership of the labor
organization concerned and to examine their
books of accounts and other records.
Self Organization; Unions; Membership;
Dismissal in Bad Faith (2002)
A On what ground or grounds may a union
member be expelled from the organization? (3%)
B. May the general manager of a company be held
jointly and severally liable for backwages of an
illegally dismissed employee? (2%)
SUGGESTED ANSWER:
A. Union members may be expelled from the labor
organization only on valid grounds provided for in
the Union Constitution, By-Laws, or conditions for
union membership.
ANOTHER SUGGESTED ANSWER:
Whenever appropriate for any violation of the rights
as:
a) Refusal to pay union dues and special
assessments;
b) Disloyalty to the union; and
c) Violation of the constitution and by-laws of the
union.
SUGGESTED ANSWER:
B. Yes. If it is shown that he acted in bad faith, or
without or in excess of authority, or was motivated
by personal ill-will in dismissing the employee, the
general manager may be held jointly and severally
liable for the backwages of an illegally dismissed
employee. [ARB Construction C. v. Court of
Appeals, 332 SCRA 427, (2000), Lim v. NLRC,
303 SCRA 432, (1999)]
ANOTHER SUGGESTED ANSWER:
Yes. The General Manager may be held jointly and
severally liable for back wages of an illegally
dismissed employee if he or she actually
authorized or ratified the wrongful dismissal of the
employee under the rule of respondeat superior. In
case of illegal dismissal, corporate directors and
officers are solidarity liable with the corporation
where termination of employment are done with
malice or bad faith. [Bogo-Medellin Sugar Planters
Assoc., Inc. v. NLRC, 296 SCRA 108, (1998)]
Self-Organization (2002)
Mang Bally, owner of a shoe repair shop with only
nine (9) workers in his establishment, received
proposals for collective bargaining from the Bally
Shoe Union. Mang Bally refused to bargain with
the workers for several reasons. First, his shoe
business is just a service establishment. Second,
his workers are paid on a piecework basis (i.e., per
shoe repaired) and not on a time basis. Third, he
has less than ten (10) employees in the
establishment. Which reason or reasons is/are
tenable? Explain briefly. (2%)
SUGGESTED ANSWER:
NONE. First, Mang Bally's shoe business is a
commercial enterprise, albeit a service
establishment. Second, the mere fact that the
workers are paid on a piece-rate basis does not
negate their status as regular employees. Payment
by piece is just a method of compensation and
does not define the essence of the relation.
[Lambo v. NLRC, 317 SCRA 420 (1999)]. Third,
the employees' right to self organization is not
delimited by their number.
The right to self-organization covers all persons
employed in commercial, industrial and agricultural
enterprises and in religious, charitable, medical, or
educational Institutions whether operating for profit
or not {Art. 243, Labor Code}
Self-Organization; Dismissal due to Union
Activities (2004)
A, B, C and D (treasurer, accountant, elementary
department Principal, and secretary of the Director,
respectively), regular employees of a private
educational institution, were administratively
charged for their participation in a picket held in
front of the campus after office hours. Several
faculty members, non-academic staff and students
joined the peaceful prayer rally organized by
disgruntled employees to protest certain alleged
abuses of the incumbent School Director.
Subsequently, the rank-and-file employees
succeeded in forming the first and only union of the
School.
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During the investigation, the administration
discovered that two (2) days prior to the rally, A, B,
C and D attended the meeting of the School’s
employees’ association which planned the protest
activity. Two well-known organizers/leaders of a
national labor federation were also present.
A, B, C and D were dismissed by the School on the
ground of violating the Labor Code which prohibits
managerial employees to “join, assist or form any
labor organization”.
Is the contention of the School tenable? Is the
dismissal of A, B, C and D valid? Explain. (5%)
SUGGESTED ANSWER:
The dismissal of A, B, C and D on the ground that
they violated the Labor Code provision which
states that managerial employees "are not eligible
to join, assist or form any labor organization" is not
valid. The Labor Code does not provide for any
sanction for the aforesaid acts. These acts could
not be considered as just cause for the termination
of employment, either.
ANOTHER SUGGESTED ANSWER:
The dismissal of the managerial employees is
invalid. The dismissal of the management
employees because of union activities, no matter
how erroneous or tenous may be the basis of the
exercise, is a violation of the constitutional and
statutory guaranteed rights of self-organization,
and an act of unfair labor practice. (Sec. 3, Art.
XIII, Constitution; Art. 243, Labor Code. See also
Art. 248 (a), Labor Code).
Self-Organization; Gov’t vs. Private
Employees (1996)
2) How does the government employees’ right to
self-organization differ from that of the employees
in the private sector?
SUGGESTED ANSWER:
There is no substantial difference of the right of
self-organization between workers in the private
sector and those in the public sector. In the public
sector, Executive Order No. 180, the purpose of
self-organization is stated as "for the furtherance
and protection of their interest." In the private
sector, Art. 243 of the Labor Code states "for the
purpose of collective bargaining", and "for the
purpose of enhancing and defending their Interests
and for their mutual aid and protection."
ALTERNATIVE ANSWER:
In government, managerial employees shall not be
eligible to join the organization of rank-and-file
employees per Executive Order No. 180 but said
law does not provide that they are not eligible to
join, assist or form any labor organization,
meaning, they could join, assist or form any labor
organization of their own. In the private sector,
managerial employees are not eligible to join,
assist or form any labor organization. (See Art. 243
of the Labor Code and Sec. 3 of Executive Order
No. 180)
Self-Organization; Right to Join (2000)
(1) Do workers have a right not to join a labor
organization? (3%)
(2) Do the following workers have the right to self-
organization? Reasons/basis (2%)
a. Employees of non-stock, non-profit
organizations?
b. Alien employees?
SUGGESTED ANSWER:
Yes, workers decide whether they will or will not
become members of a labor organization. That's
why a union's constitution and by-laws need the
members' adoption and ratification. Moreover, if
they are members of a religious group whose
doctrine forbids union membership, their right not
to be compelled to become union members has
been upheld. However, if the worker is not a
"religious objector" and there is a union security
clause, he may be required to join the union if he
belongs to the bargaining unit. [Reyes v. Trajano,
209 SCRA 484 (1992)].
b)(i) Even employees of non-stock non-profit
organizations have the right to self-organization.
This is explicitly provided for in Art. 243 of the
Labor Code. A possible exception, however, are
employee-members of non-stock non-profit
cooperatives.
(ii) ALIEN EMPLOYEES with valid work permits in
RP may exercise the right to self-organization on
the basis of parity or reciprocity, that is, if Filipino
workers in the aliens' country are given the same
right. (Art. 269, Labor Code).
ULP; Awards of Damages (2001)
(b) "A", an employee, sued company "B" for unfair
labor practice, Illegal dismissal and damages as a
consequence thereof. The Arbiter granted A's
prayer for reinstatement, backwages, and included
an award for attorney's fees. On appeal to the
NLRC, the Commission affirmed the Arbiter's
decision but deleted the award for attorney's fees
since fees were not claimed in A's complaint. Who
was correct, the Arbiter or the NLRC? Why? (2%)
SUGGESTED ANSWER:
The NLRC was correct in deleting the award for
attorney's fees if an employee did not include
attorney's fees among his claims and, therefore,
did not give any evidence to support the payment
of attorney's fees.
ANOTHER SUGGESTED ANSWER:
The decision of the Labor Arbiter to award
attorney's fees even if the same is not claimed is
correct. Article 2208 of the New Civil Code allows
the award of attorney's fees when the defendant's
act or omission has compelled the plaintiff to
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litigate or incur expenses to protect his interest.
Attorney's fees may be considered as a part of an
equitable relief awarded in the concept of
damages.
(c) Would your answer be different if the attorney's
fees awarded by the Arbiter was over fifteen
percent of the total award? Why? (1%)
SUGGESTED ANSWER;
An award of attorney's fees which is over fifteen
percent of the total award is not in conformity with
the provision of the Labor Code (Art. 111(a)) that in
cases of unlawful withholding of wages, the
culpable party may be assessed attorney's fees
equivalent to ten percent of the amount of wages
recovered.
ULP; Contracting Out Labor (2001)
(a) Company "A" contracts out its clerical and
janitorial services. In the negotiations of its CBA,
the union insisted that, henceforth, the company
may no longer engage in contracting out these
types of services, which services the union claims
to be necessary in the company's business,
without prior consultation. Is the union's stand valid
or not? For what reason(s)? (2%)
SUGGESTED ANSWER:
The union's stand is not valid. It is part of
management prerogative to contract out any work,
task, job or project except that it is an unfair labor
practice to contract out services or functions
performed by union members when such will
interfere with, restrain or coerce employees in the
exercise of their rights to self-organization. (Art.
248(c) of the Labor Code)
ANOTHER SUGGESTED ANSWER:
The union's stand that there must be a prior
consultation by the employer with the union before
contracting out can be effected is valid. Article XIII,
Section 3 of the Constitution, and Article 255 of the
Labor Code guarantee the right of workers to
participate in policy and decision making
processes which affect their rights and benefits.
Job contracting will undoubtedly and directly affect
their rights, benefits and welfare. Philippine Airlines
vs. NLRC, 255 SCRA 301 (1993), and Manila
Electric Company us. Quisumbing, 302 SCRA 173
(1999).
ULP; Definition & Examples of ULP (1996)
1) Define unfair labor practice, Answer;
SUGGESTED ANSWER:
UNFAIR LABOR PRACTICE means any unfair
labor practice as expressly defined by the Labor
Code (Arts. 248 and 249 of the Labor Code).
Essentially, an unfair labor practice is any act
committed by an employer or by a labor
organization, its officers, agents or representatives
which has the effect of preventing the full exercise
by employees of their rights to self-organization
and collective bargaining. (See Arts 248 and 249
of the Labor Code).
2) Give three (3) examples of unfair labor
practices on the part of the employer and three (3)
examples of unfair labor practices on the part of
the labor union.
ANSWER;
Any three (3) from the following enumeration in the
Labor Code:
ART. 248. Unfair labor practices of employers. It
shall be unlawful for an employer to commit any of
the following unfair labor practice:
1. To interfere with, restrain or coerce employees
in the exercise of their right to self-
organization;
2. To require as a condition of employment that a
person or an employee shall not join a labor
organization or shall withdraw from one to
which he belongs;
3. To contract out services or functions being
performed by union members when such will
interfere with, restrain or coerce employees in
the exercise of their rights to self-organization;
4. To initiate, dominate, assist or otherwise
interfere with the formation or administration of
any labor organization, including, the giving of
financial or other support to it, or its
organizations, or supporters;
5. To discriminate in regard to wages, hours of
work, and other terms and conditions of
employment in order to encourage or
discourage membership in any labor
organization. Nothing in this Code or in any
other law shall stop the parties from requiring
membership in a recognized collective
bargaining agent as a condition for
employment, except those employees who are
already members of another union at the time
of the signing of the collective bargaining
agreement. Provided, that the individual
authorization required under Article 241,
paragraph (o) of this Code shall not apply to
the non-members of the recognized collective
bargaining agent;
6. To dismiss, discharge, or otherwise prejudice
or discriminate against an employee for having
given or being about to give testimony under
this Code;
7. To violate the duty to bargain collectively as
prescribed by this Code;
8. To pay negotiation or attorney's fees to the
union or its officers or agents as part of the
settlement of any issue in collective bargaining
or any other dispute; or
9. To violate a collective bargaining agreement.
ULP; Jurisdiction; Labor Arbiter (1997)
On 01 August 1992, Pro-Knit, a corporation
engaged in the manufacture of textile garments,
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entered into a collective bargaining agreement with
the Kamao Union in representation of the rank and
file employees of the corporation.
The CBA was effective up to 20 June 1995. The
contract had an automatic renewal clause which
would allow the agreement after its expiry date to
still apply until both parties would have been able
to execute a new agreement.
On 10 May 1995 Kamao Union submitted to Pro-
Knit's management their proposals for the
renegotiation of a new CBA. The next day, Pro-Knit
suspended negotiations while Kamao Union since
Pro-Knit had entered into a merger with Eagle
Garments, a corporation also engaged in the
manufacture of textile garments. Eagle Garments
assumed all the assets and liabilities of Pro-Knit.
Kamao filed a complaint with the Regional Trial
Court for specific performance and damages with a
prayer for preliminary injunction against Pro-Knit
and Eagle Garments.
Pro-Knit and Eagle Garments filed a Motion to
Dismiss based on lack of Jurisdiction. How would
you rule on the Motion to Dismiss?
SUGGESTED ANSWER:
I will grant the Motion to Dismiss. The act of Pro-
knit suspending negotiations with Kamao Union
could be an unfair labor practice. It could be a
violation of the duty to bargain collectively. As
such, the case is under the jurisdiction of a Labor
Arbiter and not of a regular Court
ALTERNATIVE ANSWER:
I will deny the Union's Motion to Dismiss. There is
no labor dispute between the parties; hence, the
Regional Trial Court has Jurisdiction over the
complaint. Art. 212 of the Labor Code, reads -
Labor dispute Includes any controversy or
matter concerning terms or conditions of
employment or the association or representation
of persons in negotiating, fixing, maintaining,
changing or arranging the terms and conditions
of employment regardless of whether the
disputants stand in the proximate relations of
employer and employee.
In addition, the Company can claim that labor
contracts are contracts in personam and do not
generally bind successors in interest except under
special circumstances. In Sundowner Development
Corporation v Drilon, 180 SCRA 14, the Court said:
The rule is that unless expressly assumed, labor
contracts such as xxx collective bargaining
agreements are not enforceable against a
transferee of an enterprise, labor contracts being in
personam, thus binding only between the parties.
ULP; Refusal to Negotiate (1997)
The Kilusang Kabisig, a newly-formed labor union
claiming to represent a majority of the workers in
the Microchip Corporation, proceeded to present a
list of demands to the management for purposes of
collective bargaining. The Microchips Corporation,
a multinational corporation engaged in the
production of computer chips for export, declined
to talk with the union leaders, alleging that they
had not as yet presented any proof of majority
status.
The Kilusang Kabisig then chained Microchip
Corporation with unfair labor practice, and declared
a "wildcat" strike wherein means of ingress and
egress were blocked and remote and isolated acts
of destruction and violence were committed.
Was the company guilty of an unfair labor
practice when it refused to negotiate with the
Kilusang Kabisig?
SUGGESTED ANSWERS:
NO. It is not an unfair labor practice (ULP) not to
bargain with a union which has not presented any
proof of its majority status. The Labor Code
imposes on an employer the duty to bargain
collectively only with a legitimate labor organization
designated or selected by the majority of the
employees in an appropriate collective bargaining
unit. It is not a ULP for an employer to ask a union
requesting to bargain collectively that such union
first show proof of its being a majority union.
ULP; Rights & Obligations; Workers’
Association (2004)
A. Around 100 workers of a mill in a coconut
plantation organized themselves for the purpose of
promoting their common interest and welfare. The
workers’ association prepared a petition for
increasing the daily pay of its members in
compliance with minimum wage rates for their
sector in the region, and for granting benefits to
which they are entitled under the law.
However, the workers became restless and
anxious after the owner-manager threatened them
with mass lay-off if the association would press for
their demands. Most of its members have worked
in the mill for 10 to 15 years with no improvement
in working conditions and monetary benefits.
The leaders of the workers’ association
approached you and asked: what legal steps could
they take to protect their security of tenure? What
advice could you give them? (5%)
SUGGESTED ANSWER:
I would advise them to register the workers'
association with the Department of Labor and
Employment. Then, have the workers' association
file a ULP case against the employer.
ANOTHER SUGGESTED ANSWER:
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The workers are entitled to the constitutional (Art.
XIII, Sec. 3, 1987 Constitution) and statutory (Art.
279, Labor Code) guarantees of security of tenure.
When this right to security of tenure is violated, an
action for illegal dismissal is an available remedy.
If they are dismissed because of union activities,
an action for unfair labor practice can be filed (Sec.
3, Art. XIII, Constitution; Art. 243, Labor Code.) If
successful, the workers will be entitled to full
backwages, including money value of benefits, and
reinstatement without loss of seniority (Art. 279,
Labor Code).
ULP; Subject to Criminal Prosecution (2005)
Is the commission of an unfair labor practice by an
employer subject to criminal prosecution? Please
explain your answer briefly. (3%)
SUGGESTED ANSWER:
Yes, because unfair labor practices are not only
violations of the civil rights of both labor and
management but are also criminal offenses against
the State which shall be subject to prosecution and
punishment. (Article 247, Labor Code; See also
B.P. Big. 386 as amended by R.A. No. 6715).
However, the criminal aspect can only be filed
when the decision of the labor tribunals, finding the
existence of unfair labor practice, shall have
become final and executory.
LABOR STANDARDS
E-E Relationship; Corporation (1999)
FACTS: Teofilo Lacson was one of more than one
hundred (100) employees who were terminated
from employment due to the closure of LBM
Construction Corporation (LBM).
LBM was a sister company of Lastimoso
Construction, Inc. and RL Realty & Development
Corporation. All three (3) entities formed what
came to be known as the Lastimoso Group of
Companies. The three (3) corporations were
owned and controlled by members of the
Lastimoso Family; their incorporators and directors
all belonged to the Lastimoso family. The three (3)
corporations were engaged in the same line of
business, under one management, and used the
same equipment including manpower services.
Teofilo Lacson and his co-employees filed a
complaint with the Labor Arbiter against LBM, RL
Realty and Lastimoso Construction to hold them
jointly and severally liable for backwages and
separation pay.
Lastimoso Construction, Inc. and RL Realty &
Development Corporation interposed a Motion to
Dismiss contending that they are Juridical entitles
with distinct and separate personalities from LBM
Construction Corporation and therefore, they
cannot be held jointly and severally liable for the
money claims of workers who are not their
employees.
Rule on the Motion to Dismiss. Should it be
granted or denied? Why? (5%)
SUGGESTED ANSWER:
It is very clear that even if LBM Construction
company, Lastimoso Construction Company, Inc.
and RL Realty & Development Corporation all
belong to the Lastimoso family and are engaged in
the same line of business under one management
and used the same equipment including manpower
services, these corporations were separate
juridical entities.
Thus, only the LBM Construction Corporation is the
employer of Teofllo Lacson. The other corporation
do not have any employer-employee relations with
Lacson.
The case in question does not include any fact that
would justify piercing the veil of corporate fiction of
the other corporations in order to protect the rights
of workers.
In a case (Concept Builders, Inc. v. NLRC. 257
SCRA 149), the Supreme Court ruled that it is a
fundamental principle of corporation law that a
corporation is an entity separate and distinct from
its stockholders and from other corporations to
which it may be connected. But this separate and
distinct personality of a corporation is merely a
fiction created by law for convenience and to
promote justice. So, when the notion of separate
juridical personality is used to defeat public
convenience, justify wrong, protect fraud or defend
crime, or is used as a device to defeat the labor
laws, this separate personality of the corporation
maybe disregarded or the veil of corporate fiction
pierced.
ALTERNATIVE ANSWER:
Motion to Dismiss should be denied. In the case at
bar, the Labor Arbiter would be justified in piercing
the corporate veil and considering the three (3)
corporations as one and the same entity as the
employer of Teofilo Lacson because based on the
facts "the three corporations were owned and
controlled by members of the Lstimoso family; their
incorporators and directors all belonged to the
Lastimoso family. The three (3) corporations were
engaged in the same line of business, under one
management and used the same equipment
including manpower services." The facts show that
"the notion of legal entity is used to defeat public
convenience, justify wrong, protect fraud, or defend
crime, the law will regard the corporation as an
association of persons, or in the case of two
corporations, will merge them into one
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E-E Relationship; Determined by Facts &
Laws (2000)
Banco de Manila and the Ang Husay Janitorial and
Pest Control Agency entered into an Independent
Contractor Agreement with the usual stipulations:
specifically, the absence of employer-employee
relationship, and the relief from liability clauses.
Can the Bank, as a client, and the Agency, as an
independent contractor, stipulate that no employer-
employee relationship exists between the Bank
and the employees of the Agency who may be
assigned to work in the Bank? Reason. (5%)
SUGGESTED ANSWER:
They can so stipulate if the relationship is indeed
Job contracting. Yet the stipulation cannot prevail
over the facts and the laws. The existence of
employer-employee relationship is determined by
facts and law and not by stipulation of the parties.
(Insular Life Assurance Co.. Ltd. v. NLRC. 287
SCRA 476 (1998); Tabas v. California
Manufacturing Co. Inc., 169 SCRA 497 (1989)].
ALTERNATIVE ANSWER:
Yes, they can stipulate provided that the contract
of Independent contractor is valid in accordance
with Art 106 of the Labor Code.
E-E Relationship; Elements (1996)
1) When does an employer- employee
relationship exist?
SUGGESTED ANSWER:
The Supreme Court, in a long line of decisions has
consistently ruled that the following are the
elements of an employer-employee relationship:
A. Selection and engagement of the employee;
B. Payment of wages;
C. Power of discipline and dismissal; and
D. Power to control the employee's conduct as
regards his employment.
ALTERNATIVE ANSWER;
An employer-employee relationship exists when a
person (an employer) who carries on a business,
trade, Industry, undertaking, or activity of any kind
uses the services of another person (an employee)
who, receiving compensation, is under the
employer's orders as regards the employment.
E-E Relationship; GRO’s & Night Clubs
(1999)
FACTS: Solar Plexus Bar and Night Club allowed
by tolerance fifty (50) Guest Relations Officers
(GRO) to work without compensation in its
establishment under the direct supervision of its
Manager from 8:00 p.m. to 4:00 a.m. everyday,
including Sundays and holidays. The GROs,
however, are free to ply their trade elsewhere at
anytime but once they enter the premises of the
night club, they are required to stay up to closing
time. The GROs earned their keep exclusively from
commissions for food and drinks, and tips from
generous customers. In time, the GROs formed the
Solar Ugnayan ng mga Kababaihang Inaapi
(SUKI); a labor union duly registered with DOLE.
Subsequently, SUKI filed a petition for certification
election in order to be recognized as the exclusive
bargaining agent of its members. Solar Plexus
opposed the petition for certification election on the
singular ground of absence of employer-employee
relationship between the GROs on one hand and
the night club on the other hand.
May the GROs form SUKI as a labor organization
for purposes of collective bargaining? Explain
briefly. (5%).
SUGGESTED ANSWER:
The GROs may form SUKI as a labor organization
for purposes of collective bargaining. There is an
employer-employee relationship between the
GROs and the night club.
The Labor Code (in Article 138) provides that any
woman who is permitted or suffered to work, with
or without compensation, in any nightclub, cock tail
lounge, massage clinic, bar or similar
establishment, under the effective control or
supervision of the employer for a substantial period
of time as determined by the Secretary of Labor,
shall be considered as an employee of such
establishment for purposes of labor and social
legislation.
In the case at bar, it is clearly stated that the
women once they enter the premises of the night
club would be under the direct supervision of the
manager from 8:00 p.m. to 4:00 a.m. everyday
including Sundays and holidays. Such is indicative
of an employer-employee relationship since the
manager would be exercising the right of control.
E-E Relationship; Security Guards; Floating
Status (1999)
FACTS: Asia Security & Investigation Agency
(ASIA) executed a one-year contract with the
Baron Hotel (BARON) for the former to provide the
latter with twenty (20) security guards to safeguard
the persons and belongings of hotel guests,
among others. The security guards filled up Baron
application form and submitted the executed forms
directly to the Security Department of Baron. The
pay slips of the security guards bore Baron's logo
and showed that Baron deducted therefrom the
amounts for SSS premiums, medicare
contributions and withholding taxes. Assignments
of security guards, who should be on duty or on
call, promotions, suspensions, dismissals and
award citations for meritorious services were all
done upon approval by Baron's chief Security
officer.
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After the expiration of the contract with Asia, Baron
did not renew the same and instead executed
another contract for security services with another
agency. Asia placed the affected security guards
on "floating status" on "no work no pay" basis.
Having been displaced from work, the Asia security
guards filed a case against the Baron Hotel for
illegal dismissal, overtime pay, minimum wage
differentials, vacation leave and sick leave
benefits, and 13th month pay.
Baron Hotel denied liability alleging that Asia is the
employer of the security guards and therefore, their
complaint for illegal dismissal and payment of
money claims should be directed against Asia.
Nevertheless, Baron filed a Third Party Complaint
against Asia.
1. Is there an employer-employee relationship
between the Baron Hotel, on one hand, and the
Asia security guards, on the other hand? Explain
briefly, (3%)
SUGGESTED ANSWER:
As a general rule, the security guards of a private
security guard agency are the employees of the
latter and not of the establishment that has entered
into a contract with the private security guard
agency for security services.
But under the facts in the question, Baron Hotel
appear to have hired the security guards, to have
paid their wages, to have the power to promote,
suspend or dismiss the security guards and the
power of control over them, namely, the security
guards were under orders of Baron Hotel as regard
their employment.
Because of the above-mentioned circumstances,
Baron Hotel is the employer of the security guards.
2. Assuming that ASIA is the employer, is the act
of ASIA in placing the security guards on "floating
status" lawful? Why? (2%)
SUGGESTED ANSWER:
It is lawful for a private security guard agency to
place its security guard on a "floating status" if it
has no assignment to give to said security guards.
But if the security guards are placed on a "floating
status" for more than six (6) months, the security
guards may consider themselves as having been
dismissed.
E-E Relationship; Self-Employed (2003)
Pablo was a farm-hand in a plantation owned by
ABC & Co., working approximately 6 days a week
for a good 15 years. Upon Pablo's death, his
widow filed a claim for burial grant and pension
benefits with the Social Security System (SSS).
The claim was denied on the ground that Pablo
had not been a registered member-employee.
Pablo's widow filed a petition before the SSS
asking that ABC & Co. be directed to pay the
premium contributions of Pablo and that his name
be reported for SSS coverage. ABC & Co.
countered that Pablo was hired to plow, harrow
and burrow, using his own carabao and other
implements and following his own schedule of work
hours, without any supervision from the company.
If proven, would this factual setting advanced by
ABC & Co. be a valid defense against the petition?
SUGGESTED ANSWER:
ABC & Co. has a valid defense. Pablo should be
an employee of ABC & Co. to be under the
compulsory coverage of the SSS. To be an
employee, Pablo should be under the control of
ABC & Co. as regards his employment. But the
facts show that he was not under the control of
ABC & Co. as regards his employment. Among
others, he had his own schedule of work hours,
without any supervision from the company. Thus,
he is an independent contractor and not an
employee. An independent contractor is not under
the compulsory coverage of the SSS. He maybe
covered as a self-employed person. But then as
such, ABC & Co. has no legal obligation to report
Pablo for coverage under the SSS because ABC &
Co. is not Pablo's employer.
ANOTHER SUGGESTED ANSWER:
It is not a valid defense, for Pablo could be
considered an employee of ABC & Co. The
elements of hiring, payment of wages, power to
dismiss and power to control are presumed from
the fact that Pablo is working 6 days a week, for 15
years now. Pablo's use of his plow, harrow,
burrow, carabao and other implements and his
having his own schedule of work hours without any
supervision from the company do not erase the
element of control on the part of ABC & Co.
because under the "control test", it is enough that
the employer's right to control exists. It is not
necessary that the same be exercised by the
employer, it is enough that such right to control
exists. (Religious of the Virgin Mary v. NLRC. 316
SCRA 614, 629 (1999)
E-E Relationship; Workers paid by Results
(2004)
B. TRX, a local shipping firm, maintains a fleet of
motorized boats plying the island barangays of AP,
a coastal town. At day’s end the boat
operators/crew members turn over to the boat
owner their cash collections from cargo fees and
passenger fares, less the expenses for diesel fuel,
food, landing fees and spare parts.
Fifty percent (50%) of the monthly income or
earnings derived from the operations of the boats
are given to the boatmen by way of compensation.
Deducted from the individual shares of the
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boatmen are their cash advance and peso value of
their absences, if any.
Are these boatmen entitled to overtime pay,
holiday pay, and 13th month pay? (5%)
SUGGESTED ANSWER:
If the boatmen are considered employees, like
jeepney drivers paid on a boundary system, the
boatmen are not entitled to overtime and holiday
pay because they are workers who are paid by
results. Said workers, under the Labor Code are
not entitled, among others, to overtime pay and
holiday pay.
In accordance with the Rules and Regulations
implementing the 13th month pay law, however,
the boatmen are entitled to the 13th month pay.
Workers who are paid by results are to be paid
their 13th month pay.
ANOTHER SUGGESTED ANSWER:
No. The arrangement between the boat owner and
the boat operators/crew members partook of the
nature of a joint venture. The boatmen did not
receive fixed compensation as they shared only in
the cash collections from cargo fees and
passenger fares, less expenses for fuel, food,
landing fees and spare parts. It appears that there
was neither right of control nor actual exercise of
such right on the part of the boat owner over the
boatmen. It is clear that there was no employer-
employee relationship between the boat owner and
the boatmen. As such, these boatmen are not
entitled to overtime pay, holiday pay and 13th
month pay.
E-E Relationship; Working Student & School
(1997)
Ruben Padilla entered into a written agreement
win Gomburza College to work for the latter in
exchange for the privilege of studying in said
institution. Ruben's work was confined to keeping
clean the lavatory facilities of the school. One
school day, Ruben got into a fist fight with a
classmate, Victor Monteverde, as a result of which
the latter sustained a fractured arm.
Victor Monteverde filed a civil case for damages
against Ruben Padilla, impleading Gomburza
College due to the latter's alleged liability as an
employer of Ruben Padilla.
Under the circumstances, could Gomburza College
be held liable by Victor Monteverde as an
employer of Ruben Padilla?
SUGGESTED ANSWER:
Gomburza College is not liable for the acts of
Ruben Padilla because there is no employer-
employee relationship between them. As provided
in the Rules and Regulations Implementing the
Labor Code "there is no employer-employee
relationship between students on one hand, and
schools, colleges, or universities on the other,
where students work with the latter in exchange for
the privilege to study free of charge, provided the
students are given real opportunity, including such
facilities as may be reasonable and necessary to
finish their chosen courses under such
arrangement."
ALTERNATIVE ANSWER;
Gomburza College can be held liable by Victor
Monteverde as an employer of Ruben Padilla.
Applying the control test, the College is the
employer of Padilla because in the latter's work of
keeping clean the lavatory facilities of the school,
he is under the control of the College as regards
his employment.
However, Ruben Padilla was not acting within his
assigned tasks. Art. 2180. New Civil Code
provides: The obligation imposed by Art. 2176
(Quasi-delicts) is demandable xxx (also from)
employers (who) shall be liable for the damages
caused by their employees xxx acting within the
scope of their assigned tasks, even though the
former are not engaged in any business or
industry." It could be argued that Ruben Padilla
was not acting within the scope of his assigned
tasks; thus, his employer, Gomburza College is not
liable.
Employment; Aliens; Requisites (1995)
2. Phil-Norksgard Company, Inc., a domestic
corporation engaged in the optics business,
imported from Sweden highly sophisticated and
sensitive instruments for its laboratory. To install
the instruments and operate them, the company
intends to employ Borja Anders, a Swedish
technician sojourning as a tourist in the
Philippines.
As lawyer of the company, what measures will you
take to ensure the legitimate employment of Borja
Anders and at the same time protect Philippine
labor. Discuss fully.
SUGGESTED ANSWER:
To ensure the legitimate employment of Borja
Anders, a non-resident alien, I will apply at the
Department of Labor and Employment for the
Issuance of an employment permit claiming that
there is no one in the Philippines who can do the
work that Anders is being asked to do.
At the same time, to protect Philippine labor, I will
see to it that Anders will have an understudy who
will learn, by working with Anders, how to install
and operate the highly sophisticated and sensitive
instruments from Sweden.
ALTERNATIVE ANSWER;
To protect Philippine Labor, the Labor Code
provides that the alien employee shall not transfer
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to another Job or change his employer without
prior approval of the Secretary of Labor.
Employment; Children; Below 15 yrs old
(2004)
A spinster school teacher took pity on one of her
pupils, a robust and precocious 12-year old boy
whose poor family could barely afford the cost of
his schooling. She lives alone at her house near
the school after her housemaid left. In the
afternoon, she lets the boy do various chores as
cleaning, fetching water and all kinds of errands
after school hours. She gives him rice and P30.00
before the boy goes home at 7:00 every night.
The school principal learned about it and charged
her with violating the law which prohibits the
employment of children below 15 years of age. In
her defense, the teacher stated that the work
performed by her pupil is not hazardous, and she
invoked the exception provided in the Department
Order of DOLE for the engagement of persons in
domestic and household service.
Is her defense tenable? Reason. (5%)
SUGGESTED ANSWER:
No, her defense is not tenable. Under Article 139
of the Labor Code on "minimum employable age",
no child below 15 years of age shall be employed
except when he works directly under the sole
responsibility of his parents or guardian, the
provisions of the alleged Department Order of
DOLE to the contrary notwithstanding. A mere
Department Order cannot prevail over the express
prohibitory provisions of the Labor Code.
[Note: Sec. 3, RA 9231 allows a child below 15 years of
age to work for not more than 20 hours a week; provided,
that the work shall not be more than four (4) hours at any
given day; provided, further, that he does not work
between 8 o'clock in the evening and 6 o'clock in the
morning of the following day; and provided, finally, that
the work is not hazardous or deleterious to his health or
morals. THIS IS A RECENT LAW APPROVED ONLY
ON JULY 28, 2003, which is beyond the cut-off period of
the Bar Exams]
Employment; Driver as Househelper & in a
Commercial Establishment (1998)
The weekly work schedule of a driver is as follows:
Monday, Wednesday, Friday - Drive the family car
to bring and fetch the children to and from school.
Tuesday, Thursday. Saturday - Drive the family
van to fetch merchandise from suppliers and
deliver the same to a boutique in a mall owned by
the family. Is the driver a househelper? [3%]
The same driver claims that for work performed on
Tuesday, Thursday and Saturday, he should be
paid the minimum daily wage of a driver of a
commercial establishment. Is the claim of the
driver valid? [2%]
SUGGESTED ANSWER:
The driver is a househelper. A person is a
househelper or is engaged in domestic or
household service if he/she renders services in the
employer's home which are usually necessary or
desirable for the maintenance and enjoyment
thereof and includes ministering to the personal
comfort and convenience of the members of the
employer's household including the services of
family drivers.
A family driver who drives the family van to fetch
merchandise from suppliers and delivers the same
to a boutique in a mall owned by the family for
whom he works should be paid the minimum daily
wage of a driver in a commercial establishment.
The Labor Code (in Article 143) provides that no
househelper shall be assigned to work in a
commercial, industrial or agricultural enterprise at a
wage or salary rate lower than that provided by law
for agricultural or non-agricultural workers.
Employment; Handicapped Employee (1998)
A lady worker was born with a physical deformity,
specifically, hard of hearing, speech impaired, and
color blind. However, these deficiencies do not
impair her working ability.
Can the employer classify the lady worker as a
handicapped worker so that her daily wage will
only be seventy-five percent (75%) of the
applicable daily minimum wage? [5%]
SUGGESTED ANSWER:
No, the employer cannot classify the lady worker
as a handicapped worker because according to the
facts in the question, her deficiencies do not impair
her working ability. If her earning capacity is
therefore not also impaired, then she cannot be
considered a handicapped worker.
Because of the above fact, the employer shall not
pay her less than the applicable daily minimum
wage. (See Article 78 of the Labor Code)
ANOTHER SUGGESTED ANSWER:
Yes, the employer can classify the lady worker as
a handicapped worker because her earning
capacity may be impaired by her physical
deficiencies As such handicapped worker, the
employer may enter into an employment
agreement with her whereby the rate to be paid to
her may be less than the applicable legal minimum
wage but not less than 75% of such wage.
Employment; Handicapped Employee (2000)
Ana Cruz has a low IQ. She has to be told at least
three times before she understands her daily work
assignment. However, her work output is at least
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equal to the output of the least efficient worker in
her work section. Is Ms, Cruz a handicapped
worker? Explain. (5%)
SUGGESTED ANSWER:
No, low IQ or low efficiency does not make the
worker "handicapped" in the contemplation of law.
Handicap means such physical or mental infirmity
that impairs capacity to work. The deficiency may
also be due to age or injury. (Art 78. Labor Code).
Employment; Handicapped Workers;
Contractual Employees (2006)
For humanitarian reasons, a bank hired several
handicapped workers to count and sort out
currencies. Their employment contract was for six
(6) months. The bank terminated their employment
on the ground that their contract has expired
prompting them to file with the Labor Arbiter a
complaint for illegal dismissal. Will their action
prosper? (5%)
ALTERNATIVE ANSWER:
Their action will not prosper because they are
covered by the fixed term employment contract
which automatically lapsed at the end of the 6-
month period (Brent School v. Zamora, G.R. No.
48494, February 5, 1990; Art. 280, Labor Code). A
contract of employment for a definite period
terminates on its own term at the end of its period.
It does not necessarily follow that the parties are
forbidden from agreeing on a fixed period of time
for the performance of activities usually necessary
and desirable in the usual business of the
employer (Pangilinan v. Gen. Milling, G.R. No.
149329, July 12, 2004).
ALTERNATIVE ANSWER:
Yes. Undeniably, handicapped workers are never
on equal terms with the bank as employer. In
Philippine National Oil Company-Energy
Development Corporation v. NLRC, G.R. No.
97747, March 31, 1993, the
Supreme Court set down two criteria under which
fixed contracts of employment do not circumvent
security of tenure, to wit:
1. The fixed period of employment was knowingly
and voluntarily agreed upon by the parties,
without any force, duress or improper pressure
being brought to bear upon the employee and
about any other circumstances vitiating his
consent; or
2. It satisfactorily appears that the employer and
the employee dealt with each other on more or
less equal terms with no moral dominance
whatever being exercised by the former on the
latter.
Even granting that the handicapped workers and
the bank agreed to term employment, it could not
be said that they "dealt with each other on more or
less equal terms with no moral dominance
whatever being exercised by the former over the
latter."
Employment; Homeworkers (2000)
b) Mrs. Josie Juan is the confidential secretary of
the Chairman of the Board of the bank. She is
presently on maternity leave. In an arrangement
where the Chairman of the Board can still have
access to her services, the bank allows her to work
in her residence during her leave. For this purpose,
the bank installed a fax machine in her residence,
and gave her a cellphone and a beeper. Is Mrs.
Juan a homeworker under the law? Explain. (3%)
SUGGESTED ANSWER:
No, she is actually an office worker. She is not an
industrial homeworker who accepts work to be
fabricated or processed at home for a contractor,
which work, when finished, will be returned to or
repurchased by said contractor. (Art. 155, Labor
Code).
Employment; Househelpers (2000)
a) Nova Banking Corporation has a resthouse and
recreational facility in the highlands of Tagaytay
City for the use of its top executives and corporate
clients. The resthouse staff includes a caretaker,
two cooks and a laundrywoman. All of them are
reported to the Social Security System as domestic
or household employees of the resthouse and
recreational facility and not of the bank. Can the
bank legally consider the caretaker, cooks and
laundrywoman as domestic employees of the
resthouse and not of the bank? (3%)
SUGGESTED ANSWER:
No, they are not domestic employees. They are
bank employees because the resthouse and
recreational facility are business facilities as they
are for use of the top executives and clients of the
bank. [Art. 141, Labor Code; Apex Mining Co., Inc.
v. NLRC, 196 SCRA 251 (1991); Traders Royal
Bank v. NLRC. G.R. No. 127864, December 22.
1999]
Employment; Minors (2006)
Determine whether the following minors should be
prohibited from being hired and from performing
their respective duties indicated hereunder: (5%)
1. A 17-year old boy working as miner at the
Walwadi Mining Corporation.
SUGGESTED ANSWER:
It is absolutely Prohibited for any person below 18
years of age to be employed in hazardous work,
harmful to health and safety (Sec. 3, Rule 12, Book
3, ties Implementing the Labor Code), including
construction work, logging, firefighting, mining,
quarrying, stevedoring, dock work, deep sea
fishing and mechanized fishing (Sec. 8[2], Rule 1,
Book 4, Rules Implementing the Labor Code).
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2. An 11-year old boy who is an accomplished
singer and performer in different parts of the
country.
SUGGESTED ANSWER:
Under RA. 7610, Section 12, as amended by RA.
No. 9231 states that:
Employment of children — children below 15 years
of age shall not be employed (Art. 139, Labor
Code) except when the following conditions are
met:
(a) When the child's participation in public
entertainment is essential;
(b) There is a written contract approved by the
DOLE and signed by the child's parents or
legal guardians, with the express consent of
the child; and
(c) the employer who employs the child must
secure a work permit from the DOLE.
3. A 15-year old girl working as a library assistant
in a girls' high school.
SUGGESTED ANSWER:
She may work as a library assistant provided:
(1) The employment does not endanger her life,
safety, morals and normal development;
(2) She is given the opportunity for primary or
secondary education; and
(3) The employment does not exceed 8 hours a
day and 40 hours a week (Sees. 12 & 14, RA.
7610, as amended by RA. 9231).
4. A 16-year old girl working as model promoting
alcoholic beverages.
SUGGESTED ANSWER:
Section 14, Article 8, RA. 7610, as amended by
Section 5, RA. 9231 states that a child shall be
prohibited to act as a model in any advertisement
directly or indirectly promoting alcoholic beverages,
intoxicating drinks, tobacco and its byproducts,
gambling or any form of violence or pornography.
5. A 17-year old boy working as a dealer in a
casino.
SUGGESTED ANSWER:
Section 14, Article 8, RA. 7610, as amended by
Section 5, RA. 9231 prohibits the boy from working
as a dealer in a casino as this promotes gambling.
Moreover, DOLE Dept. Order No. 04, series of
1999, expressly prohibits employment of
"teenagers" in gambling halls.
Employment; Minors; Hazardous Work (2002)
B. You were asked by a paint manufacturing
company regarding the possible employment as a
mixer of a person, aged seventeen (17), who shall
be directly under the care of the section supervisor.
What advice would you give? Explain briefly. (2%)
SUGGESTED ANSWER:
B. I will advise the paint manufacturing company
that ft cannot hire a person who is aged seventeen
(17). Art 139 (c) of the Labor Code provides that a
person below eighteen (18) years of age shall not
be allowed to work in an undertaking which is
hazardous or deleterious in nature as determined
by the Secretary of Labor. Paint manufacturing
has been classified by the Secretary of Labor as a
hazardous work.
Employment; Radio-TV Show Host;
Expiration of Term (2005)
(1) Malyn Vartan is a well-known radio-TV show
host. She signed a contract with XYZ
Entertainment Network to host a one-hour daily
talk show where she interviews various celebrities
on topical subjects that she herself selects. She
was paid a monthly remuneration of P300,000.00.
The program had been airing for almost two years
when sponsors' advertising revenues dwindled,
constraining the network to cancel the show upon
the expiration of its latest contract with Ms. Vartan.
The talk-show host protested the discontinuance of
her monthly talent fee, claiming that it was
tantamount to her illegal dismissal from the
network since she has already attained the status
of a regular employee. (6%)
(a) As the network's legal counsel, how would
you justify its decision to cancel Ms. Vartan's
program which in effect terminated her
services in the process?
ALTERNATIVE ANSWER:
As the network's legal counsel, I will argue that Ms.
Vartan is under contract on a fixed term
employment basis. The network cancelled the
show "upon the expiration of its latest contract with
Ms. Vartan." Hence, this does not involve dismissal
but an expiration of term. (Felix v. Buenaseda,
G.R. No. 109704, January 17,1995; St. Theresa's
School of Novaliches Foundation v. NLRC, G.R.
No. 122955, April 15, 1998)
ALTERNATIVE ANSWER:
As the network's counsel, there was no termination
of her services, only the expiration of her contract,
being an independent contractor. (Sonza v. ABS-
CBN, G.R. No. 138051, June 10, 2004)
(b) As counsel for the talk-show host, how
would you argue your case?
ALTERNATIVE ANSWER.
As a radio-TV talk show host, Ms. Vartan is
performing an activity which is necessary and
desirable in the usual trade or business of XYZ
Entertainment Network. Hence, Ms. Vartan is a
regular employee and cannot be terminated except
for cause and only after due process. The
cancellation of the program is tantamount to
closure but XYZ Entertainment Network did not
comply with the procedural requirements of law,
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i.e., 30 days notice to Ms. Vartan and to DOLE
prior to the intended date of termination.
ALTERNATIVE ANSWER:
As counsel for the talk show host, I will argue that
she is a regular employee. First, she performs job
that is necessary and desirable to the nature of the
business of the employer; Second, she serves for
at least one (1) year which is an indication of
regular employment.
Employment; Women; Anti-Sexual
Harassment Act (2000)
A Personnel Manager, while interviewing an
attractive female applicant for employment, stared
directly at her for prolonged periods, albeit in a
friendly manner. After the interview, the manager
accompanied the applicant to the door, shook her
hand and patted her on the shoulder. He also
asked the applicant if he could invite her for dinner
and dancing at some future time. Did the
Personnel Manager, by the above acts, commit
sexual harassment? Reason. (3%)
SUGGESTED ANSWER:
Yes, because the Personnel Manager, a man, is in
a position to grant or not to grant a favor (a job) to
the applicant. Under the circumstances, inviting the
applicant for dinner or dancing creates a situation
hostile or unfriendly to the applicant's chances for
a job if she turns down the invitation. [Sec. 3(a)(3),
R.A. No. 7877, Anti-Sexual Harassment Act].
ALTERNATIVE ANSWER:
There is no sexual harassment because there was
no solicitation of sexual favor in exchange of
employment. Neither was there any intimidating,
hostile or offensive environment for the applicant.
Employment; Women; Anti-Sexual
Harassment Act (2000)
b) In the course of an interview, another female
applicant inquired from the same Personnel
Manager if she had the physical attributes required
for the position she applied for. The Personnel
Manager replied: "You will be more attractive if you
will wear micro-mini dresses without the
undergarments that ladies normally wear." Did the
Personnel Manager, by the above reply, commit an
act of sexual harassment? Reason. (3%)
SUGGESTED ANSWER:
No, the Personnel Manager's reply to the
applicant's question whether she qualifies for the
position she is applying for does not constitute
sexual harassment. The Personnel Manager did
not ask for or insinuate a request for a sexual favor
in return for a favorable action on her application
for a job. But the Manager's statement may be
offensive if attire or physical look is not a criterion
for the job being applied for.
ALTERNATIVE ANSWER:
Yes. The remarks would result in an offensive or
hostile environment for the employee. Moreover,
the remarks did not give due regard to the
applicants' feelings and it is a chauvinistic disdain
of her honor, justifying the finding of sexual
harassment [Villarama v. NLRC, 236 SCRA 280
(1994)]
Employment; Women; Anti-Sexual
Harassment Act (2004)
A. Pedrito Masculado, a college graduate from
the province, tried his luck in the city and
landed a job as utility/maintenance man at the
warehouse of a big shopping mall. After
working as a casual employee for six months,
he signed a contract for probationary
employment for six months. Being well-built
and physically attractive, his supervisor, Mr.
Hercules Barak, took special interest to
befriend him. When his probationary period
was about to expire, he was surprised when
one afternoon after working hours, Mr. Barak
followed him to the men’s comfort room. After
seeing that no one else was around, Mr. Barak
placed his arm over Pedrito’s shoulder and
softly said: “You have great potential to
become regular employee and I think I can
give you a favorable recommendation. Can
you come over to my condo unit on Saturday
evening so we can have a little drink? I’m
alone, and I’m sure you want to stay longer
with the company.”
Is Mr. Barak liable for sexual harassment
committed in a work-related or employment
environment? (5%)
SUGGESTED ANSWER:
Yes, the elements of sexual harassment are all
present. The act of Mr. Barak was committed in a
workplace. Mr. Barak, as supervisor of Pedrito
Masculado, has authority, influence and moral
ascendancy over Masculado.
B. Given the specific circumstances mentioned in
the question like Mr. Barak following
Masculado to the comfort room, etc. Mr. Barak
was requesting a sexual favor from Masculado
for a favorable recommendation regarding the
latter's employment.
It is not impossible for a male, who is a
homosexual, to ask for a sexual favor from another
male.
ANOTHER SUGGESTED ANSWER:
I do not see any sexual favor being solicited.
Having a "little drink" in Mr. Barak's Condo Unit, as
condition for a "favorable recommendation is not
one of the prohibited acts enumerated in Sec. 3 (a)
of R.A. 7877, otherwise known as the Anti-Sexual
Harassment Act of 1995.
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Employment; Women; Anti-Sexual
Harassment vs. Discrimination against
Women (2003)
Can an individual, the sole proprietor of a business
enterprise, be said to have violated the Anti-Sexual
Harassment Act of 1995 if he clearly discriminates
against women in the adoption of policy standards
for employment and promotions in the enterprise?
Explain.
SUGGESTED ANSWER:
When an employer discriminates against women in
the adoption of policy standards for employment
and promotion in his enterprise, he is not guilty of
sexual harassment. Instead, the employer is guilty
of discrimination against women employees which
is declared to be unlawful by the Labor Code.
For an employer to commit sexual harassment, he
- as a person of authority, influence or moral
ascendancy -should have demanded, requested or
otherwise required a sexual favor from his
employee whether the demand, request or
requirement for submission is accepted by the
object of said act.
Employment; Women; Discrimination by
reason of Age (1998)
At any given time, approximately ninety percent
(90%) of the production workforce of a semi-
conductor company are females. Seventy-five
percent (75%) of the female workers are married
and of child-bearing years. It is imperative that the
Company must operate with a minimum number of
absences to meet strict delivery schedules. In view
of the very high number of lost working hours due
to absences for family reasons and maternity
leaves, the Company adopted a policy that it will
employ married women as production workers only
if they are at least thirty-five (35) years of age.
Is the policy violative of any law? [5%]
SUGGESTED ANSWER:
Yes, it is violative of Article 140 of the Labor Code
which provides that no employer shall discriminate
against any person in respect to terms and
conditions of employment on account of his age.
ANOTHER SUGGESTED ANSWER:
The policy of the company to employ married
women as production workers only if they are at
least thirty-five (35) years of age is valid. There is
no prohibition in the Labor Code for such an
employer to exercise this management function.
There is a justifiable basis for the company policy.
i.e., the need for continuity of production with
minimum absences because of the peculiar
business conditions and needs of the company,
i.e., very tight delivery schedules. The company
respects the institution of marriage as shown by
the fact that it employs married women. There is
no violation of the stipulation against marriage (Art.
136), and prohibited acts (Art. 137} of the Labor
Code.
STILL ANOTHER SUGGESTED ANSWER:
It may be noted that the policy is directed only to
married women. This may violate the spirit of
Article 136 of the Labor Code which provides that it
shall be unlawful for an employer to require as a
condition of employment or continuation of
employment that a woman shall not get married.
Employment; Women; Discrimination by
reason of Marriage (1995)
Fil-Aire Aviation Company (FIL-AIRE) is a new
airline company recruiting flight attendants for its
domestic flights. It requires that the applicant be
single, not more than 24 years old, attractive, and
familiar with three (3) major Visayan dialects, viz:
Ilongo, Cebuano and Waray. Lourdes, 23 years
old, was accepted as she possessed all the
qualifications. After passing the probationary
period, Lourdes disclosed that she got married
when she was 18 years old but the marriage was
already in the process of being annulled on the
ground that her husband was afflicted with a
sexually transmissible disease at the time of the
celebration of their marriage. As a result of this
revelation, Lourdes was not hired as a regular flight
attendant. Consequently, she filed a complaint
against FIL-AIRE alleging that the pre-employment
qualifications violate relevant provisions of the
Labor Code and are against public policy.
Is the contention of Lourdes tenable? Discuss fully.
SUGGESTED ANSWER:
The contention of Lourdes is tenable. When she
was not hired as a regular flight attendant by FIL-
AIRE because she disclosed that she got married
when she was 18 years old. The airline company
violated the provision of the Labor Code which
states:
"It shall be unlawful for an employer to require
as a condition of employment or continuation of
employment that a woman employee shall not
get married, or to stipulate expressly or tacitly
that upon getting married a woman employee
shall be deemed resigned or separated, or to
actually dismiss, discharge, discriminate or
otherwise prejudice a woman employee merely
by reason of her marriage."
Employment; Women; discrimination; illegal
dismissal (1997)
Dinna Ignacio was hired by Stag Karaoke Club as
a guest relations officer. Dinna was also required
to sing and dance with guests of the club. In Dinna
Ignacio's employment contract, which she signed,
the following stipulations appeared:
Compensation: Tips and commissions coming
from guests shall be subjected to 15%
deduction.
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Hours of work: 5 P.M. up to 2 A.M. dairy
including Sundays and Holidays
Other conditions: Must maintain a body weight
of 95 Ibs., remain single. Marriage or
pregnancy will be considered as a valid ground
for a termination of employment.
A year later, Dinna Ignaclo requested to go on
leave because she would be getting married to one
of the club's regular guests. The management of
the club dismissed her.
Dinna filed a complaint for illegal dismissal, night
shift differential pay, backwages, overtime pay and
holiday pay. Discuss the merits of Dinna's
complaint.
SUGGESTED ANSWER:
The first issue to be resolved is: Is Dinna Ignacio
an employee of the Star Karaoke Club? Yes, she is
an employee per the provision of the Labor Code
that states: "Any woman who is permitted or
suffered to work, with or without compensation, in
any night club, cocktail lounge, massage clinic, bar
or similar establishment, under the effective control
or supervision of the employer for a substantial
period shall be considered an employee of such
establishment for purposes of labor and social
legislation"(Art. 138). In Dinna's conditions of
employment have all the aforesaid characteristics.
She has been illegally dismissed. The Labor Code
expressly provides, that "It shall be unlawful for an
employer to require as a condition of employment
or continuation of employment that a woman
employee shall not get married, or to stipulate
expressly or tacitly that upon getting married a
woman employee shall be deemed resigned or
separated, or to actually dismiss, discharge,
discriminate or otherwise prejudice a woman
employee merely by reason of her marriage." (Art.
136)
Because of her illegal dismissal, she is entitled to
backwages from the time her compensation was
withheld from her to the time of her actual
reinstatement.
Dinna is not entitled to night differential pay,
overtime pay and holiday pay because she
belongs to one of those classes of employees who
are not covered by the provision of the Labor Code
providing for these benefits. She is a worker paid
by results, since her compensation is determined
by the tips and commission that she receives from
her guests.
Employment; Women; Sexual Harassment
Act (2005)
Carissa, a comely bank teller, was due for her
performance evaluation which is conducted every
six months. A rating of "outstanding" is rewarded
with a merit increase. She was given a "below
average" rating in the last two periods. According
to the bank's personnel policy, a third rating of
"below average" will result in termination. Mr. Perry
Winkle called Carissa into his office a few days
before submitting her performance ratings. He
invited her to spend the night with him in his rest
house. She politely declined. Undaunted, Mr.
Winkle renewed his invitation, and Carissa again
declined. He then warned her to "watch out"
because she might regret it later on. A few days
later, Carissa found that her third and last rating
was again "below average."
Carissa then filed a complaint for sexual
harassment against Mr. Winkle with the
Department of Labor and Employment. In his
counter-affidavit, he claimed that he was enamored
with Carissa. He denied having demanded, much
less received any sexual favors from her in
consideration of giving her an "outstanding" rating.
He also alleged that the complaint was premature
because Carissa failed to refer the matter to the
Committee on Decorum and Discipline for
investigation and resolution before the case
against him was filed. In her reply affidavit, Carissa
claimed that there was no need for a prior referral
to the Committee on Decorum and Discipline of her
complaint.
Resolve the case with reasons. (5%)
SUGGESTED ANSWER:
I will hold Mr. Perry Winkle guilty of sexual
harassment. This resolution is predicated mainly
upon the following considerations:
(1) Mr. Perry Winkle exercises authority, influence
or moral ascendancy over Carissa;
(2) Mr. Winkle's insistence in inviting Carissa "to
spend the night with him in his rest house"
implies a request or demand for a sexual favor;
(3) Mr. Winkle's warning clearly manifests that the
refusal of the sexual favor would jeopardize
Carissa's continued employment; and
(4) Mr. Winkle's invitation for a sexual favor will
result in an intimidating, hostile, or otherwise
offensive working environment for Carissa.
Carissa is correct in stating that there was no need
for prior referral to the Committee on Decorum and
Discipline of her complaint because nothing in the
law precludes the victim of sexual harassment from
instituting a separate and independent action for
damages and other affirmative relief. (Sec. 6, R.A.
No. 7877)
Employment; Women; Sexual Harassment
Act (2006)
As a condition for her employment, Josephine
signed an agreement with her employer that she
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will not get married, otherwise, she will be
considered resigned or separated from the service.
Josephine got married. She asked Owen, the
personnel manager, if the company can reconsider
the agreement. He told Josephine he can do
something about it, insinuating some sexual favors.
She complained to higher authorities but to no
avail. She hires you as her counsel. What action or
actions will you take? Explain. (5%)
ALTERNATIVE ANSWER:
I will file a criminal case against Owen for violation
of RA. No. 7877, otherwise known as the "Anti-
Sexual Harassment Act of 1995."
I will also file a separate and independent action
for damages against Owen. By reason of the fact
that the Company did not take immediate action
thereon, I will include the Company in the civil suit
for damages and make it jointly and severally liable
with Owen.
ALTERNATIVE ANSWER:
Aside from filing a criminal case against Owen for
violation of the Sexual Harassment Law (R.A.
7877) and a separate action for damages,
impleading the company, I will also file an action
for constructive dismissal against the Company
since the employee was placed in a job
atmosphere imposing oppressive work conditions
contrary to public policy and morals.
Independent Contractor (2001)
(a) "X" is a bona fide service contractor providing
manpower services to various companies,
possessing the necessary capital and equipment
needed to effectively carry out its commitments.
"Y" is an employee of "X" and assigned to work as
a janitor in Company "Z". In the course of Y's
assignment, Z's supervisors and employees would
give verbal instructions to Y as to how and where
to perform his work. X pays Y salary.
Subsequently, Y's services were terminated by X.
Y sued Z for Illegal dismissal. May Y's case
against Z prosper? Why? (2%).
SUGGESTED ANSWER:
Y's case against Z will not prosper, because Z is
not the employer of Y. The employer of "Y" is "X".
"Y' would be an employee of "Z" if "X" here is a
labor-only contractor but X is not a labor-only
contractor. He possesses the necessary capital
and equipment needed to effectively carry out its
commitment as a service contractor.
Applying the control test, the fact that "Z's"
supervisors and employees give verbal instructions
to Y as to how and where to perform his work does
not necessarily mean that thereby he is under the
control of Z as regards his employment as long as
X, as service contractor, actually directs the work
of Y. It should also be noted that X pays the salary
of Y as the employee of the former.
ANOTHER SUGGESTED ANSWER;
Yes, Y's case against Company "Z" will prosper.
Company "Z" will be deemed the direct employer
because the Company directly and specifically
controlled the manner by which the work should be
done and, and by doing so also the result. (See
Traders Royal Bank vs. NLRC, December 2.
1999).
The presence of the element or factor of control,
which is the most important factor in determining
the existence of an employer-employee
relationship is present. In Religious of the Virgin
Mary vs. NLRC, G.R. No. 103606, October 13,
1999, the Supreme Court, ruled:
As this Court has consistently ruled, the power
of control is the most decisive factor in
determining the existence of employer-
employee relationship.
Independent Contractor (2002)
Pandoy, an electronics technician, worked within
the premises of Perfect Triangle, an auto
accessory shop. He filed a complaint for illegal
dismissal, overtime pay and other benefits against
Perfect Triangle, which refused to pay his claims
on the ground that Pandoy was not its employee
but was an independent contractor. It was common
practice for shops like Perfect Triangle to collect
the service fees from customers and pay the same
to the independent contractors at the end of each
week. The auto shop explained that Pandoy was
like a partner who worked within its premises,
using parts provided by the shop, but otherwise
Pandoy was free to render service in the other auto
shops. On the other hand, Pandoy insisted that he
still was entitled to the benefits because he was
loyal to Perfect Triangle, it being a fact that he did
not perform work for anyone else. Is Pandoy
correct? Explain briefly. (5%)
SUGGESTED ANSWER:
Pandoy is not correct. He is not an employee
because he does not meet the fourfold test for him
to be an employee of Perfect Triangle. All that he
could claim is: he worked within the premises of
Perfect Triangle. Pandoy was NOT engaged as an
employee by Perfect Triangle. He was NOT paid
wages by Perfect Triangle. Perfect Triangle does
NOT have the power to dismiss him although
Perfect Triangle may not continue to allow him to
work within its premises. And most important of all,
Pandoy was NOT under the control of Perfect
Triangle as regards the work he performs for
customers.
The Supreme Court has ruled: "In stark contrast to
the Company's regular employees, there are
independent, free lance operators who are
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permitted by the Company to position themselves
proximate to the Company premises. These
independent operators are allowed by the
Company to wait on Company customers who
would be requiring their services. In exchange for
the privileges of favorable recommendation by the
Company and immediate access to the customers
in need of their services, these independent
operators allow the Company to collect their
service fee from the customer and this fee is given
back to the Independent operator at the end of the
week. In effect, they do not earn fixed wages from
the Company as their variable fees are earned by
them from the customers of the Company. The
Company has no control over and does not restrict
the methodology or the means and manner by
which these operators perform their work. These
operators are not supervised by any employee of
the Company since the results of their work is
controlled by the customers who hire them.
Likewise, the Company has no control as an
employer over these operators. They are not
subject to the regular hours and days of work and
may come and go as they wish. They are not
subject to any disciplinary measures from the
Company, save merely for the inherent rules of
general behavior and good conduct" {Ushio
Marketing v. NLRC, 294 SCRA 673(1998)]
Independent Contractor vs. Labor-Only
Contracting; Four-Fold Test (2000)
Metro Grocery Inc. arranged with Mr. Juan Dado, a
Barangay Chairman, to provide the grocery with
workers who will work as cashiers, bag boys, shelf
counter helpers and sanitation workers. The
grocery will pay Mr. Dado an amount equivalent to
the direct and hidden costs of the wages of each
worker assigned, plus ten percent (10%) to cover
the administrative costs related to their
arrangement. Mr. Dado, in turn, will pay directly the
workers their wages. As far as the workers are
concerned, Mr. Dado is their employer. A group of
concerned workers consulted you if Mr, Dado is
really under the law their employer.
A. How will you analyze the problem in order to
formulate your answer? (3%)
B. What is the legal significance, if any, of the
question of the concerned workers as to who is
their employer? (3%)
SUGGESTED ANSWER:
a) I will analyze the problem by applying the four-
fold test of employer-employee relationship. I will
examine if Mr. Dado exercises power of control or
supervision over the workers' manner and method
of doing their work. Control is the most important
factor in examining employer-employee
relationship. The other factors are hiring, payment
of wages, and power to dismiss, I will also examine
whether there was job contracting or labor-only
contracting.
ALTERNATIVE ANSWER:
a) My analytical framework will be an analysis of
the law on Independent contractor and labor only
contracting.
If there is a valid INDEPENDENT CONTRACTOR
situation, Mr. Dado will be the direct employer, and
the Metro Grocery will be the indirect employer.
If there is a LABOR-CONTRACTOR only
relationship, the Metro Grocery will be the
employer as it directly hired the employees.
SUGGESTED ANSWER:
b) The legal significance is the determination of
employee-employer relationship, which gives rise
to certain rights and obligation of both employer
and employee, such as SSS membership, union
membership, security of tenure, etc.
Independent Contractor; Liabilities (2004)
A. Clean Manpower Inc. (CMI) had provided
janitorial services to the National Economic
Development Authority (NEDA) since April 1988.
Its service contract was renewed every three
months. However, in the bidding held on July
1992, CMI was disqualified and excluded. In 1993,
six janitors of CMI formerly assigned at NEDA filed
a complaint for underpayment of wages. Both CMI
and NEDA were impleaded as respondents for
failure to comply with NCR Wage Orders Nos. 01
and 02, which took effect on November 1, 1990
and January 2, 1992, respectively.
Should NEDA, a government agency subject to
budgetary constraints, be held liable solidarily with
CMI for the payment of salary differentials due the
complainants? Cite the legal basis of your answer.
(5%)
SUGGESTED ANSWER:
NEDA shall be held solidarily liable with CMI for
the payment of salary differentials due to the
complainants, because NEDA is the indirect
employer of said complainants. The Labor Code
provides that xxx (A) person, partnership,
association or corporation which, not being an
employer, contracts with an independent contractor
for the performance of any work, task, job or
project" xxx "shall be jointly and severally liable
with his contractor or subcontractor to such
employees (of the contractor or subcontractor) to
the extent of work performed under the contract
xxx." (Arts. 106 and 107, Labor Code)
Labor-Only Contract vs. Job Contracting
(1997)
Distinguish between "job contracting" and "labor-
only contracting."
SUGGESTED ANSWER:
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When a person, not being an employer, contracts
with an independent contractor for the
performance of any work, task, job or project, there
is "JOB CONTRACTING." When the independent
contractor does the work that is contracted out, he
is not under the control of the person who
contracted out the work to be done.
In "LABOR-ONLY CONTRACTING", a person
supplies workers to an employer. Said person does
not have substantial capital or investments in the
form of tools, equipment, machineries, work
premises, among others, and the workers recruited
and placed by such person are performing
activities related to the principal business of the
employer to whom the workers are supplied.
Labor-Only Contractor (2002)
Sta. Monica Plywood Corporation entered into a
contract with Arnold for the milling of lumber as
well as the hauling of waste wood products. The
company provided the equipment and tools
because Arnold had neither tools and equipment
nor capital for the job. Arnold, on the other hand,
hired his friends, relatives and neighbors for the
job. Their wages were paid by Sta. Monica
Plywood Corp. to Arnold, based on their production
or the number of workers and the time used in
certain areas of work. All work activities and
schedules were fixed by the company.
A. Is Arnold a job contractor? Explain briefly. (2%)
B. Who is liable for the claims of the workers
hired by Arnold? Explain briefly. (3%)
SUGGESTED ANSWER:
A. No. In two cases decided by the Supreme
Court, it was held that there is "job contracting"
where (1) the contractor carries on an independent
business and undertakes the contract work in his
own account, under his own responsibility
according to his own manner and method, free
from the control and direction of his employer or
principal in all matters connected with the
performance of the work except as to the results
thereof; and (2) the contractor has substantial
capital or investment in the form of tools,
equipment, machineries, work premises and other
materials which are necessary in the conduct of his
business. [Lim v. NLRC, 303 SCRA 432 (1999);
Baguio v. NLRC, 202 SCRA 465(1991)]
In the problem given, Arnold did not have sufficient
capital or in vestment for one. For another Arnold
was not free from the control and direction of Sta.
Monica Plywood Corp. because all work activities
and schedules were fixed by the company.
Therefore, Arnold is not a job contractor. He is
engaged in labor-only contracting.
SUGGESTED ANSWER:
B. Sta. Monica Plywood Corp. is liable for the
claims of the workers hired by Arnold. A finding
that Arnold is a labor only contractor is equivalent
to declaring that there exist an employer-employee
relationship between Sta. Monica Plywood Corp.
and workers hired by Arnold. This is so because
Arnold is considered a mere agent of Sta. Monica
Plywood Corp. [Lim v. NLRC, 303 SCRA 432,
(1999); Baguio et al, v. NLRC, 202 SCRA 465
(1991)]
Labor-Only Contractor vs. Independent
Contractor (1994)
1) What is a "labor-only" contract?
2) Distinguish the liabilities of an employer who
engages the services of a bonafide "independent
contractor" from one who engages a "labor-only"
contractor?
SUGGESTED ANSWER:
1) "LABOR-ONLY" CONTRACT is a contract
between an employer and a person who supplies
workers to such employer where the person
supplying workers does not have substantial
capital or investment in the form of tools,
equipment, machineries, work premises, among
others, and the workers recruited and placed by
such person are performing activities which are
directly related to the principal business of such
employer. (Art. 106, Labor Code)
2) A person who engages the services of a bona
fide "INDEPENDENT CONTRACTOR" for the
performance of any work, task, job or project is the
indirect employer of the employees who have been
hired by the independent contractor to perform
said work, task, job or project.
In the event that the independent contractor fails to
pay the wages of his employees, an indirect
employer, in the same manner and extent that he
is liable to employees directly employed by him, is
JOINTLY and SEVERALLY LIABLE with the
Independent contractor to the employees of the
latter to the extent of the work performed under the
contract.
As for the person who engages the services of a
"labor only" contractor, the latter is considered
merely as an agent of the former who shall be
responsible to the workers hired by the "labor only"
contractor in the same manner and extent as if he
directly employed such workers.
ALTERNATIVE ANSWERS;
a) An employer who engages the services of a
bona fide "independent contractor" is
SOLIDARILY LIABLE with his contractor or
sub-contractor only for non-payment or under-
payment of wages and other labor standards
provisions of the Labor Code, whereas an
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employer who engages a "labor-only"
contractor is liable for all benefits, terms and
conditions of employment that it normally
grants to its regular or direct employees.
b) An employer who deals with a bona-fide
independent contractor shall be liable only
subsidiarily, if the contractor or sub-contractor
fails to pay the wages to the workers in
accordance with the Labor Code.
Upon the other hand, an employer who deals
with a "labor-only" contractor shall be primarily
responsible to the workers in the same manner
and extent as if the latter were directly
employed by him. (Arts 106-107, Labor Code)
Recruitment & Placement; Cancellation;
Certificate of Registration; Travel Ban (2004)
Concerned Filipino contract workers in the Middle
East reported to the Department of Foreign Affairs
(DFA) that XYZ, a private recruitment and
placement agency, is covertly transporting
extremists to terrorist training camps abroad.
Intelligence agencies of the government allegedly
confirmed the report.
Upon being alerted by the DFA, the Department of
Labor and Employment issued orders cancelling
the licenses of XYZ, and imposing an immediate
travel ban on its recruits for the Middle East. XYZ
appealed to the Office of the President to reverse
and set aside the DOLE orders, citing damages
from loss of employment of its recruits, and
violations of due process including lack of notice
and hearing by DOLE. The DOLE in its answer
claimed the existence of an emergency in the
Middle East which required prompt measures to
protect the life and limb of OFWs from a clear and
present danger posed by the ongoing war against
terrorism.
Should the DOLE orders be upheld or set aside?
(5%)
SUGGESTED ANSWER:
1. The DOLE order cancelling the licenses of XYZ
is void because a report that an agency is covertly
transporting extremists is not a valid ground for
cancellation of a Certificate of Registration (Art.
239, Labor Code) and there is failure of due
process as no hearing was conducted prior to the
cancellation (Art. 238, Labor Code).
2. The DOLE order imposing the travel ban is valid
because it is a valid exercise of police power to
protect the national interest (Sec. 3, Art. XIII,
Constitution on full protection to labor safety of
workers) and on the rule making authority of the
Secretary of Labor (Art. 5, Labor Code; Phil. Assn.
of Service Exporters v. Drilon, 163 SCRA 386
11988]).
ANOTHER SUGGESTED ANSWER:
The DOLE orders should be set aside. It is true
that the Migrant Workers and Overseas Filipinos
Act, particularly its Section 5, could be the basis of
the power of DOLE to effect a ban on the
deployment of OFWs by XYZ. If the ban, however,
is for the purpose of preventing XYZ from
transporting extremists to terrorist training camps
abroad, this is a police and national security
problem better dealt with by the police or the Office
of the National Security Adviser.
More importantly, the cancellation of the license of
XYZ requires notice and hearing. Absent such
notice and hearing, the order of cancellation of the
Secretary of Labor and Employment is null and
void because of the denial of due process.
Recruitment & Placement; illegal recruitment
to economic sabotage (2005)
(1) During the open forum following your lecture to
a group of managers and HRD personnel, you
were asked the following questions:
(a) What qualifying circumstances will convert
"illegal recruitment" to "economic sabotage," thus
subjecting its perpetrator or perpetrators to a
penalty of life imprisonment and a fine of at least
P500,000.00? Please explain your answer briefly.
(3%)
SUGGESTED ANSWER.
Under Article 38(b) of the Labor Code, as
amended by P.D. No. 2018, it provides that illegal
recruitment shall be considered an offense
involving economic sabotage if any of the following
qualifying circumstances exists:
(1) When illegal recruitment is committed by a
SYNDICATE, requiring three or more persons
who conspire or confederate with one another
in carrying out any unlawful or illegal
transaction, enterprise or scheme;
When illegal recruitment is committed in a LARGE
SCALE, as when it is committed against three or
more persons individually or as a group. (People v.
Navarra, G.R. No. 119361, February 19, 2001; See
also Sec. 6 of R.A. No. 8042)
Recruitment & Placement; illegal
recruitment; Economic Sabotage (2002)
When is illegal recruitment considered a crime of
economic sabotage? Explain briefly. (3%)
SUGGESTED ANSWER:
According to Art. 28 of the Labor Code, illegal
recruitment is considered a crime of economic
sabotage when committed by a syndicate or in
large scale.
Illegal recruitment is deemed committed by a
syndicate if carried out by a group of three (3) or
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more persons conspiring and/or confederating with
one another in carrying out any unlawful or illegal
transaction, enterprise or scheme which is an act
of illegal recruitment.
Illegal recruitment is deemed committed in large
scale if committed against three (3) or more
persons individually or as a group.
Recruitment & Placement; Large Scale Illegal
Recruitment (2005)
Maryrose Ganda's application for the renewal other
license to recruit workers for overseas employment
was still pending with the Philippine Overseas
Employment Administration (POEA). Nevertheless,
she recruited Alma and her three sisters, Ana,
Joan, and Mavic, for employment as housemates
in Saudi Arabia. Maryrose represented to the
sisters that she had a license to recruit workers for
overseas employment. Maryrose also demanded
and received P30,000.00 from each of them for her
services. However, Maryrose's application for the
renewal of her license was denied, and
consequently failed to employ the four sisters in
Saudi Arabia.
The sisters charged Maryrose with large scale
illegal recruitment. Testifying in her defense,
Maryrose declared that she acted in good faith
because she believed that her application for the
renewal of her license would be approved.
Maryrose adduced in evidence the Affidavits of
Desistance which the four private complainants
had executed after the prosecution rested its case.
In the said affidavits, they acknowledge receipt of
the refund by Maryrose of the total amount of
P120,000.00 and indicated that they were no
longer interested to pursue the case against
Maryrose. Resolve the case with reasons. (5%)
ALTERNATIVE ANSWER:
Illegal recruitment is defined by law as any
recruitment activities undertaken by non-licenses
or non-holders of authority. (People v. Senoron,
G.R. No. 119160, January 30,1997) And it is large
scale illegal recruitment when the offense is
committed against 3 or more persons, individually
or as a group. (Article 38[b], Labor Code)
In view of the above, Maryrose is guilty of large
scale illegal recruitment. Her defense of good faith
and the Affidavit of Desistance as well as the
refund given will not save her because R.A. No.
8042 is a special law, and illegal recruitment is
malum prohibitum. (People v. Saulo, G.R. No.
125903, November 15, 2000)
ALTERNATIVE ANSWER:
With the execution of the affidavit of desistance by
the complainants and the refund made by
Maryrose, the case against her for large scale
illegal recruitment will surely fail.
Recruitment & Placement; Non-
Transferability of License (1998)
A Recruitment and Placement Agency declared
voluntary bankruptcy. Among its assets is its
license to engage in business.
Is the license of the bankrupt agency an asset
which can be sold in public auction by the
liquidator? [5%]
SUGGESTED ANSWER:
No, because of the non-transferability of the
license to engage in recruitment and placement.
The Labor Code (in Article 29) provides that no
license to engage in recruitment and placement
shall be used directly or indirectly by any person
other than the one in whose favor it was issued nor
may such license be transferred, conveyed or
assigned to any other person or entity.
It may be noted that the grant of a license is a
governmental act by the Department of Labor and
Employment based on personal qualifications, and
citizenship and capitalization requirements. (Arts.
27-28, Labor Code)
Recruitment & Placement; Recruitment
Agencies (2002)
Is a corporation, seventy percent (70%) of the
authorized and voting capital of which is owned
and controlled by Filipino citizens, allowed to
engage in the recruitment and placement of
workers, locally or overseas? Explain briefly. (2%)
SUGGESTED ANSWER:
No. A corporation, seventy percent (70%) of the
authorized and voting capital stock of which is
owned and controlled by Filipino citizens cannot be
permitted to participate in the recruitment and
placement of workers, locally or overseas, because
Art 27 of the Labor Code requires at least seventy-
five percent (75%).
Recruitment & Placement; Travel Agency;
Prohibition (2006)
Wonder Travel and Tours Agency (WTTA) is a
well-known travel agency and an authorized sales
agent of the Philippine Air Lines. Since majority of
its passengers are overseas workers, WTTA
applied for a license for recruitment and placement
activities. It stated in its application that its purpose
is not for profit but to help Filipinos find
employment abroad.
Should the application be approved? (5%)
ALTERNATIVE ANSWER:
The application should be disapproved, as it is
prohibited by Article 26 of the Labor Code, to wit:
"Article 26. Travel agencies and sales agencies of
airline companies are prohibited from engaging in
the business of recruitment and placement of
workers for overseas employment whether for
profit or not."
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Rule I, Part IIPOEA Rules and Regulations
Governing the Recruitment and Employment of
Land-Based Workers (2002) disqualifies any entity
having common director or owner of travel
agencies and sales agencies of airlines, including
any business entity from the recruitment and
placement of Filipino workers overseas, whether
they derive profit or not.
ALTERNATIVE ANSWER:
No. Section 6 of RA No. 8042 considers the
following act as illegal recruitment: "(j) For an
officer or agent of a recruitment agency to become
an officer or member of the Board of any
corporation engaged in travel agency or to engage
directly or indirectly in the management of a travel
agency." The law considers the operation of travel
agencies and recruitment agencies as
incompatible activities.
Wage Distortion (2002)
A. How should a wage distortion be resolved (1)
in case there is a collective bargaining agreement
and (2) in case there is none? Explain briefly. (3%)
SUGGESTED ANSWER:
A. According to Art. 124 of the Labor Code, in
case there is a collective bargaining agreement, a
dispute arising from wage distortions shall be
resolved through the grievance machinery
provided in the CBA, and if remains unresolved,
through voluntary arbitration. In case there is no
collective bargaining agreement, the employers
and workers shall endeavor to correct such
distortions. Any dispute arising therefrom shall be
settled through the National Conciliation and
Mediation Board and if it remains unresolved after
ten (10) calendar days of conciliations, then the
dispute is referred to the appropriate branch of the
National Labor Relations Commission.
Wage; Reduction of Minimum Pay & Wages
(2006)
Can an employer and an employee enter into an
agreement reducing or increasing the minimum
percentage provided for night differential pay,
overtime pay, and premium pay? (5%)
SUGGESTED ANSWER:
Article 100 of the Labor Code prohibits the
elimination and the diminution of benefits being
enjoyed by employees at the time the law was
passed. The employer and employee cannot enter
into an agreement to reduce the minimum
percentage provided by law for night differential
pay, overtime pay and premium pay as that would
be against public policy. On the other hand, an
agreement increasing the percentage of benefits
would be valid for being beneficial to the
employee. However, Art. 227 of the Labor Code
authorizes diminution or reduction of benefits in
case of an impelling, reasonable justification
arising out of an emergency, exigency or business
losses.
Wage; Wage Distortion; Definition &
Elements (2006)
When is there a wage distortion?
ALTERNATIVE ANSWER:
A WAGE DISTORTION arises when an increase in
prescribed wage rates results in the elimination or
severe contraction of intentional quantitative
differences in wage or salary rates between and
among employee groups in an establishment as to
effectively obliterate the distinctions embodied in
such wage structure based on skills, length of
service, or other logical bases of differentiation
(Article 124, Labor Code of the Philippines).
ALTERNATIVE ANSWER:
There is wage distortion when the following four
elements concur:
a. An existing hierarchy of positions with
corresponding salary rates;
b. A significant change in the salary rate of a
lower pay class without a concomitant
increase in the salary rate of a higher one;
c. The elimination of the distinction between the
two levels; and
d. The existence of the distortion in the same
region of the country.
Wage; Wage Distortion; Means of Solving
(2006)
How should a wage distortion be settled?
SUGGESTED ANSWER:
In organized establishments, the wage distortion
shall be resolved through the GRIEVANCE
PROCEDURE under their collective bargaining
agreement, and if it remains unresolved, through
VOLUNTARY ARBITRATION. On the other hand,
in establishments where there are no collective
bargaining agreements or recognized labor unions,
the employers and workers shall endeavor to
correct such distortion. Any dispute arising
therefrom shall be settled through the National
Conciliation and Mediation Board, and if it remains
unresolved after ten (10) calendar days of
conciliation, shall be referred to the appropriate
branch of the National Labor Relations
Commission for COMPULSORY ARBITRATION
(Article 124, Labor Code of the Philippines).
Wage; Wage Distortion; Not a ground for
Strike/Lockout (2006)
Can the issue of wage distortion be raised in a
notice of strike? Explain. (10%)
SUGGESTED ANSWER:
NO. Section 16, Chapter I of Rules Implementing
RA 6727 provides that "Any dispute involving wage
distortions shall not be a ground for strike/lockout."
Article 124 of the Labor Code, as amended by
Republic Act 6727 prescribes a procedure for the
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correction of a wage distortion, implicitly excluding
strikes or lockouts or other concerted activities as
modes of settlement of the issue. The legislative
intent that wage distortion shall be solved by
voluntary negotiation or arbitration is made clear in
the rules (Ilaiv at Buklod ng Manggagawa v. NLRC,
G.R. No. 91980, June 27, 1991).
Wages; 13th month pay (1994)
Concepcion Textile Co. included the overtime pay,
night-shift differential pay, and the like in the
computation of its employees' 13th-month pay.
Subsequently, with the promulgation of the
decision of the Supreme Court in the case of San
Miguel Corporation vs. Inciong (103 SCRA 139)
holding that these other monetary claims should
not be included in the computation of the 13th-
month pay, Concepcion Textile Co. sought to
recover under the principle of solutio indebiti its
overpayment of its employees' 13th-month pay, by
debiting against future 13th-month payments
whatever excess amounts it had previously made.
(1) Is the Company's action tenable?
(2) With respect to the payment of the 13th-month
pay after the San Miguel Corporation, ruling,
what arrangement, if any, must the Company
make in order to exclude from the 13th-month
pay all earnings and remunerations other than
the basic pay.
SUGGESTED ANSWER:
1) The Company's action is not tenable. The
principle of salutio indebiti which is a civil law
concept is not applicable in labor law. Thus, solutio
indebiti is not applicable to the instant case,
(Davao Fruits Corporations vs. National Labor
Relations Commission, et at. 225 SCRA 562)
ALTERNATIVE ANSWERS:
a) The Company's action would be tenable if
payment was done by mistake, In which case
recovery can be done under the principle of solutio
indebiti. But if there was no mistake, the
Company's action would be untenable because it
would violate Article 100 of the Labor Code which
prohibits elimination or diminution of benefits.
b) No. The Company's action is not tenable. The
grant by Concepcion Textile Co. of a better
formula, more favorable to the employee,
constituted a valid offer by the company as the
offerer and the employees as the offeree. There
having been a meeting of the minds of the parties,
the rights and obligations arising therefrom were
valid. Thus, any amount received by virtue thereof
could not be recovered, much less taken away
unilaterally. The principle does not apply to the
case at bar.
SUGGESTED ANSWER:
2} After the 1981 San Miguel ruling, the High Court
decided the case of Philippine Duplicators Inc. vs.
NLRC, on 11 November 1993, Accordingly,
management may undertake to exclude sick leave,
vacation leave, maternity leave, premium pay for
regular holiday, night differential pay and cost of
living allowance. Sales commissions, however,
should be included based on the settled rule as
earlier enunciated in Songco vs. NLRC, 183 SCRA
610.
Wages; 13th month pay (1998)
What would be your advice to your client, a
manufacturing company, who asks for your legal
opinion on whether or not the 13th Month Pay Law
(Presidential Decree No. 851) covers a casual
employee who is paid a dally wage? (5%)
SUGGESTED ANSWER:
I will advise the manufacturing company to pay the
casual employee 13th Month Pay if such casual
employee has worked for at least one (1) month
during a calendar year. The law on the 13th Month
Pay provides that employees are entitled to the
benefit of said law regardless of their designation
or employment status.
The Supreme Court ruled in Jackson Building-
Condominium Corporation v. NLRC, 246 SCRA
329, (1995) interpreting P.D. No. 851, as follows:
xxx employees are entitled to the thirteenth-
month pay benefits regardless of their
designation and irrespective of the method by
which their wages are paid.
Wages; Bonus (2002)
B. The projected bonus for the employees of
Suerte Co. was 50% of their monthly
compensation. Unfortunately, due to the slump in
the business, the president reduced the bonus to
5% of their compensation. Can the company
unilaterally reduce the amount of bonus? Explain
briefly. (2%)
SUGGESTED ANSWER:
Yes. The granting of a bonus is a management
prerogative, something given in addition to what is
ordinarily received by or strictly due the recipient.
An employer, like Suerte Co., cannot be forced to
distribute bonuses when it can no longer afford to
pay. To hold otherwise would be to penalize the
employer for his past generosity. [Producers Bank
of the Phil. v NLRC, 355 SCRA 489, (2001)]
ANOTHER SUGGESTED ANSWER:
It depends. If there is a legal obligation on the part
of Suerte Co. to pay a bonus of its employees
equivalent to 50% of their monthly compensation,
because said obligation is included in a collective
bargaining agreement, then Suerte Co. cannot
reduce the bonus to 5% of their monthly
compensation. But if the payment of the bonus is
not a legal obligation but only a voluntary act on
the part of the employer, said employer,
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unilaterally, can only reduce the bonus from 50%
to 5% of the monthly compensation of its
employees; the employer can, in fact, not give any
bonus at all.
Wages; Bonus (2003)
XYZ Employees Association filed a complaint
against ABC Bank for wrongful diminution of
benefits. It alleged that the bank had been
providing for a mid-year bonus equivalents one-
month basic pay and a Christmas bonus equivalent
to one-month basic pay since 1971. Upon the
effectivity of Presidential Decree (P.D.) No. 851 in
1975 which granted the 13th month pay, the bank
started giving its employees a one-month basic
pay as mid-year bonus, one-month basic pay as
Christmas bonus, and one-month basic pay as
13th month pay. In 1980, the bank was placed
under conservatorship and by virtue of a monetary
board resolution of the Central Bank, the bank only
gave one month basic pay mandated by P.D. 851,
and it no longer gave its employees the traditional
mid-year and Christmas bonuses. Could ABC
Bank be compelled, given the circumstances, to
continue paying its employees the traditional mid-
year and Christmas bonuses in addition to the 13th
month pay?
SUGGESTED ANSWER:
No. The grant of a bonus is a prerogative, not an
obligation, of the employer. (Traders Royal Bank v.
NLRC. 189 SCRA 274 (1990). The matter of giving
a bonus over and above that which is required by
law is entirely dependent on the financial capability
of the employer to give it. (Businessday v. NLRC.
221 SCRA 9 (1993).
Hence, given the circumstances, ABC Bank cannot
be compelled to continue paying its employees the
traditional mid-year and Christmas bonuses in
addition to the 13th month pay.
Wages; Bonus; Nature (1995)
What is a bonus? When is it demandable as a
matter of right? Explain.
SUGGESTED ANSWER:
A bonus is money given in addition to an
employee's usual compensation. It may be given
as a gratuity, as an act of liberality. But a bonus is
demandable as a matter of right if it is made a legal
obligation by law or in a collective bargaining
agreement or in a contract of employment or by its
having been given for such a long time such that
the receipt of a bonus has ripened into a right.
ALTERNATIVE ANSWER:
A bonus is an amount granted and paid to an
employee for his industry and loyalty which
contributed to the employer's success and
realization of profit.
(1) Grant of bonus is a prerogative, not an
obligation of the employer: and
(2) It is entirely dependent on the employer's
capacity to pay.
Normally discretionary, it becomes part of the
regular compensation by reason of long and
regular concession or when the bonus is Included
as among the benefits granted in a CBA.
Wages; Computation of Basic Salary (1997)
Robert Suarez is a salesman for Star
Pharmaceuticals, Star Pharmaceuticals has
applied with the Department of Labor and
Employment for clearance to terminate (by way of
retrenchment) the services of Suarez due to
financial losses. Robert Suarez, aside from his
monthly salary, receives commissions on the sales
he makes. He also receives allowances. The
existing CBA between Star Pharmaceuticals and
the union, of which Robert Suarez is a member,
states that any employee separated from
employment for causes not due to the fault of the
employee shall receive from the company a
retirement gratuity in an amount equivalent to one
month's salary per year of service.
Robert Suarez contends that in computing his
separation pay, his sales commission and his
allowances should be included in the monthly
salary. Do you agree?
SUGGESTED ANSWER:
I agree, with some conditions. In computing
separation pay, the monthly salary should include
commissions because commissions received by a
salesman is part of his salary.
But for allowances to be included as part of salary,
they should be for services rendered or to be
rendered, like a cost of living allowance. But
transportation and representation allowances are
not considered as part of salary because they are
to meet expenses for transportation and
representation. Thus, cost of living allowances, but
not transportation or representation allowances,
shall be included as part of salary in the
computation of separation pay.
Note: Re: allowances as part of salary, in Santos
vs. NLRC 154 SCRA 166, the Supreme Court
said: "in the computation of backwages and
separation pay, account must be taken not only
of basic salary but also her transportation and
emergency living allowances."
Wages; Computation; Holiday Pay (2002)
On orders of his superior, Efren, a high-speed
sewing machine technician, worked on May 1,
Labor Day. If he worked eight (6) hours on that
day, how much should he receive if his daily rate is
P400.00? (2%)
SUGGESTED ANSWER:
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Efren should receive P800.00. Art 92 of the Labor
Code provides that the employer may require an
employee to work on any regular holiday but such
employee shall be paid a compensation equivalent
to twice his regular rate.
Wages; Computation; Holiday Pay; Overtime
Pay (2002)
This year, National Heroes Day (August 25) falls
on a Sunday. Sunday is the rest day of Bonifacio
whose daily rate is P500.00.
A. If Bonifacio is required by his employer to
work on that day for eight (8) hours, how much
should he be paid for his work? Explain. (3%)
B. If he works for ten (10) hours on that day,
how much should he receive for his work? Explain.
(2%)
SUGGESTED ANSWER:
A. For working on his scheduled rest day,
according to Art 93(a), Bonifacio should be paid
P500.00 (his daily rate) plus P150.00 (30% of his
daily rate) = P650.00. This amount of P650.00
should be multiplied by 2 = P1 ,300.00. This is the
amount that Bonifacio as employee working on his
scheduled rest day which is also a regular holiday,
should receive. Art. 94(c) of the Labor Code
provides that an employee shall be paid a
compensation equivalent to twice his regular rate
for work on any regular holiday. The "regular rate"
of Bonifacio on May 1, 2002 is with an additional
thirty percent because the day is also his
scheduled rest day.
B. P1,300.00 which is the amount that Bonifacio
is to receive for working on May 1, 2002 should be
divided by 8 to determine his hourly rate of
P162.50. This hourly rate should be multiplied by 2
(the number of hours he worked overtime). Thus,
the amount that Bonifacio is entitled to receive for
his overtime work on May 1, 2002 is P325.00.
Wages; Holiday Pay (2005)
During the open forum following your lecture
before members of various unions affiliated with a
labor federation, you were asked the following
questions (State your answers and your reasons
therefor):
(a) Araw ng Kagitingan and Good Friday are
among the 10 paid regular holidays under Article
94 of the Labor Code. How much will an employee
receive when both holidays fall on the same day?
(4%)
SUGGESTED ANSWER:
If unworked, the covered employees are entitled to
at least 200% of their basic wage, because to do
otherwise would reduce the number of holidays
under EO No. 203. If worked, the covered
employees are entitled to compensation equivalent
to at least 300% of their basic wage because they
are entitled to the payment not only of the two
regular holidays, but also of their regular wage,
plus the premium thereof. (DOLE Explanatory
Bulletin on Workers' Entitlement to Holiday Pay on
9 April 1993, Araw ng Kagitingan and Good Friday)
Wages; Money Claims (1998)
An explosion in a mine site resulted in the death of
fifty (50) miners. At the time of the accident
(1) The Mining Company has not yet paid the
wages, overtime, holiday and rest day
compensation of the deceased miners;
(2) All the deceased miners owed the Miners
Cooperative Union sums of money;
(3) The Mining Company was served by a sheriff
Writs of Garnishment of Wages of some of the
deceased miners by virtue of final Judgments
in several collection suits.
After the accident, the wives, paramours, brothers,
sisters and parents of the deceased miners filed
their claims for unpaid wages, overtime, holiday
and rest day compensation. The Company has
acknowledged its obligations. However, it is in a
quandary as to how to adjudicate the conflicting
claims; and whether it can deduct from the monies
due the miners their unpaid debts with the credit
union.
How will you advise the mining company on the
following:
1) Can the Mining Company defer payment of
the money claims until an appropriate court
has ruled on the conflicting claims? [3%]
2) Can the Mining Company deduct from the
amount due to each miner an amount
equivalent to their debt and remit the same to
the Credit Union?'(2%]
SUGGESTED ANSWER:
1. I will advise the Mining Company to pay to the
respective heirs of the deceased miners whatever
were the unpaid wages, overtime, holiday and rest
day compensation of said deceased miners without
the necessity of intestate proceedings. The
claimants, if they are all of age shall execute an
affidavit attesting to their relationship to the
deceased and the fact that they are his heirs, to
the exclusion of all other persons. If any of the
heirs is a minor, the affidavit shall be executed on
his behalf by his natural guardian or next of kin.
The affidavit shall be presented to the employer
who shall make payment through the Secretary of
Labor or his representative. The representative of
the Secretary of Labor shall act as referee in
dividing the amount paid among the heirs. {See
Art. 105 (b) of the Labor Code)
2. I will advise the Mining Company not to deduct
from the amount due to each miner the amount
equivalent to his debt to the Credit Union. The
debts of a deceased worker to the Credit Union is
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not one of the allowable deductions under the
Labor Code, or any rules and regulations of the
Department of Labor and Employment. (See Art.
113 of the Labor Code)
ANOTHER SUGGESTED ANSWER:
Yes, if pursuant to CBA provision or authorized by
worker in writing; otherwise. No.
Wages; Money Claims; Attorney’s Fees;
Damages (2001)
(a) Eduardo Santiago, a project worker, was being
assigned by his employer, Bagsak Builders, to
Laoag, Ilocos Norte. Santiago refused to comply
with the transfer claiming that it, in effect,
constituted a constructive dismissal because it
would take him away from his family and his usual
work assignments in Metro Manila. The Labor
Arbiter found that there was no constructive
dismissal but ordered the payment of separation
pay due to strained relations between Santiago
and Bagsak Builders plus attorney's fees
equivalent to ten percent (10%) of the value of
Santiago's separation pay.
Is the award of attorney's fees valid? State the
reasons for your answer. (2%).
SUGGESTED ANSWER:
No, the award of attorney's fees is not valid.
According to the Labor Code (Art. 111 (a)),
attorney's fees may be assessed in cases of
unlawful withholding of wages which does not exist
in the case. The worker refused to comply with a
lawful transfer order, and hence, a refusal to work.
Given this fact, there can be no basis for the
payment of attorney's fees.
(b) Could the labor arbiter have validly awarded
moral and exemplary damages to Santiago instead
of attorney's fees? Why? (3%).
SUGGESTED ANSWER;
No, moral and exemplary damages can be
awarded only if the worker was illegally terminated
in an arbitrary or capricious manner. (Nueva Ecija
Electric Cooperative Inc., Employees Assn., us.
NLRC, G.R. No. 116066, January 24, 2000; Cruz
us. NLRC, G.R. No. 116384, February 7, 2000;
Phil. Aeolus etc., vs. NLRC, G.R. No. 124617, April
28, 2000),
Wages; Paid by Results; Holiday Pay (2002)
Nemia earns P7.00 for every manicure she does in
the barber shop of a friend which has nineteen (19)
employees. At times she takes home P175.00 a
day and at other times she earns nothing. She now
claims holiday pay. Is Nemia entitled to this
benefit? Explain briefly (5%)
SUGGESTED ANSWER:
No, Nemia is not entitled to holiday pay. Art. 82 of
the Labor Code provides that workers who are paid
by results are, among others, not entitled to holiday
pay. Nemia is a worker who is paid by results. She
earns P7.00 for every manicure she does.
ANOTHER SUGGESTED ANSWER:
Yes. Nemia is entitled to holiday pay. The
Supreme Court has ruled: "As to the other benefits,
namely, holiday pay, premium pay, 13th month
pay, and service incentive leave which the labor
arbiter failed to rule on but which the petitioners
prayed for in their complaint, we hold that
petitioners are so entitled to these benefits. Three
(3) factors lead us to conclude that petitioners,
although piece rate workers, were regular
employees of private respondents.
FIRST as to the nature of the petitioner's tasks,
their job of repacking snack food was
necessary or desirable in the usual business of
private respondents, who were engaged in the
manufacture and selling of such food products;
SECOND, petitioners worked for private
respondents throughout the year, their
employment not having been dependent on a
specific project or season; and
THIRD, the length of time that petitioners
worked for private respondents. Thus, while
petitioner's mode of compensation was on a
"per piece basis" the status and nature of their
employment was that of regular employees."
[Labor Congress of the Philippines v. NLRC,
290 SCRA 509 (1998)
Wages; Teachers; ECOLA (1997)
Lita Cruz, a full time professor in San Ildefonso
University, is paid on a regular monthly basis. Cruz
teaches for a period of ten months in a schoolyear,
excluding the two month's summer break.
During the semestral break, the University did not
pay Lita Cruz her emergency Cost of Living
allowance (ECOLA) although she received her
regular salary since the semestral break was
allegedly not an integral part of the school year
and no teaching service were actually rendered by
her. In short, the University invoked the principle of
"no work, no pay".
Lita Cruz seeks your advice on whether or not she
is entitled to receive her ECOLA during semestral
breaks. How would you respond to the query?
SUGGESTED ANSWER:
There is no longer any law making it the legal
obligation of an employer to grant an Emergency
Cost of Living Allowance (ECOLA). Effective 1981,
the mandatory living allowances provided for in
earlier Presidential Decrees were integrated into
the basic pay of all covered employees.
Thus, whether the ECOLA will be paid or not
during the semestral break now depends on the
provisions of the applicable wage order or contract
which may be a CBA, that many grant said
ECOLA.
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ALTERNATIVE ANSWER;
The "no work, no pay" principle does not apply.
The teachers receive their regular salaries during
the semestral break. The law granting emergency
cost of living allowances was designed to augment
the income of the employees to enable them to
cope with the rising cost of living and inflation. It
was enacted pursuant to the State's duty to protect
labor and to alleviate the plight of the workers. To
uphold the school's interpretation of the law would
run counter to the intent of the law and constitution
(University of Pangasinan Faculty Union v.
University of Pangasinan, 127 SCRA 691).
Wages; Unpaid Wages; Preference of Credit
in favor of Employees (1995)
1. Under the Labor Code, is the right of first
preference a lien on the property of the insolvent
debtor in favor of the workers? Explain.
SUGGESTED ANSWER:
The right of first preference in favor of workers is
not a lien on the property of the insolvent debtor.
The preference could be exercised only in the
event of bankruptcy or liquidation of an employer's
business.
ALTERNATIVE ANSWER:
A preference does not attach to specific properties.
A lien creates charges on a particular property.
The right of first preference as regards unpaid
wages recognized by the Labor Code does not
constitute a lien on the property of the insolvent
debtor in favor of the workers. It is but a preference
of credit in their favor, a preference in application.
The Labor Code does not purport to create a lien
in favor of workers or employees for unpaid wages
either upon all of the properties or upon any
particular property owned by their employer.
Wages; Unpaid Wages; Preference of Credit
in favor of Employees (2003)
Premiere Bank, a banking corporation, being the
creditor-mortgagee of XYZ & Co., a garment firm,
foreclosed the hypothecated assets of the latter.
Despite the foreclosure, XYZ & Co. continued its
business operations. A year later, the bank took
possession of the foreclosed property. The
garment firm's business operations ceased without
a declaration of bankruptcy. Jose Caspar, an
employee of XYZ & Co., was dismissed from
employment due to the cessation of business of
the firm. He filed a complaint against XYZ & Co.
and the bank. The Labor Arbiter, after hearing, so
found the company liable, as claimed by Jose
Caspar, for separation pay. Premiere Bank was
additionally found subsidiarily liable upon the
thesis that the satisfaction of labor benefits due to
the employee is superior to the right of a
mortgagee of property. Was the Labor Arbiter
correct in his decision?
SUGGESTED ANSWER:
No. The preference of credits established in Art.
110 of the Labor Code cannot be invoked in the
absence of any insolvency proceedings,
declaration of bankruptcy, or judicial liquidation.
(DBP v. Santos. 171 SCRA 138 (1989).
ANOTHER SUGGESTED ANSWER:
No. What Art. 110 of the Labor Code establishes is
not a lien but a preference of credit in favor of
employees. Unlike a lien, a preference of credit
does not create a charge upon any particular
property of the debtor. (Development Bank of the
Philippines v. Secretary of Labor. 179 SCRA 630
(1989).
ANOTHER SUGGESTED ANSWER:
The Decision of the Labor Arbiter holding Premiere
Bank (as foreclosing mortgagee-creditor)
subsidiarily liable for a money obligation of XYZ &
Co, (as mortgagor) to Caspar, its employee, has
no legal basis.
1. There is no privity of relationship between the
Bank and Caspar. The relationship, upon which
the obligation to pay a sum of money is based, is
between XYZ (the mortgagor) and Caspar as its
employee arising from the Labor Code provision
requiring an employer to pay separation pay, re:
other causes of employment.
2. At both times - Labor Arbiter Decision to pay
separation pay and foreclosure - XYZ & Co. was
an existing business entity and neither bankrupt or
in liquidation, although its business operations
after the foreclosure ceased.
3. The decision of the Labor Arbiter for XYZ &
Co. to pay a sum of money to Caspar was based
on an action in personam, not in rem. enforceable
against any party. (Sundowner Corporation vs.
drilon. 180 SCRA 14 (1989)
4. The reference in the Decision to "labor
benefits due to an employee is superior to the right
of a mortgagee of property" is misplaced. The
preferential claim rule has no basis and runs
contrary to law and jurisprudence.
Wages; Unpaid Wages; Preference of Credit
in favor of Employees (1995)
Distinguish the mortgage created under the Civil
Code from the right of first preference created by
the Labor Code as regards the unpaid wages of
workers. Explain.
SUGGESTED ANSWER:
A MORTGAGE directly subjects the property upon
which it is imposed, whoever the possessor may
be, to the fulfillment of the obligation for which it
was constituted. It creates a real right which is
enforceable against the whole world. It is therefore
a lien on an identified real property.
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MORTGAGE CREDIT is a special preferred credit
under the Civil Code in the classification of credits.
The preference given by the Labor Code when not
attached to any specific property, is an ordinary
preferred credit.
ALTERNATIVE ANSWER:
If the asset of an employer which has become
bankrupt or has been liquidated has been
mortgaged, the proceeds of the sale of said
mortgaged asset is first subject to the lien of the
person to whom the property is mortgaged. Said
lien is superior to the first preference enjoyed by
the workers pursuant to the Labor Code.
Wages; Unpaid Wages; Preference of Credit
in favor of Employees (1999)
FACTS: Lowland Cement & Factory Company
(LCFC) borrowed P500M from the Development
Bank of the Philippines and mortgaged the entire
company, inclusive of its land, buildings and
equipment, to guarantee the payment of the loan.
However, because of the economic conditions,
LCFC incurred heavy losses and eventually failed
to pay DBP the required monthly amortizations
over a period of more than one (1) year. In due
time, DBP foreclosed the mortgaged assets of
LCTC resulting in the closure of the company and
the displacement of all its employees for want of
work.
The LCFC Labor Union [Union] filed in behalf of
the displaced workers a labor case against DBP as
the new owner of the defunct cement factory for
wage differentials, retirement pay and other money
claims. The Labor Arbiter decided in the favor of
the Union. DBP appealed to the NLRC.
DBP contended in its appeal that its acquisition of
the mortgage assets of LCFC through foreclosure
sale did not make it the owner of the defunct
Lowland Cement, and that the doctrine of
successor-employer is not applicable in this case,
since DBP did not continue the business operation
of LCFC.
The NLRC while finding merit in DBP's contention,
nonetheless held DBP liable to the extent of the
proceeds of the foreclosure sale since the Union's
claims in behalf of the workers constitute a first
preference with respect thereto pursuant to article
110 of the Labor Code.
Is the NLRC correct in holding DBP liable to the
extent of the proceeds of the foreclosure sale?
Explain briefly (5%)
SUGGESTED ANSWER:
No. DBP is not liable. DBP has a lien over the
properties of LCFC which were mortgaged to DBP
and said lien is superior to the preference that the
workers have under the Labor Code (in Article 110)
with respect to their claims as workers against
LCFC.
Panel: All claims must be filed in insolvency
proceedings, which are outside the jurisdiction of
the NLRC (Republic v. Peralta)
Wages; Wage Distortion (1997)
(a) Define Wage Distortion.
(b) May a wage distortion, alleged by the
employees but rejected by the employer to be
such, be a valid ground for staging a strike?
SUGGESTED ANSWER:
(a) A WAGE DISTORTION is that brought about
where an increase in the prescribed wage rates
results in the elimination or severe contraction of
intentional quantitative differences in wage or
salary rates between and among employee groups
in an establishment as to effectively obliterate the
distinctions embodied in such wage rates based on
skills, length of service and other logical bases of
differentiation.
(b) No, the existence of wage distortion is not a
valid ground for a strike because Art. 124 of the
Labor Code provides for a specific method of
procedure for correcting wage distortion. Ilaw at
Buklod ng Manggagawa vs. NLRC, 198 SCRA
586, the Court said:-
It goes without saying that these joint or
coordinated activities may be forbidden or
restricted by law or contract. For the particular
instance of "distortions of the wage structure
within an establishment" resulting from the
application of any prescribed wage increase by
virtue of a law or wage order. Section 3 of
Republic Act No. 6727 prescribes a specific,
detailed and comprehensive procedure for the
correction thereof, thereby implicitly excluding
strikes or lockouts or other concerted activities
as modes of settlement of the issue.
ALTERNATIVE ANSWER:
(b) A wage distortion, alleged by the employees
but rejected by the employer can be a valid ground
for staging a strike if it happens that in rejecting the
allegation of wage distortion, the employer refuses
to consider the issue under the grievance
procedure provided for in the applicable CBA, and
later on through Voluntary Arbitration. These acts
of the employer could be considered as a violation
of its duty to bargain collectively which is unfair
labor practice (ULP). A ULP strike is legal.
Wages; Wages vs. Salary; Subject to
Attachment (1994)
1) Distinguish "salary" from "wages."
2) Are these subject to attachment and execution?
SUGGESTED ANSWER:
1) The term "WAGES" applies to compensation
for manual labor, skilled or unskilled, while salary
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denotes a compensation for a higher degree of
employment. (Gaa vs. Court of Appeals, 140
SCRA 304),
ALTERNATIVE ANSWER:
"WAGES" are those paid to any employee as his
remuneration or earnings payable by an employer
for work done or to be done, or for services
rendered or to be rendered.
On the other hand, "SALARY" is used in the law
that provides for a 13th-month pay. In this law,
basic salary includes all remuneration or earnings
paid by an employer to his employees for services
rendered, but does not include allowances or
monetary benefits which are not considered or
integrated as part of the regular or basic salary.
(Art. 97(f), Labor Code; Sec, 2(b), P.D. No. 851)
2) Under Article 1708 of the Civil Code, only
"wages" are exempt from attachment or execution.
Salaries are not exempt from attachment or
execution. (Gaa vs. Court of Appeals, 140 SCRA
304).
Wages; Waiver of Compensation (1996)
2) Jose applied with Mercure Drug Company for
the position of Sales Clerk. Mercure Drug
Company maintains a chain of drug stores that are
open everyday till late at night. Jose was informed
that he had to work on Sundays and holidays at
night as part of the regular course of employment.
He was presented with a contract of employment
setting forth his compensation on an annual basis
with an express waiver of extra compensation for
work on Sundays and holidays, which Jose signed.
Is such a waiver binding on Jose? Explain.
SUGGESTED ANSWER:
As long as the annual compensation is an amount
that is not less than what Jose should receive for
all the days that he works, plus the extra
compensation that he should receive for work on
his weekly rest days and on special and regular
holidays and for night differential pay for late night
work, considering the laws and wage orders
providing for minimum wages, and the pertinent
provisions of the Labor Code, then the waiver that
Jose signed is binding on him for he is not really
waiving any right under Labor Law. It is not
contrary to law, morals, good customs, public order
or public policy for an employer and employee to
enter into a contract where the employees'
compensation that is agreed upon already includes
all the amounts he is to receive for overtime work
and for work on weekly rest days and holidays and
for night differential pay for late night work.
ALTERNATIVE ANSWER:
The waiver of benefits provided for by law is void.
Art. 6 of the New Civil Code provides:
"Rights may be waived, unless the waiver is
contrary to law, public order, public policy,
morals or good customs."
Working Hours; Charitable Institution;
Overtime Pay (2002)
Socorro is a clerk-typist in the Hospicio de San
Jose, a charitable institution dependent for its
existence on contributions and donations from well
wishers. She renders work eleven (11) hours a day
but has not been given overtime pay since her
place of work is a charitable institution. Is Socorro
entitled to overtime pay? Explain briefly. (5%)
SUGGESTED ANSWER:
Yes. Socorro is entitled to overtime compensation.
She does not fall under any of the exceptions to
the coverage of Art. 82, under the provisions of
Hours of Work. The Labor Code is equally
applicable to non-profit institutions. A covered
employee who works beyond eight (8) hours is
entitled to overtime compensation.
Working Hours; Charitable Institution;
Weekly Rest Period; (1998)
A Ladies Dormitory run or managed by a charitable
non-profit organization claims that it is exempt from
the coverage of the Weekly Rest Period provision
of the Labor Code.
Is the claim valid? [5%]
SUGGESTED ANSWER:
No. The claim is not valid. The provisions on
weekly rest periods in the Labor Code cover every
employer, whether operating for profit or not. (See
Article 91 of the Labor Code)
Working Hours; Compressed Work Week
(2005)
(d) Under what conditions may a "compressed
work week" schedule be legally authorized as an
exception to the "eight-hour a day" requirement
under the Labor Code? (4%)
ALTERNATIVE ANSWER:
The conditions for an allowable "compressed work
week" are the following: the workers agree to the
temporary change of work schedule and they do
not suffer any loss of overtime pay, fringe benefits
or their weekly or monthly take-home pay. (DOLE
Explanatory Bulletin on the Reduction of Workdays
on Wages issued on July 23, 1985)
ALTERNATIVE ANSWER:
"Compressed work week" is resorted to by the
employer to prevent serious losses due to causes
beyond his control, such as when there is a
substantial slump in the demand for his goods or
services or when there is lack of raw materials.
(Explanatory Bulletin on the Reduction of
Workdays on Wages Issued by DOLE, July
23,1985)
Working Hours; Night Shift Differential (2002)
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As a tireman in a gasoline station, open twenty four
(24) hours a day with only five (5) employees,
Goma worked from 10:00 P.M. until 7:00 A.M. of
the following day. He claims he is entitled to night
shift differential. Is he correct? Explain briefly.
(3%)
SUGGESTED ANSWER:
Yes. Under Art 86 of the Labor Code, night shift
differential shall be paid to every employee for
work performed between 10:00 o'clock in the
evening to six o'clock in the morning.
Therefore, Goma is entitled to nightshift differential
for work performed from 10:00 pm until 6:00 am of
the day following, but not from 6:00 am to 7:00 am
of the same day.
ANOTHER SUGGESTED ANSWER:
The Omnibus Rules Implementing the Labor Code
(In Book III, Rule II dealing with night shift
differential) provides that its provisions on night
shift differential shall NOT apply to employees of
"retail and service establishments regularly
employing not more than five (5) workers".
Because of this provision, Goma is not entitled to
night shift differential because the gasoline station
where he works has only five employees.
Working Hours; Saturday Work (2003)
A case against an employer company was filed
charging it with having violated the prohibition
against offsetting undertime for overtime work on
another day. The complainants were able to show
that, pursuant to the Collective Bargaining
Agreement (CBA), employees of the union had
been required to work "overtime" on Saturday but
were paid only at regular rates of pay on the thesis
that they were not required to complete, and they
did not in fact complete, the eight-hour work period
daily from Monday through Friday. Given the
circumstances, the employer contended that the
employees were not entitled to overtime
compensation, i.e., with premium rates of pay.
Decide the controversy.
SUGGESTED ANSWER:
The employer is correct. While Art. 88 of the Labor
Code clearly provides that undertime work on any
other particular day shall not be offset by overtime
work on any other day, this rule is inapplicable in
this case pertaining to Saturday work which in
reality does not constitute overtime work as
Saturday is still a working day under the law and
there is no CBA stipulation against it.
ANOTHER SUGGESTED ANSWER:
Art, 88 of the Labor Code provides that undertime
work on any particular day shall not be offset by
overtime work on any other day. The CBA being
the law between the parties and the Union having
shown that the employees rendered overtime work
on Saturday, the contention of the employer is not
tenable. The employer cannot use the undertime of
Monday through Friday to offset the overtime on
Saturday. Hence, the employees are entitled to
overtime compensation, i.e. premium rates of pay
on Saturday.
Working Hours; Sick Leave; Overtime Pay
(1997)
Danilo Flores applied for the position of driver in
the motor-pool of Gold Company, a multinational
corporation. Danilo was informed that he would
frequently be working overtime as he would have
to drive for the company's executives even beyond
the ordinary eight-hour work day. He was provided
with a contract of employment wherein he would
be paid a monthly rate equivalent to 35 times his
daily wage, regular sick and vacation leaves, 5
day-leave with pay every month and time off with
pay when the company's executives using the cars
do not need Danilo's service for more than eight
hours a day, in lieu of overtime.
Are the above provisions of the contract of
employment in conformity with, or violative of, the
law?
SUGGESTED ANSWER:
Except for the provision that Danilo shall have time
off with pay when the company's executives using
the cars do not need Danilo's service for more than
eight hours a day, in lieu of overtime, the
provisions of the contract of employment of Danilo
are not violative of any labor law because they
instead improve upon the present provisions of
pertinent labor laws.
Thus, the monthly rate equivalent to 35 times the
daily wage may be sufficient to include overtime
pay. There is no labor law requiring the payment of
sick and vacation leaves except the provision for a
five-day service incentive leave in the Labor Code.
The 5-day-leave with pay every month has no
counterpart in Labor Law and is very generous.
As for the provision in Danilo's contract of
employment that he shall receive time off with pay
in lieu of overtime, this violates the provision of the
Labor Code which states that undertime work on
any particular day shall not be offset by overtime
work on any other day. Permission given to the
employer to go on leave on some other day of the
week shall not exempt the employer from paying
the additional compensation required by the Labor
Code.
Working Hours; When Compensable; “While
on Call” (2004)
Gil Bates, a computer analyst and programmer of
Hard Drive Company, works eight hours a day for
five days a week at the main office providing
customers information technology assistance.
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On Saturdays, however, the company requires him
to keep his cellular phone open from 8:00 A.M. to
5:00 P.M. so that the Management could contact
him in case of heavy work load or emergency
problems needing his expertise.
May said hours on Saturdays be considered
compensable working hours “while on call”? If so,
should said compensation be reported to the
Social Security System? (5%)
SUGGESTED ANSWER:
Said hours on Saturdays should be considered as
compensable working hours "while on call". In
accordance with the Rules and Regulations
Implementing the Labor Code, an employee who is
not required to leave word at his home or with
company officials as to where he may be reached
is not working while on call. But in the question, Gil
Bates was required to keep his cell phone open
from 8:00 A.M. to 5:00 P.M. Therefore, Bates
should be considered as working while on call, if
he cannot use effectively and gainfully for his own
purpose the time from 8:00 A.M. to 5:00 P.M. on
Saturdays when he is required to keep his cell-
phone open.
The compensation actually received by Bates for
working while on call on Saturdays should be
reported to the Social Security System because
under the Social Security Law, compensation
means "all actual remuneration for employment."
ANOTHER SUGGESTED ANSWER:
If Gil Bates can effectively utilize the Saturdays in
his own interest even "while on call", said hours on
Saturdays are not compensable. However, if
during said hours on Saturdays, Bates is actually
required to attend to urgent work to the extent of
leaving what he is doing, then the same are
compensable working hours to the extent of the
actual hours of work rendered by him.
The compensation paid by the company to Bates
for said hours worked on Saturdays should be
reported to the SSS. This is so because the basis
of computing the SSS contribution includes all
actual remuneration, including allowances and
cash value of any compensation paid in any
medium other than cash.
Working Hours; When Compensable; “While
on Call”; Waiting Time (1997)
Lito Kulangkulang and Bong Urongsulong are
employed as truck drivers of Line Movers, Inc.
Usually. Lito is required by the personnel manager
to just stay at the head office after office hours
because he could be called to drive the trucks.
While at the head office. Lito merely waits in the
manager's reception room. On the other hand.
Bong is allowed to go home after office hours but is
required to keep his cellular phone on so that he
could be contacted whenever his services as driver
becomes necessary.
Would the hours that Lito and Bong are on call be
considered compensable working hours?
SUGGESTED ANSWER:
The hours of Lito and Bong while on call can be
considered compensable hours. The applicable
rule is: "An employee who is required to remain on
call in the employer's premises or so close thereto
that he cannot use the time effectively and
gainfully for his own purpose shall be considered
as working while on can. An employee who is not
required to leave word at his home or with
company officials where be may be reached is not
working while on call." Here, Bong is required to
stay at the office after office hours so he could be
called to drive the trucks of the Company. As for
Bong, he is required to keep his cellular phone so
that he could be contacted whenever his services
as driver as needed. Thus, the waiting time of Lito
and Bong should be considered are compensable
hours.
Note: It could be argued that in the case of Bong
who is not required to stay in the office but is
allowed to go home, if he is not actually asked by
cellular phone to report to the office to drive a
car, he can use his time effectively and gainfully
to his own purpose, thus, the time that he is at
home may mean that there are not compensable
hours.
TERMINATION OF EMPLOYMENT
Backwages (2002)
A. An employee was ordered reinstated with
backwages. Is he entitled to the benefits and
increases granted during the period of his lay-off?
Explain briefly. (3%)
B. Aside from the just causes enumerated in
Article 282 of the Labor Code for the termination of
employment, state three {3} lawful or authorized
causes for the dismissal of an employee. (2%)
SUGGESTED ANSWER:
A. Yes. An employee who is ordered reinstated
with backwages is entitled to the benefits and
increases granted during the period of his lay-off.
The Supreme Court has ruled: "Backwages are
granted for earnings a worker lost due to his illegal
dismissal and an employer is obliged to pay an
illegally dismissed employee the whole amount of
salaries plus all other benefits and bonuses and
general increases to which the latter should have
been normally entitled had he not been dismissed."
[Sigma Personnel Services v. NLRC, 224 SCRA
181 (1993)]
Backwages vs. Unpaid Wages (1994)
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Distinguish between an award for back wages and
an award for unpaid wages.
SUGGESTED ANSWER:
An award for BACKWAGES is to compensate an
employee who has been illegally dismissed, for the
wages, allowances and other benefits or their
monetary equivalent, which said employee did not
receive from the time he was illegally dismissed up
to the time of his actual reinstatement.
On the other hand, an award for UNPAID WAGES
is for an employee who has actually worked but
has not been paid the wages he is entitled to
receive for such work done. (Arts. 279 and 97(1),
Labor Code)
ALTERNATIVE ANSWER:
An award of BACKWAGES is given to an
employee who is unjustly dismissed. The cause of
action here is the unjust dismissal. On the other
hand, an award of UNPAID WAGES is given to an
employee who has not been paid his salaries or
wages for services actually rendered. The cause of
action here is non-payment of wages or salaries.
(General Baptist Bible College vs. NLRC 219
SCRA 549).
Backwages; Basis (2001)
What economic components constitute backwages
for a rank and file employee? Are these
components equally applicable to a managerial
employee? (5%)
SUGGESTED ANSWER:
The Labor Code (Art. 279) provides that an
employee who is unjustly dismissed from work is
entitled to reinstatement and also to his full
backwages, inclusive of allowances, and to his
other benefits or their monetary equivalent
computed from the time his compensation was
withheld from him up to his actual reinstatement.
An employee is entitled to all the above benefit
regardless of whether he is a rank-and-file
employee or a managerial employee.
However, backwages may also include the 13th
month pay which are paid to rank-and-file
employees, as well as benefits arising from a CBA
given only to employees in the bargaining unit.
Managerial employees cannot be given the same
since they are ineligible to join a labor
organization.
Backwages; Basis (2001)
"A" was hired by company "B" in January 1980
until A was illegally dismissed on April 30, 1990 as
found by a Labor Arbiter who ordered
reinstatement and full backwages from April 30,
1990 until As reinstatement. The Arbiter's decision
was promulgated on April 29, 1995. B appealed
claiming, among others, that the award for
backwages was excessive in that it went beyond
three-year rule set forth in Mercury Drug v. CIR (56
SCRA 696). Is B's contention tenable? Why? (5%)
SUGGESTED ANSWER:
No, the contention of "B" is not tenable. Rep. Act
No. 6715, which was enacted in 1989, in effect set
aside the three-year rule set forth in Mercury Drug
vs. CIR (56 SCRA 696) when it provided that the
full backwages that an unjustly dismissed
employee shall receive shall be computed from the
time his compensation was withheld from him up to
the time of his actual reinstatement.
The word "actual" was inserted in the law by Rep.
Act No. 6715. Thus, in accordance with the
aforesaid law, an unjustly dismissed employee
shall receive his full backwages computed from the
time his compensation was withheld from him up to
the time of his actual reinstatement even if this
period is more than three years.
ANOTHER SUGGESTED ANSWER:
No, the contention of "B" is not tenable. The
Supreme Court (In Ferrer vs. NLRC, July 5, 1993)
abandoned the Mercury Drug Rule and in 1996
Bustamante vs. NLRC, 265 SCRA 61 the Supreme
Court said:
[Quoting Article 279 of the Labor Code] Under
the above quoted provision, it became
mandatory to award backwages to illegally
dismissed regular employees. The law
specifically declared that the award of
backwages was to be computed from the time
compensation was withheld from the employee
up to the time of his reinstatement.
xxx
The clear legislative intent of the amendment in
RA No. 6715 is to give more benefits to the
workers than was previously given them under
the Mercury Drug rule. In other words, the
provision calling for "full backwages" to illegally
dismissed employees is clear, plain and free
from ambiguity, and, therefore, must be applied
without attempted or strained interpretation.
Backwages; Basis (2001)
(a) "A", an employee of Company "B", was found
to have been illegally dismissed and was ordered
to be reinstated and paid backwages from the time
of dismissal until actual reinstatement. The case
was elevated all the way to the Supreme Court. By
the time the Supreme Court's decision became
final and executory, B had closed down and was in
the process of winding up. Nonetheless, B paid A
his backwages and separation pay. A complained
that B’s computation was erroneous in that A's
allowances was not included. Is A correct in his
claim? For what reason(s)? (2%).
SUGGESTED ANSWER:
A is correct. After its amendment by Rep. Act No.
6715, the backwages that an employee who has
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been unjustly dismissed is entitled to receive is not
limited to his full backwages but also includes his
allowances and the other benefits or their
monetary equivalent.
ANOTHER SUGGESTED ANSWER:
In the case of Consolidated .Rural Bank us. NLRC,
G.R. No. 123810, January 20,1999, the Supreme
Court ruled that allowances of the employee
should be included in the computation of
backwages.
Dismissal; Authorized Causes (2002)
B. According to Art 283 of the Labor Code, the
lawful or authorized causes for the termination of
an employee are:
1. installation of labor saving devices
2. redundancy
3. retrenchment to prevent losses or;
4. closing or cessation of operation of the
establishment or undertaking, unless the closing is
for the purpose of circumventing the provisions of
the Labor Code. Art 284 also provides that an
employer may terminate the services of an
employee who has been found to be suffering from
any disease and whose continued employment is
prohibited by law or is prejudicial to his health as
well as to the health of his co-employees.
Dismissal; Authorized Causes vs. Just
Cause (2004)
What are the authorized causes for a valid
dismissal by the employer of an employee? Why
are they distinct from the just causes? (5%)
SUGGESTED ANSWERS:
The AUTHORIZED CAUSES for a valid dismissal
are the following:
1. installation of labor-saving devices
2. redundancy
3. retrenchment to prevent losses
4. the closing or cessation of operation of the
establishment or undertaking
SUGGESTED ANSWERS:
The authorized causes for a valid dismissal are
distinct from just causes because where the
dismissal of an employee is based on just causes,
these just causes are acts committed by the
employee which provide the basis for his dismissal.
On the other hand, where the dismissal is based
on authorized causes, these authorized causes are
the results of the proper exercise by the employer
of his management prerogatives.
If a valid dismissal is based on just causes, there is
no liability on the part of the employer, although
sometimes, financial assistance to be given to the
dismissed employee is asked of the employer. If a
valid dismissal is based on authorized causes, the
employer has to pay separation pay except in case
of closure or cessation of operation due to serious
business losses or financial reverses.
Dismissal; Authorized Causes; Closure &
Cessation (2001)
Company "A" was engaged in the manufacture of
goods using the by-products of coconut trees and
employed some fifty workers who lived in the
coconut plantation in Quezon Province. The land
upon which A conducted its operation was
subjected to land reform under R.A. 6657 for
distribution to the tenants and residents of the
land. Consequently, A had to close its operations
and dismiss its workers. The union representing
the employees demanded that A pay the
dismissed workers separation pay under Art. 283
of the Labor Code that requires, among others, the
payment of separation pay to employees in cases
of "closing or cessation of operations of the
establishment or undertaking". Is the union's claim
correct or not? Why? (5%)
SUGGESTED ANSWER:
The union's claim is not correct. In the case of
National Federation of Labor vs. NLRC, G.R. No.
127718, March 2. 2000, the Supreme Court ruled
that there is no obligation to pay separation pay if
the closure is not a unilateral and voluntary act of
the employer.
In the question, the closure was brought about not
by a unilateral and voluntary act of the employer
but due to the act of government in the
implementation of the Comprehensive Agrarian
Reform Law.
Dismissal; Authorized Causes; Closure &
Cessation of Business; Old Age (2006)
If the reason for the closure is due to old age of the
brothers and sisters:
1. Is the closure allowed by law? (2.5%)
2. Are the employees entitled to separation
benefits? (2.5 %)
SUGGESTED ANSWER:
If closure is due to old age —
1. YES, it is allowed by law. The employer may
go out of business by closing the same regardless
of his reasons, if done in good faith and due to
causes beyond his control. (LVN Pictures
Employees and Workers Association v. LVN
Pictures, No. L-23495, September 30,1970;J.A,T.
General Services v. NLRC, No. L-26432,
September 30, 1970; Alabang Country Club, Inc. v.
NLRC, G.R. No. 157611, August 9, 2005)
SUGGESTED ANSWER:
2. YES. One month pay, or one-half month pay
for every year of service, a fraction of at least 6
months or more equivalent to one year, whichever
is higher. (Catatista v. NLRC, GR. No. 102422,
August 3,1995).
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Dismissal; Authorized Causes; Closure &
Cessation of Business; Separation Pay
(2006)
ABC Tomato Corporation, owned and managed by
three (3) elderly brothers and two (2) sisters, has
been in business for 40 years. Due to serious
business losses and financial reverses during the
last five (5) years, they decided to close the
business.
1. As counsel for the corporation, what steps will
you take prior to its closure? (2.5%)
2. Are the employees entitled to separation pay?
(2.5%)
SUGGESTED ANSWER:
1. Steps to take prior to closure:
a) Written Notice to DOLE 30 days prior to
the intended date of termination, showing
a bona fide reason for closure;
b) Written Notice to employees 30 days prior
to the intended date of termination
(Catatista v. NLRC, GR. No. 102422, Aug.
3 1995).
SUGGESTED ANSWER:
2. NO, Art. 283 of the Labor Code does not
obligate an employer to pay separation benefits
when the closure is due to serious business losses
or financial reverses (North Davao Mining and
Development Corp. v. NLRC, G.R. No. 112546,
March 13,1996), except if the CBA provides
otherwise (JAKA Foods v. Pacot, G.R. No. 151378,
Mar. 28, 2005).
Dismissal; Authorized Causes; Downsizing
Employees (2001)
Soon after the Asian meltdown began in October
1997, ABC Realty and Management Corporation
undertook a downsizing program and terminated
nearly a third of its regular workforce. The affected
employees questioned their termination arguing
that the action was precipitate in that ABC had not
proved that it sustained any losses. Is the claim of
the employees correct? Explain your answer, (3%).
SUGGESTED ANSWER:
The claim of the employees may or may not be
correct. When the Corporation undertook its
"downsizing" program, it may have terminated its
employees on either one of two grounds, namely,
redundancy or retrenchment.
For REDUNDANCY, there is no requirement of
losses, whereas in retrenchment, substantial
losses, actual or anticipated, is a requirement.
(Article 283, Labor Code). In Atlantic Gulf and
Pacific Company vs. NLRC, G.R. No. 127516. May
28, 1999, the Supreme Court ruled:
"... it is necessary to distinguish redundancy
from retrenchment... Redundancy exists when
the services of an employee are in excess of
what is required by an enterprise.
RETRENCHMENT on the other hand, ... is
resorted to primarily to avoid or minimize
business losses."
In Escareal vs. NLRC, 213 SCRA 472 (1992), the
Supreme Court ruled that the law does not require
financial loss as a basis for redundancy.
Dismissal; Authorized Causes; Redundancy
(1999)
FACTS: Harvester Independent Ventures (HIV)
adopted a redundancy program to streamline
operations. Positions which overlapped each other,
or which are in excess of the requirements of the
service, were declared redundant. This program
resulted in the reduction of manpower complement
and consequent termination of fifteen (15)
employees, which included the secretary of the
local union and the company's Pollution control
Officer.
Ilaw at Buklod ng Manggagawa (IBM), questioned
the termination of the 15 employees, contending
that the same constituted union busting and
therefore, illegal, if the same is undertaken without
prior union approval.
1. Is IBM correct in its contention that redundancy
can be implemented by HIV only upon prior union
approval? Why? (3%)
SUGGESTED ANSWER:
The Labor Code (in Article 283) very clearly gives
the employer the right to terminate any of its
employees for redundancy.
2. Can the position of Pollution Control Officer be
declared redundant? Why? (2%)
SUGGESTED ANSWER:
If there is a law requiring companies to have a
Pollution Officer, then HIV cannot declare such
office redundant.
If there is no such law, then the Pollution Officer
could be considered redundant.
Panel: Consider case of Escareal. A position
created by law cannot be declared redundant.
Dismissal; Authorized Causes; Redundancy
(2000)
a) Can redundancy exist where the same is due
to the company's failure to properly forecast its
manpower requirements? (3%)
b) Can redundancy exist where the work
performed by twelve (12) workers can be
performed as efficiently by ten (10) workers by
increasing the speed of a machine without
detriment to the health and safety of the workers?
(3%)
SUGGESTED ANSWER:
a) Yes, REDUNDANCY exists when a position
has become an excess or superfluous which, in
turn, may be caused by reorganization, closure of
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a section or department, or adoption of labor-
saving arrangements. Poor forecasting does not
invalidate redundancy. Forecasting after all is not
fail-free. [Wiltshire File Co..Inc. v. NLRC. 193
SCRA 665 (1991)].
b) Yes, redundancy can exist where work
efficiency has been improved mechanically thus
resulting in excessive or superfluous manpower.
[Wiltshire File Co., Inc. v. NLRC, 193 SCRA
665(1991)].
Dismissal; Authorized Causes;
Retrenchment & Redundancy (2001)
(a) What conditions must prevail and what
requirements, if any, must an employer comply
with to justify/effect a valid retrenchment program?
(2%).
SUGGESTED ANSWER;
In the case of Asian Alcohol Corp. vs. NLRC, G.R.
No. 131108, March 25,1999, the Supreme Court
stated that the requirements for a valid
retrenchment must be proved by clear and
convincing evidence:
(1) that the retrenchment is reasonably necessary
and likely to prevent business losses which, if
already incurred, are not merely de minimis,
but SUBSTANTIAL, SERIOUS, ACTUAL and
REAL or if only expected, are reasonably
imminent as perceived objectively and in good
faith by the employer;
(2) that the employer served WRITTEN NOTICE
both to the employees and to the Department
of Labor and Employment at least one month
prior to the intended date of retrenchment;
(3) that the employer pays the retrenched
employees SEPARATION PAY equivalent to
one month pay or at least one month pay for
every year of service, whichever is higher;
(4) that the employer exercises its prerogative to
retrench employees in GOOD FAITH for the
advancement of its interest and not to defeat
or circumvent the employees' right to security
of tenure; and
(5) that the employer used FAIR and
REASONABLE CRITERIA in ascertaining who
would be dismissed and who would be
retained among the employees, such as status
(i.e., whether they are temporary, casual,
regular or managerial employees), efficiency,
seniority, physical fitness, age, and financial
hardship for certain workers.
(b) What conditions must prevail and what
requirements, if any, must an employer comply
with to justify/effect a valid redundancy program?
(2%).
SUGGESTED ANSWER:
In the case of Asian Alcohol Corp. (supra), the
Supreme Court stated that REDUNDANCY exists
when the service capability of the work is in excess
of what is reasonably needed to meet the
demands on the enterprise. A REDUNDANT
POSITION is one rendered superfluous by any
number of factors, such as overhiring of workers,
decreased volume of business dropping of a
particular line previously manufactured by the
company or phasing out of a service activity
previously undertaken by the business. Under
these conditions, the employer has no legal
obligation to keep in its payroll more employees
than are necessary for the operation of its
business.
For the implementation of a redundancy program
to be valid, the employer must comply with the
following REQUISITES:
(1) written notice served on both the employees
and the Department of Labor and Employment at
least one month prior to the intended date of
retrenchment;
(2) payment of separation pay equivalent to at
least one month pay or at least one month pay for
every year of service whichever is higher;
(3) good faith in abolishing the redundant
positions; and
(4) fair and reasonable criteria in ascertaining what
positions are to be declared redundant and
accordingly abolished.
Dismissal; Authorized Causes;
Retrenchment (1998)
The Company Legal Counsel advised the Board of
Directors as follows: "A company cannot retrench
to prevent losses until actual losses occur. The
Company must wait until the end of the Business
Year when its Books of Accounts, Profit and Loss
Statement showing the actual loss and Balance
Sheet have been audited by an Independent
auditing firm."
Is the legal advice of counsel correct?[5%]
SUGGESTED ANSWER:
The legal advice is not correct. The Labor Code (in
Article 283) provides that retrenchment may be
resorted to "TO PREVENT LOSSES" Thus, there
could be legal basis for retrenchment even before
actual losses as long as the losses are imminent
and serious.
ANOTHER SUGGESTED ANSWER:
The advise of the Company Legal Counsel that an
employer cannot retrench to prevent losses until
actual losses occur is not correct. The Labor Code
provides:
Art. 283. Closure of establishment and reduction
of personnel. - The employer may also
terminate the employment of any employee xxx
retrenchment to prevent losses.
The law does not require that retrenchment can be
undertaken by an employer only after an actual
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business loss occurs. The Supreme Court in Lopez
Sugar Corporation v, Federation of Free Workers,
189 SCRA 179 (1990). said:
In its ordinary connotation, the phrase "to
prevent losses" means that the retrenchment or
termination of some employees is authorized to
be undertaken by the employer sometime
before the losses anticipated are actually
sustained or realized. It is not, in other words,
the intention of the lawmaker to compel the
employer to stay his hand and keep all his
employees until sometime after losses shall
have in fact materialized; if such an intent were
expressly written into law, the law may well be
vulnerable to constitutional attack as taking
property from one man to another,
(underscoring supplied]
Dismissal; Authorized Causes;
Retrenchment (2003)
Daisy's Department Store hired Leo as a checker
to apprehend shoplifters. Leo later became Chief
of the Checkers Section and acquired the status of
a regular employee. By way of a cost-cutting
measure, Daisy's decided to abolish the entire
Checkers Section. The services of Leo, along with
those of his co-employees working in the same
section, were terminated on the same day. A
month after the dismissal of Leo, Daisy's engaged
the services of another person as an ordinary
checker and with a salary much lower than that
which Leo used to receive. Given the above factual
settings (nothing more having been established),
could the dismissal of Leo be successfully assailed
by him?
SUGGESTED ANSWER:
Yes. Given the factual setting in the problem, and
since "nothing more (have) been established", the
dismissal of Leo can be successfully assailed by
him. This is so because the burden of proof is upon
the employer to show compliance with the
following requisites for reduction of personnel:
1. Losses or expected losses should be substantial
and not merely de minimis;
2. The expected losses must be reasonably
imminent, and such imminence can be
perceived objectively and in good faith by the
employer.
3. It must be necessary and likely to prevent the
expected losses. The employer must have
taken other measures to cut costs other than
labor costs; and
4. Losses if already realized, or the expected
losses must be proved by sufficient and
convincing evidence. (Lopez Sugar Corp. v.
Federation of Sugar Workers. 189 SCRA
179(1990).
Moreover, the notice requirements to be given by
Daisy's Department Store to DOLE and the
employees concerned 30 days prior to the
intended date of termination, as well as the
requisite separation pay, were not complied with.
ANOTHER SUGGESTED ANSWER:
Yes. The authorized cause to dismiss due to
redundancy or retrenchment under Art. 283 of the
Labor Code has been disproved by Daisy's
engaging the services of a substitute checker at a
salary much lower than that which Leo used to
receive. Also, it appears that the one (1) month
notice rule required in said law was not complied
with. Such being the case, the twin requirements
for a valid dismissal under Arts. 277 (b) and 283 of
the Code have clearly not been complied with.
That no separation pay was paid Leo, in violation
of Art. 283 of the Code, his dismissal can all the
more be successfully assailed.
Dismissal; Authorized Causes; Seniority
Rule (2001)
(c) Is the SENIORITY RULE or "last in first out"
policy to be strictly followed in effecting a
retrenchment or redundancy program? (1%).
SUGGESTED ANSWER:
Again, in Asian Alcohol Corp., the Supreme Court
stated that with regard the policy of "first in, last
out" in choosing which positions to declare as
redundant or whom to retrench to prevent further
business losses, there is no law that mandates
such a policy. The reason is simple enough. A host
of relevant factors come into play in determining
cost efficient measures and in choosing the
employees who will be retained or separated to
save the company from closing shop. In
determining these issues, management plays a
pre-eminent role. The characterization of positions
as redundant is an exercise of business judgment
on the part of the employer. It will be upheld as
long as it passes the test of arbitrariness.
Dismissal; Authorized Causes; Sickness
(2004)
A. Gabriela Liwanag has been working as
bookkeeper at Great Foods, Inc., which operates a
chain of high-end restaurants throughout the
country, since 1970 when it was still a small eatery
at Binondo. In the early part of the year 2003,
Gabriela, who was already 50 years old, reported
for work after a week-long vacation in her province.
It was the height of the SARS (Severe Acute
Respiratory Syndrome) scare, and management
learned that the first confirmed SARS death case
in the Philippines, a “balikbayan” nurse from
Canada, is a townmate of Gabriela. Immediately,
a memorandum was issued by management
terminating the services of Gabriela on the ground
that she is a probable carrier of SARS virus and
that her continued employment is prejudicial to the
health of her co-employees.
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Is the action taken by the employer justified? (5%)
SUGGESTED ANSWER:
The employer's act of terminating the employment
of Gabriela is not justified. There is no showing that
said employee is sick with SARS, or that she
associated or had contact with the deceased
nurse. They are merely townmates. Furthermore,
there is no certification by a competent public
health authority that the disease is of such a nature
or such a stage that it cannot be cured within a
period of six (6) months even with proper medical
treatment. (Implementing Rules, Book VI, Rule 1,
Sec. 8, Labor Code).
Dismissal; Constructive Dismissal; Floating
Status (2004)
RS, a security guard, filed a complaint for illegal
dismissal against Star Security Agency. He
alleged he was constructively dismissed after ten
years of service to the Agency. Having been
placed on “off-detail” and “floating status” for 6
months already, he claimed the Agency just really
wanted to get rid of him because it required him to
take a neuro-psychiatric evaluation test by
Mahusay Medical Center. RS said he already
submitted the result of his evaluation test by Brent
Medical Clinic as precondition to a new
assignment, but the report was rejected by the
Agency. RS added that Mahusay Medical Center
had close ties with Star’s president. It could
manipulate tests to favor only those guards whom
the Agency wanted to retain. Star defended its
policy of reliance on Mahusay Medical Center
because it has been duly accredited by the
Philippine National Police. It is not one of those
dubious testing centers issuing ready-made
reports. Star cited its sad experience last year
when a guard ran amuck and shot an employee of
a client-bank. Star claimed management
prerogative in assigning its guards, and prayed
that RS’ complaint be dismissed.
What are the issues? Identify and resolve them.
(5%)
SUGGESTED ANSWER:
The facts in the question raise these issues:
1. When RS was placed on "off-detail" or "floating
status" for more than six months, can RS claim
that he was terminated?
2. Is there a valid reason for the termination of
RS?
On the first issue, based on prevailing
jurisprudence, RS can be considered as
terminated because he has been placed on "off
detail" or "floating status" for a period which is
more than six (6) months.
On the second issue, it is true that disease is a
ground for termination. But the neuro-psychiatric
evaluation test by the Mahusay Medical Center is
not the certification required for disease to be a
ground for termination. The Rules and Regulations
implementing the Labor Code require a certification
by a public health authority that the disease is of
such nature or at such a stage that it cannot be
cured within a period of six (6) months even with
proper medical treatment.
ANOTHER SUGGESTED ANSWER:
The issues involved are as follows:
1. Is there constructive dismissal?
2. Is there a valid exercise of management
prerogative?
On the first issue, there is constructive dismissal.
RS cannot be placed on "off-detail" and "floating
status" indefinitely. If it lasts for more than six (6)
months, RS shall be deemed to have been
constructively dismissed thus entitling him to
separation benefits. (Superstar Security Agency v.
NLRC, 184 SCRA 74, [1990]).
On the second issue, there is no valid exercise of
management prerogative. Star's claim of
management prerogative in assigning its guards
cannot be exercised to defeat or circumvent RS'
right to security of tenure.
Dismissal; Constructive Dismissal; Transfer
(1996)
Mansueto was hired by the Philippine Packing
Company (PPC) sometime in 1960 as an hourly
paid research field worker at its pineapple
plantation in Bukidnon. In 1970, he was transferred
to the general crops plantation in Misamis Oriental.
Mansueto was promoted to the position of a
monthly paid regular supervisor four years after.
Subsequently, research activity in Misamis Oriental
was phased out to March of 1982 for having
become unnecessary. Mansueto thereafter
received a written memorandum from the PPC,
reassigning him to the Bukidnon plantation
effective April 1, 1982, with assurance that his
position of supervisor was still there for him to hold.
Mansueto tried to persuade the PPC management
to reconsider his transfer and if this was not
possible, to at least consider his position as
redundant so that he could be entitled to
severance pay. PPC did not accept Mansueto's
proposal.
When Mansueto continuously failed to report for
work at the Bukidnon plantation, PPC terminated
his employment by reason of his refusal to accept
his new assignment.
Mansueto claims that his reassignment is
tantamount to an Illegal constructive dismissal. Do
you agree with Mansueto? Explain.
SUGGESTED ANSWER:
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There is no constructive dismissal by the mere act
of transferring an employee. The employee's
contention cannot be sustained simply because a
transfer causes inconvenience. There is no
constructive dismissal where, as in Philippine
Japan Active Carbon Corp., vs. NLRC, 171 SCRA
164 (1989), the Court ruled that constructive
dismissal means:
A quitting because continued employment is
rendered impossible, unreasonable or unlikeable;
as an offer involving a demotion in rank and a
diminution in pay.
The transfer will not substantially alter the terms
and conditions of employment of the Supervisor.
The right to transfer an employee is part of the
employer's managerial function.
Furthermore, the Court ruled that an employee has
no vested right to a position, and in justifiable
cases employment may be terminated.
An employer's right to security of tenure does not
give him such a vested right to his position as
would deprive the Company of its prerogative to
change his assignment or transfer him where he
will be most useful. When his transfer is not
unreasonable, not inconvenient, nor prejudicial to
him, and it does not involve a demotion in rank or a
diminution of his salaries, benefits, and other
privileges, the employee may not complain that it
amounts to a constructive dismissal.
Dismissal; Damages Recoverable (2001)
What damages can an illegally dismissed
employee collect from his employer? (2%).
SUGGESTED ANSWER:
An illegally dismissed employee may collect from
his employer ACTUAL or COMPENSATORY
damages, MORAL damages and EXEMPLARY
damages, as well as attorney's fees as damages.
ANOTHER SUGGESTED ANSWER:
Moral and exemplary damages are only proper
where the employee has been harassed and
arbitrarily terminated by the employer, Nueva Ecija
vs. Electric Cooperative Employees Association
(G.R. No. 116066, January 24, 2000; Cruz vs.
NLRC, G.R. No. 16384. February 7, 2000;
Philippine Aeolus etc., vs. Chua (G.R. No. 124617,
April 28, 2000; and Lucas vs. Royo, G.R. No.
136185, October 30, 2000).
(b) May the Labor Arbiter, NLRC or Court of
Appeals validly award attorney's fees in favor
of a complainant even if not claimed or proven
in the proceedings? Why? (3%).
SUGGESTED ANSWER:
A Labor Arbiter, NLRC and Court of Appeals may
validly award attorney's fees in favor of a
complainant only if the claimant claimed and
proved that he is entitled to attorney's fees.
ANOTHER SUGGESTED ANSWER:
Article 2208 of the New Civil Code allows the
award of attorney's fees when the defendant's act
or omission has compelled the plaintiff to litigate or
incur expenses to protect his interest. Attorney's
fees may be considered as a part of an equitable
relief awarded in the concept of damages.
Dismissal; Due Process; Requirements
(1994)
1) Distinguish between the substantive and the
procedural requirements for the dismissal of an
employee.
SUGGESTED ANSWER:
1) This is the SUBSTANTIVE REQUIREMENT for
the valid dismissal of an employee: There should
be a just cause for the termination of an employee
or that the termination is authorized by law.
This is the PROCEDURAL REQUIREMENT: The
employer should furnish the employee whose
employment is sought to be terminated a written
notice containing a statement of the causes for
termination and the employer should afford the
employee to be terminated ample opportunity to be
heard and to defend himself with the assistance of
his representative if he so desires. (Arts. 279 and
277 (b), Labor Code)
Dismissal; Due Process; Requirements
(2006)
Inday was employed by Herrera Home
Improvements, Inc. (Herrera Home) as interior
decorator. During the first year of her employment,
she did not report for work for one month. Hence,
her employer dismissed her from the service. She
filed with the Labor Arbiter a complaint for illegal
dismissal alleging she did not abandon her work
and that in terminating her employment, Herrera
Home deprived her of her right to due process.
She thus prayed that she be reinstated to her
position.
Inday hired you as her counsel. In preparing the
position paper to be submitted to the Labor Arbiter,
explain the standards of due process which should
have been observed by Herrera Home in
terminating your client's employment. (5%)
SUGGESTED ANSWER:
The Labor Code provides the following procedure
to be observed in terminating the services of an
employee based on just causes as defined in Art.
283 of the Code:
a. A written notice must be served on the
employee specifying grounds for termination
and giving him opportunity to answer;
The employee shall be given ample opportunity to
defend himself, with or without the assistance of
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counsel; and c) A written notice of termination
indicating the grounds to justify his termination
(Agabon v. NLRC, G.R. No. 158693, 17 November
2004).
Dismissal; Just Cause; Immoral Conduct
(1996)
Marimar is a teacher in Santibanez High School,
She is the class adviser of the senior batch where
Sergio is enrolled. Since it is the policy of the
school to extend remedial instructions to its
students, Sergio is imparted such instructions in
school by Marimar after regular class hours. In the
course thereof, Marimar and Sergio fell in love with
each other and shortly after got married. Marimar
is 31 years old while Sergio is only 16.
Santibanez High School thereafter seeks to
terminate the employment of Marimar for abusive
and unethical conduct unbecoming of a dignified
school teacher and that her continued employment
is inimical to the best interest and would
downgrade the high moral values of the school.
Marimar, according to the school, recklessly took
advantage of her position as a teacher by luring a
graduating student under her advisory section and
15 years her junior into an amorous relationship, in
violation of the Code of Ethics for teachers which
states, among others, that a "school official or
teacher should never take advantage of his/her
position to court a pupil or student." While no one
directly saw Marimar and Sergio doing any intimate
acts inside the classroom, the school nonetheless
maintains that the marriage between the two is the
best proof which confirms the suspicion that
Marimar and Sergio indulged in amorous relations
inside the classroom after class hours.
Marimar, on the other hand, contends that there is
nothing wrong with a teacher falling in love with her
pupil and consequently, contracting marriage with
him. How would you decide the case. Explain.
SUGGESTED ANSWER:
The fact that Marimar and Sergio got married is not
by itself sufficient proof that Marimar as a 31 year
old teacher, took advantage of her position to court
Sergio, a 16-year old student, whom she was
tutoring after regular class hours. Thus, Marimar
could not be considered as violating the school's
Code of Ethics which could have been a valid
cause for her termination. Marimar's falling in love
with her student cannot be considered serious
misconduct which is a Just cause for termination of
employment.
Of course, if it is proven that Marimar and Sergio
indulged in amorous relations inside the classroom
after class hours, this would constitute serious
misconduct on the part of Marimar as a teacher
and could be just cause for the termination of her
employment.
ALTERNATIVE ANSWER:
The case should be decided in favor of Marimar,
the school teacher. The school failed to adduce
evidence in support of its claim of immoral conduct
on the part of Marimar; hence, its claim "that the
marriage between the two (teacher and student) is
best proof which confirm the suspicion that
Marimar and Sergio indulged in amorous relations
inside the classroom after office hours" is a
gratuitous statement. Furthermore, marriage
between two parties of disparate ages, even as
between an older teacher and a younger student is
not an immoral act.
In Chua Qua v Clave, 189 SCRA 117 (1990) a
case which is exactly similar to the problem, the
Supreme Court ruled:
Where there is no substantial evidence of the
imputed immoral acts, it follows that the alleged
violation of the Code of Ethics would have no
basis. If the two eventually fell in love, despite
the disparity on their ages and academic levels,
this only lends substance, to the truism that the
heart has reasons of its own which reason does
not know. But, definitely, yielding to this gentle
and universal emotion is not to be casually
equated with immorality. The deviation of the
circumstances of their marriage from the usual
societal pattern cannot be considered as a
defiance of contemporary social norms.
Dismissal; Just Cause; Independent
Contractor (2005)
Antonio Antuquin, a security guard, was caught
sleeping on the job while on duty at the Yosi
Cigarette Factory. As a result, he was dismissed
from employment by the Wagan Security Agency,
an independent contractor. At the time of his
dismissal, Antonio had been serving as a
watchman in the factory for many years, often at
stretches of up to 12 hours, even on Sundays and
holidays, without overtime, nighttime and rest day
benefits. He thereafter filed a complaint for illegal
dismissal and non-payment of benefits against
Yosi Cigarette Factory, which he claimed was his
actual and direct employer.
As the Labor Arbiter assigned to hear the case,
how would you correctly resolve the following: (6%)
(a) Antonio's charge of illegal dismissal;
SUGGESTED ANSWER:
This is a case involving permissible job contracting.
Antonio's charge of illegal dismissal against Yosi
Cigarette Factory will not prosper. Wagan Security
Agency, an independent contractor, is Antonio's
direct employer. Yosi is only Antonio's indirect
employer. By force of law, there is in reality no
employer-employee relationship between Yosi and
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Antonio. (Baguio v. NLRC, G.R. Nos. 79004-08,
October 4, 1991)
(b) Antonio's claim for overtime and other
benefits.
SUGGESTED ANSWER:
I will dismiss Antonio's claim for overtime and other
benefits for lack of merit as against Yosi. In
legitimate job contracting, the principal employer
(Yosi) becomes jointly and severally liable with the
job contractor (Wagan) only for the payment of the
employee's (Antonio) wages whenever the
contractor fails to pay the same. Other than that,
the principal employer (Yosi) is not responsible for
any other claim made by the employee (Antonio).
(San Miguel Corp. v. MAERC Integrated Services,
Inc., G.R. No. 144672, July 10, 2003)
Dismissal; Just Cause; Misconduct (1996)
Sergio, an employee of Encantado Philippines, Inc.
(EPI), was at the company canteen when Corazon,
a canteen helper, questioned him for his use of
somebody else's identification card (ID). Sergio
flared up and shouted at Corazon "Wala kang
pakialam! Kung gusto mo, itapon ko itong mga
pagkain ninyo!". When Sergio noticed that some
people where staring at him rather menacingly, he
left the canteen but returned a few minutes later to
remark challengingly "Sino ba ang nagagalit"
Sergio then began smashing some food items that
were on display for sale in the canteen, after which
he slapped Corazon which caused her to fall and
suffer contusions. The incident prompted Corazon
to file a written complaint with Gustavo, the
personnel manager of EPI, against Sergio.
Gustavo required Sergio to explain in writing why
no disciplinary action should be taken against him.
In his written explanation. Sergio admitted his
misconduct but tried to explain it away by saying
that he was under the influence of liquor at the
time of the incident. Gustavo thereafter issued a
letter of termination from the employment of Sergio
for serious misconduct.
Sergio now flies a complaint for illegal dismissal,
arguing that his acts did not constitute serious
misconduct that would justify his dismissal. Decide.
SUGGESTED ANSWER:
The acts of Sergio constituted serious misconduct.
Thus, there was just cause for his termination. The
fact that he was under the influence of liquor at the
time that he did what he did does not mitigate,
instead it aggravates, his misconduct. Being under
the influence of liquor while at work is by itself
serious misconduct.
ALTERNATIVE ANSWER:
The dismissal is not justified because the serious
misconduct committed by the employee is not in
connection with his work. Art. 282(g) of the Labor
Code was interpreted by the Supreme Court in Aris
Philippines, Inc. v. NLRC, as follows:
"It is not disputed that private respondent has
done, indeed he admitted to have committed, a
serious misconduct. In order to constitute a "just
cause" for dismissal, however, the act
complained of must be related to the
performance of the duties of the employee such
as would show him to be thereby unfit to
continue working for the employer."
Dismissal; Just Cause; Probationary
Employees; Rights (2006)
During their probationary employment, eight (8)
employees were berated and insulted by their
supervisor. In protest, they walked out. The
supervisor shouted at them to go home and never
to report back to work. Later, the personnel man-
ager required them to explain why they should not
be dismissed from employment for abandonment
and failure to qualify for the positions applied for.
They filed a complaint for illegal dismissal against
their employer.
As a Labor Arbiter, how will you resolve the case?
(10%)
SUGGESTED ANSWER:
As a Labor Arbiter I will resolve the case in favor of
the eight (8) probationary employees due to the
following considerations:
1. Probationary employees also enjoy security of
tenure (Biboso v. Victoria Milling, G.R. No. L-
44360, March 31, 1977).
2. In all cases involving employees on
probationary status, the employer shall make
known to the employee at the time he is hired,
the standards by which he will qualify for the
positions applied for.
3. The filing of the complaint for illegal dismissal
effectively negates the employer's theory of
abandonment (Rizada v. NLRC, G.R. No.
96982, September 21, 1999).
4. The order to go home and not to return to work
constitutes dismissal from employment.
5. The eight (8) probationary employees were
terminated without just cause and without due
process
In view of the foregoing, I will order reinstatement
to their former positions without loss of seniority
rights with full backwages, plus damages and
attorney fees.
Dismissal; Just Cause; Requirements (1999)
FACTS: Joseph Vitriolo (JV), a cashier of Seaside
Sunshine Supermart (SSS), was found after an
audit, to have cash shortages on his monetary
accountability covering a period of about five
months in the total amount of P48,000.00. SSS
served upon JV the written charge against him via
a memorandum order of preventive suspension,
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giving JV 24 hours to submit his explanation. As
soon as JV submitted his written explanation within
the given period, the same was deemed
unsatisfactory by the company and JV was
peremptorily dismissed without any hearing.
The day following his termination from
employment. JV filed a case of illegal dismissal
against SSS. During the hearing before the Labor
Arbiter. SSS proved by substantial evidence JV's
misappropriation of company funds and various
infractions detrimental to the business of the
company. JV, however, contended that his
dismissal was illegal because the company did not
comply with the requirements of due process.
I. Did SSS comply with the requirements of
procedural due process in the dismissal from
employment of JV? Explain briefly (2%)
SUGGESTED ANSWER:
In connection with the right to due process in the
termination of an employee, the Labor Code (in
Article 277[b]) requires that the employer furnish
the worker whose employment is sought to be
terminated a written notice containing a statement
of the causes for termination and shall afford
ample opportunity to be heard and to defend
himself with the assistance of his representative if
he so desires.
SSS did not comply with the above described
requirements for due process. The memorandum
order was for the preventive suspension of JV, not
a notice for his termination and the causes of his
termination.
2. If you were the Labor Arbiter, how would you
decide the case? Explain briefly (3%)
SUGGESTED ANSWER:
I will decide that the termination of JV was legal. It
was for just cause. JV's misappropriation of
company funds and various infractions detrimental
to the business of the company duly proven by
substantial evidence constitute a willful breach by
JV of the trust reposed in him by his employer
which is a just cause for termination. (See Article
282)
But I will award him indemnity of, say Pl,000, for
the failure of the employer to give him due process.
Dismissal; Just Cause; Separation Pay
(1996)
1) Daisy, the branch manager of Tropical Footwear
Inc.. was dismissed for serious misconduct. She
filed a complaint for illegal dismissal and damages.
The Labor Arbiter sustained Daisy's dismissal but
awarded her separation pay based on social
justice and as an act of compassion considering
her 10-year service with the company.
Was the award of the separation pay proper?
Explain.
SUGGESTED ANSWER:
No, the award of separation pay is not proper
because the employee was terminated for serious
misconduct and payment of separation pay will be
to reward an employee for a wrong doing. In
Philippine Long Distance Telephone Co., vs NLRC,
164 SCRA 671 (1988).
We hold that henceforth separation pay shall be
allowed as a measure of social justice only in those
instances where the employee is validly dismissed
for causes other than serious misconduct or those
reflecting his moral character.
The policy of social justice is not intended to
countenance wrongdoing. Compassion for the
poor is an imperative of every human society but
only when the recipient is not a rascal claiming an
undeserve privilege. Those who invoke social
justice may do so only if their hands are clean and
their motives blameless.
A contrary rule would have the effect of rewarding
rather than punishing the erring employee for his
offense.
ALTERNATIVE ANSWER;
The award of the separation pay was not proper.
According to the Labor Code, SEPARATION PAY
is to be paid to an employee whose employment is
terminated due to the installation of labor saving
devices, redundancy, retrenchment to prevent
losses or the closing or cessation of operation of
the establishment or undertaking. When an
employer terminates the services of an employee
who has been found to be suffering from any
disease, the employee is also to be paid
separation pay.
But on the basis of equity, the Supreme Court has
ruled that an employee whose employment has
been terminated for just cause may nevertheless,
for humanitarian reasons, be granted financial
assistance in the form of separation pay. But also
according to the Supreme Court, a terminated
employee is not deserving of said financial
assistance if her termination is due to serious
misconduct.
In the case, Daisy was dismissed because of
serious misconduct. Thus, she should not be paid
separation pay.
Dismissal; Just Causes (2001)
"A" worked for company "B" as a rank and file
employee until April 1990 when A's services were
terminated due to loss of confidence in A.
However, before effecting A's dismissal, B
accorded A due process including full opportunity
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to answer the charges against him in the course of
the investigation. Was B justified in dismissing A
after the investigation? Why? (5%)
SUGGESTED ANSWER:
In the case of PLDT vs. NLRC (G.R. No. 106947,
February 11, 1999), the Supreme Court ruled that
the basic requisite for dismissal on the ground of
loss of confidence is that the employee concerned
must be one holding a position of trust and
confidence.
Rank-and-file employees may only be dismissed
for loss of confidence if the same is because of a
willful breach of trust by a rank and file employee
of the trust reposed in him by his employer or duly
authorized representative (Art. 282(c), Labor
Code).
ANOTHER SUGGESTED ANSWER:
"B" is justified in dismissing "A" for loss of
confidence after according him the right to
procedural due process. However, the following
guidelines must be observed, as ruled in Nokom
vs. NLRC, G.R. No. 140034. July 18, 2000:
1. loss of confidence should not be simulated;
2. it should not be used as subterfuge for causes
which are improper, illegal or unjustified;
3. it may not be arbitrarily asserted in the face of
overwhelming evidence to the contrary; and
4. it must be genuine, not a mere after thought to
justify their action
Dismissal; Just Causes vs. Authorized
Causes (2000)
Distinguish between dismissal of an employee for
just cause and termination of employment for
authorized cause. Enumerate examples of just
cause and authorized cause. (5%)
SUGGESTED ANSWER:
Dismissal for a JUST CAUSE is founded on faults
or misdeeds of the employee. Separation pay, as a
rule, will not be paid. Examples: serious
misconduct, willful disobedience, commission of
crime, gross and habitual neglect, fraud and other
causes analogous to the foregoing. (Art 282, Labor
Code).
Termination for AUTHORIZED CAUSES are based
on business exigencies or measures adopted by
the employer, not constituting faults of the
employee. Payment of separation pay at varying
amounts is required. Examples: redundancy,
closure, retrenchment, installation of labor saving
device and authorized cause. (Art. 283-284, Labor
Code).
Dismissal; Just Causes; Disobedience (1995)
Roman had been a driver of Double-Ten
Corporation for ten (10) years. As early as his fifth
year in the service he was already commended as
a Model Employee and given a salary increase. On
his seventh year, he became a steward of his labor
union. Since then he became disputatious and
obstinate and his performance fell below par. One
day his manager told him to pick up some
documents from a certain bank which were needed
to close a business transaction. Roman did not
obey. He said he had an important personal
engagement. Moreover, he did not want to drive a
vehicle that was not air-conditioned. When his
immediate supervisor asked him in the afternoon to
drive an air-conditioned car, Roman again refused.
He said he did not want to drive as he wanted to
leave the office early.
Roman was asked to explain. After hearing his
explanation, Roman was dismissed for willful
disobedience. Roman filed a case for illegal
dismissal against the Double-Ten Corporation with
prayer for reinstatement and full back wages
without loss of seniority rights, plus moral and
exemplary damages and attorney's fees. Roman
contended that since there was no emergency
situation and there were other drivers available, his
refusal to drive for the manager, and later for his
supervisor, was not serious enough to warrant his
dismissal. On the other hand, he claimed that he
was being punished because of his activities as a
steward of his union. If you were the Labor Arbiter,
would you sustain Roman? Discuss fully.
SUGGESTED ANSWER:
If I were the Labor Arbiter, I will not sustain Roman.
It is true that it would be an unfair labor practice for
an employer to discriminate against his employee
for the latter's union activities.
But in the case, the Corporation is not
discriminating against Roman because he is a
union official. When the Manager of Roman told
him to pick up some documents from a certain
bank, this was a lawful order and when Roman did
not obey the order, he was disobedient; and when
he disobeyed a similar request made later in the
afternoon of same day, he was guilty of willful
disobedience to do what management asked him
to do. This is just cause for his termination.
ALTERNATIVE ANSWER:
a) No. The existence of an emergency situation is
irrelevant to the charge of willful disobedience; an
opposite principle would allow a worker to shield
himself under his self-designed concept of "non-
emergency situation" to deliberately defy the
directive of the employer.
Roman was given adequate opportunity under the
circumstances to answer the charge. His
explanation was taken into consideration in arriving
at the decision to dismiss him.
b) If it can be established that the true and basic
motive for the employer's act is derived from the
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employee's union affiliation or activities, the
allegation by the employer of another reason
whatever its substance of validity, is unavailing.
Thus, the dismissal could be considered illegal.
Dismissal; Just Causes; Disobedience (2003)
Oscar Pimentel was an agent supervisor, rising
from the ranks, in a corporation engaged in real
estate. In order to promote the business, the
company issued a memorandum to all agent
supervisors requiring them to submit a feasibility
study within their respective areas of operation. All
agent supervisors complied except Oscar.
Reminded by the company to comply with the
memorandum, Oscar explained that being a drop-
out in school and uneducated, he would be unable
to submit the required study. The company found
the explanation unacceptable and terminated his
employment. Aggrieved, Oscar filed a complaint for
illegal dismissal against the company. Decide the
case.
SUGGESTED ANSWER:
For failure to comply with the memorandum to
submit a feasibility study on his area of operation,
Oscar can not be terminated (presumably for
insubordination or willful disobedience) because
the same envisages the concurrence of at least
two requisites: (1) the employee's assailed conduct
must have been willful or intentional, the willfulness
being characterized by a wrongful and perverse
attitude; and (2) the order violated must have been
reasonable, or lawful, made known to the
employee and must pertain to the duties which he
had been engaged to discharge.
In the case at bar, at least two requisites are
absent, namely: (1) Oscar did not willfully disobey
the memorandum with a perverse attitude; and (2)
the directive to make a feasibility study did not
pertain to his duties. Hence, the termination from
employment of Oscar Pimentel is not lawful.
Dismissal; Just Causes; Insubordination
(1999)
FACTS: Mariet Demetrio was a clerk-typist in the
Office of the President of a multi-national
corporation. One day she was berated by the
President of the company, the latter shouting
invectives at her in the presence of employees and
visitors for a minor infraction she committed. Mariet
was reduced to tears out of shame and felt so
bitter about the incident that she filed a civil case
for damages against the company president before
the regular courts. Soon thereafter, Mariet received
a memorandum transferring her to the Office of the
General Manager without demotion in rank or
diminution in pay. Mariet refused to transfer.
With respect to the civil suit for damages, the
company lawyer filed a Motion to Dismiss for lack
of jurisdiction considering the existence of an
employer-employee relationship and therefore, it is
claimed that the case should have been filed
before the Labor Arbiter.
1. Will Mariet Demetrio's refusal to transfer
constitute the offense of insubordination? Explain
briefly. (2%}
SUGGESTED ANSWER:
Mariet Demetrio's transfer constitutes the offense
of insubordination. The transfer is a lawful order of
the employer.
It is the employer's prerogative, based on its
assessment and perception of its employees'
qualifications, aptitudes, and competence, to move
its employees around in the various areas of its
business operations in order to ascertain where
they will function with maximum benefit to the
company. An employee's right to security of tenure
does not give him such a vested right in his
position as would deprive the company of its
prerogative to change his assignment or transfer
him where he will be most useful. When his
transfer is not unreasonable, nor inconvenient, nor
prejudicial to him, and it does not involve a
demotion in rank or a diminution of his salaries,
benefits, and other privileges, the employee may
not refuse to obey the order of transfer. (Philippine
Japan Active Carbon Corp. V. NLRC, 171 SCRA
164)
Dismissal; Just Causes; Misconduct (1995)
Universal Milling Company (UNIVERSAL) and
Mara's Canteen (MARA'S) executed an agreement
that UNIVERSAL employees patronizing MARA'S
could buy food on credit and enjoy a 25% discount
provided that they present their Identification Card
(ID) and wear their company uniform. Nikko, an
employee of UNIVERSAL, used the ID of Galo, a
co-employee in buying food at MARA'S. An alert
employee of MARA'S discovered the
misrepresentation of Nikko but not without
engaging him in a heated argument. Nikko boxed
MARA'S employee resulting in serious physical
injuries to the latter. UNIVERSAL dismissed Nikko
from the company. Nikko sued UNIVERSAL for
illegal dismissal.
As Labor Arbiter, how would you decide the case?
Discuss fully.
SUGGESTED ANSWER:
There is ground for disciplining Nikko. In
presenting the ID of a co-employee to buy food at
Mara's at a discount and engaging in a fist fight,
these acts of Nikko constitute misconduct. But it is
not the kind of serious misconduct that could be
the basis of dismissal. It will be noted that the fight
did not take place at the workplace.
ALTERNATIVE ANSWER:
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The facts are not clear whether the canteen is
within the company premises. If it is, then the act of
Nikko in boxing Mara's employee may be
considered as a valid ground for disciplinary action.
However, in this case, the penalty of dismissal is
not commensurate to the misconduct allegedly
committed.
Dismissal; Just Causes; Quitclaims (1999)
Can a final and executory judgment be
compromised under a "Release and Quitclaim" for
a lesser amount? (3%)
SUGGESTED ANSWER:
Yes, as long as the "Release and Quitclaim" is
signed by the very same person entitled to receive
whatever is to be paid under the final and
executory judgment that was the subject of the
compromise agreement and that the "Release and
Quitclaim" was signed voluntarily.
In Alba Patio de Makati v. NLRC: A final and
executory judgment can no longer be altered, even
if the modification is meant to correct what is
perceived to be an erroneous conclusion of fact or
law, and regardless of whether the modification is
attempted to be made by the court rendering it or
by the highest court of the land. Moreover, a final
and executory judgment cannot be negotiated,
hence, any act to subvert it is contemptuous.
It was incumbent upon the counsel for the
complainant to have seen to it that the interest of
all complainants was protected. The quitclaim and
the release in the preparation of which he assisted
clearly worked to the grave disadvantage of the
complainants. To render the decision of this Court
meaningless by paying the back-wages of the
affected employees in a much lesser amount
clearly manifested a willful disrespect of the
authority of this Court as the final arbiter of cases
brought to it.
A final and executory judgment cannot be
compromised under a "Release and Quitclaim"
if said "Release and Quitclaim is clearly to the
grave disadvantage of the affected employees by
paying them much lesser amounts than what they
were entitled to receive under the judgment. (See
Alba Patio de Makati vs. NLRC, 201 SCRA 355).
2. May an ordinary rank-and-file employee be
terminated for loss of trust and confidence? If
so, what proof is required? If not, why not?
(2%)
SUGGESTED ANSWER:
An ordinary rank and file employee may be
terminated for loss of trust and confidence as long
as loss of trust and confidence is brought about
objectively due to a willful breach by the employee
of the trust reposed in him by his employer or duly
authorized representative, and said willful breach is
proven by substantial evidence.
When adequately proven, the dual grounds of
breach of trust and loss of confidence constitute
valid and ample bases to warrant termination of an
errant employee. As a general rule, however,
employers are allowed a wider altitude of discretion
in terminating the employment of managerial
personnel or those of similar rank performing
functions which by their nature requires the
employer's full trust and confidence, than in the
case of an ordinary rank-and-file employee, whose
termination on the basis of these same grounds
requires proof of involvement in the events in
question; mere uncorroborated assertions and
accusations by the employer will not suffice.
(Manila Midtown Commercial Corporation v.
Nuwhrain. 159 SCRA 212).
Dismissal; Liability; Corporate Officers
(1997)
Are the principal officers of a corporation liable in
their personal capacity for non-payment of unpaid
wages and other monetary benefits due its
employees?
SUGGESTED ANSWER:
As a general rule, the obligations incurred by the
principal officers and employees of a corporation
are not theirs but the direct accountabilities of the
corporation they represent.
However, SOLIDARY LIABILITIES may at times be
incurred but only when exceptional circumstances
warrant such as, generally, in the following cases:
when directors and trustees or, in appropriate
cases, the officers of a corporation:
(1) vote for or assent to patently unlawful acts of
the corporation;
(2) act in bad faith or with gross negligence in
directing the corporate affairs;
(3) are guilty of conflict of Interest to the prejudice
of the corporation, its stockholders or
members, and other persons.
In labor cases, the Supreme Court has held
corporate directors and officers solidarity liable with
the corporation for the termination of employment
of employees done with malice or bad faith. (Sunio
v. NLRC. 127 SCRA 390; General Bank and Trust
Co. v. Court of Appeals, 135 SCRA 659).
ALTERNATIVE ANSWER:
No. Unless they are guilty of malice or bad faith in
connection with the non-payment of unpaid wages
and other monetary benefits due to employees.
Dismissal; Payroll Reinstatement (2005)
(c) What is meant by "payroll reinstatement" and
when does it apply? (4%)
SUGGESTED ANSWER:
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"PAYROLL REINSTATEMENT" is one where an
employee is paid his monthly salary without
making him perform actual work. It applies in
termination cases where the labor court declares
the dismissal illegal and orders reinstatement of
the employee, but the employer does not want to
actually or physically reinstate him and instead, at
the employer's option, merely reinstates the
employee in the payroll pending appeal.
Dismissal; Payroll Reinstatement;
Reinstatement Order (1999)
FACTS: In the illegal dismissal case filed by
Sharon Cometa against Up & Down Company, the
labor Arbiter rendered a decision directing her
immediate reinstatement and payment of full
backwages. The Company appealed to the NLRC.
Following her lawyer's advise that the
reinstatement aspect of the decision is immediately
executory, Sharon went to the HRD Office of the
Company and demanded immediate
reinstatement. When the Company refused, her
lawyer, Atty. Maximiano Anunciacion, filed a
motion to cite the employer in contempt. Acting on
the motion, the NLRC ordered the payroll
reinstatement of Sharon Cometa.
1. Can the company or any of its officials be
cited for contempt for refusing to reinstate
Sharon Cometa? Why? (3%)
SUGGESTED ANSWER:
Yes. The company or any of its officials can be
cited for contempt. It is noted that in his decision,
the Labor Arbiter specifically directed the
immediate reinstatement of Sharon Cometa. This
directive under the Labor Code (Article 223) is
immediately executory, even pending appeal.
(Pioneer Texturizing Corporation v. NLRC, 280
SCRA 806)
ALTERNATIVE ANSWER:
Yes. Under Art. 223 of the Labor Code, an
employer has two options in order for him to
comply with an order of reinstatement, which is
immediately executory, even pending appeal.
FIRSTLY, he can admit the dismissed
employee back to work under the same terms
and conditions prevailing prior to his dismissal
or separation or to a substantially equivalent
position if the former position is already filled
up.
SECONDLY, the employer can be reinstated in
the payroll. Failing to exercise any of the above
options, the employer can be compelled under
PAIN OF CONTEMPT, to pay instead the
salary of the employee effective from the date
the employer failed to reinstate despite an
executory writ of execution served upon him.
Under Art. 218 of the Labor Code, the NLRC
has the power to cite persons for direct and
indirect contempt.
ANOTHER ALTERNATIVE ANSWER:
In a case (Maranaw Hotel Corp. v. NLRC, 238
SCRA 191), the Supreme Court said that although
the reinstatement aspect of a Labor Arbiter's
decision was immediately executory, it does not
follow that it is self-executory. There must still be a
writ of execution issued motu proprio or upon
motion of the interested party. (See Article 224)
2. May the NLRC order the payroll
reinstatement of Sharon Cometa? Why? (2%)
SUGGESTED ANSWER;
The NLRC may NOT order the payroll
reinstatement of Sharon Cometa. The Labor Code
(Article 223) provides that in the immediate
reinstatement of a dismissed employee, the
employee shall be admitted back to work under the
same terms and conditions prevailing prior to the
employee's dismissal or, at the option of the
employer, merely reinstated in the payroll. Thus,
the reinstatement of the employee in the payroll is
at the option of the employer and not of the NLRC
or the Labor Arbiter who have the power only to
direct reinstatement.
Dismissal; Reinstatement (1994)
May a court order the reinstatement of a dismissed
employee even if the prayer of the complaint did
not include such relief?
SUGGESTED ANSWER:
So long as there is a finding that the employee was
illegally dismissed, the court can order the
reinstatement of an employee even if the complaint
does not include a prayer for reinstatement,
unless, of course, the employee has waived his
right to reinstatement. By law an employee who is
unjustly dismissed is entitled to reinstatement,
among others.
The mere fact that the complaint did not pray for
reinstatement will not prejudice the employee,
because technicalities of law and procedure are
frowned upon in labor proceedings. (General
Baptist Bible College vs. NLRC. 219 SCRA 549).
Dismissal; Reinstatement (1995)
Give at least five (5) instances when an illegally
dismissed employee may not be reinstated.
SUGGESTED ANSWER:
Five [5] instances when an illegally dismissed
employee may not be reinstated:
(1) When the position held by the illegally
dismissed employee has been abolished and
there is no substantially equivalent position for
said employee;
(2) When the employer has ceased to operate;
(3) When the employee no longer wishes to be
reinstated;
(4) When strained relations between the employer
and the employee have developed and
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(5) When the employer has lost his trust and
confidence in the employee who is holding a
position of trust and confidence.
In addition to the above, an illegally dismissed
employee may not be reinstated:
(1) When he is already entitled to retire at the time
he is to be reinstated;
(2) When he is already dead;
(3) When reinstatement will not serve the interest
of the parties; and
(4) When he has obtained regular and
substantially equivalent employment
elsewhere.
Dismissal; Requirements (1998)
Assuming the existence of valid grounds for
dismissal, what are the requirements before an
employer can terminate the services of an
employee? [5%]
SUGGESTED ANSWER:
The employee being terminated should be given
DUE PROCESS by the employer.
For termination of employment based on any of the
JUST CAUSES for termination, the requirements
of due process that the employer must comply with
are:
1. A WRITTEN NOTICE should be served on the
employee specifying the ground or grounds for
termination and giving to said employee
reasonable opportunity within which to explain
his side.
2. A HEARING or CONFERENCE should be held
during which the employee concerned, with the
assistance of counsel if the employee so
desires, is given the opportunity to respond to
the charge, present his evidence and present
the evidence presented against him.
3. A WRITTEN NOTICE OF TERMINATION, if
termination is the decision of the employer,
should be served on the employee indicating
that upon due consideration of all the
circumstances, grounds have been established
to justify his termination.
For termination of employment based on
AUTHORIZED CAUSES, the requirements of due
process shall be deemed complied with upon
service of a WRITTEN NOTICE to the employee
and the appropriate Regional Office of the
Department of Labor & Employment at least thirty
(30) days before the effectivity of the termination
specifying the ground or grounds for termination.
ANOTHER SUGGESTED ANSWER:
Assuming that there is a valid ground to terminate
employment, the employer must comply with the
requirement of PROCEDURAL DUE PROCESS -
written notice of intent to terminate stating the
cause for termination; Hearing; and Notice of
Termination.
The Labor Code reads: A. Notice and Hearing
Art, 277. Miscellaneous provisions. - xxx
(b) xxx The employer shall furnish the worker
whose employment is sought to be terminated a
written notice containing a statement of the causes
for termination and shall afford the latter ample
opportunity to be heard and to defend himself with
the assistance of his representative if he so desires
...
The Supreme Court ruled in Salaw v, NLRC, 202
SCRA 7 (1991)
xxx Not only must the dismissal be for a valid or
unauthorized cause as provided by law xxx but
the rudimentary requirements of due process -
notice and hearing - most also be observed
before an employee must be dismissed.
B. Two (2) Notice Requirements -
The Supreme Court in Tanala v. NLRC 252 SCRA
314 (1996), and in a long line of earlier cases,
ruled:
xxx This Court has repeatedly held that to meet
the requirements of due process, the law
requires that an employer must furnish the
workers sought to be dismissed with two written
notices before termination of employment can
be legally effected, that is, (1) a notice which
apprises the employee of the particular acts or
omissions for which his dismissal is sought; and
(2) subsequent notice, after due hearing, which
informs the employee of the employers decision
to dismiss him.
Dismissal; Requirements (1999)
FACTS: On September 3, 1998, the National
Bureau of Investigation (NBI) extracted from Joko
Diaz — without the assistance of counsel — a
sworn statement which made it appear that Joko,
in cahoots with another employee, Reuben Padilla,
sold ten (10) cash registers which had been
foreclosed by North-South Bank for P50,000.00
and divided the proceeds therefrom in equal
shares between the two of them.
On September 10, 1998. Joko was requested by
Rolando Bato, the bank manager, to appear before
the Disciplinary Board for an investigation in the
following tenor: "You are requested to come on
Thursday. September 14, 1998, at 11:00 a.m. the
Board Room, without counsel or representative, in
connection with the investigation of the foreclosed
cash registers which you sold without authority."
Mr. Bato himself conducted the investigation, and
two (2) days thereafter, he dismissed Joko. The
bank premised its action in dismissing Joko solely
on the latter's admission of the offense imputed to
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him by the NBI in its interrogation on September 3,
1998. Aside from this sworn statement, no other
evidence was presented by the bank to establish
the culpability of Joko in the fraudulent sale of the
bank's foreclosed properties.
1. Is the dismissal of Joko Diaz by North-South
Bank legally justified? Explain briefly. (3%)
SUGGESTED ANSWER:
The dismissal of Joko Diaz by North-South Bank is
not legally justified, Diaz was not given the
required due process by the Bank. He should have
been given a written notice that he was being
terminated and a statement of the causes for his
termination.
He was instead given a just notice about an
investigation relative to an incident.
It was also contrary to law for the Bank to tell Diaz
that he should attend the investigation "without
counsel or representative." Instead, he should
have been afforded as provided in the Labor Code
(in Article 277 [b]) ample opportunity to be heard
and to defend himself with the assistance of his
representative if he so desires.
If the evidence that was the basis for the
termination of Joko Diaz was only his own
statement "extracted" from him by the NBI when
Joko was without the assistance of counsel, then
the statement cannot be substantial evidence for
Joko's termination.
ALTERNATIVE ANSWER:
No. Under Sec. 12 of Art. in of the 1987
Constitution any "confession or admission obtained
in violation of Sec. 12 and 17 shall be inadmissible
in evidence against him". Since the sole basis for
his dismissal was the confession procured by the
NBI in violation of his right to counsel which is
inadmissible for any purpose and any proceeding
including an administrative case, his dismissal is
illegal. Diaz's termination is likewise- illegal
because he was deprived of his right to due
process since during the investigation he was
required to attend without counsel or
representative.
2. Can Reuben Padilla's participation in the
fraudulent sale of the bank's foreclosed properties
be made to rest solely on the unilateral declaration
of Joko Diaz? Why? (2%)
SUGGESTED ANSWER:
No. The unilateral declaration of Joko, where Joko
has not been subjected to cross-examinations
cannot be considered as substantial evidence; it is
just hearsay.
ALTERNATIVE ANSWER:
No. The unilateral declaration of Joko is not
enough. Such declaration must be corroborated by
other competent and convincing evidence. At the
very least, what the Bank should do should be to
confront Reuben Padilla with the declaration of
Joko (Century Textile Mills, Inc. vs. NLRC, 161
SCRA628).
Dismissal; Requirements; Suspension of
Termination (1994)
Atty. Oliza heads the legal department of Company
X with the rank and title of Vice-President. During
his leave of absence, his assistant took over as
acting head of the legal department. Upon his
return, Atty. Oliza was informed in writing that his
services were no longer needed, it appearing that
the Company had lost so many cases by default
due to his incompetence. Atty. Oliza filed a case
for illegal dismissal.
1) Will his case prosper?
2) Pending hearing, may Atty. Oliza ask the
Secretary of Labor to suspend the effects of the
termination of the services of an employee and to
order his temporary reinstatement?
SUGGESTED ANSWER:
1) His case will prosper. He was not given
procedural due process. He was not given the
required notice, namely, a written notice containing
a statement of the causes for termination, and he
was not afforded ample opportunity to be heard
and to defend himself.
But if, before the Labor Arbiter, in a hearing of the
case of illegal dismissal that Atty. Oliza may have
filed, he is found to be grossly incompetent, this is
just cause for his dismissal. (Art. 277(b), Labor
Code)
ALTERNATIVE ANSWER:
Yes. The examinee submits that Atty. Oliza's case
will prosper. Well-settled is the rule that even
managerial employees are entitled to the
constitutional guarantee of security of tenure. In
the case at bar, there was a clear deprivation of
Atty. Oliza's right to due process. The blanket
accusation of "incompetence" hardly qualifies as
compliance with the substantive requirements for
an employee's dismissal. The written notice that
his services were no longer needed also fall short
of the procedural requirements of notice and
opportunity to be heard, the twin ingredients of due
process.
2) The Labor Code gives the Secretary of Labor
and Employment the power to suspend the effects
of a termination made by an employer pending
resolution of a labor dispute in the event of a prima
facie finding by the Department of Labor and
Employment before whom such dispute is pending
that the termination may cause serious labor
dispute or is in implementation of a mass lay-off.
The termination of Atty. Oliza does not cause a
serious labor dispute considering that he is a
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managerial employee. It is not in implementation of
a mass lay-off. Thus, pending hearing, the
Secretary of Labor and Employment may not
suspend the effects of the termination and order
his temporary reinstatement. (Art. 277[b])
Dismissal; Requisites; Reinstatement
Juan Dukha, a bill collector of Ladies Garments
Company, was dismissed because he did not remit
his collections. He filed a case against his
company for illegal dismissal. During the hearing,
the President of the Company admitted that Juan
was never formally investigated for his dishonesty;
neither was he informed of the nature of the
charge against him. He was simply barred from
entering company premises by the security guards
upon instruction of management.
Juan Dukha asks for immediate reinstatement with
full back wages and without loss of seniority rights.
Will the complaint of Juan Dukha for illegal
dismissal prosper? Explain.
SUGGESTED ANSWER:
Yes, there may be just cause for terminating Juan
Dukha. But he was not accorded the required due
process of law.
ALTERNATIVE ANSWER:
The complaint of Juan Dukha for illegal dismissal
will prosper in the sense that the complaint will be
heard by a Labor Arbiter. His being barred from
entering company premises is tantamount to
dismissal. In the hearings, the employer will have
the burden of proving that there is just cause for
terminating Juan, possibly on the basis of willful
breach of trust. On the other hand, Juan will be
given the opportunity to prove that his failure to
remit his collection is not because of dishonesty,
2. Assuming that he cannot be reinstated, what
right can he immediately assert against his
employer? Explain.
SUGGESTED ANSWER:
Assuming that Juan cannot be reinstated because
there is just cause for his dismissal, he would
nevertheless be entitled to an indemnity from his
employer, because he was denied due process of
law by said employer.
ALTERNATIVE ANSWER:
Juan can pursue the case of illegal dismissal
before a Labor Arbiter where he will assert the right
to defend himself, ie., to explain his failure to remit
his collections.
3. Suppose Juan Dukha proved during the hearing
that he was robbed of his collections and,
consequently, the Labor Arbiter decided in his
favor. In the meantime, the Ladies Garments
Company appealed to the National Labor
Relations Commission (NLRC).
Pending appeal, what rights are available to Juan
relative to the favorable decision of the Labor
Arbiter? Explain.
SUGGESTED ANSWER:
Juan can ask for immediate reinstatement pending
resolution of the appeal filed by the company with
the NLRC. At the option of his employer, he may
be admitted back to work or merely reinstated in
the payroll.
Dismissal; Separation Pay; Backwages
(2002)
Lyric Theater Corp. issued a memorandum
prohibiting all ticket sellers from encashing any
check from their cash collections and requiring
them instead to turn over all cash collections to the
management at the end of the day. In violation of
this memorandum, Melody, a ticket seller,
encashed five (5) checks from her cash collection.
Subsequently the checks were dishonored when
deposited in the account of Lyric Theater. For this
action, Melody was placed under a 20-day
suspension and directed to explain why she should
not be dismissed for violation of the company's
memorandum. In her explanation, she admitted
having encashed the checks without the
company's permission. While the investigation was
pending, Melody filed a complaint against Lyric
Theater for backwages and separation pay. The
Labor Arbiter ordered Lyric Theater to pay Melody
P115,420.79 representing separation pay and
backwages. The NLRC affirmed the ruling of the
Labor Arbiter. Is the ruling of the NLRC correct?
Explain briefly. (5%)
SUGGESTED ANSWER:
The ruling of the NLRC affirming the Labor
Arbiter's decision ordering Lyric Theater to pay
P115,420.79 representing separation pay and
backwages is wrong.
The Labor Arbiter's decision is wrong because:
a) It is premature. There was still no termination.
All that was done by the employer (Lyric
Theater) was to place the employee (Melody)
under a 20-day suspension, meanwhile
directing her to explain why she should not be
dismissed for violation of company's
memoranda.
b) The order for Lyric Theater to pay separation
pay has no factual basis. Separation pay is to
be paid to an employee who is terminated due
to the Installation of labor saving devices,
redundancy, retrenchment to prevent losses or
the closing or cessation of operation of the
establishment undertaking. None of these
events has taken place. Neither is separation
pay here in lieu of reinstatement. Melody is not
entitled to reinstatement because there Is a
just cause for her termination.
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c) The order for Lyric Theater to pay backwages
has no factual basis. If after investigation, Lyric
Theater dismisses Melody, there is just cause
for such termination. There is willful
disobedience by the employee of the lawful
orders of her employer in connection with her
work. She did not just violate the lawful order
of the employer. She violated it five times.
Melody did not give any justifiable reason for
violating the company's memorandum
prohibiting the encashment of checks. [Jo
Cinema Corp. v. Avellana, GR No. 132837,
June 28, 2001]
Employee; Contractual Employees;
Seafarers (2002)
Tomas and Cruz have been employed for the last
22 years in various capacities on board the ships
of BARKO Shipping Company. Their employment
was made through a local manning company. They
have signed several ten (10) month employment
contracts with BARKO Shipping. The NLRC ruled
that they were contractual employees and that their
employment was terminated each time their
contracts expired is the ruling of the NLRC correct?
Explain your answer fully. (5%)
SUGGESTED ANSWER:
Yes. A contract of employment for a definite period
terminates by its own terms at the end of such
period. Since Tomas and Cruz signed ten (10)-
month contracts, their employment terminates by
its own terms at the end of each ten (10)-month
period.
The decisive determinant in term employment
should not be the activities that the employee is
called upon to perform but the day certain agreed
upon by the parties for the commencement and
termination of their employment relation (not the
character of his duties as being "usually necessary
or desirable in the usual business of the
employer").
Stipulation in the employment contracts providing
for "term employment" or "fixed period
employment" are valid when the period are agreed
upon knowingly and voluntarily by the parties
without force, duress or improper pressure exerted
on the employee; and when such stipulations were
not designed to circumvent the laws on security of
tenure. [Brent School v. Zamora, 181 SCRA 702
(1990)]
Moreover, in Brent School v. Zamora, supra, the
Supreme Court stated that Art. 280 of the Labor
Code does not apply to overseas employment.
In Pablo Coyoca v. NLRC, 243 SCRA 190, (1995),
the Supreme Court also held that a seafarer is not
a regular employee and Filipino seamen are
governed by the rules and regulations governing
overseas employment and the said rules do not
provide for separation or termination pay.
From the foregoing cases, it is clear that seafarers
are considered contractual employees. They
cannot be considered as regular employees under
Art 280 of the Labor Code. Their employment is
governed by the contracts they sign every time
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 Art
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
this court in the two aforementioned cases which
indeed constitute stare decisis with respect to the
employment status of seafarers. [Douglas Millares
v. NLRC, et. al. 328 SCRA 79, (2000)]
Therefore, Tomas and Cruz are contractual
employees. The ruling of the NLRC is correct.
ANOTHER SUGGESTED ANSWER:
No. The ruling of the NLRC is not correct. Such
repeated re-hiring, which continued for twenty
years cannot but be appreciated as sufficient
evidence of the necessity and indispensability of
petitioner's service to the [employer's] trade. Verily,
as petitioners had rendered 20 years of service,
performing activities that were necessary and
desirable in the trade (of the employer), they are,
by express provision of Art. 280 of the Labor Code,
considered regular employees. [Millares v. NLRC,
328 SCRA 79 (2000)]
Employee; Contractual Worker vs. Casual
Worker (2005)
How is the project worker different from a casual or
contractual worker? Briefly explain your answers.
ALTERNATIVE ANSWER:
A "CONTRACTUAL WORKER" is a generic term
used to designate any worker covered by a written
contract to perform a specific undertaking for a
fixed period. On the other hand, a "PROJECT
WORKER" is used to designate workers in the
construction industry, hired to perform a specific
undertaking for a fixed period, co-terminus with a
project or phase thereof determined at the time of
the engagement of the employee. (Policy
Instruction No. 19, DOLE) In addition, to be
considered a true project worker, it is required that
a termination report be submitted to the nearest
public employment office upon the completion of
the construction project. (Aurora Land Projects
Corp. v. NLRC, G.R. No. 114733, January 2, 1997)
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In contrast, there is no such requirement for an
ordinary contractual worker.
ALTERNATIVE ANSWER:
A PROJECT WORKER performs job that is
necessary and desirable to the nature of the
business of the employer. On the other hand, a
CASUAL WORKER performs job that is not
necessary or desirable to the nature of the
business of the employer. (Art. 280, Labor Code)
A project worker becomes a regular employee if
the employer fails to submit as many reports to the
DOLE on terminations as there were projects
actually finished. (Audion Electric Co. v. NLRC,
G.R. No. 106648, June 17, 1999) On the other
hand, a casual worker becomes a regular
employee if he has rendered service for at least
one (1) year whether the same is continuous or
broken. (Art. 280, Labor Code)
Employee; Probationary Employees (1998)
The services of an employee were terminated
upon the completion of the probationary period of
employment for failure to qualify, for the position.
The employee filed a complaint for Illegal
Dismissal on the ground that the employer failed to
inform him in writing the reasonable standards for
regular employment.
Will the complaint for Illegal Dismissal prosper?
[5%]
SUGGESTED ANSWER:
Yes, the Complaint for Illegal Dismissal will
prosper. The Labor Code provides:
Art. 281. PROBATIONARY EMPLOYMENT, -
xxr The services of an employee who has been
engaged on a probationary basis may be
terminated xxx when he fails to qualify as a
regular employee in accordance with
reasonable standards made known to the
employee at the time of his engagement.
The Supreme Court in A.M. Oreta and Co., Inc. v.
NLRC, 176 SCRA 218 (1989), ruled:
The law is clear to the effect that in all cases
involving employees engaged on probationary
basis, the employer shall make known to the
employee at the time he is hired, the standards
by which he will qualify as a regular employee.
The failure of the employer to inform the employee
of the qualification for regularization is fatal. The
failure violates the rules of fair play which is a
cherished concept in labor law.
ANOTHER SUGGESTED ANSWER:
The complaint for illegal dismissal will prosper. The
Labor Code (in Article 281) provides that a
probationary employee may be terminated when
he fails to qualify as a regular employee in
accordance with reasonable standards made
known by the employer to the employee at the time
of the latter's engagement. In the question, the
probationary employee was not informed of such
reasonable standards at the time he was
employed. Thus, if he is to be legally terminated, it
should be because of gross and habitual neglect of
duties.
Employee; Probationary Employees (2001)
What limitations, if any, do the law and
jurisprudence impose on an employer's right to
terminate the services of a probationary
employee? (2%)
SUGGESTED ANSWER:
The Labor Code [in Art. 281) provides that the
services of an employee who has been engaged
on a probationary basis may be terminated for a
just cause or when he fails to qualify as a regular
employee in accordance with reasonable
standards made known by the employer to the
employee at the time of his engagement. If the
probationary employee is being terminated for just
cause, he must, of course, be given due process
before his termination,
Employee; Project Employee vs. Regular
Employee (1996)
Distinguish the project employees from regular
employees.
SUGGESTED ANSWER:
A REGULAR EMPLOYEE is one engaged to
perform activities which are usually necessary or
desirable in the usual business or trade of the
employer. On the other hand, a PROJECT
EMPLOYEE is one whose employment is fixed for
a specific project or undertaking; the completion or
termination of which has been determined at the
time of the engagement of the employee. (See Art.
280 of the Labor Code)
Employee; Project Employees vs. Casual
Employees (2005)
Mariano Martillo was a mason employed by the
ABC Construction Company. Every time that ABC
had a project, it would enter into an employment
contract with Martillo for a fixed period that
coincided with the need for his services, usually for
a duration of three to six months.
Since the last project involved the construction of a
40-storey building, Martillo was contracted for 14
months. During this period, ABC granted wage
increases to its regular employees, composed
mostly of engineers and rank-and-file construction
workers as a result of the just concluded CBA
negotiations, feeling aggrieved and discriminated
against, Martillo and other similarly-situated project
workers demanded that increases be extended to
them, inasmuch as they should now be considered
regular employees and members of the bargaining
unit. Briefly explain your answers. (6%)
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(a) If you were ABC's legal counsel, how would
you respond to this demand?
ALTERNATIVE ANSWER:
The demand is without legal basis. The simple fact
that the employment of petitioners as project
employees had gone beyond one (1) year does not
detract from, or legally dissolve, their status as
project employees. The second paragraph of
Article 280 of the Labor Code, providing that an
employee who has served for at least one (1) year
shall be considered a regular employee, relates to
casual employees, not to project employees. (ALU-
TUCP v. NLRC, G.R. No. 109902, August 2, 1994)
In the case of Mercado, Sr. v. NLRC, G.R. No.
79869, September 5, 1991, the Supreme Court
ruled that the proviso in the second paragraph of
Article 280 of the Labor Code relates only to
casual employees and is not applicable to those
who fall within the definition of said Article's first
paragraph, i.e., project employees. The familiar
rule is that a proviso is to be construed with
reference to the immediately preceding part of the
provision to which it is attached, unless there is
clear legislative intent to the contrary. No such
intent is observable in Article 280 of the Labor
Code.
ALTERNATIVE ANSWER:
If I were ABC's legal counsel, I will argue that the
project workers are not regular employees but
fixed-term employees. Stipulation in employment
contracts providing for term employment or fixed
period were agreed upon knowingly and voluntarily
by the parties without force, duress or improper
pressure, being brought to bear upon the
employee and absent any other circumstances
vitiating his consent, or where it satisfactorily
appears that the employer and employee dealt
with each other on more or less equal terms with
no moral dominance whatever being exercised by
the former over the latter. (Pangilinan v. General
Milling Corp., G.R. No. 149329, July 12, 2004)
Employee; Regular Employee; Constructive
Dismissal (2005)
Kitchie Tempo was one of approximately 500
production operators at HITEC Semiconductors,
Inc., and export-oriented enterprise whose
business depended on orders for computer chips
from overseas. She was hired as a contractual
employee four years ago. Her contracts would be
for a duration of five (5) months at a time, usually
after a one-month interval. Her re-hiring was
contingent on her performance for the immediately
preceding contract.
Six months after the expiration of her last contract,
Kitchie went to HITEC's personnel department to
inquire why she was not yet being recalled for
another temporary contract. She was told that her
performance during her last stint was "below
average."
Since there was no union to represent her, Kitchie
seeks your advice as a labor lawyer about her
chances of getting her job back. What will your
advice be? (5%)
ALTERNATIVE ANSWER:
The repeated rehiring and the continuing need of
Kitchie's services for 4 years are sufficient
evidence of the necessity and indispensability of
her services to HITEC's business or trade.
(Magsalin v. National Organization for Working
Men, et al., G.R. No. 148492, May 9, 2003) Where
a person thus engaged has been performing the
job for at least one year, even if the performance is
not continuous or is merely intermittent, the law
deems the employment as regular with respect to
such activity and while such activity exists. (Paguio
v. NLRC, G.R. No. 147816, May 9, 2003)
Hence, Ritchie is considered a regular employee of
HITEC and as such, she cannot be terminated
except for cause and only after due process.
ALTERNATIVE ANSWER:
I will advice Kitchie to file a case of constructive
dismissal with the Regional Arbitration branch of
the NLRC having territorial jurisdiction over the
workplace of the complainant because the
constant re-hiring of Kitchie makes her a regular
employee.
Employee; Regular Employees (1994)
Aldrich Zamora, a welder, was hired on February
1972 by Asian Contractors Corporation (ACC) for a
project. He was made to sign a contract stipulating
that his services were being hired for the
completion of the project, but not later than
December 30, 1972, whichever comes first.
After December 1972, Zamora, being a man of
many talents, was hired for different projects of
ACC in various capacities, such as carpenter,
electrician and plumber. In all of these
engagements, Zamora signed a contract similar to
his first contract except for the estimated
completion dates of the project for which he was
hired.
What is Zamora's status with ACC? Is he a
contract worker, a project employee, a temporary
or a regular employee? State your reason.
SUGGESTED ANSWER:
Zamora could be a project employee if his work is
coterminous with the project for which he was
hired.
But in the case, Zamora was rehired after the
completion of every project throughout the period
of his employment with the company which ranged
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for quite a long time. Thus, he should be
considered a regular employee, (Philippine
National Construction Corporation vs. National
Labor Relations Commission, et al, G.R No.
95816, 27 October 1972. J. Grino-Aquino)
ALTERNATIVE ANSWER:
a) Zamora is a regular employee because he was
engaged to work in various projects of ACC for a
considerable length of time, on an activity that is
usually necessary desirable in the usual business
or trade of ACC. (Mehitabel Furniture vs. NLRC,
220 SCRA 602)
b) Zamora is a regular employee. Article 280 of
the Labor Code declares with unmistakable clarity:
THE PROVISIONS OF WRITTEN AGREEMENT
TO THE CONTRARY NOTWITHSTANDING, xxx
an employment shall be deemed to be regular
where the employee has been engaged to perform
activities which are usually necessary or desirable
in the usual business or trade of the employer."
He is not a CONTRACT or TEMPORARY
WORKER because even the provisions of the
simulated contracts were not followed when his job
was used continuously. He is not a project
employee, as the term is understood in Art. 280 or
under Policy Instruction No. 20.
Employee; Regular Employees (1995)
ILECO is an electric cooperative which accepted
fresh graduates from a vocational school as
lineman trainees for six (6) months after which they
were hired as probationary employees for another
ten (10) months. Thereafter, they were made
regular employees. These employees then sought
entitlement to salary increases under the existing
Collective Bargaining Agreement (CBA) which
were given at the time when they were not yet
regular employees, hence, not yet members of the
employees' union. ILECO denied their claims
because they were not yet regular members when
the CBA took effect and therefore not entitled to
wage adjustments thereunder.
Resolve the Issue. Discuss fully.
SUGGESTED ANSWER:
In implementing a CBA that provides for salary
increases to regular employees, it is but logical that
said salary increases should be given to
employees only from the time they are regular
employees.
Given the facts mentioned in the question, the
lineman trainees that ILECO hired became regular
employees six (6) months after they were hired.
The Labor Code provides that probationary
employment shall not exceed six (6) months from
the date the employee started working. Double
probation, which happened in the case in question
when the line man trainees were given an
additional probationary period of another ten (10)
months, may be considered as a circumvention of
the rule on probationary employment.
Thus, because they were already regular
employees after the first six (6) month period, from
said date, they are entitled to the CBA increases
provided for regular employee.
ALTERNATIVE ANSWER:
They are not entitled to the wage adjustments
under the CBA that were given when they were not
yet regular employees.
But if by virtue of their becoming regular
employees, they are now part of the appropriate
collective bargaining unit defined by the CBA, their
not being union members is not a bar to their
receipt of any wage adjustments given under the
CBA, after they become regular employees.
Employee; Regular Employees vs. Project
Employee (1998)
A Construction Group hired Engineer "A" as a
Project Engineer in 1987. He was assigned to five
(5) successive separate projects. All five (5)
Contracts of Employment he signed, specified the
name of the project, its duration, and the
temporary-project nature of the engagement of his
services. Upon completion of the fifth [5th) project
in August 1998, his services were terminated. He
worked for a total of ten (10) years (1987-1998) in
the five (5) separate projects.
Six months after his separation, the Group won a
bid for a large construction project. The Group did
not engage the services of Engineer "A" as a
Project Engineer for this new project; instead, it
engaged the services of Engineer "B".
Engineer "A" claims that by virtue of the nature of
his functions, i.e., Engineer in a Construction
Group, and his long years of service he had
rendered to the Group, he is a regular employee
and not a project engineer at the time he was first
hired. Furthermore, the hiring of Engineer "B"
showed that there is a continuing need for his
services.
Is the claim of Engineer "A" correct? [5%]
SUGGESTED ANSWER:
The claim of Engineer "A" that he is a regular
employee and not a protect employee is not
correct. The Labor Code provides:
Art. 280. Regular and Casual Employment. -
An employment shall be deemed to be regular
where the employee has been engaged to
perform activities which are usually necessary
or desirable in the usual business or trade of the
employer, except, where the employment has
been fixed for a specific project or undertaking
the completion of which has been determined at
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the time of the engagement of the employee.
(underscoring supplied)
In all the five (5) successive contracts of
employment of Engineer "A" the name of the
project, its duration, and the temporary project
nature of the engagement of his services are
clearly stated: hence, Engineer "A" falls within the
exemption of Art. 280. The Supreme Court has
ruled as follows: Manansag v. NLRC, 218 SCRA
722 (1993)
The fact that the petitioners worked for several
projects of private respondent company is no
basis to consider them as regular employees.
By the very nature of their employer's business,
they will always remain project employees
regardless of the number of projects in which
they have worked.
De Ocampo v NLRC, 186 SCRA 361 (1990]
[Project employees] are not considered regular
employees, their services, being needed only
when there are projects to be undertaken. The
rationale for this rule, is that if a project has
already been completed, it would be unjust to
require the employer to maintain them in the
payroll while they are doing absolutely nothing
except waiting for another project.
ANOTHER SUGGESTED ANSWER:
The claim of Engineer "A" is not correct. The fact
that he has been working for Construction Group
for a total of ten (1O) years does not make him a
regular employee when it is very clear from the
Contracts of Employment he signed that he was
always being engaged as a project employee.
The tenure of a project employee is co-terminous
with the project in connection with which his
services were engaged. Thus, after the end of the
project, the employer-employee relationship
ceases to exist. Such project employee has no
legal right to insist that he should be employed by
the Construction Group for a subsequent project of
said Group.
Employee; Regular vs. Project Employees
(2002)
Design Consultants, Inc. was engaged by the
PNCC to supervise the construction of the South
Expressway Extension. Design Consultants, Inc.
hired Omar as a driver for two (2) years. After his
two-year contract expired, he was extended
another contract for nine (9) months. These
contracts were entered into during the various
stages and before the completion of the extension
project. Omar claims that because of these
repeated contracts, he is now a regular employee
of Design Consultants. Inc. Is he correct? Explain
briefly. (5%)
SUGGESTED ANSWER:
Yes. The principal test for determining whether a
particular employee is a "project employee" as
distinguished from a "regular employee" is whether
or not the "PROJECT EMPLOYEE" was assigned
to carry out a "specific project or undertaking," the
duration and scope of which were specified at the
time the employee was engaged for the projects.
In the problem given, there is no showing that
Omar was informed that he was to be assigned to
a "specific project or undertaking." Neither has it
been established that he was informed of the
duration and scope of such project or undertaking
at the time of his engagement. [Philex Mining Corp.
v. NLRC, 312 SCRA 119 (1999)]
Moreover, the re-hiring of Omar is sufficient
evidence of the necessity or the indispensability of
his services to the company's business. [Aurora
Land Projects Corp v. NLRC, 266 SCRA 48(1997}]
Hence, Omar is correct in claiming that he is a
regular employee of Design Consultants, Inc.
ANOTHER SUGGESTED ANSWER:
Omar is not correct Omar is a project employee as
defined by Art. 280 of Labor Code. He was hired
for a specific project with fixed periods of
employment, specifically: two (2) years for the first
contract, and nine (9) months for the second
contract. A project employee who is hired for a
specific project only is not a regular employee
notwithstanding an extension of the project
provided that the contract of project employment
clearly specifies the project and the duration
thereof. [Palomares v. NLRC, 277 SCRA 439
(1997}]
Prescriptive period; illegal dismissal (1994)
On October 30, 1980, A, an employee, was served
notice of dismissal allegedly for gross dishonesty.
Forthwith, the Union to which A was a member
raised A's dismissal with the grievance machinery
as provided for in its Collective Bargaining
Agreement (CBA). At that point, negotiations for a
new CBA was in progress. Hence, both the Union
and the Company had very little time to address
A's grievance. In fact, said grievance, as it were,
slept the sleep of the dead, being resolved only
with finality on November 23, 1983 when the
General Manager of the Company affirmed A's
dismissal on the fifth and the last step of the
grievance machinery.
A filed an action for illegal dismissal with the
Arbitration Branch of the NLRC on November 25,
1983. The Company immediately filed a Motion to
Dismiss on the ground of prescription, invoking
Article 290 of the Labor Code.
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If you were the Labor Arbiter, how would you
resolve the Company's Motion to Dismiss?
SUGGESTED ANSWER:
As the Labor Arbiter, I will deny the Motion to
Dismiss. Where an employee was dismissed and
the matter of his dismissal was then referred to the
grievance machinery pursuant to the provision in
the existing collective bargaining agreement, and
the grievance machinery had a final meeting after
quite a long while thereafter, the complaint for
Illegal dismissal was then filed, the action was not
barred by laches, as the pendency of the matter
before the grievance machinery affected the
ripeness of the cause of action for illegal dismissal.
(Radio Communications of the Philippines, Inc.
(RCPI), vs. National Labor Relations Commission,
et al G.R No. 102958, 25 June 1993, J. Davide, Jr.
223 SCRA 656.
ALTERNATIVE ANSWER:
If I were the Labor Arbiter, I will deny the motion to
dismiss because the action for Illegal dismissal has
not yet prescribed. The prescriptive period for an
action for illegal dismissal is four {4} years.
(Callanta vs. Carnation ,145 SCRA 268)
Prescriptive period; illegal dismissal (2002)
A. State your agreement or disagreement with
the following statement and explain your answer
briefly: A criminal case filed against an employee
does not have the effect of suspending or
interrupting the running of the prescriptive period
for the filing of an action for illegal dismissal (2%)
B. State your agreement or disagreement with
the following statement and explain your answer
briefly: The period of prescription in Article 291 of
the Labor Code applies only to money claims so
that the period of prescription for other cases of
injury to the rights of employees is governed by the
Civil Code. Thus, an action for reinstatement for
injury to an employee's rights prescribes in four (4)
years as provided in Article 1146 of the Civil Code.
(3%)
SUGGESTED ANSWER:
A. I agree. The two (2) cases, namely: the criminal
case where the employee is the accused; and the
case for illegal dismissal, where the employee
would be the complainant, are two (2) separate
and independent actions governed by different
rules, venues, and procedures. The criminal case
is within the jurisdiction of the regular courts of law
and governed by the rules of procedure in criminal
cases. The action for the administrative aspect of
illegal dismissal would be filed with the NLRC and
governed by the procedural rules of the Labor
Code.
ANOTHER SUGGESTED ANSWER:
I agree. An action for illegal dismissal is an
administrative case which is entirely separate and
distinct from a criminal action. Each may proceed
independently of each other.
The right to file an action for illegal dismissal is not
dependent upon the outcome of the criminal case.
Guilt or innocence in the criminal case is not
determinative of the existence of a just or
authorized cause for a dismissal. [Pepsi-Cola
Bottling Co. v. Guanzon 172 SCRA 571(1989)}
SUGGESTED ANSWER:
B. I agree with the statement. A case of illegal
dismissal filed by an employee who has been
terminated without a just or authorized cause is not
a money claim covered by Art. 291 of the Labor
Code. An employee who is unjustly dismissed from
work is entitled to reinstatement and to his
backwages. A case of illegal dismissal is based
upon an injury to the right to security of tenure of
an employee. Thus, in accordance with Art 1146, it
must be instituted within four years. [Callanta v.
Carnation Phil. 145 SCRA 268(1986); Baliwag
Transit v. Ople 171 SCRA 250(1989); International
Harvester Macleod, Inc. v. NLRC, 200 SCRA
817(1991)]
Prescriptive period; illegal dismissal (1997)
The general manager of Junk Food Manufacturing
Corporation dismissed Andrew Tan, a rank-and-file
employee, on the ground of insubordination. The
general manager served on Andrew Tan the letter
of termination effective upon receipt which was on
08 March 1992. Shocked by his unexpected
dismissal, Andrew Tan confronted the general
manager and hit the latter on the head with a leap
pipe.
Junk Food Manufacturing filed a complaint in court
against Andrew Tan for less serious physical
injuries. Somehow, Andrew Tan was acquitted by
the court assigned to hear the criminal case. A few
days following his acquittal, or on 01 March 1996,
Andrew Tan filed complaint against the company
for illegal dismissal, reinstatement and the
payment of backwages and damages.
a) Was the complaint filed by Andrew Tan for
illegal dismissal within the reglementary period
granted by law?
b) What reliefs may Andrew Tan be entitled to if
the Labor Arbiter finds just cause for
termination but that the requirements of notice
and hearing are not complied with?
SUGGESTED ANSWER:
(a) Yes. The complaint was filed within four (4)
years from the date Andrew Tan was dismissed by
his employer. Illegal dismissal, as a cause of
action, prescribes after four (4) years from the time
the cause of action, namely, illegal dismissal took
place. This is pursuant to the Civil Code which
provides that actions upon an injury to the rights of
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a person should be initiated within four years from
the time the right of the action accrues. (Art. 1146
of the Civil Code)
(b) Andrew Tan would be entitled to an indemnity
of P1,000 to P10,000 from his employer for the
latter's non-compliance of the requirements of
notice and hearing in cases of termination of
employment. (Wenphil Philippines v. NLRC, 176
SCRA 66)
Resignation; Voluntary; Quitclaim (1994)
Nonoy Santos was employed as a middle
management employee in Company A. In the
course of his employment he was told by his
superiors of the possible merger between
Company A and Company B. Fearing that he might
lose his Job upon the merger of the two
companies, he looked for and found another job.
Upon resignation he was given separation pay
equivalent to one month's pay per year of service,
although technically speaking, he is not entitled
thereto being a resigned employee. Mr. Santos
executed a quitclaim and Waiver upon receipt of
his separation pay benefits.
The merger between the two companies turned out
to be a buy-out by the latter of the former. At this
point, Company A's employees, save for a handful,
were dismissed upon payment of separation pays
equivalent to three (3) months for every year of
service because of the Union's efforts on the
workers' behalf. Feeling aggrieved, Santos
subsequently charged Company A with
discrimination, constructive dismissal,
underpayment, resignation, separation benefits
and reinstatement.
The Labor Arbiter and NLRC sustained Company
A's position that Santos' quitclaim is valid, and that
as a manager he knew the import of what he was
signing and, therefore, estopped from claiming
otherwise.
Are the Labor Arbiter and the NLRC correct?
SUGGESTED ANSWER:
The Labor Arbiter and the NLRC are correct.
Santos was not coerced into resigning. He
voluntarily resigned. Then, upon receipt of the
separation pay that technically he was not entitled
to receive, he voluntarily executed a quitclaim and
waiver. These facts show beyond doubt that he is
estopped from claiming he was a victim of
discrimination. (Enieda MonttUa vs. National Labor
Relations Commission, et al, G.R No, 71504, 17
Decernber 1993, J. Nocon, 228 SCRA 538)
ALTERNATIVE ANSWER;
Both the Labor Arbiter and NLRC are not correct.
Santos resigned because of the uncertainty as to
the future of Company A, he was made to believe
that the deal between Company A and Company B
was merely a merger, but it really was a projected
buy-out. While dire necessity as a reason for
signing a quitclaim is not acceptable reason to set
aside a quitclaim in the absence of showing that
the employee has been forced to execute it, such
reason gains importance if the consideration is
unconscionable, low and the employee has been
tricked Into accepting it. (Wyeth-Suaco v. NLRC,
219 SCRA 356)
Resignation; Voluntary; Quitclaims (1999)
FACTS: International Motors Corporation (IMC)
undertook a reorganization of the company and
right-sizing of its personnel complement due to the
current financial crisis. The affected employees
were given the option to resign with corresponding
generous benefits attending such option. The said
employees opted to resignation on account of
these negotiated benefits; and after receipt of
which, they executed quitclaims in favor of IMC.
Immediately thereafter, the employees voluntarily
resigned for valuable consideration and that, in any
case, they have executed quitclaims in favor of the
company. The employees, however, claimed that
they were forced to resign, and that they executed
the quitclaims only because of dire necessity.
Is the company guilty of Illegal dismissal? Why?
(3%)
SUGGESTED ANSWER:
NO. The company is not guilty of illegal dismissal
since the facts clearly indicate that the "employees
were given the option to resign with corresponding
generous benefits attending such option" and that
these employees "opted for resignation on account
of these negotiated benefits". Nothing in the facts
indicate that their consent to the waiver of benefits
under the Labor Code was vitiated by fraud,
violence, undue influence or any other vice or
defect.
ALTERNATIVE ANSWER:
The company is not guilty of Illegal dismissal.
According to the facts of the case, the employees
opted to resign voluntarily, considering the
generous benefits given to them in connection with
such resignation.
VOLUNTARY RESIGNATION cannot be
considered as illegal dismissal. (SamanIego v.
NLRC, 198 SCRA 111)
Can the quitclaim be annulled on the ground of
"dire necessity"? Why? [2%]
SUGGESTED ANSWER:
A quitclaim case can be annulled on the ground of
its being entered into involuntarily by employees
because of "dire necessity". Thus, if it was dire
necessity that forced a worker to sign a quitclaim
even if the amount of money given to him by the
employer was very much less than what the
workers was entitled to receive, then the quitclaim
was not voluntary, and thus, the said quitclaim is
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null and void. In a case (Veloso v. DOLE, 200
SCRA 201) the Supreme Court held that "dire
necessity" is not an acceptable ground for
annulling the releases, especially since it has not
been shown that the employees had been forced
to execute them. It has not been proven that the
considerations for the quitclaims were
unconscionably low and that the petitioners had
been tricked into accepting them.
Retirement; Optional Retirement (2005)
(1) Ricky Marvin had worked for more than ten
(10) years in IGB Corporation. Under the terms of
the personnel policy on retirement, any employee
who had reached the age of 65 and completed at
least ten (10) years of service would be
compulsorily retired and paid 30 days' pay for
every year of service.
Ricky Marvin, whose immigrant visa to the USA
had just been approved, celebrated his 60th
birthday recently. He decided to retire and move to
California where the son who petitioned him had
settled. The company refused to grant him any
retirement benefits on the ground that he had not
yet attained the compulsory retirement age of 65
years as required by its personnel policy;
moreover, it did not have a policy on optional or
early retirement.
Taking up the cudgels for Ricky Marvin, the union
raised the issue in the grievance machinery as
stipulated in the CBA. No settlement was arrived
at, and the matter was referred to voluntary
arbitration.
If you were the Voluntary Arbitrator, how would you
decide? Briefly explain the reasons for your award.
(5%)
SUGGESTED ANSWER:
I will decide the case in accordance with the
Retirement Law. (R.A. No. 7641) Under the law,
Ricky Marvin is entitled to Optional Retirement at
age 60 since he has served the Company for at
least 5 years, in fact 10 years already. He will also
receive 22.5 days for every year of service.
(Capitol Wireless v. Confesor, G.R. No. 117174,
November 13, 1996)
Retirement; Retirement Benefits (1994)
A Collective Bargaining Agreement (CBA) between
Company A and its employees provides for optimal
retirement benefits for employees who have served
the company for over 25 years regardless of age,
equivalent to one-and-one-half months pay per
year of service based on the employee's last pay.
The CBA further provides that "employees whose
services are terminated, except for cause, shall
receive said retirement benefits regardless of age
or service record with the company or to the
applicable separation pay provided by law,
whichever is higher." The Company, due to poor
business conditions, decided to cease operations
and gave its employees the required one month's
advance notice as well as notice to DOLE, with the
further advice that each employee may claim his
corresponding separation or retirement benefits
whichever is higher after executing the required
waiver and quitclaim.
Dino Ramos and his co-employees who have all
rendered more than 25 years of service, received
their retirement benefits. Soon after, Ramos and
others similarly situated demanded for their
separation pay. The Company refused, claiming
that under the CBA they cannot receive both
benefits.
Who is correct, the employees or the Company?
SUGGESTED ANSWER:
The employees are correct. In the absence of a
categorical provision in the Retirement Plan and
the CBA that an employee who receives
separation pay is no longer entitled to retirement
benefits, the employee is entitled to the payment of
both benefits pursuant to the social justice policy.
(Conrado M. Aquino, et al v. National Labor
Relations Commission, et al, G.R No. 87653, 11
February 1992)
ALTERNATIVE ANSWER:
a) The Company is correct. The CBA clearly
provides that employees who are terminated are
entitled to retirement benefits or separation pay,
whichever is higher. The CBA, therefore, does not
give the employees a right to both retirement pay
and separation pay. Hence, they cannot be entitled
to both. The exclusion of one by the other is
deductible not only from the term "or" but also by
the qualifying phrase "whichever is higher". This
phrase would be immaterial if the employees were
entitled to both.
b) Dino and his co-employees were correct. In the
case of University of the East vs. NLRC, it was
clarified that the retirement benefits arising from
the CBA is an Obligation Ex Contractu while
separation pay under Art. 284 is an Obligation Ex-
Lege.
Thus, the Company should grant both benefits to
those who were separated due to CLOSURE and
at the same time were qualified to retire. (Cipriano
v. San Miguel, 24 SCRA 703)
Retirement; Retirement Pay (2001)
B. Ukol was compulsorily retired by his employer,
Kurot Bottling Corporation, upon the former's
reaching 65 years of age, having rendered 30
years of service. Since there was no CBA, B. Ukol
was paid his retirement benefits computed 15
days' pay for every year of service, based on B.
Ukol's highest salary during each year of his
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employment. Not satisfied, B. Ukol filed action with
the Arbitration Branch of the NLRC claiming that
his retirement benefits were not computed
properly. Is B. Ukol's claim meritorious? What are
the components of his retirement benefits? (2%),
SUGGESTED ANSWER:
Ukol's claim is meritorious. His retirement benefit is
to be computed in accordance with Article 287,
which reads: "In the absence of a retirement plan
or agreement providing for retirement benefits of
employees in the establishment, an employee may
retire ... and shall be entitled to retirement pay
equivalent to at least one-half (1/2) month salary
for every year of service, a fraction of at least six
months being considered as one whole year. The
same Article then explains that the term one-half
(1/2) month salary means fifteen days plus one-
twelfth (1/12) of the 13th month pay and the cash
equivalent of not more than five (5) days of service
incentive leaves.
The components of retirement pay are:
(1) 15 days pay
(2) 1/12 of the 13th month pay. and
(3) cash equivalent of not more than five (5) days
of service incentive leave.
(b) What exception(s) do(es) the law on
retirement benefits provide(s) if any? (3%).
SUGGESTED ANSWER:
Retail, service and agricultural establishments or
operations employing not more than ten (10)
employees or workers are exempted from the
coverage of the provision on retirement benefits in
the Labor Code.
Also, where there is a retirement plan of the
employer that grants more than what the Labor
Code grants.
SOCIAL LEGISLATIONS
Employees Compensation Act; Work-
Connected Disability (1996)
Efrenia Reyes was a classroom teacher assigned
by the Department of Education, Culture and
Sports (DECS) in Panitan, Capiz. She has been in
the government service since 1951 up to
November, 1985 when she retired at 55 due to
poor health.
In March, 1982, while she was teaching her Grade
1 pupils the proper way of scrubbing and sweeping
the floor, she accidentally slipped. Her back hit the
edge of a desk. She later complained of weak
lower extremities and difficulty in walking. After an
X-ray examination, she was found to be suffering
from Pott's disease and was advised to undergo an
operation. In 1985, she filed with the GSIS a claim
for disability benefits under Presidential Decree
No. 626, as amended. The GSIS granted the claim
and awarded Efrenia permanent partial disability
benefits.
After she underwent a surgical operation on her
spine in November, 1985, her condition worsened.
In 1990, Efrenia filed with the GSIS a petition for
conversion of her disability status to permanent
total disabilities with corresponding adjustment of
benefits. GSIS denied the claim stating that after
Efrenia's retirement, any progression of her ailment
is no longer compensable.
Is the GSIS correct in denying the claim. Explain.
SUGGESTED ANSWER:
Considering that the disability of Reyes is work
connected, the provisions of the Labor Code
dealing with employees compensation should
determine her right to benefits.
According to said provisions, if any employee
under permanent partial disability suffers another
injury which results in a compensable disability
greater than the previous injury, the State
Insurance Fund shall be liable for the income
benefit of the new disability even after her
retirement.
Was Reyes still an "employee" for the purpose of
applying the above provision of the Labor Code?
Liberally construing said provision. Reyes may be
considered still as an employee so that she could
receive additional benefits for the progression of
her ailment.
ALTERNATIVE ANSWERS:
a) No. When an employee is constrained to retire
at an early age due to his illness and the illness
persists even after retirement, resulting in his
continued unemployment, such condition amounts
to total disability which should entitle him to the
maximum benefits allowed by law. Her disability
which should entitle her to the maximum falls
within the definition of permanent total disability.
b) No, the GSIS erred in denying the claim. Note,
that the original claim and grant of benefits was
based on Presidential Decree No, 626, or Book IV,
Title II of the Labor Code: Employees
Compensation and State Insurance Fund. The
same law does not provide for separation fee from
employment as a basis for denial of benefits.
The worsening of the school teacher's condition is
a direct result, or a continuing result of the first
injury which was deemed work-connected by the
GSIS and hence compensable.
In Diopenes vs. GSIS, 205 SCRA 331 (1992), the
Supreme Court cautioned against a too strict
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interpretation of the law which may be detrimental
to claimants and advised the GSIS of the
constitutional mandate on protection to labor and
the promotion of social Justice. Said the Court:
The GSIS and the ECC should be commended
for their vigilance against unjustified claims that
will only deplete the funds intended to be
disbursed for the benefit only of deserving
disabled employees. Nevertheless, we should
caution against a too strict interpretation of the
rules that will result in the withholding of full
assistance from those whose capabilities have
been diminished if not completely impaired as a
compensation of their service in the
government. A humanitarian impulse dictated by
no less than the Constitution itself under the
social justice policy, calls for a liberal and
symphathetic approach to the legitimate appeals
of disabled public servants. Compassion for
them is not a dole but a right.
GSIS; Benefits (2004)
B. Atty. CLM, a dedicated and efficient public
official, was the top executive of a government
owned and controlled corporation (GOCC). While
inspecting an ongoing project in a remote village in
Mindanao, she suffered a stroke and since then
had been confined to a wheelchair. At the time
she stopped working because of her illness in line
of duty, Atty. CLM was only sixty years old but she
had been an active member of the GSIS for thirty
years without any break in her service record.
What benefits could she claim from the GSIS?
Cite at least five benefits. (5%)
SUGGESTED ANSWER:
The benefits Atty. CLM could claim from the GSIS
are:
(1) Employees compensation which shall include
both income and medical and related benefits,
including rehabilitation;
(2) Temporary total disability benefit;
(3) Permanent total disability benefit;
(4) Separation benefit; and
(5) Retirement benefit.
GSIS; Death Benefit (1999)
FACTS: Pitoy Mondero was employed as a public
school teacher at the Marinduque High School
from July 1, 1983 until his untimely demise on May
27, 1997.
On April 27, 1997, a memorandum was issued by
the school principal, which reads: "You are hereby
designated to prepare the MODEL DAM project,
which will be the official entry of or school the
forthcoming Division Search for Outstanding
Improvised Secondary Science Equipment for
Teachers to be held in Manila on June 4, 1997.
You are hereby instructed to complete this MODEL
DAM on or before the scheduled date of the
contest."
Mordero complied with his superior's instruction
and constructed an improvised electric microdam,
which he took home to enable him to finish it
before the deadline. On May 27, 1997, while
working on the MODEL DAM Project in his house,
he came to contact with a live wire and was
electrocuted. He was immediately brought to a
clinic for emergency treatment but was pronounced
dead on arrival. The death certificate showed that
he died of cardiac arrest due to accidental
electrocution.
Pepay Palaypay (Pitoy Mondero's common-law
wife for more than twenty years) and a Pitoy
Mordero Jr. (his only son) filed a claim for death
benefits with the Government Service Insurance
System (GSIS), which was denied on the ground
that Pitoy Mordeno's death did not arise out of and
in the course of employment and therefore not
compensable because the accident occurred in his
house and not in the school premises.
Is Pepay Palaypay entitled to file a claim for
death benefits with the GSIS? Why? (2%)
SUGGESTED ANSWER:
The beneficiaries of a member of the GSIS are
entitled to the benefits arising from the death of
said member. Death benefits are called
survivorship benefits under the GSIS Law.
Not being a beneficiary, Pepay Palaypay to not
entitled to receive survivorship benefits. She is not
a beneficiary because she to a common-law wife
and not a legal dependent spouse.
Is the cause of death of Pitoy Mordeno (cardiac
arrest due to accidental electrocution in his
house) compensable? Why? (3%).
SUGGESTED ANSWER:
Yes. To be compensable under the GSIS Law, the
death need not be work connected.
GSIS; Death Benefits; Dependent; 24-hour
Duty Rule (2005)
Odeck, a policeman, was on leave for a month.
While resting in their house, he heard two of his
neighbors fighting with each other. Odeck rushed
to the scene intending to pacify the protagonists.
However, he was shot to death by one of the
protagonists. Zhop, a housemaid, was Odeck's
surviving spouse whom he had abandoned for
another woman years back. When she learned of
Odeck's death, Zhop filed a claim with the GSIS for
death benefits. However, her claim was denied
because: (a) when Odeck was killed, he was on
leave; and (b) she was not the dependent spouse
of Odeck when he died.
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Resolve with reasons whether GSIS is correct in
denying the claim. (5%)
ALTERNATIVE ANSWER:
Yes, because under the law, a dependent is one
who is a legitimate spouse living with the
employee. (Article 167[i], Labor Code) In the
problem given, Zhop had been abandoned by
Odeck who was then living already with another
woman at the time of his death.
Moreover, Odeck was on leave when he was
killed. The 24-hour duty rule does not apply when
the policeman is on vacation leave. (Employees'
Compensation Commission v. Court of Appeals,
G.R. No. 121545, November 14, 1996) Taking
together jurisprudence and the pertinent guidelines
of the ECC with respect to claims for death
benefits, namely:
(a) that the employee must be at the place where
his work requires him to be;
(b) that the employee must have been performing
his official functions; and
(c) that if the injury is sustained elsewhere, the
employee must have been executing an order
for the employer, it is not difficult to understand
then why Zhop's claim was denied by the
GSIS. (Tancinco v. Government Service
Insurance System, G.R. No. 132916,
November 16, 2001)
In the present case, Odeck was resting at his
house when the incident happened; thus, he was
not at the place where his work required him to be.
Although at the time of his death Odeck was
performing a police function, it cannot be said that
his death occurred elsewhere other than the place
where he was supposed to be because he was
executing an order for his employer.
ALTERNATIVE ANSWER:
GSIS is correct in denying the claim not on the
grounds provided in the problem but for the reason
that uniformed members of the PNP are not
covered by R.A. No. 8291 or the GSIS Law of
1997.
Maternity Benefits (2000)
Ms. Sara Mira is an unwed mother with three
children from three different fathers. In 1999, she
became a member of the Social Security System.
In August 2000, she suffered a miscarriage, also
out of wedlock, and again by a different father. Can
Ms. Mira claim maternity benefits under the Social
Security Act of 1997? Reason. (5%)
SUGGESTED ANSWER:
Yes, she can claim maternity benefit. Entitlement
thereto is not dependent on the claimant's being
legally married. (Sec. 14-A, Social Security Act of
1997).
Paternity Leave (2002)
How many times may a male employee go on
Paternity Leave? Can he avail himself of this
benefit for example, 50 days after the first delivery
by his wife? (3%)
SUGGESTED ANSWER:
A male employee may go on Paternity Leave up to
four (4) children. (Sec. 2, RA 8187) On the
question of whether or not he can avail himself of
this benefit 50 days after the delivery of his wife,
the answer is: Yes, he can because the Rules
Implementing Paternity Leave Act says that the
availment should not be later than 60 days after
the date of delivery.
Paternity Leave; Maternity Leave (2005)
Mans Weto had been an employee of Nopolt
Assurance Company for the last ten (10) years. His
wife of six (6) years died last year. They had four
(4) children. He then fell in love with Jovy, his co-
employee, and they got married.
In October this year, Weto's new wife is expected
to give birth to her first child. He has accordingly
filed his application for paternity leave, conformably
with the provisions of the Paternity Leave Law
which took effect in 1996. The HRD manager of
the assurance firm denied his application, on the
ground that Weto had already used up his
entitlement under the law. Weto argued that he
has a new wife who will be giving birth for the first
time, therefore, his entitlement to paternity leave
benefits would begin to run anew. (6%)
(a) Whose contention is correct, Weto or the
HRD manager?
ALTERNATIVE ANSWER:
The contention of Weto is correct. The law
provides that every married male is entitled to a
paternity leave of seven (7) days for the first four
(4) deliveries of the legitimate spouse with whom
he is cohabiting. Jovy is Weto's legitimate spouse
with whom he is cohabiting. The fact that Jovy is
his second wife and that Weto had 4 children with
his first wife is beside the point. The important fact
is that this is the first child of Jovy with Weto. The
law did not distinguish and we should therefore not
distinguish.
The paternity leave was intended to enable the
husband to effectively lend support to his wife in
her period of recovery and/or in the nursing of the
newly born child. (Sec. 3, RA. No. 8187) To deny
Weto this benefit would be to defeat the rationale
for the law. Moreover, the case of Weto is a gray
area and the doubt should be resolved in his favor.
ALTERNATIVE ANSWER:
Weto's contention is correct. R.A. No. 8187
provides that paternity leave of (7) days with full
pay shall be granted to all married employees in
the private and public sectors for the first four (4)
deliveries of the legitimate spouse with whom he is
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LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
cohabiting. With the death of Weto's first wife, the
first (4) deliveries provided by law, shall apply to
the new legitimate spouse of Weto with whom he is
cohabiting.
ALTERNATIVE ANSWER:
Since R.A. No. 8282 is silent on the matter, the
doubt should be resolved in favor of the second
wife.
(b) Is Jovy entitled to maternity leave
benefits?
Yes, Jovy's maternity benefit is personal to her and
she is entitled under the law to avail herself of the
same for the first four times of her deliver. (R.A.
No. 8282)
SSS; Compulsory Coverage (1995)
Big Foot Company of Paete, Laguna, has been in
the business of manufacturing wooden sandals for
export since 5 November 1980. On 5 January
1994 it employed an additional labor complement
of thirty workers, two supervisors and two
department managers. On 5 February 1994 it hired
five carpenters to fix the roof and walls of its
factory which were destroyed by typhoon
"Huaning."
Who among the aforementioned persons are
compulsorily covered by the Social Security Law
and when should they be considered effectively
covered? Discuss fully.
SUGGESTED ANSWER:
Assuming that all of them were not yet over sixty
years of age, the additional labor complement of
thirty workers, two supervisors and two department
managers were compulsorily covered by the Social
Security Law on 5 January 1994, when they were
employed. According to said law, workers are
covered on the day of their employment.
But the five carpenters which the company hired to
fix the roof and walls of its factory were not under
the compulsory coverage of the Social Security
Law because said carpenters are casual
employees. The Social Security Law provides that
employment purely casual and not for the purpose
of occupation or the business of the employer are
not under its compulsory coverage.
SSS; Compulsory Coverage (1999)
Marvin Patrimonio is a caddy rendering caddying
services for the members and guests of the Barili
Golf & Country Club. As such caddy, he is subject
to Barili golfs rules and regulations governing
Caddies regarding conduct, dress, language, etc.
However, he does not have to observe any
working hours, he is free to leave anytime he
pleases; and he can stay away for as long as he
likes. Nonetheless, if he is found remiss in the
observance of club rules, he can be disciplined by
being barred from the premises of Barili Golf.
Is Marvin within the compulsory coverage of the
Social Security System? Why? (5%)
SUGGESTED ANSWER:
Because he is not an employee of the Barili Golf &
Country Club, Marvin is not within the compulsory
coverage of the Social Security System. Marvin is
not an employee of the club because under the
specific circumstances of his relations with the
club, he is not under the orders of the club as
regards employment which would have made him
an employee of the club. (See Manila Golf &
Country Club, Inc. v. IAC, 237 SCRA 207)
But Marvin is within the compulsory coverage of
the SSS as a self-employed person. (See Section
9-A, Social Security Law of 1957)
SSS; Compulsory Coverage (2000)
The Collective Bargaining Agreement of the
Golden Corporation Inc. and the Golden
Corporation Workers Union provides a package of
welfare benefits far superior in comparison with
those provided for in the Social Security Act of
1997. The welfare plan of the company is funded
solely by the employer with no contributions from
the employees. Admittedly, it is the best welfare
plan in the Philippines. The company and the
union jointly filed a petition with the Social Security
System for exemption from coverage. Will the
petition for exemption from coverage prosper?
Reason. (5%)
SUGGESTED ANSWER:
No, because coverage under the SSS is
compulsory where employer-employee relations
exist. However, if the private plan is superior to that
of the SSS, the plan may be integrated with the
SSS plan. Still, it is integration and not exemption
from SSS law. (Philippine Blooming Mills Co., Inc.
v. Social Security System, 17 SCRA 107(1966);
RA. No. 1161 as amended by RA No. 8282}.
SSS; Compulsory Coverage (2002)
The owners of FALCON Factory, a company
engaged in the assembling of automotive
components, decided to have their building
renovated. Fifty (50) persons, composed of
engineers, architects and other construction
workers, were hired by the company for this
purpose. The work was estimated to be completed
in three (3) years. The employees contended that
since the work would be completed after more than
one (1) year, they should be subject to compulsory
coverage under the Social Security Law. Do you
agree with their contention? Explain your answer
fully. (5%)
SUGGESTED ANSWER:
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LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
No. Under Section 8 (j) of RA 1161, as amended,
employment of purely casual and not for the
purpose of the occupation or business of the
employer are excepted from compulsory coverage.
An employment is purely casual if it is not for the
purpose of occupation or business of the
employer.
In the problem given, Falcon Factory is a company
engaged in the assembling of automotive
components.
The fifty (50) persons (engineers, architects and
construction workers) were hired by Falcon Factory
to renovate its building. The work to be performed
by these fifty (60) people is not in connection with
the purpose of the business of the factory. Hence,
the employ of these fifty (50) persons is purely
casual. They are, therefore, excepted from the
compulsory coverage of the SSS law.
ANOTHER SUGGESTED ANSWER:
I agree with the contention that the employees
hired by the owners of FALCON factory as
construction workers in the renovation of its
building should be under the compulsory coverage
of the Social Security Law.
It is true that in connection with FALCON Factory,
which is engaged in the assembling of automotive
components, the construction workers may be
considered casual employees because their
employment is not for the purpose of occupation of
business of FALCON Factory. As such, in
accordance with Section 8{j) of the Social Security
Law, they are excepted form the compulsory
coverage of the Social Security System.
But they could also be considered project
employees of FALCON Factory and as such could
be under the compulsory coverage of the SSS,
applying Art 4 of the Labor Code that provides that
all doubts in the Implementation and interpretation
of the provisions of Labor Law shall be resolved in
favor of labor. The employees here therefore,
should be considered as under the compulsory
coverage of the SSS.
SSS; GSIS; Beneficiality; Portability
Provisions of RA 7699 (2005)
How are the "portability" provisions of Republic Act
No. 7699 beneficial or advantageous to SSS and
GSIS members in terms of their creditable
employment services in the private sector or the
government, as the case may be, for purposes of
death, disability or retirement? Please explain your
answer briefly. (3%)
SUGGESTED ANSWER:
Portability provisions of R.A. No. 7699 shall benefit
a covered worker who transfers employment from
one sector to another or is employed in both
sectors, whose creditable services or contributions
in both systems credited to his service or
contribution record in each of the system and shall
be totalized for purposes of old-age, disability,
survivorship and other benefits. (Sec. 3, R.A. No.
7699)
The "portability" provisions of R.A. No. 7699 allow
the transfer of funds for the account and benefit of
the worker who transfers from one system to
another.
This is advantageous to the SSS and GSIS
members for purposes of death, disability or
retirement benefits. In the event the employees
transfer from the private sector to the public sector,
or vice-versa, their creditable employment services
and contributions are carried over and transferred
as well.
SSS; GSIS; Jurisdiction; Benefit Claims
(1995)
Is it necessary for an employee to litigate in order
to establish and enforce his right to compensation?
Explain.
SUGGESTED ANSWER:
No. All that an employee does to claim employee's
compensation is to file a claim for said benefits
with the SSS (for those in the private sector) or
GSIS (for those in the public sector).
In the event that the claim is denied on the
SSS/GSIS level, claimant may appeal to the
Employees Compensation Commission where he
may prove the causal connection between injury
and nature of work.
SSS; Prescriptive Period; Benefit Claims
(2001)
(b) In 1960, Juan hired Pablo to drive for the
former's lumber company. In 1970, Pablo got sick
and was temporarily laid-off. In 1972, Pablo
recovered and resumed working for the same
lumber company, now run by Juan's wife since
Juan had already passed away. In 1996, Pablo
retired. When Pablo applied for retirement benefits
with the SSS that same year, he discovered that
the lumber company never enrolled him as an
employee, much less remitted his contributions
that were deducted from his salary. The lumber
company agreed to pay for Pablo's contributions
plus penalties but maintained that most of Pablo's
claims had already prescribed under Art, 1150 of
the Civil Code. (Art. 1150 provides "The time for
prescription of all kinds of actions, when there is no
special provision which ordains otherwise, shall be
counted from the day they may be brought."). Is
the Lumber company's contention correct? Why?
(3%),
SUGGESTED ANSWER:
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LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
The lumber company's contention is not correct.
The Social Security Law (in Sec. 22(b) provides
that the right to institute the necessary action
against an employer may be commenced within
twenty (20) years from the time the delinquency is
known or the assessment is made by the SSS, or
from the time the benefit accrues, as the case may
be.
SSS;GSIS; Employees Compensation Act
(1997)
State the respective coverages of {a} the Social
Security Law: (b) the Revised government Service
Insurance Act and (c) the Employees
Compensation Act.
SUGGESTED ANSWER:
(a) Coverage of SSS (Sec. 9. RA 8282) shall be
compulsory upon all employees not over sixty
years of age and their employers.
Filipinos recruited in the Philippines by foreign-
based employers for employment abroad may
be covered by the SSS on a voluntary basis.
Coverage in the SSS shall also be compulsory
upon all self-employed persons earning
P1,800 or more per annum.
(b) Membership in the Government Service
Insurance System (Art. 3, RA8291) shall be
compulsory for all permanent employees below 60
years of age upon appointment to permanent
status, and for all elective officials for the duration
of their tenure.
Any person, whether elected or appointed, in
the service of an employer is a covered
employee if he receives compensation for such
service.
(c) Coverage in the State Insurance Fund (Art,
168, Labor Code) shall be compulsory upon all
employers and their employees not over sixty (60)
years of age; Provided, that an employee who is
over (60) years of age and paying contributions to
qualify for the retirement or life insurance benefit
administered by the System shall be subject to
compulsory coverage.
The Employees Compensation Commission shall
ensure adequate coverage of Filipino employees
employed abroad, subject to regulations as it may
prescribe. (Art, 170}
Any person compulsorily covered by the GSIS
including the members of the Armed Forces of
the Philippines, and any person employed as
casual, emergency, temporary, substitute or
contractual, or any person compulsorily covered
by the SSS are covered by the Employees
Compensation Program.
State Insurance Fund (1994)
Samson Security Agency [SAMSON) undertook to
provide 24 hours security service to Jarillo Realty
(JARILLO) in the latter's construction operations.
The contract between SAMSON and JARILLO
expressly stipulated that Samson's security guards
are its employees and not that of JARILLO.
SAMSON undertook to hold JARILLO free from
any liability whatsoever resulting from injuries
which its (SAMSON's) guards may suffer or be
exposed to suffer as guards of JARILLO's
construction operations.
To facilitate payment. JARILLO undertook to pay
directly to the guards the agreed wages, which are
subsequently deducted from the monthly payments
to SAMSON under its contract with JARILLO.
JARILLO, in turn, charges SAMSON for the
equipment supplied to the guards such as
uniforms, pistols and ammunition and cost of
training of guards JARILLO wants replaced.
During a storm, several scaffoldings of JARILLO
fell and killed two (2) guards whose families later
sued JARILLO. JARILLO, in turn, impleaded
SAMSON as third-party defendant before the
Arbiter.
Decide who should be held liable.
SUGGESTED ANSWER:
Liability lies against the State Insurance Fund
administered by the SSS. This is a case of death in
connection with the employees' work.
Jarillo is deemed to be the employer of the guards
in view of the direct payment of wages to the
guards. Thus, if there are benefits arising from
employer-employee relationship, Jarillo should be
held answerable.
NOTE: The law involved, namely the law on
employees compensation and State Insurance
Fund was expressly excluded from this years bar
examination in Labor and Social Legislation.
State Insurance Fund (1995)
What is the extent of an employer's intervention in
the compensation process and the payment of
benefits to employees under the State Insurance
Fund? Explain.
SUGGESTED ANSWER:
The new law establishes a State Insurance Fund
built up by the contributions of employers based on
the salaries of their employees. The employer does
not intervene in the compensation process and it
has no control over the payment of benefits.
Unlike under the Workmen's Compensation Act,
employers are no longer directly liable for the
income and medical and related benefits that are
to be paid to covered employees if they should
suffer from work connected injury or sickness or
death. The payment of employees compensation is
Page 107 of 108
LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
now from the State Insurance Fund which is
constituted from the contributions collected from
employers.
Stray Questions
Stray Problem; Political Law; Power of the
President; FTAA (2006)
Armstrong Corporation, a foreign corporation,
intends to engage in the exploration of Philippine
natural resources. Mr. Antonio Reyes offered the
forest land he owns to the president of the
corporation. May Armstrong Corporation enter into
a financial and technical assistance agreement
(FTAA) with Mr. Reyes to explore, develop, and
utilize the land? Explain. (5%)
SUGGESTED ANSWER:
NO. Only the President may enter into financial
and technical assistance agreements for large-
scale exploration development and utilization of
natural resources (Art. XII, Sec. 2, 1987 Consti-
tution). Moreover, forest lands are inalienable
lands of the state (La Bugal — B'laran Tribal
Association, Inc. v. Ramos, G.R. No. 127882,
December 1, 2004).
N.B. This appears to be a proper question for Political
Law.
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Labor Law Q&As (2007-2013) hectorchristopher@yahoo.com faithrollan5@yahoo.com

A Compilation of the

Questions and Suggested Answers

In the

PHILIPPINE BAR EXAMINATIONS 2007-2013

In

LABOR LAW
Compiled and Arranged By:

Rollan, Faith Chareen ―Pet2x‖ D.

Salise, Hector Christopher ―Jay-Arh‖ Jr. M.

(University of San Jose-Recoletos School of Law)

ANSWERS TO BAR EXAMINATION QUESTIONS by the

UP LAW COMPLEX (2007, 2009, 2010) &

PHILIPPINE ASSOCIATION OF LAW SCHOOLS (2008)

“Never Let The Odds Keep You From Pursuing What You Know In Your Heart You Were Meant To Do.”-Leroy Satchel Paige
Page 1 of 183
Labor Law Q&As (2007-2013) hectorchristopher@yahoo.com faithrollan5@yahoo.com

FOREWORD
This work is a compilation of the ANSWERS TO BAR
EXAMINATION QUESTIONS by the UP LAW COMPLEX ,
Philippine Association of Law Schools from 2007-2010 and
local law students and lawyers’ forum sites from 2011-2013
and not an original creation or formulation of the authors.

The authors were inspired by the work of Silliman University’s

College of Law and its students of producing a very good
material to everyone involved in the legal field particularly the
students and the reviewees for free. Hence, this work is a
freeware.

Everyone is free to distribute and mass produce copies of this

work, however, the authors accept no liability for the content of
this reviewer, or for the consequences of the usage, abuse, or
any actions taken by the user on the basis of the information
given.

The answers (views or opinions) presented in this reviewer are

solely those of the authors in the given references and do not
necessarily represent those of the authors of this work.

The Authors.

“Never Let The Odds Keep You From Pursuing What You Know In Your Heart You Were Meant To Do.”-Leroy Satchel Paige
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TABLE OF CONTENTS
(Titles are based on Silliman‘s Compilation [Arranged by Topic])

General Principles

Constitutional Provisions on Labor (2009)…………………………………………………………… 12

Constitutional Provision; Codetermination (2007)…………………………………………………12

Constitutional Provision; Right to Security of Tenure (2009)……………………………………13

Interpretation of Labor Laws (2009)……………………………………………………………………14

Rights of the Employer; Management Prerogative; Overtime Work (2013)…………………14

Rights of the Employer; Management Prerogative;

Suspension of Business Operation (2012).......................................15

Rights of the Employer; Management Prerogative;

Right to Transfer Employee (2013)…..............................................15

Rights of the Employer; Management Prerogative;

Weight Policy (2008)……………........................................…………….16

Jurisdiction

Bureau of Labor Relations; Compromise Agreement (2007)………………………………………17

DOLE Regional Director; Visitorial and Enforcement Power;

Compliance Order (2008)………......................................................18

DOLE Regional Director; Visitorial and Enforcement Power;

Money Claims (2009)…………….......................................................19

“Never Let The Odds Keep You From Pursuing What You Know In Your Heart You Were Meant To Do.”-Leroy Satchel Paige
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Labor Arbiter; Appeals (2007)………………………………………………………………………………19

Labor Arbiter; Compromise Agreement (2007)……………………………………..…………………20

Labor Arbiter; Execution Order; Appeal (2007)………………………………….……………………20

Labor Arbiter; Execution, Orders or Awards (2007)…………………………….……………………21

Labor Arbiter; Labor Disputes; Barangay Lupong Tagapamayapa (2007)..……………………21

Labor Arbiter; Money Claims (2009)……………………………………………..………………………22

Labor Arbiter; Reinstatement Pending Appeal (2009)………………………………………………23

Labor Arbiter; ULP; Damages and Reliefs (2012)………………………………..……………………23

Labor Arbiter; Voluntary Arbitration (2008)……………………………………………………………24

Nat‘l Labor Relations Commission (2013)………………………………………………………………24

Sec. of Labor; Assumption over Labor Dispute (2013)………………………………………………25

Sec. of Labor; Assumption over Labor Dispute (2010)………………………………………………26

Sec. of Labor; Assumption over Labor Dispute (2010)………………………………………………27

Sec. of Labor; Assumption over Labor Dispute (2008)………………………………………………27

Sec. of Labor; Assumption over Labor Dispute; National Interest (2008)…………………….28

Voluntary Arbitrator (2010)…………………………………………………………………………………29

Voluntary Arbitrator; Conciliation; Mediation; Arbitration (2010)……………………………..30

Voluntary Arbitrator; Labor Disputes; Voluntary Arbitration (2008)………………………..…31

Voluntary Arbitrator; Voluntary Arbitration; Compulsory Arbitration (2008)………………31

Labor Relations

Non-Lawyers; Appearance; NLRC or LA (2007)………………………………………………………..32

CBA; Automatic Renewal Clause (2008)…………………………………………………………………33

“Never Let The Odds Keep You From Pursuing What You Know In Your Heart You Were Meant To Do.”-Leroy Satchel Paige
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CBA; Certification Election (2009)…………………………………………………………………..……33

CBA; Certification Election; Sole and Exclusive Collective Bargaining Agent (2009).……34

CBA; Certification Election; Run-Off Election (2009)………………………………………………34

CBA; Check-Off Clause (2013)………………………………………………………………………………35

CBA; Check-Off Clause; Employee‘s Salaries;

Individual Written Authorization (2013)…......................................36

CBA; Codetermination (2008)………………………………………………………………………………36

CBA; Codetermination (2007)………………………………………………………………………………37

CBA; Community Interest Rule (2007)……………..……………………………………………………37

CBA; Deadlock Bar Rule (2009)…………………………………………………………………………….38

CBA; Duty to Bargain Collectively in Good Faith (2009)..…………………………………………37

CBA; Existing CBA Expired; Consequences (2010)…………..………………………………………39

CBA; Freedom Period (2009)…………………………………………..……………………………………40

CBA; Globe Doctrine (2007)…………………………………………………………………………………41

CBA; Substitutionary Doctrine (2009)………………………………..…………………………………42

CBA; Surface Bargaining vs. Blue-Sky Bargaining (2010)……….…………………………………42

CBA; Union Security Clause (2009)……….………………………………………………………………42

CBU; Confidential Employees (2009)………………………………….…………………………………43

CBU; Managerial Employees; Supervisory Employees (2010)….…………………………………43

CBU; Modes; Determination of Exclusive Bargaining Agreement (2012)…..…………………43

Privilege Communication (2007)………………………………………………………….………………44

Right to Strike; Cooling-Off Period (2009)………………………………………………..……………45

“Never Let The Odds Keep You From Pursuing What You Know In Your Heart You Were Meant To Do.”-Leroy Satchel Paige
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Right to Strike; DOLE Sec. Intervention; Return to Work (2012)………………………………45

Right to Strike; Economic Provisions of the CBA (2010)…………………………………….……46

Right to Strike; Illegal Strike; Dismissal (2010)………………………………………………………46

Right to Strike; Illegal Strike; Dismissal (2007)………………………………………………………47

Right to Strike; Legal Requirements (2007)……………………………………………………………48

Right to Strike; National Interest; DOLE Sec. Intervention (2012)……………………….……48

Right to Strike; DOLE Sec. Intervention; Return to Work (2012)………………………………50

Right to Strike; Stoppage of Work (2008)………………………………………………………………52

Right to Strike; Strike Define (2010)…………………………………………………………….………52

Right to Strike; Strike Vote Requirement (2010)…………………………………………….………54

Right to Strike; Strike Vote Requirement (2009)…………………………………………….………54

Right to Strike; Union Member (2010)…………………………………….…………………….………55

Self Organization; Agency Fee (2010)……………………………………….…………………..………55

Self Organization; Agency Fee (2009)……………………………………………………………………56

Self Organization; Mixed membership; not a ground for cancellation (2010)……….………56

Self Organization; Grounds for Cancellation of Union Registration (2010)…………….……56

Self Organization; Right to Self-Organization of Coop Employees (2010)……………………57

Self Organization; Right to Self-Organization of Government Employees (2009)…….……58

Self Organization; Unions; Member Deemed Removed (2010)……………………………………58

Self Organization; Unions; Voluntary Cancellation of Registration (2008)..…………………58

ULP; Criminal Liability (2009)………………..……………………………………………………………59

ULP; Criminal and Civil Liability (2007)..………………………………………………………………60

“Never Let The Odds Keep You From Pursuing What You Know In Your Heart You Were Meant To Do.”-Leroy Satchel Paige
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ULP; Runaway shop (2009)………………………………………………………………………………….60

ULP; Violation to Bargain Collectively (2009)…………………………………………………………61

Labor Standards

E-E Relationship; Corporation (2012)……………………………………………………………………62

E-E Relationship; Effective Control or Supervision; Waitresses (2008)…………………….…63

E-E Relationship; Four-Fold Test (2008)……………………………………………………………..…63

E-E Relationship; GRO‘s & Night Clubs (2012)………………………………………………………..64

E-E Relationship; OFW (2009)………………………………………………………………………………65

Employment; Children; Below 15 yrs old (2012)……………………………………………………..66

Employment; Children; Below 15 yrs old (2009)………………………………………………..……66

Employment; Company Policy; Weight Regulation (2010)……………………………………..…67

Employment; Employment Contract; Discrimination by reason of Marriage (2012)…..…67

Employment; Employment Contract; Discrimination by reason of Marriage (2010)……..68

Employment; Employment Contract; Fixed Period of Employment (2008)………………….68

Employment; Employment Contract;

Prohibiting Employment in a Competing Company (2009)……….....69

Employment; Househelper (2009)………………………………………………………………………...70

Employment; Househelper; Driver (2012)………………………………………………………………70

Employment; Househelper; Non-Household Work (2007)……………………………………….…71

Employment; HouseHelper; Non-Household Work (2007)…………………………………………71

Employment; Househelper vs. Homeworker (2009)…………………………………………………72

Employment; Employment of Minors; Statutory Restrictions (2007)…………………………73

“Never Let The Odds Keep You From Pursuing What You Know In Your Heart You Were Meant To Do.”-Leroy Satchel Paige
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Employment; Non-Resident Alien (2007)………………………………………………………………74

Employment; Women; Anti-Sexual Harassment Act (2009)………………………………………75

Labor-Only Contracting vs. Job-Only Contracting (2012)…………………………………………76

Labor-Only Contractor (2012)………………………………………………………………………………77

Labor-Only Contractor (2009)………………………………………………………………………………78

Labor-Only Contractor (2008)………………………………………………………………………………79

Labor-Only Contractor; Remittance of SSS Premium (2008)……………………………………..80

Labor-Only Contractor; Worker‘s Money Claim (2009)……………………………………………..80

Recruitment & Placement; Direct Hiring of OFW (2010)…………………………………………..81

Recruitment & Placement; Contract of Employment; Relief (2010)……………………………82

Recruitment & Placement; Illegal Recruitment; Criminal Liability (2010)…………………83

Recruitment & Placement; Illegal Recruitment;

Criminal Liability; Recruitment Agency (2010)………………………….83

Recruitment & Placement; Illegal Recruitment; Types (2007)…………………………………..84

Recruitment & Placement; Illegal Recruitment; Search & Arrest Warrants (2007)………85

Recruitment & Placement; POEA; Disciplinary Action; OFW (2007)…………………………86

Wages; Employee‘s Wage; Facilities (2013)………………………………………….…………………87

Wages; Employee‘s Wage; Facilities (2010)…………………………………………………………….88

Wages; Holiday Pay (2010)…………………………………………………………………………………88

Wages; No Work No Pay Principle (2008)………………………………………………………………89

Wages; Overtime Pay; Waiver (2009)……………………………………………………………………89

Wages; Undertime off-set by Overtime (2010)…………………………………………………………90

“Never Let The Odds Keep You From Pursuing What You Know In Your Heart You Were Meant To Do.”-Leroy Satchel Paige
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Wages; Wage Distortion; Definition (2009)……………………………………………………………90

Wages; Wage Distortion; Means of Solving (2009)……………………………………………………90

Working Hours; Emergency Overtime Work (2010)…………………………………………………91

Termination of Employment

Backwages; Money Claims; OFW (2010)…………………………………………………………………91

Dismissal; Defiance of Return to Work Order (2008)………………………………………………92

Dismissal; Due Process; Requirement (2009)…………………………………………………………93

Dismissal; Illegal Dismissal; Disability Complaint (2013)…………………………………………94

Dismissal; Illegal Dismissal; Liabilities (2012)………………………………………………………95

Dismissal; Illegal Dismissal;

Separation Pay in Lieu of Reinstatement (2009)…………………........96

Dismissal; Authorized Causes; Closure & Cessation of Business (2012)………………………96

Dismissal; Authorized Causes; Closure & Cessation of Business;

Separation Pay (2012)……..............................................................96

Dismissal; Authorized Causes; Closure & Cessation of Business;

Separation Pay (2012)……..............................................................97

Dismissal; Just Cause; Loss of Trust and Confidence (2009)…………………………………….97

Dismissal; Just Cause; Serious Misconduct (2013)………………………………………………….98

Dismissal; Just Cause; Serious Misconduct (2009)………………………………………………….99

Dismissal; Just Cause; Serious Misconduct; Performance of Official Work (2013)…….....99

Dismissal; Just Cause; Without Due Process (2012)………………………………………………100

Dismissal; Just Cause; Willful Disobedience (2008)………………………………………………101

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Dismissal; Constructive Dismissal; Transfer (2013)………………………………………………102

Dismissal; OFW (2010)………………………………………………………………………………………102

Dismissal; Payroll Reinstatement (2009)…………………………………………………….………103

Dismissal; Reinstatement; Non-Compliance (2007)………………………………………………104

Dismissal; Reinstatement; Backwages; Damages (2009)………………………………..………104

Dismissal; Reinstatement Without Backwages (2009)……………………………………………105

Dismissal; Reinstatement; Self-Exceutory (2009)………………………………………….………105

Dismissal; Striking Members and Officers (2012)………………………………………….………106

Employee; Casual Employee (2007)……………………………………………………………….……107

Employee; Contractual Employee (2010)………………………………………………………..……107

Employee; Contractual Employee; Employing Retired Employee (2013)……………..……108

Employee; Contractual Employee of Legitimate Contractor (2012)…………………….……109

Employee; Contract of Partnership (2012)……………………………………………………………109

Employee; Employment Contract Impressed with Public Interest (2008)…………….……110

Employee; Field Personnel vs. Contractual Employee; Benefits (2010)…………………….111

Employee; Fixed Term Employee (2012)………………………………………………………………111

Employee; Project Employee (2009)……………………………………………………………………112

Employee; Regular Employee; Driver (2012)…………………………………………………………113

Employee; Regular Employee; (2008)……….…………………………………………………………113

Employee; Regular Employee; OFW (2009)…………………………………………………………..113

Employee; Regular Seasonal Employee (2010)………………………………………………………114

Quitclaims; Waivers; Release (2010)……………………………………………………………………114

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Resignation; Voluntary; Quitclaim (2010)…………………………………………………………….115

Retirement; Additional Service Rendered (2013)……………………………………..……………116

Retirement; Types (2007)………………………………………………………………….………………117

Retirement Benefits; Boundary System (2012)……………………………………..………………117

Retirement Benefits; Computation (2012)……………………………………………………………117

Wages; Money Claims, Computation (2009)…………………………………………….……………118

Social Legislations

GSIS; Compulsory Coverage (2009)…………………………………………………………..…………119

Paternity Leave Act of 1996 (2013)…………………………………………………………….………119

SSS; Compulsory Coverage; Cooperative Member (2009)…………………………………..……119

SSS; Maternity Benefits (2010)………………………………………………………………………..…120

SSS; Maternity Benefits (2007)…………………………………………………………………………..120

SSS; Magna Carta of Women (2013)…………………………………………………………………….121

SSS; Money Claims (2008)…………………………………………………………………………………121

SSS; Monthly Contribution (2008)………………………………………………………………………121

MULTIPLE CHOICE QUESTIONS

2013 Labor Law Exam MCQ (October 6, 2013)….……………………………………….…..........122

2012 Labor Law Exam MCQ (October 7, 2012)..….………………………………………….........133

2011 Labor Law Exam MCQ (November 6, 2011).………………………………….……….........166

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General Principles Constitutional Provision;

Codetermination (2007)
Constitutional Provisions on Labor
(2009) No. I. a. What is the principle of
codetermination?
No. II. a. Enumerate at least four (4)
policies enshrined in Section 3, Article XIII SUGGESTED ANSWER:

of the Constitution that are not covered by

The principle of codetermination is one
Article 3 of the Labor Code on declaration of
which grants to the workers the right to
basic policy. (2%)
participate in policy and decision
making processes affecting their rights
SUGGESTED ANSWER:
and benefits (Art. 255, Labor Code).
Four (4) policies enshrined in Section 3,
FIRST ALTERNATIVE ANSWER:
Article XIII of the 1987 Constitution
which are not covered by Article 3 of the By the principle of codetermination, the
Labor Code on declaration of basic policy workers have a right to participate in the
are: decision making process of employers on
matters affecting their rights and
(1) All workers shall have the right to
benefits, through collective bargaining
peaceful concerted activities,
agreements, grievance machineries,
(2) Including the right to strike in voluntary modes of settling disputes and
accordance with the law conciliation proceedings mediated by
government.
(3) They shall be entitled to a living wage
SECOND ALTERNATIVE ANSWER:
(4) They shall participate in policy and
decision making processes affecting Codetermination is a term identified
their rights and benefits as may be with workers‘ participation in the
provided by law. determination of business policy. Under
the German model, the most common
(5) The state shall promote the principle
form of codetermination, employees of
of shared responsibility between workers
some firms are allocated control rights
and employers.
by law, in the form of board seats. It is
based on the conviction that democratic
legitimacy cannot be confined to
government but must apply to all sectors

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of society. Besides corporate control in the Labor Code, is security of tenure

rights, the German system deals with clause in the L:abor Code, is
dual channels of representation of unconstitutional as it goes against the
employees by unions (at the industry- entitlement of workers to security of
wide, and microeconomic level) and tenure under Section 3, Article XIII of
works councils (at the firm level). the 1987 Constitution.

The second innovation measure, on a law

allowing contractualization in all areas
Constitutional Provision; Right to
needed in the employer‘s business
Security of Tenure (2009)
operations, is legal. Article 106 of the
Labor Code already allows the Secretary
No. XII. In her State of the Nation Address,
of labor and Employment not to make
the President stressed the need to provide
appropriate distinction between labor-
an investor-friendly business environment
only and job contracting. This means
so that the country can compete in the
that the Secretary may decide, through
global economy that now suffers from a
implementing regulation, arrangement
crisis bordering on recession. Responding
where the person supplying workers to
to the call, Congress passed two innovative
an employer does not have substantial
legislative measures, namely: (1) a law
capital or investment in the form of
abolishing the security of tenure clause in
tools, equipment, machineries, work
the Labor Code; and (2) a law allowing
premises, among others, and the workers
contractualization in all areas needed in the
recruited and place by such person are
employer’s business operations. However,
performing activities which are directly
to soften the impact of these new measures,
related to the principal business of the
the law requires that all employers shall
employer.
obtain mandatory unemployment insurance
coverage for all their employees. Hence, it would be legal for Congress to
do any with the prohibition on labor-only
The constitutionality of the two (2) laws is
contracting and allow contractualization
challenged in court. As judge, how will you
in all areas needed in the employer‘s
rule? (5%)
business operations. Assuming, of

SUGGESTED ANSWER: course, that contractual workers are

guaranteed their security of tenure.
The first innovative measure, on
abolition of the security of tenure clause

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Interpretation of Labor Laws (2009) No, the NLRC is not correct. Article 221
of the Labor Code read: ―In any
No. II. b. Clarito, an employee of Juan, was
proceeding before the Commission….the
dismissed for allegedly stealing Juan’s
rules of evidence prevailing in Courts of
wristwatch. In the illegal dismissal case
law….shall not be controlling and it is
instituted by Clarito, the Labor Arbiter,
the spirit and intention of this Code that
citing Article 4 of the Labor Code, ruled in
the Commission and its members and
favor of Clarito upon finding Juan’s
the Labor Arbiters shall use every and
testimony doubtful. On appeal, the NLRC
reasonable means to ascertain the facts
reversed the Labor Arbiter holding that
in each case speedily and objectively
Article 4 applies only when the doubt
without regard to technicalities of law
involves "implementation and
and procedure, all in the interest of due
interpretation" of the Labor Code
process.‖ The question of doubt is not
provisions. The NLRC explained that the
important in this case.
doubt may not necessarily be resolved in
favor of labor since this case involves the
application of the Rules on Evidence, not
Rights of the Employer; Management
the Labor Code. Is the NLRC correct?
Prerogative; Overtime Work (2013)
Reasons. (3%)
No. V. Cris filed a complaint for illegal
SUGGESTED ANSWER:
dismissal against Baker Company. The
The NLRC is not correct. It is well Labor Arbiter dismissed the complaint but
settled doctrine that if doubts exist awarded Cris financial assistance. Only the
between the evidence presented by the company appealed from the Labor Arbiter's
employer and the employee, the scale of ruling. It confined its appeal solely to the
justice must be tilted in favor of the question of whether financial assistance
latter. It is a time honored rule that in could be awarded. The NLRC, instead of
controversies between labor and the ruling solely on the appealed issue, fully
employee, doubts necessarily arising reversed the Labor Arbiter's decision; it
from the evidence, or in the found Baker Company liable for illegal
implementation of the agreement and dismissal and ordered the payment of
writing should be resolved in favor of the separation pay and full backwages.
labor.
Through a petition for certiorari under Rule
ALTERNATIVE ANSWER: 65 of the Rules of Court, Baker Company

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challenged the validity of the NLRC ruling. Rights of the Employer; Management
It argued that the NLRC acted with grave Prerogative; Suspension of Business
abuse of discretion when it ruled on the Operation (2012)
illegal dismissal issue, when the only issue
brought on appeal was the legal propriety of No. VIII. c. ABC Tomato Corporation, owned

the financial assistance award. and managed by three (3) elderly brothers
and two (2) sisters, has been in business for
Cris countered that under Article 218(c) of 40 years. Due to serious business losses
the Labor Code, the NLRC has the authority and financial reverses during the last five
to "correct, amend, or waive any error, (5) years, they decided to close the
defect or irregularity whether in substance business.
or in form" in the exercise of its appellate
jurisdiction. Is the closure allowed by law? (2%)

Decide the case. (8%) SUGGESTED ANSWER:

SUGGESTED ANSWER: Yes, the determination to cease or

suspend operations is a prerogative of
The review power of the NLRC in management that the State usually does
perfected appeals is limited only to not interfere with, as no business can be
those issues raised on appeal. Hence, it required to continue operating to simply
is grave abuse of discretion for the NLRC maintain the workers in
to resolve issues not raised on appeal employment.(San Pedro Hospital of
(United Placement International v. Digos v. Secretary of Labor, G.R. No.
NLRC, 221 SCRA 445 [1993]). 104624, October 11, 1996; Espina v. CA,
519 SCRA 327 [2007])
ALTERNATIVE ANSWER:

In the exercise of its jurisdiction, the

NLRC is empowered to determine even Rights of the Employer; Management
the issues not raised on appeal in order Prerogative; Right to Transfer Employee
to fully settle the issues surrounding the (2013)
case [See: Art. 218(e), now Art. 224(e)].
No. IV. a. Bobby, who was assigned as
company branch accountant in Tarlac
where his family also lives, was dismissed
by Theta Company after anomalies in the

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company's accounts were discovered in the the reinstatement of Bobby ought to be

branch Bobby filed a complaint and was to his former position, much akin to
ordered reinstated with full backwages after return to work order, i.e., to restore the
the Labor Arbiter found that he had been status quo in the work place (Composite
denied due process because no Enterprises v. Capamaroso, 529 SCRA
investigation actually took place. 470 [2007]).

Theta Company appealed to the National ALTERNATIVE ANSWER:

Labor Relations Commission (NLRC) and at

No, under article 223 of the Labor Code,
the same time wrote Bobby, advising him to
the reinstatement order of the Labor
report to the main company office in Makati
Arbiter is immediately executor even
where he would be reinstated pending
pending appeal, should pertain to
appeal Bobby refused to comply with his
restoration to status quo ante.
new assignment because Makati is very far
from Tarlac and he cannot bring his family
to live with him due to the higher cost of
Rights of the Employer; Management
living in Makati.
Prerogative; Weight Policy (2008)

Is Bobby's reinstatement pending appeal

No. X. Pepe Santos was an international
legally correct? (4%)
flight steward of Flysafe Airlines. Under
FSA's Cabin Crew Administration Manual,
SUGGESTED ANSWER:
Santos must maintain, given his height and
No, it is not legally correct. The transfer body frame, a weight of 150 to 170 pounds.
of an employee ordinarily lies within the
ambit of management prerogatives. But After 5 years as a flight steward, Santos
like other rights, there are limits began struggling with his weight; he
thereto. This managerial prerogative to weighed 200 lbs., 30 pounds over the
transfer personnel must be exercised prescribed maximum weight. The Airline
without grave abuse of discretion, gave him a one-year period to attain the
bearing in mind the basic element of prescribed weight, and enrolled him in
justice and fair play. Thus, the transfer several weight reduction programs. He
of Bobby form Tarlac to Makati must be consistently failed to meet his target. He
done in good faith, and it must not be was given a 6-month grace period, after
unreasonable, inconvenient or which he still failed to meet the weight
prejudicial to the employee. For another, limit. FSC thus sent him a Notice of

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Administrative Charge for violation of The exercise of management

company standards on weight prerogatives may be availed of for as
requirements. He stated in his answer that, long as they are reasonable, exercised in
for medical reasons, he cannot have a rapid good faith and do not infringed upon the
weight loss. A clarificatory hearing was held employee‘s security of tenure. It is
where Santos fully explained his circumscribed by limitations found in
predicament. The explanation did not law, collective bargaining agreement, or
satisfy FSA and so it decided to terminate the general principles of fair play and
Santos's service for violation of company justice (PAL v. NLRC, G.R. No. 85985,
standards. August 13, 1993). The weight policy
clearly has repercussions on Pepe
Santos filed a complaint for illegal Santo‘s right to security of tenure. After
dismissal, arguing that the company's Pepe established that his inability to
weight requirement policy is unreasonable lose weight despite earnest effort was a
and that his case is not a disciplinary but a medical problem, it cannot be said that
medical issue (as one gets older, the natural he acted with gross habitual neglect of
tendency is to grow heavier). FSA defended duty.
its policy as a valid exercise of management
prerogative and from the point of view of
passenger safety and extraordinarydiligence
required by law of common carriers; it also Jurisdiction
posited that Santos failure to achieve his
ideal weight constituted gross and habitual Bureau of Labor Relations; Compromise

neglect of duty, as well as willful Agreement (2007)

disobedience to lawful employer orders. The

No. VII. a. May the NLRC or the courts take
Labor Arbiter found the dismissal illegal for
jurisdictional cognizance over compromise
there was neither gross and habitual
agreements/settlements involving labor
neglect of duty nor willful disobedience.
matters? (5%)

Is the Labor Arbiter correct? Why or why

SUGGESTED ANSWER:
not? Explain fully. (6%)
No, any compromise agreement,
SUGGESTED ANSWER:
including those involving labor
standards laws, voluntary agreed upon
Yes, the Labor Arbiter is correct.
by the parties with the assistance of the

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Bureau or the regional office of the whose 5-month term had also elapsed,
Department of labor, shall be final and joined Lina's hunger strike.
biding upon the parties. The national
Labor Relations Commission or any Assume that no fixed-term worker

court shall not assume jurisdiction over complained, yet in a routine inspection a

issues involved therein except in case of labor inspector of the Regional Office of the

non-compliance thereof or if there is Labor Code's security of tenure provisions

prima facie evidence that the and recommended to the Regional Director

settlement was obtained through fraud, the issuance a compliance order. The

misrepresentation, or coercion (Art. 227, Regional Director adopted the

Labor Code). recommendation and issued a compliance

order. Is the compliance order valid?
Explain your answer. (3%)

DOLE Regional Director; Visitorial and

SUGGESTED ANSWER:
Enforcement Power; Compliance Order
(2008) No, the compliance order is not valid.

No. III. c. Savoy Department Store (SDS) The Regional Director exercises only
adopted a policy of hiring salesladies on visitorial and enforcement power over
five-month cycles. At the end of a the labor standard cases, and the power
saleslady's five-month term, another person to adjudicate uncontested money claims
is hired as replacement. Salesladies attend of employees. The Regional Director has
to store customers, were SDS uniforms, no power to rule on SDS‘s 5-month term
report at specified hours, and are subject to policy.
SDS workplace rules and regulations.
Those who refuse the 5-month employment ALTERNATIVE ANSWER:
contract are not hired.
Yes, the Compliance Order is valid
The day after expiration of her 5-month because the Secretary of Labor and
engagement, Lina wore her SDS white and Employment or his duly authorized
blue uniform and reported for work but was representatives has the power to issue
denied entry into the store premises. compliance orders to give effect to the
Agitated, she went on a hunger strike and labor standards based on the findings of
stationed herself in front of one of the gates labor employment and enforcement
of SDS. Soon thereafter, other employees officers or industrial safety engineers

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made during inspection. The Secretary Labor Arbiter; Appeals (2007)

ot his duly authorized representatives
No. VI. Procedurally, how do you stay a
may issue writs of execution to the
decision, award or order of the Labor
appropriate authority for the
Arbiter? Discuss fully. (5%)
enforcement of their orders (Art. 128,
Labor Code; V.L. Enterprises and/or
SUGGESTED ANSWER:
Visitacion v. CA, G.R. No. 167512, March
12, 2007). Decisions, awards, or orders of the Labor
Arbiter may be stayed by filing an appeal
to the Commission by any or both
parties within ten (10) calendar days
DOLE Regional Director; Visitorial and
from receipt of such decisions, awards,
Enforcement Power; Money Claims
or orders.
(2009)

No. I. a. The visitorial and enforcement In case of appeal of a LA‘s judgment

powers of the DOLE Regional Director to involving a monetary award, it may only

order and enforce compliance with labor be stayed upon the posting of a cash or

standard laws can be exercised even when surety bond issued by a reputable

the individual claim exceeds P5,000.00. bonding company duly accredited by the

(5%) Commission in the amount equivalent to

the monetary award in the judgment
SUGGESTED ANSWER: appealed from (Art. 223, Labor Code).

TRUE. The visitorial and enforcement

ALTERNATIVE ANSWER:
power of the DOLE Regional Director to
order and enforce compliance with labor By perfecting an appeal, through the
standards laws can be exercised even filing an Appeal Memorandum within 10
when the individual claims exceeds days from receipt of such decision,
P5,000.00 the authority under Article verified by the appellant and
128 may be exercised regardless of the accompanied by his Non-Forum
monetary value involved. Under Article Certification, proof of service on the
129, however the authority is only for other party, proof of payment of the
claims not exceeding P5,000.00 per appeal fee and cash or surety bond in the
claimant. amount equivalent to the monetary
award of the judgment appeal from

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Reinstatement is immediately executor Yes, provided that the same is not

(Art. 223, Labor Code). unconscionable, and the agreement was
approved by the Labor Arbiter, the NLRC
or the Court of Appeals, before whom the
case is pending.
Labor Arbiter; Compromise Agreement
(2007)
SECOND ALTERNATIVE ANSWER:

No. XIII. May a decision of the Labor Arbiter Yes, provided that the new agreement is
which has become final and executory be not tainted with fraud duress or undue
novated through a compromise agreement influence.
of the parties? (5%)

SUGGESTED ANSWER:
Yes, although Article 221 of the Labor
Code requires the Labor Arbiter to exert
all efforts to amicably settle the case
Labor Arbiter; Execution Order; Appeal
(2007)
No. XII. b. Cite two instances when an order

before him ―on or before the first of execution may be appealed. (5%)

hearing‖, it must be noted that neither

SUGGETED ANSWER:
the Labor Code nor its implementing
rule as well as the NLRC Rules prohibit An Order of Execution may be appealed:
the amicable settlement of cases during
(1) Where the Order of Execution varies
the pendency of the proceeding or after
or goes beyond the terms of the
a judgment is issued thereupon.
judgment it seeks to enforce or the
The established rule is that the terms of the judgment are ambiguous
compromise agreement or amicable (DBP v. Union Bank, 419 SCRA 131
settlement may still be made even after [2004]);
the judgment has become final and
executor. Settlement of case is (2) Where the implementation of the
encourage abs authorized by law. Article Order was irregular (Metrobank v. C.A.
2040 of the Civil Code impliedly 356 SCRA 563 [2001]).
authorizes this. It is even encourage by
ALTERNATIVE ANSWER:
express provision of law.

(1) When its execution becomes

FIRST ALTERNATTIVE ANSWER:
impossible or unjust, it may be modified

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or altered on appeal or harmonize the writ of execution on a judgment only

same with justice and the facts (Torres v. within five (5) years from the date it
NLRC, 339 SCRA 311 [2001]). becomes final and executory, so
requiring the sheriff or duly deputized
(2) Supervening events may warrant
officer to execute the same. No motion
modification in the execution of the
for execution shall be entertained nor a
judgment, as when reinstatement is no
writ be issued unless the labor Arbiter is
longer possible because the position was
in possession of the records of the case
abolished as a cost-cutting measure due
which shall include an entry of judgment
to losses (Abalos v. Philex Mining Corp.,
in case of appeal except hat, as provided
393 SCRA 134 [2000]).
for in Section 10 Rule VI, and in those
cases where partial execution is allowed
by law, the Labor Arbiter shall restrain
Labor Arbiter; Execution, Orders or
duplicate original copies thereof for the
Awards (2007)
purpose of its immediate enforcement.

No. XII. a. How do you execute a labor

judgment which, on appeal, had become
Labor Arbiter; Labor Disputes; Barangay
final and executory? Discuss fully. (5%)
Lupong Tagapamayapa (2007)

SUGGESTED ANSWER:
No. XVII. P.D. 1508 requires the

Execution shall issue upon an order, submission of disputes before the Barangay

resolution or decision that finally Lupong Tagapamayapa prior to the filing of

disposes of the action or proceedings cases with the courts or other government

after the counsel of record and the bodies. May this decree be used to defeat a

parties shall have been furnished with labor case filed directly with the Labor

copies of the decision in accordance Arbiter? Discuss fully. (5%)

with these Rules but only after the

SUGGESTED ANSWER:
expiration of the period of appeal if no
appeal has been duly perfected.
No. Requiring conciliation of labor

The Labor Arbiter, the Regional Director, dispute before the Barangay Lupon

or his duly authorized hearing officer of Tagapamayapa would defeat the salutary

origin shall, motu proprio or upon purposes of the law. Instead of

motion of any interested party, issue a simplifying labor proceedings designed

at expeditious settlement or referral to

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the proper courts or office to decide it
finally, the conciliation of the issues
before the Barangay
Tagapamayapa would only duplicate the
conciliation proceedings
unduly delay the disposition of labor
cases (Montoya v. Escayo, 171 SCRA 446
contract in Qatar. Aggrieved, Richie filed
with the NLRC a complaint against SR and
Lupong MRA for damages corresponding to his two
years’ salary under the POEA-approved
and would contract.
SR and MRA traversed Richie’s complaint,

[1989]). raising the following arguments:

FIRST ALTERNATIVE ANSWER: The Labor Arbiter has no jurisdiction over

the case; (2%)
No, because under Article 217 of the
Labor Code, the Labor Arbiter exercises SUGGESTED ANSWER:
original and exclusive jurisdiction to
The Labor Arbiter has jurisdiction.
hear and decide cases involving all
Section 10, R.A. No. 8042, reads:
workers, whether agricultural or non-
agricultural. ―Money Claims. – Notwithstanding any
provision of law to the contrary, the
SECOND ALTERNATIVE ANSWER:
Labor Arbiters of the National Labor

P.D. 1508 does not apply to labor Relations Commission (NLRC) shall have

dispute because labor cases have their the original and exclusive jurisdiction to

own grievance and mediation processes. hear and decide, within ninety (90)
calendar days after the filing of the
complaint, the claims arising out of an
employer – employee relationship or by
Labor Arbiter; Money Claims (2009)
virtue of any law or contract involving

No. III. a. Richie, a driver-mechanic, was Filipino workers for overseas deployment

recruited by Supreme Recruiters (SR) and including claims for actual, moral,

its principal, Mideast Recruitment Agency exemplary and other forms of damages.‖
(MRA), to work in Qatar for a period of two
ALTERNATIVE ANSWER:
(2) years. However, soon after the contract
was approved by POEA, MRA advised SR to The Labor Arbiter has no jurisdiction
forego Richie’s deployment because it had over the case. The failure to deploy a
already hired another Filipino driver- worker within the prescribed period
mechanic, who had just completed his without valid reason is a recruitment

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violation under the jurisdiction of the the Labor Arbiter (Pioneer Texturizing
POEA. Corp. v. NLRC,280 SCRA 806 [1997]).

ALTERNATIVE ANSWER:

Labor Arbiter; Reinstatement Pending Yes, JSA can be compelled to reinstate

Appeal (2009) Alexander, pending appeal of the
decision of the Labor Arbiter to the
No. VIII. a. Alexander, a security guard of NLRC, even if JSA post a bond.
Jaguar Security Agency (JSA), could not be
given any assignment because no client ―Art. 223. Appeal xxx In any event, the

would accept him. He had a face only a decision of the Labor Arbiter reinstating

mother could love. After six (6) months of a dismissed or separated employee,

being on "floating" status, Alexander sued insofar as the reinstatement aspect is

JSA for constructive dismissal. The Labor concerned shall be immediately

Arbiter upheld Alexander’s claim of executor, even pending appeal and the

constructive dismissal and ordered JSA to posting of a bond.

immediately reinstate Alexander. JSA

appealed the decision to the NLRC.
Alexander sought immediate enforcement of Labor Arbiter; ULP; Damages and Reliefs
the reinstatement order while the appeal (2012)
was pending.
No. III. a. On August 01, 2008, Y, a
JSA hires you as lawyer, and seeks your corporation engaged in the manufacture of
advice on the following: textile garments, entered into a collective
bargaining agreement with Union X in
Because JSA has no client who would representation of the rank and-file
accept Alexander, can it still be compelled employees of the corporation. The CBA was
to reinstate him pending appeal even if it effective up to June 20, 2011. The contract
has posted an appeal bond? (2%) had an automatic renewal clause which
would allow the agreement after its expiry
SUGGESTED ANSWER:
date to still apply until both parties would
have been able to execute a new agreement.
No, the posting of the bond of the
On May 10, 2011, Union X submitted to Y's
employer does not have the effect of
management their proposals for the
staying the execution of the
negotiation of a new CBA. The next day, Y
reinstatement aspect of the decision of

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suspended negotiations with Union X since 254 of the Code from excercising
Y had entered into a merger with z,· a jurisdiction over the case.
corporation also engaged in the
manufacture of textile garments. Z
assumed all the assets and liabilities of Y. Labor Arbiter; Voluntary Arbitration
Union X filed a complaint with the Regional (2008)
Trial Court for specific performance and
damages with a prayer for preliminary No. II. b. Can a dispute falling within the
injunction against Y and Z and Z filed a exclusive jurisdiction of the Labor Arbiter
Motion to Dismiss based on lack of be submitted to voluntary arbitration? Why
jurisdiction. Rule on the Motion to Dismiss. or why not? (3%)
(5%)
SUGGESTED ANSWER:
SUGGESTED ANSWER:
Yes, provided that the parties to the
The Motion to Dismiss must be granted. dispute falling within the exclusive
The claim against Y and Z consisits jurisdiction of the Labor Arbiter states in
mainly of the civil aspect of the unfair unequivocal language that they conform
labor practice charge referred to in to the submission of said dispute to the
Article 247 of the Labor Code. Under voluntary arbitration (Vivero v. CA, G.R.
Article 247 of the Code, ―the civil No . 138938, October 24, 2000).
aspects of all cases involiving unfair
labor practices, which may include
claims for damages and other affirmative
Nat‘l Labor Relations Commission (2013)
relief, shall be under the jurisdiction of
the labor arbiters.‖ (National Union of No. V. Cris filed a complaint for illegal
Bank Employees v. Lazaro, G.R. No. dismissal against Baker Company. The
56431, ajnuary 19, 1988). Besides, what Labor Arbiter dismissed the complaint but
the aprties have is a labor dispute as awarded Cris financial assistance. Only the
defined in Article 212 (I) of the Labor company appealed from the Labor Arbiter's
Code ―regardless of whether the ruling. It confined its appeal solely to the
disputants stand in the proximate question of whether financial assistance
relation of employer abd employee‖. could be awarded. The NLRC, instead of
Being so, the RTC is prohibited by Art. ruling solely on the appealed issue, fully
reversed the Labor Arbiter's decision; it

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Labor Law Q&As (2007-2013)
found Baker Company liable for illegal
dismissal and ordered the payment of
separation pay and full backwages.
Through a petition for certiorari under Rule
65 of the Rules of Court, Baker Company
challenged the validity of the NLRC ruling.
It argued that the NLRC acted with grave
abuse of discretion when it ruled on the
illegal dismissal issue, when the only issue
brought on appeal was the legal propriety of
the financial assistance award.
Cris countered that under Article 218(c) of
the Labor Code, the NLRC has the authority
to "correct, amend, or waive any error,
defect or irregularity whether in substance
or in form" in the exercise of its appellate
jurisdiction.
Decide the case. (8%)
SUGGESTED ANSWER:
The review power of the NLRC
perfected appeals is limited only to
those issues raised on appeal. Hence, it
is grave abuse of discretion for the NLRC
to resolve issues not raised on appeal
(United Placement International
NLRC, 221 SCRA 445 [1993]).
ALTERNATIVE ANSWER:
In the exercise of its jurisdiction, the
NLRC is empowered to determine even
the issues not raised on appeal in order
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hectorchristopher@yahoo.com faithrollan5@yahoo.com
to fully settle the issues surrounding the
case [See: Art. 218(e), now Art. 224(e)].
Sec. of Labor; Assumption over Labor
Dispute (2013)
No. VII. Philippine Electric Company is
engaged in electric power generation and
distribution. It is a unionized company with
Kilusang Makatao as the union
representing its rank-and-file employees.
During the negotiations for their expired
collective bargaining agreement (CBA), the
parties duly served their proposals and
counter-proposals on one another. The
parties, however, failed to discuss the
merits of their proposals and counter-
proposals in any formal negotiation meeting
because their talks already bogged down on
the negotiation ground rules, i.e., on the
question of how they would conduct their
negotiations, particularly on whether to
in consider retirement as a negotiable issue.
Because of the continued impasse, the
union went on strike. The Secretary of
Labor and Employment immediately
v. assumed jurisdiction over the dispute to
avert widespread electric power interruption
in the country. After extensive discussions
and the filing of position papers (before the
National Conciliation and Mediation Board
and before the Secretary himself) on the
validity of the union's strike and on the
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wage and other economic issues (including requirements, the Union staged a strike
the retirement issue), the DOLE Secretary and picketed the premises of the company.
ruled on the validity of the strike and on The management then filed a petition for
the disputed CBA issues, and ordered the the Secretary of Labor and Employment to
parties to execute a CBA based on his assume jurisdiction over the dispute.
rulings. Without the benefit of a hearing, the
Secretary issued an Order to assume
Did the Secretary of Labor exceed his jurisdiction and for the parties to revert to
jurisdiction when he proceeded to rule on the status quo ante litem.
the parties' CBA positions even though the
parties did not fully negotiate on their own? Was the order to assume jurisdiction legal?
(8%) Explain. (2%)

SUGGESTED ANWER: SUGGESTED ANSWER:

No, the power of the Secretary of Labor Yes, the Secretary of Labor and

under Article 263(g) is plenary. He can Employment has plenary power to

rule on all issues, questions or assume jurisdiction under Article 263(g)

controversies arising from the labor of the Labor Code. When in his opinion,

dispute, including the legality of the there exists a labor dispute causing or

strike, even those over which the Labor likely to cause a strike or lockout in an

Arbiter has exclusive jurisdiction industry indispensable to the national

(Bangong Pagkkaisa ng mga Manggagawa interest, the Secretary of Labor may

sa Triumph International v. Secretary, assume jurisdiction over the dispute and

G.N. No. 167401 and 167407, July 5, decide it or certify it to the NLRC for

2010). compulsory arbitration (Art. 263[g],

Labor Code). This extraordinary
authority given to the Secretary of Labor
is aimed at arriving at a peaceful and
Sec. of Labor; Assumption over Labor speedy solution to labor disputes,
Dispute (2010) without jeopardizing national interests
(Steel Corporation v. SCP Employees
No. XIX. a. Several employees and members
Union, 551 SCRA 594 [2008]). Such
of Union A were terminated by Western
assumption shall have the effect of
Phone Co. on the ground of redundancy.
automatic enjoining an impending strike
After complying with the necessary
or lockout, or an order directing

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immediate return to work and resume No, the Secretary of Labor‘s order will be
operations, if a strike already took place, inconsistent with the established policy
and for the employer to re-admit all of the State of enjoining the parties from
employees under the same terms and performing acts that undermine the
conditions prevailing before the strike or underlying principles embodied in
lockout (Art. 263(g), Labor Code; Sec. 15, Article 263(g) of the Labor Code.
Rule XXII, Dept. Order No. 40-G-03).
In this case, excepting the employees
terminated due to redundancy form
those who are required to return-to-
Sec. of Labor; Assumption over Labor
work, which was the very labor dispute
Dispute (2010)
that sparked the union to strike, the
Secretary of Labor comes short of his
No. XIX. b. Several employees and members
duty under Article 263(g) to maintain
of Union A were terminated by Western
status quo or the terms and conditions
Phone Co. on the ground of redundancy.
prevailing before the strike. In fact, the
After complying with the necessary
Secretary could be accused of disposing
requirements, the Union staged a strike
of the parties‘ labor dispute without the
and picketed the premises of the company.
benefit of a hearing, in clear derogation
The management then filed a petition for
of due process of law.
the Secretary of Labor and Employment to
assume jurisdiction over the dispute.
Without the benefit of a hearing, the
Secretary issued an Order to assume Sec. of Labor; Assumption over Labor

jurisdiction and for the parties to revert to Dispute (2008)

the status quo ante litem.

No. VI. b. On the day that the Union could

Under the same set of facts the Secretary validly declare a strike, the Secretary of

instead issued an Order directing all Labor issued an order assuming

striking workers to return to work within 24 jurisdiction over the dispute and enjoining

hours, except those who were terminated the strike, or if one has commenced,

due to redundancy. Was the Order legal? ordering the striking workers to

Explain. (3%) immediately return to work. The return-to-

work order required the employees to
SUGGESTED NASWER: return to work within twenty-four hours
and was served at 8 a.m. of the day the

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strike was to start. The order at the same Were the employees simply exercising their
time directed the Company to accept all constitutional right to petition for redness
employees under the same terms and of their grievances? (3%)
conditions of employment prior to the work
stoppage. The Union members did not SUGGESTED ANSWER:

return to work on the day the Secretary's

No, there was a defiance of the
assumption order was served nor on the
assumption order of the Secretary of
next day; instead, they held a continuing
Labor by the union. The assumption
protest rally against the company's alleged
order is immediately executor. Following
unfair labor practices. Because of the
an assumption order by the strikers is
accompanying picket, some of the
not a matter of option or voluntarinesss
employees who wanted to return to work
but of obligation on their part
failed to do so. On the 3rd day, the workers
(Marcopper Mining Corporation v.
reported for work, claiming that they do so
Brillantes, G.R. No. 119381, March 11,
in compliance with the Secretary's return-
1996; Art. 264[a], Labor Code).
to-work order that binds them as well as
the Company. The Company, however,
refused to admit them back since they had
violated the Secretary's return-to-work Sec. of Labor; Assumption over Labor
order and are now considered to have lost Dispute; National Interest (2008)
their employment status.
No. III. b. Savoy Department Store (SDS)
The Union officers and members filed a adopted a policy of hiring salesladies on
complaint for illegal dismissal arguing that five-month cycles. At the end of a
there was no strike but a protest rally saleslady's five-month term, another person
which is a valid exercise of the workers is hired as replacement. Salesladies attend
constitutional right to peaceable assembly to store customers, were SDS uniforms,
and freedom of expression. Hence, there report at specified hours, and are subject to
was no basis for the termination of their SDS workplace rules and regulations.
employment. Those who refuse the 5-month employment
contract are not hired.
You are the Labor Arbiter to whom the case
was raffled. Decide, ruling on the following The day after expiration of her 5-month
issues: engagement, Lina wore her SDS white and
blue uniform and reported for work but was

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denied entry into the store premises. terminated from employment due to
Agitated, she went on a hunger strike and violation of the memorandum-policy. The
stationed herself in front of one of the gates union countered with a prohibitory
of SDS. Soon thereafter, other employees injunction case (with prayer for the
whose 5-month term had also elapsed, issuance of a temporary restraining order)
joined Lina's hunger strike. filed with the Regional Trial Court,
challenging the validity and
The owner of SDS considered the hunger constitutionality of the cell phone ban. The
strike staged by Lina, et al.., an eyesore and company filed a motion to dismiss, arguing
disruptive of SDS business. He wrote the that the case should be referred to the
Secretary of Labor a letter asking him to grievance machinery pursuant to an
assume jurisdiction over the dispute and existing Collective Bargaining Agreement
enjoin the hunger "strike". What answer will with Union X, and eventually to Voluntary
you give if you were the Secretary of Labor? Arbitration. Is the company correct?
(3%) Explain. (3%)

SUGGESTED ANSWER: SUGGESTED ANSWER:

Although the Secretary of Labor has wide Yes, termination cases arising in or

discretion in exercising jurisdiction over resulting from the interpretation and

labor dispute, he may not enjoin the implementation of the collective

strike because SDS‘s is not indispensable bargaining agreements, and

to the national interest (Art. 263[g], interpretation and enforcement of

Labor Code). company personnel policies which were

initially processed at the various steps of
the plant-level Grievance Procedure
under the parties collective bargaining
Voluntary Arbitrators (2010) agreements, fall within the original and
exclusive jurisdiction of the voluntary
No. XXV. Company C, a toy manufacturer,
arbitrator pursuant to Article 217 (c) of
decided to ban the use of cell phones in the
the Labor Code.
factory premises. In the pertinent
Memorandum, management explained that ALTERNATIVE ANSWER:
too much texting and phone-calling by
employees disrupted company operations. No, the Regional Trial Court has

Two employee members of Union X were jurisdiction to hear and decide the
prohibitory injunction case filed by

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Union X against Company C to enjoin ALTERNATIVE ANSWER:

the latter from implementing the
(1) CONCILIATION is the process of
memorandum-policy against use of cell
dispute management whereby parties in
phones in the factory. What is at issue in
dispute are brought together for the
Union X‘s challenge against the validity
purpose of: (1) amicably settling the case
and constitutionality of the cell phone
upon a fair compromise; (2) determining
ban being implemented by Company C.
the real parties in interest; (3) defining
the issue, therefore, does not involve the
and simplifying the issues in the case;
interpretation of the memorandum-
(4) entering into admissions or
policy, but its intrinsic validity
stipulations of facts; and (5) threshing
(Haliguefla v. PAL, 602 SCRA 297
out all other preliminary matters
[2009]).
(Section 3, Rule V, 2005 NLRC Rules of
Procedure). In resolving labor disputes,
this comes before arbitration, as a
Voluntary Arbitrator; Conciliation;
mandatory process, pursuant to the
Mediation; Arbitration (2010)
State policy of promoting and

No. II. a. Distinguish the terms emphasizing conciliation as modes of

“conciliation,” “mediation” and “arbitration.” settling labor disputes (Art. 211 (A)(a),

(3%) Labor Code).

SUGGESTED ANSWER:
(2) MEDIATION is a voluntary process of

There is a DOLE official called a settling disputes whereby the parties

―Conciliator Mediator‖. He is an officer elect a mediator to facilitate the

of the NCMB whose principal function is communication and negotiation between

to assist in the settlement and the parties in dispute for the purpose of

disposition of labor – management assisting them in reaching a

disputes through conciliation and compromise. (Sec. 3(q), Rep. Act No.

preventive mediation. However, he does 9285 or the Alternative Dispute

not promulgate decisions that settle Resolution Law).

controversies about rights, which are

demandable and enforceable. The latter (3) ARBITRATION is a system of dispute

is called arbitration and is the function settlement that may be compulsory or

of a labor arbiter or a voluntary voluntary, whereby the parties are

arbitrator. compelled by the government, or agree

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to submit their dispute before an arbiter, (1) Distortion of the wage structure
with the intention to accept the within an establishment arising from any
resolution of said arbiter over the prescribed wage increase because of a
dispute as final and biding on them law or wage order which any Regional
(Luzon Development Bank v. Association Board issues (Art. 124, Labor Code); and
of Luzon Development Employees, 249
SCRA 162 [1995]). (2) Interpretation and implementation of
the parties‘ collective bargaining
(4) in this jurisdiction, compulsory agreement and those arising from the
arbitration in labor disputes are interpretation or enforcement of
submitted to a labor arbiter, whose company personnel policies (Art. 217, as
powers and functions are clearly defined amended by R.A. 6715; Art. 260, Labor
under Article 217(a) of the Labor Code; Code; Navarro III v. Damasco, G.R. No.
whereas in voluntary arbitration, the 101875, July 14, 1995).
powers and functions of the voluntary
arbitrator or panel of voluntary
arbitrators elected to resolve the parties‘
Voluntary Arbitrator; Voluntary
dispute involve the interpretation and
Arbitration; Compulsory Arbitration
implementation of the parties‘ collective
(2008)
bargaining agreement, pursuant to
Articles 260-262 of the Labor Code. No. II. c. Can a dispute falling within the
jurisdiction of a voluntary arbitrator be
submitted to compulsory arbitration? Why
Voluntary Arbitrator; Labor Disputes; or why not? (3%)
Voluntary Arbitration (2008) SUGGESTED ANSWER:
No, jurisdiction in compulsory
No. II. a. What issues or disputes may be arbitration is conferred by law, not by
the subject of voluntary arbitration under agreement of the parties (Veneracion v.
the Labor Code? (4%) Moncilla, G.R. No. 158238, July 20,
2006).
SUGGESTED ANSWER:

The law mandated that all grievances

Disputes that may be subject of
submitted to the grievance machinery
voluntary arbitration are:
which are not settled shall be referred to
the voluntary arbitration prescribed in

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the CBA Art. 260, Labor Code). This (3) if they are duly accredited members
procedure providing for a conclusive of the legal aid office recognized by the
arbitration clause in the CBA must be DOJ or IBP (Art. 222, Labor Code).
strictly adhered to and respected if the
None—lawyers cannot charge attorney‘s
ends are to be achieved (Liberal Labor
fees because the latter presuppose the
Union v. Phil. Can Co., G.R. No. L-4834,
existence of attorney-client relationship
March 28, 1952, cited in San Miguel
which exists only if the representative is
Corporation v, NLRC, G.R. No. 99266,
a lawyer (PAFLU v. BISCOM, 42 SCRA
March 02, 1999). Hence, to submit a
302 [1997]).
dispute falling within the jurisdiction of
a voluntary arbitration to compulsory ALTERNATIVE ANSWER:
arbitration would be to trifle faith the
Yes, non-lawyers may appear before the
express mandate of the law.
labor arbiter or the NLRC but only in the
following instances:
Labor Relations
(1) if they represent themselves, or
Non-Lawyers; Appearance; NLRC or LA
(2) if they represent their organization or
(2007)
members thereof, (Article 222, labor
No. V. May non-lawyers appear before the Code) provided that he presents a
NLRC or Labor Arbiter? May they charge verified certification form the said
attorney's fee for such appearance provided organization that he is properly
it is charged against union funds and in an authorized;
amount freely agreed upon by the parties? (3) he is duly accredited member of any
Discuss fully. (5%) legal aid office duly recognized by the
DOJ or IBP (Kanlaon Construction
SUGGESTED ANSWER:
Enterprises v. NLRC, 279 SCRA 337

Yes, non-lawyers can appear before the [1997])

NLRC or Labor Arbiters

ALTERNATIVE ANSWER:
(1) if they represent themselves,
(2) if they represent their legitimate Yes, attorney‘s fees may be charged

labor organization or members thereof, against union funds in an amount agreed

upon by the parties. Any stipulation to
the contrary is void (Art. 222, 2(b)).
However, 3 requisites must be complied

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with in order that a union‘s attorney‘s CBA; Certification Election (2009)

fees and representation expenses may be
valid and upheld: No. XV. b. Among the 400 regular rank-
and-file workers of MNO Company, a

(1) authorization by a written resolution certification election was ordered conducted

of majority of all the members at the by the Med-Arbiter of the Region. The

general membership meeting duly called contending parties obtained the following

for the purpose; votes:

(1) Union A - 70
(2) secretary‘s record of the minutes of
the meeting; and
(2) Union B - 71

(3) individual written authorization for (3)Union C – 42

check-off duly signed by the employee
concerned (ABS-CBN Corp. et al., Article (4). Union D - 33
241 (n) (o). 304 SCRA 489 [1999]).
(5). No union - 180

CBA; Automatic Renewal Clause (2008) (6). Spoiled votes - 4

No. I. a. Explain the automatic renewal There were no objections or challenges

clause of collective bargaining agreements. raised by any party on the results of the
(3%) election.

SUGGESTED ANSWER: May the management or lawyer of MNO

Company legally ask for the absolute
The automatic renewal clause of termination of the certification election
Collective Bargaining Agreements proceedings because 180 of the workers ---
requires that the parties maintain the a clear plurality of the voters --- have
status quo and continue the term and chosen not to be represented by any union?
condition of an expired CBA until a new Reasons. (3%)
agreement is reached (Pier 8 Arrastre &
Stevedoring Services, Inc v. Roldan- SUGGESTED ANSWER:

Confessor, G.R. No. 110854, February

No, because 216 workers want to be
13, 199; Art. 23, Labor Code).
represented by a union as bargaining
agent. Only 180 workers opted for No

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Union. Hence, a clear majority is in favor SUGGESTED ANSWER:

of being represented by a union.
No, to be certified as bargaining agent,
the vote required is majority of the valid
votes cast. There were 398 valid votes
CBA; Certification Election; Sole and
cast, the majority of which is 199. Since
Exclusive Collective Bargaining Agent
Union B got only 71 votes, it cannot be
(2009)
certified as the sole and exclusive
bargaining agent of MNO‘s rank-and file
No. XV. a. Among the 400 regular rank-
workers.
and-file workers of MNO Company, a
certification election was ordered conducted
by the Med-Arbiter of the Region. The
contending parties obtained the following CBA; Certification Election; Run-Off

votes: Election (2009)

(1). Union A - 70 No. XV. c. Among the 400 regular rank-

and-file workers of MNO Company, a
(2). Union B - 71 certification election was ordered conducted
by the Med-Arbiter of the Region. The
(3). Union C - 42 contending parties obtained the following
votes:
(4). Union D - 33

(1). Union A - 70
(5). No union - 180

(2). Union B - 71
(6). Spoiled votes - 4

(3). Union C - 42
There were no objections or challenges
raised by any party on the results of the (4). Union D - 33
election.
(5). No union - 180
Can Union B be certified as the sole and
exclusive collective bargaining agent among (6). Spoiled votes - 4
the rank-and-file workers of MNO Company
considering that it garnered the highest There were no objections or challenges

number of votes among the contending raised by any party on the results of the

unions? Why or why not? (3%) election.

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If you were the duly designated election membership in good standing with the
officer in this case, what would you do to union during the term of the CBA under
effectively achieve the purpose of pain of dismissal. The check-off clause on
certification election proceedings? Discuss. the other hand authorizes the company to
(3%) deduct from union members' salaries
defined amounts of union dues and other
SUGGESTED ANSWER:
fees. Pablo refused to issue an

I will conduct a run-off election between authorization to the company for the check-

the labor union receiving the two off of his dues, maintaining that he will

highest number of votes. To have a run-
off election, all the contending unions (3
or more choices required) must have
garnered 50% of the number of votes
cast. In the present case, there are four
(4) contending unions and they garnered
216 votes. There were 400 vote cast. The
votes garnered by the contending unions
is even more than 50% of the number of
vote cast. Hence, a run-off election is in
order.
CBA; Check-Off Clause (2013)
personally remit his dues to the union.
Would the NTC management commit unfair
labor practice if it desists from checking off
Pablo's union dues for lack of individual
authorization from Pablo? (4%)
SUGGESTED ANSWER:
No, under R.A. No. 9481, violation of the
Collective Bargaining Agreement, to be
an unfair labor practice, must be gross in
character. It must be a flagrant and
malicious refusal o comply with the
economic provisions of the CBA.

No. IX. a. Pablo works as a driver at the ALTERNATIVE ANSWER:

National Tire Company (NTC). He is a
No, check-offs in truth impose an extra
member of the Malayang Samahan ng
burden on the employer in the form of
Manggagawa sa NTC, the exclusive rank-
additional administrative and
and-file collective bargaining representative
bookkeeping costs. It is a burden
in the company. The union has a CBA with
assumed by management at the instance
NTC which contains a union security and a
of the union and for its benefit, in order
check-off clause. The union security clause
to facilitate the collection of dues
contains a maintenance of membership
necessary for the latter‘s life and
provision that requires all members of the
sustenance. But the obligation to pay
bargaining unit to maintain their
union dues and agency fees obviously

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devolves not upon the employer, but the off of his dues, maintaining that he will
individual employee. It is a personal personally remit his dues to the union.
obligation not demandable from the
employer upon default or refusal of the Can the union charge Pablo with disloyalty

employee to consent to a check-off. The for refusing to allow the check off of his

only obligation of the employer under a union dues and, on this basis, ask the

check-off is to effect the deductions and company to dismiss him from employment?

remit the collection to the union (Holy (4%)

Cross of Davao College v. Joaquin, G.R.

SUGGESTED ANSWER:
No. 110007 [1996]).

No, the ―check-off clause‖ in the CBA

will not suffice. The law prohibits
CBA; Check-Off Clause; Employee‘s interference with the disposition of
Salaries; Individual Written one‘s salary. The law requires ―individual
Authorization (2013) written authorization‖ to deduct union
dues from Pablo‘s salaries. For as long as
No. IX. b. Pablo works as a driver at the
he pays union dues, Pablo cannot be
National Tire Company (NTC). He is a
terminated from employment under the
member of the Malayang Samahan ng
union security clause. As a matter of
Manggagawa sa NTC, the exclusive rank-
fact, filing a complaint against the union
and-file collective bargaining representative
before the Department of Labor forcible
in the company. The union has a CBA with
deduction from salaries does not
NTC which contains a union security and a
constitute acts of disloyalty against the
check-off clause. The union security clause
union (Tolentino v. Angeles, 52 O.G.
contains a maintenance of membership
4262).
provision that requires all members of the
bargaining unit to maintain their
membership in good standing with the
CBA; Codetermination (2008)
union during the term of the CBA under
pain of dismissal. The check-off clause on
No. I. b. Explain the extent of the workers
the other hand authorizes the company to
right to participate in policy and decision-
deduct from union members' salaries
making process as provided under Article
defined amounts of union dues and other
XIII, Section 3 of the Philippine
fees. Pablo refused to issue an
Constitution. Does it include membership
authorization to the company for the check-

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in the Board of Directors of a corporation? in the employer unit or any specific

(3%) occupation or geographical grouping
within such employer unit. The test
SUGGESTED ANSWER: grouping is community or mutuality of
interests, such as substantial similarity
Under Art. XIII, Sec. 3 of the
of works or duties or of compensation
Constitution, the workers shall
and working conditions, because the
participate in policy and decision-
basic test of an asserted bargaining
making affecting their rights, duties,
unit‘s acceptability is whether or not it
welfare and benefits, through labor-
is fundamentally the combination which
management councils (See, Art. 211[g]
will best assure to all employees the
and 255 of the Labor Code). The workers‘
exercise of their collective bargaining
rights do not include membership in the
rights.
Board of Directors of a Corporation (See
Meralco v. Meralco Employees, G.R. No.
127598, January 27, 1999).
CBA; Codetermination (2007)

No. I. a. What is the principle of

codetermination? (5%)
CBA; Community Interest Rule (2007)
SUGGESTED ANSWER:
No. IV. b. Explain.
The principle of codetermination is one
The Community of Interest Rule. (5%) which grants to the workers the right to
participate in policy and decision
SUGGESTED ANSWER: making processes affecting their rights
and benefits. (Art. 255, Labor Code)
The Community Interest Rule – The
Community Interest Rule states that in FIRST ALTERNATIVE ANSWER:
choosing the appropriate bargaining
By the principle of codetermination, the
unit, there must be a determination of
workers have a right to participate in the
the community of interests of
decision making process of employers on
employees. A bargaining unit under DO
matters affecting their rights and
40-03 refers to a ―group of employees
benefits, through collective bargaining
sharing mutual interests within a given
agreements, grievance machineries,
employer unit, comprise of all or less
voluntary modes of settling disputes and
than all of the entire body of employees

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conciliation proceedings mediated by (1) Salary increases of P1,000 and P1,200

government. monthly, effective January 1, 2006 and
January 1, 2007, respectively;
SECOND ALTERNATIVE ANSWER:

(2) Vacation Leave and Sick Leave were

Codetermination is a term identified
adjusted from 12 days to 15 days annually
with workers‘ participation in the
for each employee;
determination of business policy. Under
the German model, the most common
(3) Medical subsidy of P3,000 per year for
form of codetermination, employees of
the purchase of medicines and
some firms are allocated control rights
hospitalization assistance of P10,000 per
by law, in the form of board seats. It is
year for actual hospital confinement;
based on the conviction that democratic
legitimacy cannot be confined to (4) Rice Subsidy of P600 per month,
government but must apply to all sectors provided the employee has worked for at
of society. Besides corporate control least 20 days within the particular month;
rights, the German system deals with and
dual channels of representation of
employees by unions (at the industry- (5) Birthday Leave with Pay and Birthday
wide, and microeconomic level) and Gift of P1,500.
works councils (at the firm level).
As early as October 2007, the Company
and the Union started negotiations to renew
the CBA. Despite mutual good faith and
CBA; Deadlock Bar Rule (2009)
earnest efforts, they could not agree.
No. XVI. b. The Company and Triple-X However, no union filed a petition for
Union, the certified bargaining agent of certification election during the freedom
rank-and-file employees, entered into a period. On March 30, 2008, no CBA had
Collective Bargaining Agreement (CBA) been concluded. Management learned that
effective for the period January 1, 2002 to the Union would declare a bargaining
December 31, 2007. deadlock on the next scheduled bargaining
meeting.
For the 4th and 5th years of the CBA, the
significant improvements in wages and As expected, on April 3, 2008, the Union
other benefits obtained by the Union were: declared a deadlock. In the afternoon of the
same day, management issued a formal

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announcement in writing, posted on the outside of the freedom period (Arts. 256
bulletin board, that due to the CBA & 253-A, labor Code).
expiration on December 31, 2007, all fringe
benefits contained therein are considered
withdrawn and can no longer be CBA; Duty to Bargain Collectively in
implemented, effective immediately. Good Faith (2009)

After April 3, 2008, will a petition for

No. XVI. c. The Company and Triple-X
certification election filed by another
Union, the certified bargaining agent of
legitimate labor union representing the
rank-and-file employees, entered into a
rank-and-file employees legally prosper?
Collective Bargaining Agreement (CBA)
Reasons. (3%)
effective for the period January 1, 2002 to

SUGGESTED ANSWER: December 31, 2007.

Yes, because the deadlock declared by
the Union had not been submitted to
conciliation or arbitration or had become
the subject of a valid notice of strike or
lockout. Any of these
For the 4th and 5th years of the CBA, the
significant improvements in wages and
other benefits obtained by the Union were:
measures is (1) Salary increases of P1,000 and P1,200

required to institute the so-called monthly, effective January 1, 2006 and

―deadlock bar rule.‖ January 1, 2007, respectively;

ALTERNATIVE ANSWER: (2) Vacation Leave and Sick Leave were

adjusted from 12 days to 15 days annually
The petition for certification Election
for each employee;
filed on April 3, 2008 by another union
will not prosper. Art. 253 of the Labor (3) Medical subsidy of P3,000 per year for
Code reads: ―It shall be the duty of both the purchase of medicines and
parties to keep the status quo and to hospitalization assistance of P10,000 per
continue in full force and effect the year for actual hospital confinement;
terms and conditions in full force and
effect the terms and conditions of the (4) Rice Subsidy of P600 per month,
existing agreement…until a new provided the employee has worked for at
agreement is reached by the parties.‖ least 20 days within the particular month;
Furthermore, the petition was filed and

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(5) Birthday Leave with Pay and Birthday collectively in good faith under Article
Gift of P1,500. 253, the Labor Code.

As early as October 2007, the Company

and the Union started negotiations to renew
CBA; Existing CBA Expired;
the CBA. Despite mutual good faith and
Consequences (2010)
earnest efforts, they could not agree.
However, no union filed a petition for No. VIII. ABC company and U labor union
certification election during the freedom have been negotiating for a new Collective
period. On March 30, 2008, no CBA had Bargaining Agreement (CBA) but failed to
been concluded. Management learned that agree on certain economic provisions of the
the Union would declare a bargaining existing agreement. In the meantime, the
deadlock on the next scheduled bargaining existing CBA expired. The company
meeting. thereafter refused to pay the employees
their midyear bonus, saying that the CBA
As expected, on April 3, 2008, the Union which provided for the grant of midyear
declared a deadlock. In the afternoon of the bonus to all company employees had
same day, management issued a formal already expired. Are the employees entitled
announcement in writing, posted on the to be paid their midyear bonus? Explain
bulletin board, that due to the CBA your answer. (3%)
expiration on December 31, 2007, all fringe
SUGGESTED ANSWER:
benefits contained therein are considered
withdrawn and can no longer be Yes, under Article 253 of the Labor Code,
implemented, effective immediately. the parties are duly-bound to maintain
the status quo and to continue in full
Is management’s withdrawal of the fringe
force and effect the terms and
benefits valid? Reasons. (2%)
conditions of the existing CBA until a
SUGGESTED ANSWER: new agreement is reached by the parties.

No, pending renewal of the CBA, the Likewise, Art. 253-A provides for an
parties are bound to keep the status quo automatic renewal clause of a CBA has
and to treat the terms and conditions been entered into.
embodied therein still in full force and
The same is also supported by the
effect, until a new agreement is reached
principle of hold-over, which states that
by the union and management. This part
despite the lapse of the formal
and parcel of the duty to bargain

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effectivity of the CBA, the law stills (3) Medical subsidy of P3,000 per year for
considers the same as continuing in the purchase of medicines and
force and effect until a new CBA shall hospitalization assistance of P10,000 per
have been validly executed (Meralco v. year for actual hospital confinement;
Hon. Sec. of Labor, 337 SCRA 90 [2000]
citing National Congress of Union in the (4) Rice Subsidy of P600 per month,

Sugar Industry of the Philippines v. provided the employee has worked for at

Ferrer-Calleja, 205 SCRA 478 [1992]). least 20 days within the particular month;
and
The terms and conditions of the existing
CBA remain under the principle of CBA (5) Birthday Leave with Pay and Birthday
continually. Gift of P1,500.

As early as October 2007, the Company

and the Union started negotiations to renew
CBA; Freedom Period (2009)
the CBA. Despite mutual good faith and
No. XVI. a. The Company and Triple-X earnest efforts, they could not agree.
Union, the certified bargaining agent of However, no union filed a petition for
rank-and-file employees, entered into a certification election during the freedom
Collective Bargaining Agreement (CBA) period. On March 30, 2008, no CBA had
effective for the period January 1, 2002 to been concluded. Management learned that
December 31, 2007. the Union would declare a bargaining
deadlock on the next scheduled bargaining
For the 4th and 5th years of the CBA, the meeting.
significant improvements in wages and
other benefits obtained by the Union were: As expected, on April 3, 2008, the Union
declared a deadlock. In the afternoon of the
(1) Salary increases of P1,000 and P1,200 same day, management issued a formal
monthly, effective January 1, 2006 and announcement in writing, posted on the
January 1, 2007, respectively; bulletin board, that due to the CBA
expiration on December 31, 2007, all fringe
(2) Vacation Leave and Sick Leave were
benefits contained therein are considered
adjusted from 12 days to 15 days annually
withdrawn and can no longer be
for each employee;
implemented, effective immediately.

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When was the "freedom period" referred to collective bargaining agent from repudiating
in the foregoing narration of facts? Explain. an existing collective bargaining agreement.
(2%) (5%)

SUGGESTED ANSWER: SUGGESTED ANSWER:

The freedom period of the time within True, the existing collective bargaining
which a petition for certification agreement (in full force and effect) must
election to challenge the incumbent be honored by a new exclusive
collective bargaining agent may be filed bargaining representative because of the
is from 60 days before the expiry date of policy of stability in labor relations
the CBA. between an employer and the workers.

CBA; Globe Doctrine (2007) CBA; Surface Bargaining vs. Blue-Sky

Bargaining (2010)
No. IV. a. Explain.

No. II. b. Differentiate “surface bargaining”

The Globe Doctrine. (5%)
from “blue-sky bargaining.” (2%)
SUGGESTED ANSWER:
SUGGESTED ANSWER:
Under the Globe doctrine the bargaining
SURFACE BARGAINING is defined as
units may be formed through separation
―going through the motion of
of new units from existing ones
negotiating‖ without any legal intent to
whenever plebiscites had shown the
reach an agreement. The determination
workers‘ desire to have their own
of whether a party has engaged in
representatives (Globe Machine and
unlawful surface bargaining is a question
Stamping Co. 3 NLRB 294, applied in
of the intent of the party in question,
Democratic Labor Union v. Cebu
which can only be inferred from the
Stevedoring Co., 103 Phil. 1103 [1958]).
totality of the challenged party‘s
conduct both at and away from the
bargaining table. It involves the question
CBA; Substitutionary Doctrine (2009)
of whether an employer‘s conduct

No. I. d. In the law on labor relations, the demonstrates an unwillingness to

substitutionary doctrine prohibits a new bargain in good faith or is merely hard

bargaining (Standard Chartered Bank

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Employees Union [NUBE} v. Confesor, CBU; Confidential Employees (2009)

432 SCRA 308 [2004]).
BLUE-SKY BARGAINING IS DEFINED as
―unrealistic and unreasonable demands
in negotiations by either or both labor
and management, where
concedes anything and demands the
impossible‖ (Standard Chartered Bank
No. I. b. All confidential employees are
disqualified to unionize for the purpose of
collective bargaining. (5%)
neither SUGGESTED ANSWER:
False, not all confidential employees are

Employees Union [NUBE] v. Confesors, disqualified to unionize for the purpose

supra). of collective bargaining. Only

confidential employees, who, because of
the nature of their positions, have
access to confidential information
CBA; Union Security Clause (2009)
affecting labor-management relations as
No. XVIII. b. Explain the impact of the an integral part of their position are
union security clause to the employees’ denied the right of self-organization for
right to security of tenure. (2%) purpose of collective bargaining (San
Miguel Corporation Supervisors v.
SUGGESTED ANSWER:
Laguesma, 277 CSRA 370 [1997]).
A valid union security clause when
enforced or implemented for cause, after
according the worker his substantive and CBU; Managerial Employees; Supervisory
procedural due process rights (Alabang Employees (2010)
Country club, inc. v. NLRC, 545 SCRA
357 [2008]; does not violate the No. XV. a. Samahang Manggagawa ng
employee‘s right to security of tenure. Terracota, a union of supervisory employees
Art. 248(e) of the labor Code allows at Terracota Inc., recently admitted a
union security clauses and a failure to member of the company’s managerial staff,
comply with the same is a valid ground A, into the union ranks.
to terminate employment. Union
Should A be a member of the supervisory
security clauses designed to strengthen
union? Explain. (2%)
unions and valid law policy.

SUGGESTED ANWER:

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Yes, as long as A is not a confidential (bbb), Rule 1, Book V (Omnibus Rules

employee who has access to confidential Implementing the Labor Code).
matters on labor relations (San Miguel
Corporation Supervisors and Exempt ALTERNATIVE ANSWER:

Employees Union v. Laguesma, 277

(1) Voluntary Recognition is possible
SCRA 370, 374-375 [1997]).
only in unorganized establishments
If A performs supervisory functions, where there is only one legitimate labor
such as overseeing employees‘ organization and the employer
performance and with power of voluntarily recognize the representation
recommendation, then A is a rightful of such a union; whereas,
member of the supervisory union.
Otherwise, he may not, because (2) Certification election is a process of
Samahang Manggagawa ng Teracota determining the sole and exclusive
cannot represent A, A being not part of bargaining gent of the employee in an
SMT‘s bargaining unit. appropriate bargaining unit for purposes
of collective bargaining, which process
may involve one, two or more legitimate
CBU; Modes; Determination of Exclusive labor organizations. On the other hand,
Bargaining Agreement (2012) (3) consent election is an agreed one, the
purpose being merely to determine the
No. VII. b. The modes of determining an issue of majority representation of all
exclusive bargaining agreement are: the workers in the appropriate
bargaining unit.
Explain briefly how they differ from one
another. (5%)
(2) certification election

(1) voluntary recognition

SUGGESTED ANSWER:

SUGGESTED ANSWER:
―Certification Election‖ refers to the
process of determining through secret
―Voluntary Recognition‖ refers to the
ballot the sole and exclusive
process by which a legitimate labor
representative of the employees in an
union is recognized by the employer as
appropriate bargaining unit for purposes
the exclusive bargaining representative
of collective bargaining or negotiation. A
or agent in a bargaining unit. Sec. 1,
certification election is ordered by the

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Department (Sec. 1(h), Rule 1, Book V, court or body regarding any matter
Omnibus Rules Implementing the Labor taken up at conciliation proceedings
Code). conducted by them. (Articles 233, labor
Code.) This is to enable the conciliators
(3) consent election to ferret out all the important facts of
the controversy which the parties may
SUGGESTED ANSWER:
be afraid to divulge if the same can be
used against them.
―Consent Election‖ refers to the process
of determining through secret ballot the
sole ans exclusive representative of the
employees in an appropriate bargaining Right to Strike; Cooling-Off Period

unit for purposes of collective bargaining (2009)

or negotiation. A consent election is

No. VII. a. Johnny is the duly elected
voluntarily agreed upon by the parties,
President and principal union organizer of
with or without the intervention by the
the Nagkakaisang Manggagawa ng Manila
Department (Sec. 1(h), Rule 1, Book V,
Restaurant (NMMR), a legitimate labor
Omnibus Rules).
organization. He was unceremoniously
dismissed by management for spending
virtually 95% of his working hours in union
Privilege Communication (2007) activities. On the same day Johnny received
the notice of termination, the labor union
No. VII. b. How sacrosanct are
went on strike.
statements/data made at conciliation
proceedings in the Department of Labor Management filed an action to declare the
and Employment? What is the philosophy strike illegal, contending that:
behind your answer? (5%)
The union did not observe the "cooling-off
SUGGESTED ANSWER: period" mandated by the Labor Code; (2%)

It is sacrosanct as privilege
SUGGESTED ANSWER:
communication. This is so because
information and statements at Yes, the conduct of a strike action
conciliation proceedings cannot be used without observing the cooling-off period
as evidence in the NLRC. Conciliators is a violation of one of the requirements
and similar officials cannot testify in any of law which must be observed. The

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cooling-off periods required by Article their employment. In assailing the Labor

263(c) and 263(f) of the Labor Code are Secretary's decision, the Union contends
to enable the DOLE to exert effort to that:
amicably settle the controversy, and for
the parties to review and reconsider The strikers were under no obligation to

their respective positions during the immediately comply with the November 5

cooling-off periods. But the Labor Code return to work order because of their then

also provides that if the dismissal pending Motion for Reconsideration of such

constitutes union busting, the union order; and

may strike immediately.

SUGGESTED ANSWER:

This position of the union is flawed.

Right to Strike; DOLE Sec. Intervention; Article 263(g) Labor Code provides that
Return to Work (2012) ―such assumption xxx shall have the
effect of automatically enjoining the
No. I. b 2. A deadlock in the negotiations for
intended or impending strike xxx. If one
the collective bargaining agreement between
has already taken place at the time of
College X and the Union prompted the
assumption, xxx ‗all striking . .
latter, after duly notifying the DOLE, to
.employees shall immediately effective
declare a strike on November 5. The strike
and executor notwithstanding the filing
totally paralyzed the operations of the
of a motion for reconsideration. (Ibid.,
school. The Labor Secretary immediately
citing University of Sto. Tomas v. NLRC,
assumed jurisdiction over the dispute and
G.R. No. 89920, October 18, 1990, 190
issued on the same day (November 5) a
SCRA 759).
return to work order. Upon receipt of the
order, the striking union officers and
members, on November 1, filed a Motion for
Right to Strike; Economic Provisions of
Reconsideration thereof questioning the
the CBA (2010)
Labor Secretary's assumption of
jurisdiction, and continued with the strike
No. XVI. b. On the first day of collective
during the pendency of their motion. On
bargaining negotiations between rank-and-
November 30, the Labor Secretary denied
file Union A and B Bus Company, the
the reconsideration of his return to work
former proposed a P45/day increase. The
order and further noting the strikers' failure
company insisted that ground rules for
to immediately return to work, terminated
negotiations should first be established, to

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which the union agreed. After agreeing on
ground rules on the second day, the union
representatives reiterated their proposal for
a wage increase. When
representatives suggested a discussion of
political provisions in the
Bargaining Agreement as stipulated in the
ground rules, union members went on
mass leave the next day to participate in a
whole-day prayer rally in front of the
company building.
bargain, absent any showing that such
tend to show that the company did not
want to reach an agreement with the
company Union. In fact, there is no deadlock to
speak of in this case.
Collective
The duty to bargain does not compel
either party to agree to a proposal or
require the making of a concession. The
parties‘ failure to agree which to discuss
first on the bargaining table did not
amount to ULP for violation of the duty

The Union contended that assuming that to bargain.

the mass leave will be considered as a

Besides, the mass leave conducted by
strike, the same was valid because of the
the union members failed to comply with
refusal of the company to discuss the
the procedural requirements for valid
economic provisions of the CBA. Rule on
strike under the Rules, without which,
the contention. (2%)
the strike conducted taints of illegality.

SUGGESTED ANSWER:

The Union‘s contention is wrong. A

Right to Strike; Illegal Strike; Dismissal
strike may be declared only in cases of
(2010)
deadlock in collective bargaining
negotiations and unfair labor practice No. VI. b. A is a member of the labor union
(Article 263(c), Labor Code); Section 1, duly recognized as the sole bargaining
Rule V, NCMB Manual of Procedures). representative of his company. Due to a
bargaining deadlock, 245 members of the
The proposal of the company to discuss
500-strong union voted on March 13, 2010
political provisions pursuant to the
to stage a strike. A notice of strike was
ground rules agreed upon does not
submitted to the National Conciliation and
automatically mean that the company
Mediation Board on March 16, 2010. Seven
refuses to discuss the economic
days later or on March 23, 2010, the
provisions of the CBA, or that the
workers staged a strike in the course of
company was engaged in ―surface
which A had to leave and go to the hospital
bargaining‖ in violation of its duty to
where his wife had just delivered a baby.

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The union members later intimidated and Right to Strike; Illegal Strike; Dismissal
barred other employees from entering the (2007)
work premises, thus paralyzing the
No. XV. Some officers and rank-and-file
business operations of the company.
members of the union staged an illegal
A was dismissed from employment as a strike. Their employer wants all the strikers
consequence of the strike. dismissed. As the lawyer, what will you
advise the employer? Discuss fully. (5%)
Was A’s dismissal valid? Why or why not?
(3%) SUGGESTED ANSWER:

SUGGESTED ANSWER: I will advice the employer that not all

the strikers can be dismissed. Any union
No, Article 264 of the Labor Code officers who knowingly participates in an
distinguishes the effects of illegal strikes illegal strike maybe declared to have lost
between ordinary workers and union his employment status but a worker who
officers who participate therein. A, as an is not a union officer may be declared to
ordinary striking worker, may not be have also lost his employment status
declared to have lost his employment only if he commits illegal acts during a
status by mere participation in an illegal strike (CCBPI Postmix Workers Union v.
strike, unless there is proof that he NLRC, 299 SCRA 410 [1998]).
knowingly participated in the
commission of illegal acts during the
strike (Arellano University Employees
Right to Strike; Legal Requirements
and Workers Union v. CA, 502 SCRA 219
(2007)
[2006]). This is an aspect of the State‘s
constitutional and statutory mandate to No. IX. Discuss the legal requirements of a
protect the rights of employees to self- valid strike. (5%)
organization (Club Filipino Inc. v.
Bautista, 592 SCRA 471 [2009]). SUGGESTED ANSWER:

The legal requirements of a valid strike

are as follows:

(1) No labor union may strike on grounds

involving inter-union and intra-union
disputes.

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(5) No labor organization shall declare a

(2) In cases of bargaining deadlocks, the strike without first having bargained
duly certified or recognized bargaining collectively; without first having filed
agent may file a notice of strike with the the notice required or without the
Department of Labor and Employment at necessary strike vote first having been
least 30 days before the intended date obtained and reported to the department
thereof. In cases of unfair labor practice, of labor and Employment.
the period of notice shall be 15 days and
in the absence of a duly certified or (6) No strike shall be declared after
recognized bargaining agent, the notice assumption of jurisdiction by the
of strike may be filed by any legitimate president or the secretary or after
labor organization in behalf of its certification or submission of the
members. However, in case of dismissal dispute o compulsory or voluntary
from employment of union officers duly arbitration or during the pendency of
elected in accordance with the union cases involving the same grounds for the
constitution and by-laws, which may strike.
constitute union busting where the
existence of the union is threatened, the (7) In a strike no person engaged in
15-day cooling-off period shall not apply picketing should commit any act of
and the union may take action violence, coercion or intimidation or
immediately. obstruct the free ingress to or egress
from the employer‘s premises for lawful
(3) A decision o declare a strike must be purpose, or obstruct public
approved by a majority of the total union thoroughfares.
membership in the bargaining unit
FIRST ALTERNATIVE ANSWER:
concerned, obtained by secret ballot in
meetings or referenda called for that (1) Valid factual ground;
purpose. (2) Notice of strike filed by the
bargaining agent (if collective bargaining
(4) In every case, the union shall furnish deadlock) or a registered union in the
the department of labor and affected bargaining unit (if unfair labor
Employment the voting at least seven practice);
days before the intended strike subject (3) Notice of strike filed with the NCMB;
to the cooling-off period herein provided. (4) Notice of strike filed at least 24 hours
prior to taking a strike vote by secret

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balloting, informing said office of the
decision to conduct a strike vote, and
the date, place, and time thereof;
(5) Strike vote where majority of union
members approve the strike;
(6) Strike vote report
submitted to the NCMB at least 7 days
before the intended date of strike;
(7) Except in cases of union busting, the
cooling-off period prescribed (15 days,
unfair labor practice; 30 days, collective
bargaining deadlock) should
observed;
(8) 7-day waiting period or strike bans
after submission of the strike vote report
to NCMB should be fully observed;
(9) Not on grounds of ULP in violation of
no-strike clause in CBA;
(10) Not visited with
violence;
(11) Not in defiance of the Secretary‘s
assumption of jurisdiction order;
(12) Not prohibited by law (such as
unions in the banking industry).
SECOND ALTERNATIVE ANSWER:
A valid strike requires compliance of
both substantial and procedural grounds.
Substantially, a valid strike has to be
grounded on either unfair labor practice
or deadlock in collective bargaining.
Procedurally, the same must comply
with the requirements of: (1) notice of
strike to be filed at least 15 days before
the intended ULP grounded strike or at
“Never Let The Odds Keep You From Pursuing What You Know In Your Heart You Were Meant To Do.”-Leroy Satchel Paige
hectorchristopher@yahoo.com faithrollan5@yahoo.com
least 15 days before the intended ULP
grounded strike or at least 30 days prior
to the deadlock in bargaining grounded
strike; (2) Must comply with the strike
vote requirement, meaning, a majority of
should be the union membership in the bargaining
unit must have voted for the staging of
the strike, and notice hereon shall be
furnished to the NCMB at least 24 hours
before the strike vote is taken; and (3)
the strike vote results must be furnished
be fully to the NCMB at least 7 days before the
intended strike. The dismissal of a duly
elected officer excuses, however, the
union from the 15/30 days cooling-off
requirement in Art. 263(c) of the Labor
Code.
widespread
Right to Strike; National Interest; DOLE
Sec. Intervention (2012)
No. I. b1. A deadlock in the negotiations for
the collective bargaining agreement between
College X and the Union prompted the
latter, after duly notifying the DOLE, to
declare a strike on November 5. The strike
totally paralyzed the operations of the
school. The Labor Secretary immediately
assumed jurisdiction over the dispute and
issued on the same day (November 5) a
return to work order. Upon receipt of the
order, the striking union officers and
members, on November 1, filed a Motion for
Reconsideration thereof questioning the
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Labor Secretary's assumption of ALTERNATIVE ANSWER:

jurisdiction, and continued with the strike
during the pendency of their motion. On (1) The Secretary of Labor correctly

November 30, the Labor Secretary denied assumed jurisdiction over the labor

the reconsideration of his return to work dispute because the school (College X) is

order and further noting the strikers' failure an industry indispensable to the national

to immediately return to work, terminated interest. This is so because the

their employment. In assailing the Labor administration of a school is engaged in

Secretary's decision, the Union contends the promotion of the physical,

that: intellectual and emotional well-being on

The Labor Secretary erroneously assumed
jurisdiction over the dispute since College X
could not be considered an
indispensable to national interest;
SUGGESTED ANSWER:
The contention has no merit. There is no
doubt that the on-going labor dispute at
the school adversely affects the national
interest. The on-going work stoppage at
the school unduly prejudices
students and will entail great loss in
terms of time, effort and money to all
concerned. More importantly, the school
is engaged in the promotion of the
physical, intellectual and emotional well-
being of the country‘s youth, matters
that are therefore of national interest
(St. Scholastica‘s College
Torres, G.R. No. 100152, June 29, 1992
citing Philippine School of
Administration v. Oriel, G.R. No. 80648,
August 15, 1988, 164 SCRA 402)
the country‘s youth (PSBA v. Noreil, 164
SCRA 402 [1998]).
industry (2) An assumption order is executor in
character and must be strictly complied
with by the parties even during the
pendency of any petition (or Motion for
Reconsideration) questioning its validity
(Baguio Colleges Foundation v. NLRC,
222 SCRA 604 [1993]; Union of Filipino
Employees v. Nestle Philippines, Inc.,
193 SCRA 396 [1990]).
the
(3) 264 of the Labor Code, as amended.
(Solid Bank Corporation, etc., v. Solid
Bank Union, G.R. No. 159461, November
15, 2010) thus, the union officers and
members who defied the assumption
order of the Secretary of Labor are
deemed to have lost their employment
v. Ruben
status for having knowingly participated
in an illegal act (Union of Filipino
Business
Employees vs. Nestle Philippines, Supra.)

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Right to Strike; DOLE Sec. Intervention;
Return to Work (2012)
No. I. b 2. A deadlock in the negotiations for
the collective bargaining agreement between
College X and the Union prompted the
latter, after duly notifying the DOLE, to
declare a strike on November 5. The strike
totally paralyzed the operations of the
school. The Labor Secretary immediately
assumed jurisdiction over the dispute and
issued on the same day (November 5) a
return to work order. Upon receipt of the
order, the striking union officers
members, on November 1, filed a Motion for
Reconsideration thereof questioning
Labor Secretary's assumption
jurisdiction, and continued with the strike
during the pendency of their motion. On
November 30, the Labor Secretary denied
the reconsideration of his return to work
order and further noting the strikers' failure
to immediately return to work, terminated
their employment. In assailing the Labor
Secretary's decision, the Union contends
that:
The strikers were under no obligation to
immediately comply with the November 5
return to work order because of their then
pending Motion for Reconsideration of such
order;
SUGGESTED ANSWER:
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This position of the union is flawed.
Article 263(g) Labor Code provides that
―such assumption xxx shall have the
effect of automatically enjoining the
intended or impending strike xxx. If one
has already taken place at the time of
assumption, xxx ‗all striking . .
.employees shall immediately effective
and executor notwithstanding the filing
of a motion for reconsideration (Ibid.,
citing University of Sto. Tomas v. NLRC,
G.R. No. 89920, October 18, 1990, 190
SCRA 759).
and
the
of Right to Strike; Stoppage of Work (2008)
No. VI. a. On the day that the Union could
validly declare a strike, the Secretary of
Labor issued an order assuming
jurisdiction over the dispute and enjoining
the strike, or if one has commenced,
ordering the striking workers to
immediately return to work. The return-to-
work order required the employees to
return to work within twenty-four hours
and was served at 8 a.m. of the day the
strike was to start. The order at the same
time directed the Company to accept all
employees under the same terms and
conditions of employment prior to the work
stoppage. The Union members did not
return to work on the day the Secretary's
assumption order was served nor on the
next day; instead, they held a continuing
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protest rally against the company's alleged
unfair labor practices. Because of the
accompanying picket, some
employees who wanted to return to work
failed to do so. On the 3rd day, the workers
reported for work, claiming that they do so
in compliance with the Secretary's return-
to-work order that binds them as well as
the Company. The Company,
refused to admit them back since they had
violated the Secretary's return-to-work
order and are now considered to have lost
their employment status.
The Union officers and members filed a
complaint for illegal dismissal arguing that
there was no strike but a protest rally
which is a valid exercise of the workers
constitutional right to peaceable assembly
and freedom of expression. Hence, there
was no basis for the termination of their
employment.
You are the Labor Arbiter to whom the case
was raffled. Decide, ruling on the following
issues:
Was there a strike? (4%)
SUGGESTED ANSWER:
Yes, there was a strike because of the
concerted stoppage of work by the union
members (Art. 212[o], Labor Code).
Right to Strike; Strike Define (2010)
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hectorchristopher@yahoo.com faithrollan5@yahoo.com
No. XVI. a. On the first day of collective
bargaining negotiations between rank-and-
of the file Union A and B Bus Company, the
former proposed a P45/day increase. The
company insisted that ground rules for
negotiations should first be established, to
which the union agreed. After agreeing on
ground rules on the second day, the union
however, representatives reiterated their proposal for
a wage increase. When company
representatives suggested a discussion of
political provisions in the Collective
Bargaining Agreement as stipulated in the
ground rules, union members went on
mass leave the next day to participate in a
whole-day prayer rally in front of the
company building.
The company filed a petition for assumption
of jurisdiction with the Secretary of Labor
and Employment. The Union opposed the
petition, arguing that it did not intend to
stage a strike. Should the petition be
granted? Explain. (2%)
SUGGESTED ANSWER:
Yes, there was a strike. What the union
engaged in was actually a ―work
stoppage‖ in the guise of a protest rally.
Article 212(o) of the Labor Code defines
a strike as a temporary stoppage of work
by the concerted action of employees as
a result of an industrial or labor dispute.
The fact that the conventional term
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―strike‖ was not used by the striking A was dismissed from employment as a
employees to describe their common consequence of the strike.
course of action is inconsequential. What
is controlling is the substance of the Was the strike legal? Explain. (3%)

situation, and not its appearance. The

SUGGESTED ANSWER:
term ―strike‖ encompasses not only
concerted work stoppages, but also No, the strike was not legal due to the
slowdowns, mass leaves, sit-downs, union‘s failure to satisfy the required
attempts to damage, destroy or sabotage majority vote of union membership (251
plant equipment and facilities, and votes), approving the conduct of strike
similar activities (Santa Rosa Coco-Cola (See Art. 263(f), Labor Code; Section 11,
Plant Employees Union, Donrico v. Rule XXII, Dept. Order No. 40-03).
Sebastian, et. al. v. Coca-Cola Bottlers
Phils., Inc., 512 SCRA 437 [2007]). Also, the strike was illegal due to the
non-observance of the 30-day cooling off
period by the union (Art. 263[c], Labor
Code).
Right to Strike; Strike Vote Requirement
(2010)

No. VI. a. A is a member of the labor union Right to Strike; Strike Vote Requirement
duly recognized as the sole bargaining (2009)
representative of his company. Due to a
bargaining deadlock, 245 members of the No. VII. b. Johnny is the duly elected

500-strong union voted on March 13, 2010 President and principal union organizer of

to stage a strike. A notice of strike was the Nagkakaisang Manggagawa ng Manila

submitted to the National Conciliation and Restaurant (NMMR), a legitimate labor

Mediation Board on March 16, 2010. Seven organization. He was unceremoniously

days later or on March 23, 2010, the dismissed by management for spending

workers staged a strike in the course of virtually 95% of his working hours in union

which A had to leave and go to the hospital activities. On the same day Johnny received

where his wife had just delivered a baby. the notice of termination, the labor union

The union members later intimidated and went on strike.

barred other employees from entering the

Management filed an action to declare the
work premises, thus paralyzing the
strike illegal, contending that:
business operations of the company.

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The union went on strike without mass leave the next day to participate in a
complying with the strike-vote requirement whole-day prayer rally in front of the
under the Labor Code. (2%) company building.

Rule on the foregoing contentions with Union member AA, a pastor who headed
reasons. the prayer rally, was served a notice of
termination by management after it filed
SUGGESTED ANSWER: the petition for assumption of jurisdiction.
May the company validly terminate AA?
Yes, the conduct of the strike action
Explain. (2%)
without a strike vote violates Art. 263(f)
– ‖In every case, the union or the SUGGESTED ANSWER:
employer shall furnish the [DOLE] the
No, the company cannot terminate AA
results of the voting at least seven days
because the Labor Code provides mere
before the intended strike…” to enable
participation of a worker in a strike shall
the DOLE and the parties to exert effort
not constitute sufficient ground for
to settle the dispute without strike
termination of his employment.
action.

Self Organization; Agency Fee (2010)

Right to Strike; Union Member (2010)

No. XIII. A is employed by XYZ Company

No. XVI. c. On the first day of collective
where XYZ Employees Union (XYZ-EU) is
bargaining negotiations between rank-and-
the recognized exclusive bargaining agent.
file Union A and B Bus Company, the
Although A is a member of rival union XYR-
former proposed a P45/day increase. The
MU, he receives the benefits under the CBA
company insisted that ground rules for
that XYZ-EU had negotiated with the
negotiations should first be established, to
company.
which the union agreed. After agreeing on
ground rules on the second day, the union
XYZ-EU assessed A a fee equivalent to the
representatives reiterated their proposal for
dues and other fees paid by its members
a wage increase. When company
but A insists that he has no obligation to
representatives suggested a discussion of
pay said dues and fees because he is not a
political provisions in the Collective
member of XYZ–EU and he has not issued
Bargaining Agreement as stipulated in the
an authorization to allow the collection.
ground rules, union members went on

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Explain whether his claim is meritorious. receives the benefits of a CBA, and is a
(3%) member of the appropriate bargaining
unit (Arts. 248(e) & 241(o), labor Code).
SUGGESTED ANSWER:

No, the fee exacted from A takes the

form of an AGENCY FEE. This is Self Organization; Mixed membership;
sanctioned by Article 248 (e) of the not a ground for cancellation (2010)
Labor Code.
No. XV. b. Samahang Manggagawa ng
The collection of agency fees in an Terracota, a union of supervisory employees
amount equivalent to union dues and at Terracota Inc., recently admitted a
fees from employees who are not union member of the company’s managerial staff,
members is recognized under Article A, into the union ranks.
248(e) of the Labor Code. The union may
collect such fees even without any Assuming that A is ineligible to join the
written authorization from the non- union, should the registration of Samahang
union member employees, if said Manggagawa ng Terracota be cancelled?
employees accepted the benefits Explain. (3%)
resulting from the CBA. The legal basis
SUGGESTED ANSWER:
of agency fees is quasi-contractual (Del
Pilar Academy v. Del Pilar Academy No, Rep. Act. No.9481 introduced a new
Employees Union, 553SCRA 590 [2008]). provision, Art. 245-A, which provides
that mixed membership is not a ground
for cancellation of a union‘s registration,
Self Organization; Agency Fee (2009) but said employees wrongfully joined are
deemed removed from said union.
No. XI. e. Agency fees cannot be collected
from a non-union member in the absence of
a written authorization signed by the
Self Organization; Grounds for
worker concerned. (5%)
Cancellation of Union Registration
(2010)
SUGGESTED ANSWER:
No. XXIV. Rank-and-file workers from
False, agency fee can be collected from a
Peacock Feathers, a company with 120
union member even without his prior
employees, registered their independent
written authorization as long as he

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labor organization with the Department of of the majority of union members

Labor and Employment (DOLE) Regional (Mariwasa Stam Ceramics v. Secretary,
Office. Management countered with a 608 SCRA 706 [2009]).
petition to cancel the union’s registration
Moreover, 20% of 120 is 24. So, even if
on the ground that the minutes of
the 10 union members disown their
ratification of the union constitution and
participation to the ratification of the
by-laws submitted to the DOLE were
union constitution and by-laws, the
fraudulent. Specifically, management
union is correct in arguing that the 30
presented affidavits of ten (10) out of forty
union members suffice to uphold the
(40) individuals named in the list of union
legitimacy of the union (Art. 234, Labor
members who participated in the
Code).
ratification, alleging that they were not
present at the supposed January 1, 2010
meeting held for the purpose. The union
Self Organization; Right to Self-
argued that the stated date of the meeting
Organization of Coop Employees (2010)
should have read “January 11, 2010,”
instead of “January 1, 2010,” and that, at No. X. A, an employee of XYZ Cooperative,
any rate, the other thirty (30) union owns 500 shares in the cooperative. He has
members were enough to register a union. been asked to join the XYZ Cooperative
Decide with reason. (3%) Employees Association. He seeks your
advice on whether he can join the
SUGGESTED ANSWER:
association. What advice will you give him?
Petition for cancellation is dismissed for (3%)
want of merit.
SUGGESTED ANSWER:
The date specified therein is purely a
A cannot join XYZ Cooperative
typographical error as admitted by the
Employees Association, because owing
union itself. There was no willful or
shares in XYZ Cooperative makes him a
deliberate intention to defraud the union
co-owner thereof.
members that will vitiate their consent
to the ratification. To be a ground for An employee-member of a cooperative
the cancellation of the union cannot join a union and bargain
registration under the Labor Code, the collectively with his cooperative for an
nature of the fraud must be grave and ―owner cannot bargain with himself and
compelling enough to vitiate the consent his co-owners‖ (Cooperative Rural Bank

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of Davao City, Inc. v. Calleja, 165 SCRA employees (SELU). Of late, the company
725, 732 [1988]; San Jose City – instituted a restructuring program by virtue
Electrical Service Cooperative, Inc. v. of which A, a rank-and-file employee and
Ministry of Labor, 173 SCRA 697, 701- officer of RFLU, was promoted to a
703 [1989]). supervisory position along with four (4)
other colleagues, also active union
members and/or officers. Labor Union

Self Organization; Right to Self- KMJ, a rival labor union seeking

Organization of Government Employees recognition as the rank-and-file bargaining

(2009) agent, filed a petition for the cancellation of

the registration of RFLU on the ground that
No. XI. c. Government employees have the A and her colleagues have remained to be
right to organize and join concerted mass members of RFLU. Is the petition
actions without incurring administrative meritorious? Explain. (3%)
liability. (5%)
SUGGESTED ANSWER:

SUGGESTED ANSWER:
No, Having been promoted to

False, government employees have the supervisory positions, A and her

right to organized, but they may be held colleagues are no longer part of the rank-

liable for engaging in concerted mass and-file bargaining unit. They are

actions, it being a prohibited activity deemed removed from membership of

under CSC Law (E.O. 181). The right of RFLU (Art. 245-A, Labor Code as

government employees to organize is amended by Rep. Act No. 9481).

limited to the formation of unions or

associations without including the right
to strike. (Gesite v. CA, 444 SCRA 51 Self Organization; Unions; Voluntary
[2004]). Cancellation of Registration (2008)

No. XIV. "Puwersa", a labor federation, after

having won in a certification election held
Self Organization; Unions; Member
in the company premises, sent a letter to
Deemed Removed (2010)
respondent company reminding it of its
No. V. Company XYZ has two recognized obligation to recognize the local union.
labor unions, one for its rank-and-file Respondent company replied that through
employees (RFLU), and one for supervisory it is willing, the rank-and-file employees

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had already lost interest in joining the local
union as they had dissolved it. "Puwersa"
argued that since it won in a certification
election, it can validly perform its function
as a bargaining agent and represent the
rank-and-file employees despite the union's
dissolution.
Workers Union v. Liberty Mills, Inc., G.R.
No. L-33987, September 4, 1975; cited in
Filipino Pipe and Foundry Corp. v. NLRC,
G.R. No. 115180, November 16, 1999).
ULP; Criminal Liability (2009)

Is the argument of "Puwersa" tenable? No. VII. c. Johnny is the duly elected
Decide with reasons. (6% President and principal union organizer of
the Nagkakaisang Manggagawa ng Manila
SUGGESTED ANSWER:
Restaurant (NMMR), a legitimate labor

A new provisions, Art. 239-A, was organization. He was unceremoniously

inserted into the Labor Code by R.A. dismissed by management for spending

9481, as follows: virtually 95% of his working hours in union

―Art. 239-A. Voluntary Cancellation of
Registration. – the registration of a
legitimate labor organization may be
cancelled by the organization
Provided, That at least two-thirds of its
general membership votes, in a meeting
duly called for that purpose to dissolve
activities. On the same day Johnny received
the notice of termination, the labor union
went on strike.
itself: Management filed an action to declare the
strike illegal, contending that:
The Labor Arbiter found management guilty

the organization: provided, further That of unfair labor practice for the unlawful

an application to cancel registration is dismissal of Johnny. The decision became

thereafter submitted by the board of the final. Thereafter, the NMMR filed a criminal

organization, attested to by the case against the Manager of Manila

president thereof.‖ Restaurant. Would the Labor Arbiter’s

finding be sufficient to secure the
If indeed the local union was dissolves in Manager’s conviction? Why or why not?
accordance with the above provision of (2%)
law, the argument of ―Puwersa‖ is not
tenable. This is so because ―Puwersa‖ SUGGESTED ANSWER:
only had the status of an agent, while
No, the administrative proceeding shall
the local union remained the basic unit
not be binding on the criminal case or be
of the association (liberty Cotton Mills

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considered as evidence of guilt, but prescription of the criminal offense

merely as proof of compliance with the herein penalized shall be interrupted.
requirements to file the said criminal The final judgment in the administrative
case for the commission of an unfair proceeding shall not be biding in the
labor practice. criminal case nor be considered as
evidence of guilt but merely as proof of
compliance of the requirements set forth

ULP; Criminal and Civil Liability (2007) by law. (Article 247, labor Code.)

No. VIII. Discuss in full the jurisdiction over

the civil and criminal aspects of a case ULP; Runaway shop (2009)
involving an unfair labor practice for which
a charge is pending with the Department of No. I. c. A runaway shop is an act
Labor and Employment. (5%) constituting unfair labor practice. (5%)

SUGGESTED ANSWER: SUGGESTED ANSWER:

Unfair labor practices are not only False, a runaway shop is not
violations of the civil rights of both labor automatically an unfair labor practice. It
and management but are also criminal is an unfair labor practice if the
offenses against the State. relocation that brought about the
runaway shop is motivated by anti-
The civil aspect of all cases involving
union animus rather than for business
unfair labor practices, which may
reasons.
include claims for actual, moral,
exemplary and other forms of damages, ALTERNATIVE ANSWER:
attorney‘s fee and other affirmative
True, the transfer of location of a strike
relief, shall be under the jurisdiction of
bound establishment to another location
the labor Arbiters.
(run-away shop) can constitute an act of
However, no criminal prosecution shall interference or restraint of the
be instituted without a final judgment, employees‘ right to self-organization.
finding that an unfair labor practice was There is an inferred anti-union bias of
committed, having been first obtained in the employer (Labor Code, Art. 248[a]).
the administrative proceeding. During The provisions of Art. 248[a] should be
the pendency of such administrative broadly and literally interpreted to
proceeding, the running of the period for achieve the policy objective of the law,

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i.e., to enhance the workers right to self- (4) Rice Subsidy of P600 per month,
organization and collective bargain provided the employee has worked for at
(Constitution, Art. XIII, Sec. 3 & Art.III, least 20 days within the particular month;
Sec. 8; labor Code, Arts., 243, 244 & and
245; Caltex Filipino Managers, etc. v.
CIR, 44 SCRA 350 [1972]). (5) Birthday Leave with Pay and Birthday
Gift of P1,500.

As early as October 2007, the Company

ULP; Violation to Bargain Collectively
and the Union started negotiations to renew
(2009)
the CBA. Despite mutual good faith and
earnest efforts, they could not agree.
No. XVI. d. The Company and Triple-X
However, no union filed a petition for
Union, the certified bargaining agent of
certification election during the freedom
rank-and-file employees, entered into a
period. On March 30, 2008, no CBA had
Collective Bargaining Agreement (CBA)
been concluded. Management learned that
effective for the period January 1, 2002 to
the Union would declare a bargaining
December 31, 2007.
deadlock on the next scheduled bargaining

For the 4th and 5th years of the CBA, the meeting.

significant improvements in wages and

As expected, on April 3, 2008, the Union
other benefits obtained by the Union were:
declared a deadlock. In the afternoon of the

(1) Salary increases of P1,000 and P1,200 same day, management issued a formal

monthly, effective January 1, 2006 and announcement in writing, posted on the

January 1, 2007, respectively; bulletin board, that due to the CBA

expiration on December 31, 2007, all fringe
(2) Vacation Leave and Sick Leave were benefits contained therein are considered
adjusted from 12 days to 15 days annually withdrawn and can no longer be
for each employee; implemented, effective immediately.

(3) Medical subsidy of P3,000 per year for If you were the lawyer for the union, what

the purchase of medicines and legal recourse or action would you advise?

hospitalization assistance of P10,000 per Reasons. (3%)

year for actual hospital confinement;

SUGGESTED ANSWER:

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I would recommend the filing of an companies also hired the same accountant
unfair labor practice case against the who prepared the books for both
employer for violating the duty to companies.
bargain collectively under Article 248(g)
of the labor Code. This arbitration case X and his co-employees amended their

also institutes the ―deadlock bar‖ that Complaint with the Labor Arbiter to hold

shall prevent any other union from filing Construction Corporation 8 joint and

a petition for certification election. severally liable with Construction Company

A for illegal dismissal, backwages and
ALTERNATIVE ANSWER: separation pay. Construction Company 8
interposed a Motion to Dismiss contending
I will advice the Union to continue
that they are juridical entities with distinct
negotiations with the aid of the NCMB
and separate personalities from
(Art. 250, Labor Code), and to file an
Construction Corporation A and therefore,
economic provision, gross and serious in
they cannot be held jointly and severally
character under Articles 248(i) and Art.
liable for the money claims of workers who
261 of the Labor Code.
are not their employees. Rule on the Motion
Labor Standards to Dismiss. Should it be granted or denied?
Why? (5%)
E-E Relationship; Corporation (2012)
SUGGESTED ANSWER:
No. III. b. X was one of more than one
hundred (100) employees who were Denied. The factual circumstance: that
terminated from employment due to the the business of Construction Company A
closure of Construction Corporation A. The and Construction Company B are
Cruz family owned Construction Company related, that all of the employees of
A. Upon the closure of Construction Company A are the same persons
Company A, the Cruzes established manning and providing for auxillary
Construction Company B. Both services to units of Company B, and that
corporations had the same president, the the physical plants, offices and facilities
same board of directors, the same corporate are situated in the same compound –
officers, and all the same subscribers. From justify the piercing of the corporate veil
the General Information Sheet filed by both of Company B (Indophil Textile Mill
companies, it also showed that they shared workers Union v. Calica, 205 SCRA 697,
the same address and/or premises. . Both [1992]). The fiction of corporate entity
can be disregarded when it I used to

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justify wrong or protect fraud.(Complex SUGGESTED ANSWER:

Electronic Association v. NLRC, G.R. No.
121315 & 122136, July 19, 1999). Art. 138 of the Labor Code provides as
follows:

―art. 138. Classification of certain

E-E Relationship; Effective Control or
women workers. – any woman who is
Supervision; Waitresses (2008)
permitted or suffered to work, with or
without compensation, in any night
No. XI. Complaints had worked five (5)
club, cocktail lounge, massage clinic, bar
years as waitresses in a cocktail lounge
or similar establishment, under the
owned by the respondent. They did not
effective control or supervision of the
receive any salary directly from the
employer for a substantial period of time
respondent but shared in all service
as determined by the Secretary of Labor,
charges collected for food and drinks to the
shall be considered as an employee of
extent of 75%. With respondent's prior
such establishment for purposes of labor
permission, they could sit with and
and social legislation.‖
entertain guest inside the establishment
and appropriate for themselves the tips
Since complainants are under the
given by guests. After five (5) years, the
effective control and supervision of
complaints individual shares in the
respondent, they are therefore
collected service charges dipped to below
considered as employees and entitled to
minimum wage level as a consequence of
full backwages based on the minimum
the lounge's marked business decline.
wage for the appropriate period plus 85%
Thereupon, complaints asked respondent to
of the collected service charges.
increase their share in the collected service
charges to 85% or the minimum wage level,
whichever is higher.
E-E Relationship; Four-Fold Test (2008)
Respondent terminated the services of the
complainants who countered by filing a No. V. b. The Pizza Corporation (PizCorp)
consolidated complaint for unlawful and Ready Supply Cooperative (RSC)
dismissal, with prayer for 85% of the entered into a "service agreement" where
collected services or the minimum wage for RSC in consideration of service fees to be
the appropriate periods, whichever is paid by PizCorp's will exclusively supply
higher. Decide. (6%) PizCorp with a group of RSC motorcycle-

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owning cooperative members who will crucial and determinative indicator of

henceforth perform PizCorp's pizza delivery the presence or absence of an employer-
service. RSC assumes under the agreement employee relationship.
--- full obligation for the payment of the
salaries and other statutory monetary Applying the Control Test, PizCorp is the

benefits of its members deployed to employer of RSC members because ―if

PizCorp. The parties also stipulated that PizCorp is materially prejudices by any

there shall be no employer-employee act of the delivery crew that violated

relationship between PizCorp and the RSC PizCorp‘s directives and orders, Piz Corp

members. However, if PizCorp is materially can directly impose disciplinary

prejudiced by any act of the delivery impose sanctions on, including the power to

disciplinary sanctions on, including the dismiss, the erring RSC member/s.―

power to dismiss, the erring RSC clearly, PizCorop controls the RSC

member/s. members‘ conduct not only as to the end

to be achived but also as to the means of
Based on the test/s for employer-employee achieving the ends (Manaya v. Alabang
relationship, determine the issue of who is Country Club, G.R. No. 168988, June 19,
the employer of the RSC members. (4%) 2007).

SUGGESTED ANSWER:

The employer of the RSC is PizCorp. E-E Relationship; GRO‘s & Night Clubs
(2012)
The four-fold test in determining
employer-employee relationship is as No. IV. a. Juicy Bar and Night Club allowed
follows: by tolerance fifty (50) Guest Relations
Officers (GROs) to work without
(1) The selection and engagement of the compensation in its establishment under
employees; the direct supervision of its Manager from
(2) The payment of wages; 8:00 P.M. To 4:00 A.M. everyday, including
(3) The power of dismissal; and Sundays and holidays. The GROs, however,
(4) The power of control the employee‘s were free to ply their trade elsewhere at
conduct. anytime, but once they enter the premises
of the night club, they Were required to stay
Of the above, the power of control over
up to closing time. The GROs earned their
the employees‘ conduct is the most
keep exclusively from commissions for food

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Labor Law Q&As (2007-2013)
and drinks, and tips from
customers. In time, the GROs formed the
Solar Ugnayan ng mga Kababaihang lnaapi
(SUKI), a labor union duly registered with
DOLE. Subsequently, SUKI filed a petition
for Certification Election in order to be
recognized as the exclusive
agent of its members. Juicy Bar and Night
Club opposed the petition for Certification
Election on the singular ground of absence
of employer-employee relationship between
the GROs on one hand and the night club
on the other hand. May the GROs form
SUKI as a labor organization for purposes
of collective bargaining? Explain briefly.
(5%)
SUGGESTED ANSWER:
Yes, the GROs worked under the direct
supervision of Nite Club Manager for a
ubstantial period of time. Hence, under
Art. 138, with or without compensation,
the GROs are to be deemed employees.
As such, they are entitled to all rights
and benefits granted
employee/workers under
Constitution and other pieces of labor
legislation including the right to form
labor organizations for purposes
collective bargaining. (Conts., Art. XIII,
Sec. 3; Labor Code, Art. 243).
ALTERNATIVE ANSWER:
“Never Let The Odds Keep You From Pursuing What You Know In Your Heart You Were Meant To Do.”-Leroy Satchel Paige
hectorchristopher@yahoo.com faithrollan5@yahoo.com
generous No, while the GROs are considered
employees of Juicy Bar and Nite Club by
fiction of law for purposes of labor and
social legislation (Art. 138, Labor Code),
Art. 243 of the Labor Code however
excludes ―ambulant, intermittent and
bargaining itinerant workers xxx and those without
any definite employers‖ such as the
GROs here, from exercising ―the right to
self-organization xxx for purposes of
collective bargaining‖. They can only
―form labor organization for their mutual
aid and protection‖.
E-E Relationship; OFW (2009)
No. III. b. Richie, a driver-mechanic, was
recruited by Supreme Recruiters (SR) and
its principal, Mideast Recruitment Agency
(MRA), to work in Qatar for a period of two
(2) years. However, soon after the contract
was approved by POEA, MRA advised SR to
forego Richie’s deployment because it had
already hired another Filipino driver-
to
mechanic, who had just completed his
the
contract in Qatar. Aggrieved, Richie filed
with the NLRC a complaint against SR and
MRA for damages corresponding to his two
of
years’ salary under the POEA-approved
contract.
SR and MRA traversed Richie’s complaint,
raising the following arguments:
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Because Richie was not able to leave for The defense is not tenable. Children
Qatar, no employer-employee relationship below fifteen (15) years of age shall not
was established between them; (2%) and be employed except:

SUGGESTED ANSWER: (1) when a child works directly under the

sole responsibility of his/her family are
An employer – employee relationship
employed xxx; or
already existed between Richie and MRA.
MRA and SR, as an agent of MRA,
(2) where a child‘s employment or
already approved and selected and
participation in public entertainment or
engaged the services of Richie.
information through cinema, theater,
radio, television or other form of media
is essential xxx.‖ (Section 12, R.A. No.
Employment; Children; Below 15 yrs old
7610, as amended by R.A. No. 9231).
(2012)

No. IV. b. A spinster school teacher took

pity on one of her pupils, a robust and
Employment; Children; Below 15 yrs old
precocious 12-year old boy whose poor
(2009)
family could barely afford the cost of his
schooling. She lives alone at her house near
No. XI. b. Employment of children below
the School after her housemaid had left. In
fifteen (15) years of age in any public or
the afternoon, she lets the boy do various
private establishment is absolutely
chores as cleaning, fetching water and all
prohibited. (5%)
kinds of errands after school hours. She
gives him rice and P100.00 before the boy SUGGESTED ANSWER:
goes home at 7:00 every night. The school
principal learned about it and charged her False, children below fifteen (15) years of
with violating the law which prohibits the age (can be employed) ―when he/she
employment of children below 15 years of works directly under the sole
age. In her defense, the teacher stated that responsibility of his/her parents or
the work performed by her pupil is not guardian, and his employment does not
hazardous. Is her defense tenable? Why? in any way interfere with his schooling.‖
(5%)

SUGGESTED ANSWER:

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Employment; Company Policy; Weight imposition by reason of flight safety

Regulation (2010)
No. XVIII. Flight attendant A, five feet and
six inches tall, weighing 170 pounds ended
up weighing 220 pounds in two years.
Pursuant to the long standing Cabin and
Crew Administration Manual
employer airline that set a 147-pound limit
for A’s height, management sent A a notice
to “shape up or ship out” within 60 days. At
the end of the 60-day period, A reduced her
weight to 205 pounds. The company finally
served her a Notice of Administration
Charge for violation of company standards
(Yrasuegui v. PAL, I 569 SCRA 467
[2008]). However, A had already been
employed for two (2) years before the
airline company imposed on her this
weight regulation, and nary an incident
did the airline company raise which
of the
rendered her amiss of her duties.
Employment; Employment Contract;
Discrimination by reason of Marriage
(2012)
No. VI. b. Mam-manu Aviation Company

on weight requirements. Should A be (Mam-manu) is a new airline company

dismissed? Explain. (3%) recruiting flight attendants for its domestic

flights. It requires that the applicant be
SUGGESTED ANSWER: single, not more than 24 years old,
No, while the weight standards for cabin attractive, and familiar with three (3)
crew may be a valid company policy in dialects, viz: llonggo, Cebuano and
light of its nature as a common carrier, Kapampangan. lngga, 23 years old, was
the airline company is now estopped accepted as she possesses all the
from enforcing the Manual as ground for qualifications. After passing the
dismissal against A. it hired A despite probationary period, lngga disclosed that
her weight of 170 pounds, in she got married when she was 18 years old
contravention of the same Manual it now but the marriage was already in the process
invoked. of being annulled on the ground that her
husband was afflicted with a sexually
The Labor Code gives to an airline the transmissible disease at the time of the
power to determine appropriate celebration of their marriage. As a result of
minimum age and other standards for this revelation, lngga was not hired as a
requirement or termination in special regular flight attendant. Consequently, she
occupations such as those of flight filed a complaint against Mam-manu
attendants and the like. Weight alleging that the pre-employment
standards for cabin crew is a reasonable qualifications violate relevant provisions of

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the Labor Code and are against public occasions, the management of RX called A’s
policy. Is the contention of lngga tenable? attention to the stipulation in his
Why? (5%) employment contract that requires him to
disclose any relationship by consanguinity
SUGGESTED ANSWER: or affinity with coemployees or employees of
competing companies in light of a possible
Yes, Man-manu‘s pre-employment
conflict of interest. A seeks your advice on
requirement cannot be justified as a
the validity of the company policy. What
―bona fide occupational qualification,‖
would be your advice? (3%)
where the particular requirements of the
job would justify it. The said SUGGESTED ANSWER:
requirement is not valid because it does
The company policy is valid. However, it
not reflect an inherent quality that is
does not apply to A. As A and B are not
reasonably necessary for a satisfactory
yet married, no relationship by
job performance. (PT&T v. NLRC, G.R.
consanguinity or affinity exists between
No. 118978, May 23, 1997 citing 45A
them. The case of Duncan v. Glaxo
Am. Jur. 2d, Job Distribution, Sec. 506,
Wellcome (438 SCRA 343 [2004]) does
p. 486).
not apply in the present case.

ALTERNATIVE ANSWER:

Yes, Ingga‘s contention is tenable Employment; Employment Contract;

considering Art. 136 of the Labor Code Fixed Period of Employment (2008)
which prohibits discrimination against
married women. No. III. a. Savoy Department Store (SDS)
adopted a policy of hiring salesladies on
five-month cycles. At the end of a

Employment; Employment Contract; saleslady's five-month term, another person

Discrimination by reason of Marriage is hired as replacement. Salesladies attend

(2010) to store customers, were SDS uniforms,

report at specified hours, and are subject to
No. IX. A was working as a medical SDS workplace rules and regulations.
representative of RX pharmaceutical Those who refuse the 5-month employment
company when he met and fell in love with contract are not hired.
B, a marketing strategist for Delta Drug
Company, a competitor of RX. On several

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The day after expiration of her 5-month (1) The fixed period of employment was
engagement, Lina wore her SDS white and knowingly and voluntarily agreed upon,
blue uniform and reported for work but was without any force, duress or improper
denied entry into the store premises. pressure upon the employee and absent
Agitated, she went on a hunger strike and any other circumstances vitiating his
stationed herself in front of one of the gates consent; or
of SDS. Soon thereafter, other employees
whose 5-month term had also elapsed, (2) It satisfactorily appears that the
joined Lina's hunger strike. employer and employees dealt with each
other on more or less equal terms with
Lina and 20 other saleladies filed a no moral dominance over the employee.
complaint for illegal dismissal, contending
that they are SDS regular employees as Lina, et. al., are not on equal terms with
they performed activities usually necessary their employers and did not agree to a 5-
or desirable in the usual business or trade month contract. The scheme of SDS to
of SDS and thus, their constitutional right prevent workers from acquiring regular
to security of tenure was violated when they employment, violates security of tenure
were dismissed without valid, just or and contrary to public policy. (Pure
authorized cause. SDS, in defense, argued Foods Corporation v. NLRC, G.R. No.
that Lina, et al. Agreed - prior to 122653, December 12, 1997; cited in
engagement - to a fixed period employment Philips Semiconductors [Phil.], Inc. v.
and thus waived their right to a full-term Fadriquela, G.R. No. 141717, April 14,
tenure. Decide the dispute. (4%) 2004).

SUGGESTED ANSWER:

I will decide the case in favor of Lina, et Employment; Employment Contract;

al. Prohibiting Employment in a Competing
Company (2009)
In the case of PNOC-Energy Development
Corporation v. NLRC, G.R. No. 97747, No. I. a. An employment contract

March 31, 1993, the Supreme Court set prohibiting employment in a competing

down the criteria under which fixed company within one year from separation is

contracts of employment do not valid. (5%)

circumvent the security of tenure, to

SUGESTED ANSWER:
wit:

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True. An employment contract Employment; Househelper; Driver (2012)

prohibiting employment in a competing
No. V. a. Baldo was dismissed from
company within a reasonable period of
employment for having beenabsent without
one year from separation is valid. The
leave (AWOL) for eight (8) months. It turned
employer has the right to guard its trade
outthat the reason for his absence was his
secrets, manufacturing formulas,
incarceration after he was mistaken as his
marketing strategies and other
neighbor’s killer. Eventually acquitted and
confidential programs and informations.
released from jail, Baldo returned to his
employer and demanded reinstatement and
full backwages. Is Baldo entitled to
Employment; Househelper (2009)
reinstatement and backwages? Explain
your answer. (3%)
No. VI. a. Albert, a 40-year old employer,
asked his domestic helper, Inday, to give SUGGESTED ANSWER:
him a private massage. When Inday
refused, Albert showed her Article 141 of Yes, Baldo is entitled to reinstatement.
the Labor Code, which says that one of the Although he shall not be entitled to
duties of a domestic helper is to minister to backwages during the period of his
the employer’s personal comfort and detention, but only from the time the
convenience. company refuse to reinstate him.
(Magtoto v. NLRC, 140 SCRA 58 [1985]).
Is Inday’s refusal tenable? Explain. (3%)
ALTERNATIVE ANSWER:
SUGGESTED ANSWER:
No, Baldo is not entitled to
Yes, Inday‘s refusal to give her employer reinstatement and backwaages. The
a ―private massage‖ employer is in dismissal was for cause, i.e., AWOL.
accordance with law because the nature Baldo failed to timely inform the
of the work of a domestic worker must employer of the cause of his failure to
be in connection with household chores. report for work; hence, prolonged
Massaging is not a domestic work. absence is a valid ground to terminate
employment.

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Employment; Househelper; Non- place that person outside the ambit of

Household Work (2007) the special Labor Code provisions on
househelpers. In such a situation, terms
No. II. b. May a househelp be assigned to and conditions of employment would
non-household work? (5%) differ.

SUGGESTED ANSWER:

A househelper may be assigned to non- Employment; HouseHelper; Non-

household work but a househelper Household Work (2007)

assigned to work in a commercial,

No. XVIII. Inday was employed by mining
industrial or agricultural enterprise
company X to perform laundry service at its
should have a wage or salary rate not
staffhouse. While attending to her assigned
lower than provided for agricultural or
task, she slipped and hit her back on a
non-agricultural workers as prescribed
stone. Unable to continue with her work,
by law.
she was permitted to go on leave for
ALTERNATIVE ANSWER: medication, but thereafter she was not
allowed to return to work. She filed a
No, pursuant to Article 141 of the Labor
complaint for illegal dismissal but her
Code, a househelper is defined as a
employer X contended that Inday was not a
person who renders domestic or
regular employee but a mere househelp.
household services exclusively to a
Decide. (5%)
household employer. ―Domestic or
household service‖ is defined as service SUGGESTED ANSWER:
in the employer‘s home, which is usually
necessary or desirable for the Inday is a regular employee. Under Rule
maintenance and enjoyment thereof, and XIII, Section 1(b), Book 3 of the Labor
includes ministering to the personal Code, as amended, the terms
comfort and convenience of the ―househelper‖ or ―domestic servant‖ are
members of the employer‘s household, defined as follows:
including services of family drivers (Rule
―The term ―househelper as used herein
XIII, Section 1(b), Book 3 of the Labor
is synonymous to the term ―domestic
Code)
servant‖ and shall refer to any person,
A househelper cannot be assigned non- whether male or female, who renders
household work because to do so would services in and about the employer‘s

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home and which services are usually instance, they are employees of the
necessary and desirable for the company or employed in the business
maintenance and enjoyment thereof, and concerned entitled to the privileges of a
ministers exclusively to the personal regular employee. The mere fact that the
comfort and enjoyment of the househelper or domestic servant is
employer‘s family.‖ working within the premises of the
business of the employer and in relation
The foregoing definition clearly
to or in connection with its officers and
contemplates such househelper or
employees, warrants the conclusion that
domestic servant who is employed in the
such househelper or domestic servant is
employer‘s home to minister exclusively
and should be considered as a regular
to the personal comfort and enjoyment
employee of the employer and not
of the employer‘s family. The definition
considered as a mere family househelper
cannot be interpreted to include
or domestic servant as contemplated in
househelp or laundrywomen working in
Rule XIII, Section 1(b), Book 3 of the
staffhouses of a company, like Inday who
Labor Code, as amended (Apex Mining
attends the needs of the company‘s
Company, Inc. v. NLRC, 196 SCRA 251
guest and other persons availing of the
[1991]).
said facilities. The criteria is the
personal comfort and enjoyment of the
family of the employer in the home of
Employment; Househelper vs.
said employer. While it may be true that
Homeworker (2009)
the nature of the work of a house helper,
domestic servant or laundrywoman in a
No. VI. b. Albert, a 40-year old employer,
home or in a company staffhouse may be
asked his domestic helper, Inday, to give
similar in nature, the difference in their
him a private massage. When Inday
circumstances is that in the former
refused, Albert showed her Article 141 of
instance they are actually serving the
the Labor Code, which says that one of the
family while in the latter case, whether
duties of a domestic helper is to minister to
it is a corporation or a single
the employer’s personal comfort and
proprietorship engaged in business or
convenience.
industry or any other agricultural or
similar pursuit, service is being rendered Distinguish briefly, but clearly, a
in the staffhouses or within the premises "househelper" from a "homeworker." (2%)
of the business of the employer. In such

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SUGGESTED ANSWER: employ, with a separate report on

children found to be handicapped after a
Art. 141. – Domestic Helper – one who
conduct of medical examination.
performs services in the employers
Moreover, an employer in any
house which is usually necessary or
commercial, industrial, or agricultural
desirable for the maintenance and
establishment or enterprise is required
enjoyment thereof and includes
to keep a register of all children under
ministering to the personal comfort and
his employ, indicating therein their
convenience of the members of the
respective dates of birth; and a separate
employer‘s household, including the
file on written consent of their
services of a family driver.
respective parents/guardians, another

Art. 153. – Homeworker – is an industrial file for their educational and medical

worker who works in his/her home certificates, and a separate file for

processing raw materials into finished especial work permits issued by

products for an employer. It is a Secretary of DOLE.

decentralized form of production with

For children employed as domestic, the
very limited supervision or regulation of
head of the family shall give the
methods of work.
domestic an opportunity to complete at
least elementary education. (Arts. 110,
108, and 109, PD 603 of the Revised
Employment; Employment of Minors; Penal Code)
Statutory Restrictions (2007)
Art. 272 provides that no person shall
No. II. a. Discuss the statutory restrictions retain a minor in service against his will,
on the employment of minors? (5%) in payment of a debt incurred by an
ascendant, guardian or person entrusted
SUGGESTED ANSWER:
with the custody of the sais minor.

Article 140 of the Labor Code provides Art. 278 enumerate various acts of
that employers shall not discriminate exploitations of minors prohibited under
against any person in respect to terms the law, to wit:
and conditions of employment on
account of his age. (1) any person who shall cause any boy
or girl under 16 years of age to perform
The employer is duty-bound to submit a any dangerous feat of balancing physical
report to DOLE of all children under his strength or contortion.

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participate in public entertainment or

(2) Any person who, being an acrobat,
gymnast, rope-walker, diver, wild animal
tamer or circus manager or engaged in a
similar calling, shall
exhibitions of these kinds of children
under 16 years of age who are not his
children or descendants.
(3) Any person engaged in any calling
enumerated in the next paragraph who
shall employ any descendant of
under 12 years of age in such dangerous
exhibitions.
(4) Any ascendant, guardian, teacher or
person entrusted in any capacity with
the care of a child under 16 years of age,
who shall deliver such child graciously
to any person following any of the
callings enumerated in par. 2 hereof, or
to any habitual vagrant or beggar.
PD 603: Child and Youth Welfare Code
Art. 107 of Child and Welfare Code
provides that children below 16 years of
age may only be employed to perform
light work which is nit harmful to their
safety, health or normal development,
and which is not prejudicial to their
studies.
information through cinema, theater,
radio or television, provided the contract
is included by the child‘s parents or legal
employ in guardian, with the express agreement of
the child, and approval of DOLE. The
employer is required to: (a) ensure the
protection, health, safety, morals and
normal development of the child; (b)
institute measures to prevent the child‘s
exploitation and discrimination taking
his into account the system and level of
renumeration, and the duration and
arrangement of working time; and (c)
formulate and implement a continuing
program for training and skills
acquisition of the child.
The Department of Education is chaired
to promulgate a course design under its
non-formal program aimed at promoting
intellectual, moral and vocational
efficiency to working children who have
not undergone or finished elementary or
secondary education.
Employment; Non-Resident Alien (2007)
No. XX. AB, a non-resident American, seeks
entry to the country to work as Vice-
President of a local telecommunications

RA9231, amending RA 6710 company. You are with the Department of

Labor and Employment (DOLE). What
RA 6710 included a provision allowing a permit, if any, can the DOLE issue so that
minor below 16 years of age to

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AB can assume as Vice-President in the newly-hired employees of the firm, among

telecommunications company? Discuss them, Miss Maganda. After the seminar,
fully. (5%) Renan requested Maganda to stay,
purportedly to discuss some work
SUGGESTED ANSWER: assignment. Left alone in the training room,
Renan asked Maganda to go out with him
The Labor Code provides that ―any alien
for dinner and ballroom dancing.
seeking admission to the Philippine for
Thereafter, he persuaded her to accompany
employment purposes and any domestic
him to the mountain highway in Antipolo
or foreign employer who desires to
for sight-seeing. During all these, Renan
engage an alien for employment in the
told Maganda that most, if not all, of the
Philippines shall obtain an employment
lady supervisors in the firm are where they
permit from the Department of Labor.‖
are now, in very productive and lucrative

‖The employment permit may be issued posts, because of his favorable

to a non-resident alien or to the endorsement.

applicant employer after a determination

Did Renan commit acts of sexual
of the non-availability of a person in the
harassment in a work- related or
Philippines who is competent, able and
employment environment? Reasons. (3%)
willing at the time of application to
perform the services for which the alien SUGGESTED ANSWER:
is desired.
Atty. Renan is guilty of sexual
Thus, AB (or Telecommunication harassment. This conclusion is
company) should be issued the above- predicated upon the following
mentioned alien employment permit so contradiction:
that AB can assume as Vice President of
(1) Atty. Renan has authority, influence
the Telecommunication Company.
or moral ascendancy over Miss Maganda;

(2) While the law calls for a demand,

Employment; Women; Anti-Sexual
request or requirement of a sexual, it is
Harassment Act (2009)
not necessary that the demand, request
or requirement of a sexual favor be
No. XIII. a. Atty. Renan, a CPA-lawyer and
articulated in a categorical oral or
Managing Partner of an accounting firm,
written statement. It may be discerned,
conducted the orientation seminar for

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with equal certitude form acts of the business of the principal (Sy, et al v.
offender. (Domingo vs. Rayala, 546 SCRA Fairland Knitcraft Co., Inc., G. R. Nos.
90 [2008]); 182915 &189658, December 12, 2011)

(3) The acts of Atty. Renan towards Miss Legitimate Job Contracting:

Maganda resound with defeaning clarity

The contractor ha substantial capital
the unspoken request for a sexual favor,
and investment in the form of tools,
regardless of whether it is accepted or
equipment , etc. and carries a distinct
not by Miss Maganda.
and independent business and
undertakes to perform the job, work or
(4) In sexual harassment, it is not
service on its own manner and method,
essential that the demand, request or
and free from control and direction of
requirement be made as a condition for
the principal in all matters connected
continued employment or promotion to
with the performance of the work except
a higher position. It is enough that Atty.
as to the results thereof (Escasinas v.
Renan‘s act result in creating an
Shangri-la‘s Mactan Island Resort, 580
intimidating, hostile or offensive
SCRA 344 [2009]).
environment for Miss Maganda.

Labor-only contracting is prohibited

Labor-Only Contracting vs. Job-Only while Job Contracting is allowed by law.

Contracting (2012)
ALTERNATIVE ANSWER:

No. I. a. Distinguish Labor-Only contracting

(1) Job-only Contracting is legal;
and Job-Only contracting. (5%)
whereas, Labor-Only Contracting is

SUGGESTED ANSWER: prohibited by law.

Labor-only contracting: (2) In Job-Only contracting, the principal

is only an indirect employer; whereas, in
The contractor has substantial capital or Labor-only contracting, the principal
investment in the form of tools, becomes the direct employer of the
equipment, machineries, work premises, employees of the labor-only contractor.
among others, and the employees of the
contractor are performing activities (3) The liability of the principal in Job-
which are directly related to the main only Contracting vis-à-vis employees of

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the job-contractor is for a limited SUGGESTED ANSWER:

purpose only, e.g. wages and violation of
labor standard laws; whereas, the Yes, the presumption is that a

liability of the principal in Labor-Only contractor is a labor-only contractor

Contracting is for a comprehensive unless it is shoen that it has substantial

purpose and, therefore, the principal capital and substantial invetstment in

becomes solidarily with the labor-only the form of tools, equipment,

contractor for all the rightful claims of machineries, work premises and the like

the employees. (Sy, et al v. Fairland Knitcraft Co., Inc.,

In Job-Only contracting, no employer-
employee relationship
the principal and the employees of the
job contractor; whereas, in Labor-Only
contracting, the law
employer-employee relationship between
the principal and the employees of the
labor-only contractor.
G.R. Nos. 182915 & 189658, December
12, 2011) besides, what Art. 106 of the
exists between Code defines is Labor-Only Contracting
and not Job-Contracting. In mandating
that ―there is ‗labor-only‘ contracting
creates an where the person supplying workers to
an employment does not have
substantial capital OR investment in the
form of tools, equipment, machineries,
work premises, among others‖, the law is
therefore clear that the presence of

Labor-Only Contractor (2012) either handicap – ―substantial capital OR

(substantial) investment in the form of
No. X. a. XYZ Manpower Services (XYZ) was tools, equipment, (etc.)‖ – is enough
sued by its employees together with its basis to classify one as a labor-only
client, ABC Polyester Manufacturing contractor.
Company (ABC). ABC is one of the many
clients of XYZ. During the proceedings ALTERNATIVE ANSWER:

before the Labor Arbiter, XYZ was able to

No, the Labor Arbiter‘s ruling is not
prove that it had substantial capital of
valid. Art. 106 of the Labor Code
Three Million Pesos. The Labor Arbiter
provides that the contractor has
ruled in favor of the employees because it
―substantial capital or investment‖; the
deemed XYZ as a labor only contractor. XYZ
law did not say substantial capital and
was not able to prove that it had invested in
investment. Hence, it is in the
tools, equipment, etc. Is the Labor Arbiter's
alternative; it is sufficiant if the
ruling valid? Explain. (5%)
contractor has one or the other, i.e.,

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either the substantial capital or the Is the Service Agreement between Jolli-Mac
investment. And under Department and MMSI legal and valid? Why or why not?
Order No. 18-A, Series of 2011, the (3%)
amount of P3 million paid-up capital for
SUGGESTED ANSWER:
the company is substantial capital.

No, it is not legal and valid because

MMSI is engaged in labor-only
Labor-Only Contractor (2009)
contracting. For one, the workers
supplied by MMSI to Jolli-Mac are
No. XIV. a. Jolli-Mac Restaurant Company
performing services which are directly
(Jolli-Mac) owns and operates the largest
related to the principal business of Jolli-
food chain in the country. It engaged
Mac. This is so because the duties
Matiyaga Manpower Services, Inc. (MMSI), a
performed by the workers are integral
job contractor registered with the
steps in or aspects of the essential
Department of Labor and Employment, to
operations of the principal[la (Baguio, et
provide its restaurants the necessary
al. v. NLRC, et al., 202 SCRA 465 [1991];
personnel, consisting of cashiers,
Kimberly Independent Labor Union, etc.
motorcycle delivery boys and food servers,
v. Drillon, 185 SCRA 190 [1990]. For
in its operations. The Service Agreement
another, MMSI was organized by Jolli-
warrants, among others, that MMSI has a
Mac itself to supply its personnel
paid- up capital of P2,000,000.00; that it
requirements (San Miguel Corporation v.
would train and determine the qualification
MAERC Integrated Services, Inc., et al.,
and fitness of all personnel to be assigned
405 SCRA 579 [2003]).
to Jolli- Mac; that it would provide these
personnel with proper Jolli-Mac uniforms; ALTERNATIVE ANSWER:
and that it is exclusively responsible to
The Service Agreement is valid. The law,
these personnel for their respective salaries
Art. 106, does not invalidate an
and all other mandatory statutory benefits.
Independent Contractors Agreement
After the contract was signed, it was because an Independent Contractor has
revealed, based on research conducted, only one (1) client, or that the employer
that MMSI had no other clients except Jolli- of the independent contractor is one of
Mac, and one of its major owners was a the major owners of the employing
member of the Board of Directors of Jolli- establishment. MMSI, is an independent
Mac. business, adequately capitalized and

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assumed all the responsibilities of a RSC is engaged in ‖labor-only‖

legitimate Independent Contractor. contracting.

Apart from the substantial capitalization

or investment in the form of tools,
Labor-Only Contractor (2008)
equipment, machinery and work

No. V. c. The Pizza Corporation (PizCorp) premises, the following factors need be

and Ready Supply Cooperative (RSC) considered.

entered into a "service agreement" where

(A) whether the contractor is carrying on
RSC in consideration of service fees to be
an independent business;
paid by PizCorp's will exclusively supply
(B) the nature and extent of the work;
PizCorp with a group of RSC motorcycle-
(C) the skill required;
owning cooperative members who will
(D) the term and duration of the
henceforth perform PizCorp's pizza delivery
relationship;
service. RSC assumes under the agreement
(E) the right to assign the performance
--- full obligation for the payment of the
of specific pieces of work;
salaries and other statutory monetary
(F) the control and supervision of the
benefits of its members deployed to
workers;
PizCorp. The parties also stipulated that
(G) the power of the employer with
there shall be no employer-employee
respect to the hiring, firing and payment
relationship between PizCorp and the RSC
of workers of the contractor;
members. However, if PizCorp is materially
(H) the control of the premises;
prejudiced by any act of the delivery impose
(I) the duty to supply premises, tools,
disciplinary sanctions on, including the
appliances, materials, and labor; and
power to dismiss, the erring RSC
(J) the mode, manner and terms of
member/s.
payment.

Assume that RSC has a paid-up

(Alexander Vinoya v. NLRC, Regent Food
capitalization of P1,000.000.00 Is RSC
Corporation and/or Ricky See, G.R. No.
engaged in "labor only" contracting,
126586, February 02, 2000; Rolando E.
permissible job contracting or simply,
Escario, et. al. v. NLRC, et. al., G.R. No.
recruitment? (3%)
124055, June 08, 2000; Osias I.

SUGGESTED ANSWER: Corporal, Sr., et. al. v. NLRC, Lao Enteng

Company, Inc. and/or Trinidad Lao Ong,
G.R. No. 129315, October 02, 2000)

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Consider also the following Mario for membership with SSS and remit
circumstances: overdue SSS premiums.

(1) the workers placed by RSC are Who has the obligation to report the RSC
performing activities which are directly members for membership with the SSS,
related to the principal business of with the concomitant obligation to remit
PizCorp. (Baguio v. NLRC, G.R. Nos. SSS premiums? Why? (6%)
79004-08, October 04, 1991);
SUGGESTED ANSWER:

(2) RSC is not free from the control and Since RSC is a ―labor-Only‖ contractor

direction of PizCorp in all matters and, therefore, considered a mere agent

connected with the performance of the of PizCorp. PizCorp, as the real

work (ibid). employer, has the legal obligation to

report the RSC members as its
employees for membership with the SSS
and remit its premium.
Labor-Only Contractor; Remittance of
SSS Premium (2008)

No. IX. Assume that in Problem 5, Mario, Labor-Only Contractor; Worker‘s Money
an RSC member disgusted with the non- Claim (2009)
payment of his night shift differential and
overtime pay, filed a complaint with the No. XIV. b. Jolli-Mac Restaurant Company

DOLE Regional Office against RSC and (Jolli-Mac) owns and operates the largest

PizCorp. After inspection, it was found that food chain in the country. It engaged

indeed Mario was not getting his correct Matiyaga Manpower Services, Inc. (MMSI), a

differential and overtime pay and that he job contractor registered with the

was declared an SSS member (so that no Department of Labor and Employment, to

premiums for SSS membership were ever provide its restaurants the necessary

remitted). On this basis, the Regional personnel, consisting of cashiers,

Director issued a compliance order holding motorcycle delivery boys and food servers,

PizCorp and RSC solidarily liable for the in its operations. The Service Agreement

payment of the correct differential and warrants, among others, that MMSI has a

overtime pay and ordering PizCorp to report paid- up capital of P2,000,000.00; that it
would train and determine the qualification

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Labor Law Q&As (2007-2013)
and fitness of all personnel to be assigned
to Jolli- Mac; that it would provide these
personnel with proper Jolli-Mac uniforms;
and that it is exclusively responsible to
these personnel for their respective salaries
and all other mandatory statutory benefits.
After the contract was signed, it was
revealed, based on research conducted,
that MMSI had no other clients except Jolli-
Mac, and one of its major owners was a
member of the Board of Directors of Jolli-
Mac.
If the cashiers, delivery boys and food
servers are not paid their lawful salaries,
including overtime pay, holiday pay, 13th
month pay, and service incentive leave pay,
against whom may these workers file their
claims? Explain. (2%)
SUGGESTED ANSWER:
They may file their claims against Jolli-
Mac. A finding that MMSI is a ―labor-
only‖ contractor is equivalent
declaring there is an employer-employee
relationship between Jolli-Mac and the
workers of MMSI (Associated
American Tobacco Corp. v. Clave, 189
SCRA 127 [1990], Industrial
Corp. v. NLRC, 169 SCRA 341 [1989]).
The liability of Jolii-Mac vis-avis the
wokers of MMSI is for a comprehensive
purpose, i.e., not only for the unpaid
wages but for all claims under the Labor
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hectorchristopher@yahoo.com faithrollan5@yahoo.com
Code and ancillary laws (San Miguel
Corp. v. Maerc Integrated Services, Inc.,
et el., 405 SCRA 579 [2003]).
ALTERNATIVE ANSWER:
The employers can file their claims
against Jolli-Mac pursuant to Art. 106 of
the Labor Code which reads: ―Contractor
or subcontractor – xxx In the event that
the contractor or subcontractor fails to
pay the wages of his employees in
accordance with this Code, the employer
shall be jointly and severally liable with
his contractor or subcontractor to such
employees to the extent of the work
performed under the contract, in the
same manner and extent, that he is
liable to employee directly employed by
him.‖
Recruitment & Placement; Direct Hiring
of OFW (2010)
to
No. I. 3. As a general rule, direct hiring of
Overseas Filipino Workers (OFWs) is not
allowed. (2%)
Anglo-
SUGGESTED ANSWER:
Timber
True, Art. 18 of the Labor Code provides
that no employer may hire a Filipino
worker for overseas employment except
through the Boards and entities
authorized by the Department of Labor
and Employment. (DOLE) except direct-
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hiring by members of the diplomatic been perfected which creates certain

corps, international organizations and rights and obligations, the breach of
such other employers as may be allowed which may give rise to a cause of action
by the DOLE. against the erring party:

Another exemption if ―Name Hire,‖ (1) A can file a complaint for

which refers to a worker who is able to Recruitment Violation for XYZ‘s failure
secure an overseas employment to deploy him within the prescribed
opportunity with the assistance or period without any valid reason, a
participation of any agency. ground for the imposition of
administrative sanctions against XYZ
under Section 2, Rule I, Part V of the

Recruitment & Placement; Contract of 2003 POEA Rules of Employment of

Employment; Relief (2010) Seafarers.

No. XII. On December 12, 2008, A signed a (2) At the same time, A can file for illegal
contract to be part of the crew of ABC recruitment under Section 6(L) of Rep.
Cruises, Inc. through its Philippine Act No 8042 (cf: Section 11 Rule I, Part
manning agency XYZ. Under the standard V of the 2003 POEA Rules on
employment contract of the Philippine Employment of Seafarers).
Overseas Employment Administration
A may file a complaint for breach of
(POEA), his employment was to commence
contract, and claim damages therefor
upon his actual departure from the port in
before the NLRC, despite absence of
the point of hire, Manila, from where he
employer-employee relationship. Section
would take a flight to the USA to join the
10 of Rep. Act No 8042 conferred
cruise ship “MS Carnegie.” However, more
jurisdiction on the Labor Arbiter not
than three months after A secured his exit
only claims arising out of EER, but also
clearance from the POEA for his supposed
by virtue of any law or contract
departure on January 15, 2009, XYZ still
involving Filipino workers for overseas
had not deployed him for no valid reason.
deployment including claims for actual,

Is A entitled to relief? Explain. (3%) moral, exemplary and other forms of

damages. (Santiago v. CF Sharp Crew
SUGGESTED ANSWER: Management, 527 SCRA 165 [2007]).

Yes, even if no departure took place, the

contract of employment has already

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Recruitment & Placement; Illegal recruitment agency failed to register

Recruitment; Criminal Liability (2010) him as its personnel (People v.
Chowdury, 325 SCRA 572 [2000]). The
No. XXI. a. A was approached for possible fault not being attributable to him, he
overseas deployment to Dubai by X, an may be considered to have apparent
interviewer of job applicants for Alpha authority to represent Alpha in
Personnel Services, Inc., an overseas recruitment for overseas employment.
recruitment agency. X required A to submit
certain documents (passport, NBI
clearance, medical certificate) and to pay
Recruitment & Placement; Illegal
P25,000 as processing fee. Upon payment
Recruitment; Criminal Liability;
of the said amount to the agency cashier, A
Recruitment Agency (2010)
was advised to wait for his visa. After five
months, A visited the office of Alpha No. XXI. b. A was approached for possible
Personnel Services, Inc. during which X overseas deployment to Dubai by X, an
told him that he could no longer be interviewer of job applicants for Alpha
deployed for employment abroad. A was Personnel Services, Inc., an overseas
informed by the Philippine Overseas recruitment agency. X required A to submit
Employment Administration (POEA) that certain documents (passport, NBI
while Alpha Personnel Services, Inc. was a clearance, medical certificate) and to pay
licensed agency, X was not registered as its P25,000 as processing fee. Upon payment
employee, contrary to POEA Rules and of the said amount to the agency cashier, A
Regulations. Under POEA Rules and was advised to wait for his visa. After five
Regulations, the obligation to register months, A visited the office of Alpha
personnel with the POEA belongs to the Personnel Services, Inc. during which X
officers of a recruitment agency. told him that he could no longer be
deployed for employment abroad. A was
May X be held criminally liable for illegal
informed by the Philippine Overseas
recruitment? Explain. (2%)
Employment Administration (POEA) that

SUGGESTED ANSWER: while Alpha Personnel Services, Inc. was a

licensed agency, X was not registered as its
No, X performed his work with the employee, contrary to POEA Rules and
knowledge that he works for a licensed Regulations. Under POEA Rules and
recruitment agency. He is in no position Regulations, the obligation to register
to know that the officers of said

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personnel with the POEA belongs to the recruitment which is considered as an

officers of a recruitment agency. offense involving economic sabotage.
Illegal recruitment as an offense
May the officers having control, involving economic sabotage is
management or direction of Alpha committed under the following
Personnel Services, Inc. be held criminally qualifying circumstances, to wit:
liable for illegal recruitment? Explain. (3%)
When illegal recruitment is committed
SUGGESTED ANSWER: by a syndicate, that is when it is carried
out by a group of three (3) or more
Yes, Alpha, being a licensed recruitment
persons conspiring and/or confederating
agency, still has obligation to A for
with one another; or
processing his papers for overseas
employment. Under Section 6(m) of Rep. When illegal recruitment is committed in
Act. No. 8042, failure to reimburse large scale that is when it is committed
expenses incurred by the worker in against three (3) or more persons
connection with his documentation and whether individually or as a group.
processing for purposes of deployment,
in cases where the deployment does not ALTERNATIVE ANSWER:

actually take place without the worker‘s

Under the Labor Code, illegal
fault, amounts to illegal recruitment.
recruitment refers to any recruitment
activity undertaken by non-licensees or
non-holders of authority. It includes the
Recruitment & Placement; Illegal acts of canvassing, enlisting,
Recruitment; Types (2007) contracting, transporting, utilizing,
hiring, procuring, referrals, contract
No. III. a. Discuss the types of illegal
services and advertising (Art. 13(b), Arts.
recruitment under the Labor Code. (5%)
34 & 38, Labor Code).

SUGGESTED ANSWER: The following prohibited acts are also

Under the Labor Code, as amended by
Republic Act No. 8042 otherwise known
as the ―Overseas Filipinos and Migrant
Workers Act of 1998‖, there are two
types of illegal recruitment , particularly
simple illegal recruitment and illegal
considered acts of illegal recruitment
when undertaken by non-licensees or
non-holders of authority:
(A) Charging or accepting directly or
indirectly, any amount greater than that
specified in the schedule of allowable

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fees prescribed by the Secretary of (G) Obstructing or attempting to obstruct

Labor, or to make a worker pay any inspection by the Secretary of Labor or
amount greater than that actually by his duly authorized representative;
received by him as a loan or advance;
(H) Failing to file reports on the status of
(B) Furnishing or publishing any false employment, placement vacancies,
notice or information or document in remittance of foreign exchange earnings,
relation to recruitment or employment; separation from jobs, departures and
such other matters or information as
(C) Giving any false notice, testimony, may be required by the secretary of
information or document or commit any labor;
act of misrepresentation for the purpose (I) Becoming an officer or member of the
of securing a license or authority under Board of any corporation engaged in
this Code; travel agency or to be engaged direct or
indirectly in the management of a travel
(D) Inducing or attempting to induce a agency; and
worker already employed to quit his
Withholding or denying travel
employment in order to offer him to
documents from applicant workers
another unless the transfer is designed
before departure for monetary or
to liberate the worker from oppressive
financial considerations other that those
terms and conditions of employment;
authorized under this code and
implementing rules and regulations. (RA
(E) Influencing or to attempting to
8042, Migrant Workers & Oversees
influence any person or entity not to
Filipino Act of 1995)
employ any worker who has not applied
for employment through his agency;

Recruitment & Placement; Illegal

(F) Engaging in the recruitment or
Recruitment; Search & Arrest Warrants
placement of workers in jobs harmful to
(2007)
public health or morality or to the
dignity of the Republic of the
No. III. b. In initiating actions against
Philippines;
alleged illegal recruiters, may the Secretary
of Labor and Employment issue search and
arrest warrants? (5%)

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SUGGESTED ANSWER: (1) Commission of a felony or a crime

punishable by Philippine Laws or by the
No, under the 1987 Constitution, only
laws of the host country;
judges may issue warrants of arrest or
(2) Unjustified breach of employment
search warrant.
contract;
(3) Embezzlement of company funds or
monies and/or properties of a fellow
Recruitment & Placement; POEA;
worker entrusted for delivery to kin or
Disciplinary Action; OFW (2007)
relatives in the Philippines; and
(4) Violation/s sacred practice of the
No. XIX. Cite five grounds for disciplinary
host country.
action by the Philippine Overseas
Employment Administration (POEA) against Further, under Section 1(A) and (B), Rule
overseas workers. (5%) II, Part VI of the 2003 Rules and
Regulations Governing the Recruitment
SUGGESTED ANSWER:
and Employment of Seafarers, the
following are the grounds for disciplinary
Under the Section 1(A) and (B), Rule III,
action against seafarers:
Part VII of the 2002 POEA Rules and
Regulations Governing the Recruitment
(A) Pre-employment Offenses
and Employment of the Land-based
(1) Submission/furnishing or using false
Overseas Workers, the following are the
information or documents or any form of
grounds for disciplinary action against
misappropriation for the purpose of job
overseas workers:
application or employment;
(2) Unjust refusal to join ship after all
(A) Pre-employment Offenses
employment and documents have been
(1) Using, providing, or submitting false
duly approved by the appropriate
information or documents for purposes
government agencies.
of job application or employment;
(B) Offenses During Employment
(2) Unjustified refusal to depart for the
(1) Smuggling or violation of any custom
worksite after all employment and travel
rules and regulations of the Philippines
documents have been duly approved by
and foreign port;
the appropriate overnment agency/eis.
(2) Desertion;
(3) Absence without leave;
(B) Offenses during Employment
(4) Sleeping on post while on duty;
(5) Insubordination;

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(6) Drunkenness; (21) Failure to observe the drug and

(7) Creating trouble outside the vessel‘s alcohol policy of that company.
premises;
(8) Gambling;
(9) Violation of company policies and Wages; Employee‘s Wage; Facilities
regulations; (2013)
(10) Incompetency and inefficiency;
No. II. Gamma Company pays its regular
(11) Inciting mutiny, malicious
employees P350.00 a day, and houses them
destruction of ship‘s property or any
in a dormitory inside its factory compound
activity which will hamper the efficient
in Manila. Gamma Company also provides
operation of the vessel;
them with three full meals a day.
(12) Concerted action to breach
approved contracts;
In the course of a routine inspection, a
(13) Any activity which tends to destroy
Department of Labor and Employment
harmonious relationship of the
(DOLE) Inspector noted that the workers'
company;
pay is below the prescribed minimum wage
(14) Grave abuse of authority;
of P426.00 plus P30.00 allowance, and
(15) Other gross misbehaviors prejudicial
thus required Gamma Company to pay
to good order and discipline;
wage differentials.
(16) Negligence causing damage, loss,
spoilage or deterioration of vessel‘s
Gamma Company denies any liability,
stocks and property;
explaining that after the market value of the
(17) Connivance with or cuddling of
company-provided board and lodging are
stowaway;
added to the employees' P350 cash daily
(18) Willfully making false statements,
wage, the employees' effective daily rate
reports, certification or spurious
would be way above the minimum pay
seafarer‘s documents for personal gain
required by law. The company counsel
with or with intent to misled or defraud
further points out that the employees are
the company;
aware that their food and lodging form part
(19) Any other case as to cast aspersion
of their salary, and have long accepted the
on the good name of the company and
arrangement.
vessel;
(20) Violation of safety and Is the company's position legally correct?
environmental rules/regulations; and (8%)

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SUGGESTED ANSWER: their wages. The employer concluded that

such valid deduction naturally resulted in
No, the following requisites were not
the payment of wages below the prescribed
complied with:
minimum. If you were the Labor Arbiter,

(A) Proof that such facilities are how would you rule? Explain. (3%)
customarily furnished by the trade
SUGGESTED ANSWER:
(B) The provision of deductible facilities
is voluntarily accepted by the employee I will rule in favor of A.
(C) The facilities are charged at the fair
Even if food and lodging were provided
and reasonable value. Mere availment is
and considered as facilities by the
not sufficient to allow deduction from
employer, the employer could not
the employees‘ wages. (Mayon Hotel &
deduct such facilities from its workers‘
restaurant v. Adarna, 458 SCRA 609
wages without compliance with law
[2005]).
(Mayon Hotel & Restaurant v. Adana,
ALTERNATIVE ANSWER: 458 SCRA 609 [2005]).

No, rule 78, Section 4 provides that In Mabeza v. NLRC (271 SCRA 670
there must be a written authorization. [1997]), the Supreme Court held that the
employer simply cannot deduct the
value form the employee‘s wages without

Wages; Employee‘s Wage; Facilities satisfying the following: (a) proof that

(2010) such facilities are customarily furnished

by the trade; b) the provision of
No. XXIII. A worked as a roomboy in La
deductible facilities is voluntarily
Mallorca Hotel. He sued for underpayment
accepted in writing by the employee; and
of wages before the NLRC, alleging that he
(c) the facilities are charged at fair and
was paid below the minimum wage. The
reasonable value.
employer denied any underpayment,
arguing that based on long standing,
unwritten policy, the Hotel provided food
Wages; Holiday Pay (2010)
and lodging to its housekeeping employees,
the costs of which were partly shouldered No. IV. A, a worker at ABC Company, was
by it and the balance was charged to the on leave with pay on March 31, 2010. He
employees. The employees’ corresponding reported for work on April 1 and 2, Maundy
share in the costs was thus deducted from Thursday and Good Friday, respectively,

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both regular holidays. Is A entitled to No, following the ―No work No Pay‖
holiday pay for the two successive holidays? principle, the supervisors are not
Explain. (3%) entitled to their money claim for unpaid
salaries. They should not be
SUGGESTED ANSWER:
compensated for services skipped during

Yes, A is entitled to holiday pay the strike. The age-old rule governing
equivalent to two hundred percent the relation between labor and capital, or

(200%) of hi regular daily wage for the management and employee of a ―fair

two successive holidays that she worked day‘s wage for a fair day‘s labor‖ remains

(Section 6[a], Rule IV, Book III of the as the basic factor in determining

Omnibus Rule Implementing the Labor employees‘ wage (Aklan Electric

Code). Cooperative, Inc. v. NLRC, G.R. No.

121439, January 25, 2000).

Wages; No Work No Pay Principle XIII

(2008)
Wages; Overtime Pay; Waiver (2009)

No. XIII. The rank-and-file union staged a

No. XI. d. A waiver of the right to claim
strike in the company premises which
overtime pay is contrary to law. (5%)
caused the disruption of business
operations. The supervisors union of the SUGEESTED ANSWER:
same company filed a money claim for
True, as a general rule, overtime
unpaid salaries for the duration of the
compensation cannot be waived,
strike, arguing that the supervisors' failure
whether expressly or impliedly; and
to report for work was not attributable to
stipulation to the contrary is against the
them. The company contended that it was
law (Pampanga Sugar Dev. Co., Inc. v.
equally faultless, for the strike was not the
CIR, 114 SRCA 725 [1982]). An
direct consequence of any lockout or unfair
excep0tion would be the adoption of a
labor practice. May the company be held
compressed work week on voluntary
liable for the salaries of the supervisor?
basis, subject to the guidelines of
Decide (6%)
Department Order No. 02, Series of
SUGGESTED ANSWER: 2004.

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Wages; Undertime off-set by Overtime SUGGESTED ANSWER:

(2010)
Wage distortion refers to a situation

No. XIV. After working from 10 a.m. to 5 where an increase in the prescribed wage

p.m. on a Thursday as one of 5,000 rates results in the elimination or severe

employees in a beer factory, A hurried home contraction of intentional quantitative

to catch the early evening news and have differences in wage or salary rates

dinner with his family. At around 10 p.m. of between and among employee groups in

the same day, the plant manager called and an establishment as to effectively

ordered A to fill in for C who missed the obliterate the distinctions embodied in

second shift. such wage structure based on skills,

length of service and other logical bases
Assuming that A was made to work from 11 of differentiation (Art. 124, Labor Code).
p.m. on Thursday until 2 a.m. on Friday,
No. the existence of wage distortion is
may the company argue that, since he was
not a valid ground for staging a strike
two hours late in coming to work on
because Art. 124 of the Labor Code
Thursday morning, he should only be paid
provides for a specific method or
for work rendered from 1 a.m. to 2 a.m.?
procedure for correcting wage distortion.
Explain? (3%)
In Ilaw at Buklod ng Manggagawa vs.
SUGGESTED ANSWER: NLRC, (198 SCRA586, 594-5 [1991]), the
Court said.
No, Rep. Act. No.9481 introduced a new
provision, Art. 245-A, which provides
that mixed membership is not a ground
Wages; Wage Distortion; Means of
for cancellation of a union‘s registration,
Solving (2009)
but said employees wrongfully joined are
deemed removed from said union. No. IX. b. What procedural remedies are
open to workers who seek correction of
wage distortion? (2%)
Wages; Wage Distortion; Definition
SUGGESTED ANSWER:
(2009)
The Procedural Remedies of Wage
No. IX. a. What is wage distortion? Can a
Distortion disputes are provided in Art.
labor union invoke wage distortion as a
242 of the Labor Code, as follows.
valid ground to go on strike? Explain. (2%)

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Organized establishment – follow the Termination of Employment

grievance procedure as provided for in
the CBA, ending in voluntary arbitration. Backwages; Money Claims; OFW (2010)

Unorganized establishment – employer No. VII. b. A was an able seaman

and workers, with the aid of the NCMB contracted by ABC Recruitment Agency for
shall endeavor to correct the wage its foreign principal, Seaworthy Shipping
distortion, and if they fail, to submit the Company (SSC). His employment contract
issue to the NLRC for compulsory provided that he would serve on board the
arbitration. Almieda II for eight (8) months with a
monthly salary of US$450. In connection
with his employment, he signed an
Working Hours; Emergency Overtime undertaking to observe the drug and
Work (2010) alcohol policy which bans possession or use
of all alcoholic beverages, prohibited
No. XIV. a. After working from 10 a.m. to 5 substances and un-prescribed drugs on
p.m. on a Thursday as one of 5,000 board the ship. The undertaking provided
employees in a beer factory, A hurried home that: (1) disciplinary action including
to catch the early evening news and have dismissal would be taken against anyone in
dinner with his family. At around 10 p.m. of possession of the prohibited substances or
the same day, the plant manager called and who is impaired by the use of any of these
ordered A to fill in for C who missed the substances, and (2) to enforce the policy,
second shift. random test sampling would be done on all
those on board the ship.
May A validly refuse the plant manager’s
directive? Explain. (2%) On his third month of service while the
Almieda II was docked at a foreign port, a
SUGGESTED ANSWER:
random drug test was conducted on all
Yes, A may validly refuse to fill in for C. members of the crew and A tested positive
a may not be compelled to perform for marijuana. He was given a copy of the
overtime work considering that the plant drug test result. In compliance with the
manager‘s directive is not for an company’s directive, he submitted his
emergency overtime work, as written explanation which the company did
contemplated under Article 89 of the not find satisfactory. A month later, he was
Labor Code. repatriated to the Philippines.

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Upon arrival in the Philippines, A filed with Dismissal; Defiance of Return to Work
the National Labor Relations Commission Order (2008)
(NLRC) a complaint against the agency and
the principal for illegal dismissal with a No. VI. c. On the day that the Union could

claim for salaries for the unexpired portion validly declare a strike, the Secretary of

of his contract. Labor issued an order assuming

jurisdiction over the dispute and enjoining
Is his claim for salaries for the unexpired the strike, or if one has commenced,
portion of his contract tenable? Explain. ordering the striking workers to
(3%) immediately return to work. The return-to-
work order required the employees to
SUGGESTED ANSWER:
return to work within twenty-four hours
Yes, Section 10 of Rep. Act No. 8042 (as and was served at 8 a.m. of the day the
amended by Rep. Act No. 10022) strike was to start. The order at the same
provides that in case of termination of time directed the Company to accept all
overseas employment without just, valid employees under the same terms and
or authorized cause as defined by law or conditions of employment prior to the work
contract, or any unauthorized stoppage. The Union members did not
deductions from the migrant worker‘s return to work on the day the Secretary's
salary, the worker shall be entitled to assumption order was served nor on the
the full reimbursement of his placement next day; instead, they held a continuing
fee with interest at twelve percent (12%) protest rally against the company's alleged
per annum, plus his salaries for the unfair labor practices. Because of the
unexpired portion of his employment accompanying picket, some of the
contract or for three (3) years for every employees who wanted to return to work
year of the unexpired term, whichever is failed to do so. On the 3rd day, the workers
less (cf. Serrano v. Gallant Maritime, 582 reported for work, claiming that they do so
SCRA 254 [2009]). in compliance with the Secretary's return-
to-work order that binds them as well as
ALTERNATIVE ANSWER:
the Company. The Company, however,
No, under Rep. Act No. 8042, money refused to admit them back since they had
claim can be made only if there is violated the Secretary's return-to-work
dismissal without just or authorized order and are now considered to have lost
cause. their employment status.

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The Union officers and members filed a
complaint for illegal dismissal arguing that
there was no strike but a protest rally
which is a valid exercise of the workers
constitutional right to peaceable assembly
and freedom of expression. Hence, there
was no basis for the termination of their
employment.
You are the Labor Arbiter to whom the case
was raffled. Decide, ruling on the following
issues:
No. XVII. a. Alfredo was dismissed by
management for serious misconduct. He
filed suit for illegal dismissal, alleging that
although there may be just cause, he was
not afforded due process by management
prior to his termination. He demands
reinstatement with full backwages.
What are the twin requirements of due
process which the employer must observe
in terminating or dismissing an employee?
Explain. (3%)

What are the consequences, if any, of the SUGGESTED ANSWER:

acts of the employees? (3%)

The twin requirements of due process
are notice and hearing to be given to the
SUGGESTED ANSWER:
worker. There is likewise a two-notice

Defiance of the return-to-work order of requirement rule, with the first notice

the Secretary of Labor after he has pertaining to specific causes or grounds

assumed jurisdiction is a ground for loss for termination and directive to submit a

of the employment status of any striking written explanation within a reasonable

officers or member (Telefunken period. ―The second notice pertains to

Semiconductors Employees Union-FFW notice of termination. Pursuant to Perez

v. CA, G.R. Nos. 143013-14, December v. Philippine Telegraph and Telephon

18, 2000). However, this rule should not Company (G.R. N. 152048, 7 April 2009),

apply to the employees who failed to the Court held that a hearing or

return because of the accompanying conference is not mandatory, as long as

picket that blocked free egress & ingress the employee is given ―ample

to and from company premises. opportunity to be heard‖, i.e. any

meaningful opportunity (verbal or
written) to answer the charges against
him or her and submit evidence in
Dismissal; Due Process; Requirement support of the defense, whether in a
(2009) hearing, conference, or some other fair,
just and equitable way.

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Dismissal; Illegal Dismissal; Disability benefits based on the ailments that he

Complaint (2013) developed and suffered while on board
Meritt Shipping vessels. The claim was
No. X. For ten (10) separate but consecutive
based on the certification of his physician
yearly contracts, Cesar has been deployed
(internist Dr. Reyes) that he could no longer
as an able-bodied seaman by Meritt
undertake sea duties because of the
Shipping, through its local agent, Ace
hypertension and diabetes that afflicted
Maritime Services (agency), in accordance
him while serving on Meritt Shipping
with the 2000Philippine Overseas
vessels in the last 10 years. Rejected once
Employment Administration Standard
again, Cesar filed a complaint for illegal
Employment Contract (2000 POEA-SEC).
dismissal and the payment of total
Cesar's employment was also covered by a
permanent disability benefits against the
CBA between the union, AMOSl.JP, and
agency and its principal.
Meritt Shipping. Both the 2000 POEA-SEC
and the CBA commonly provide the same Assume that you are the Labor Arbiter
mode and procedures for claiming disability deciding the case. Identify the facts and
benefits. Cesar's last contract (for nine issues you would consider material in
months) expired on July 15, 2013. resolving the illegal dismissal and disability
complaint. Explain your choices and their
Cesar disembarked from the vessel M/V
materiality, and resolve the case. (8%)
Seven Seas on July 16, 2013as a seaman
on "finished contract". He immediately SUGGESTED ANSWER:
reported to the agency and complained that
(1) Does the Labor Arbiter have
he had been experiencing spells of
jurisdiction to decide the case?
dizziness, nausea, general weakness, and
(2) Did Cesar submit to a post-
difficulty in breathing. The agency referred
employment examination within 3 days
him to Dr. Sales, a cardio-pulmonary
upon his return? This is mandatory
specialist, who examined and treated him;
requirement; otherwise, Cesar will forfeit
advised him to take a complete rest for a
his right to claim benefits.
while; gave him medications; and declared
(3) Is Dr. Sales the company-designated
him fit to resume work as a seaman.
physician? The company-designated

After a month, Cesar went back to the physician is the one who initially

agency to ask for re-deployment. The determines compensability.

agency rejected his application. Cesar

responded by demanding total disability

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(4) Was Cesar assisted by Dr. Sales (if he its rank-and-file Union (which is directly
is the company physician) within 120 affiliated with MMFF, a national federation),
days? a provision on the maintenance of
(5) If the 120 days was exceeded and no membership expressly provides that the
declaration was made as to Cesar‘s Union can demand the dismissal of any
disability, was this extended to 240 days member employee who commits acts of
because Cesar required further medical disloyalty to the Union as provided for in its
treatment? Constitution and By-Laws. The same
(6) Was the 240 days exceeded and still provision contains an undertaking by the
no final decision was reached as to Union (MMFF) to hold Dana Films free from
Cesar‘s disability? If so, Cesar is deemed any and all claims of any employee
entitled to permanent total disability dismissed. During the term of the CBA,
benefits. MMFF discovered that certain employee-
(7) If the company‘s physician and members were initiating a move to
Cesar‘s physician cannot agree, was a disaffiliate from MMFF and join a rival
third physician designated to determine federation, FAMAS. Forthwith, MMFF
the true nature and extent of the sought the dismissal of its employee-
disability. The third physician‘s finding members initiating the disaffiliation
under the law is final and conclusive. movement from MMFF to FAMAS. Dana
(8) In the matter of the complaint for Films, relying on the provision of the
illegal dismissal: There is none because aforementioned CBA, complied with
Cesar disembarked on a ―finished MMFF's request and dismissed the
contract.‖ employees identified by MMFF as disloyal to
(9) Seafarers are contractual employees, it.
for a fixed terms, governed by the
contract they sign; an exception to What are the liabilities of Dana Films and

Article 280 (now Article 286) of the MMFF to the dismissed employees, if any?

Labor Code. Hence, the complaint for (5%)

illegal dismissal will not prosper.

SUGGESTED ANSWER:

Dismissal; Illegal Dismissal; Liabilities Dana Films is obliged (1) to reinstate the

(2012) illegally dismissed to their former

positions without reduction in rank,
No. II. b. In the Collective Bargaining serniority and salary; and (2) to jointly
Agreement (CBA) between Dana Films and and severally pay the dismissed

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employees backwages, without any 40 years. Due to serious business losses

reduction in pay or qualification and financial reverses during the last five
(Amanda Rice v. NLRC, G.R. No. 68147, (5) years, they decided to close the
June 30, 1988). business.

As counsel for the corporation, what steps

will you take prior to its closure? (3%)
Dismissal; Illegal Dismissal; Separation
Pay in Lieu of Reinstatement (2009)
SUGGESTED ANSWER:
No. XVIII. a. Cite four (4) instances when an
I will serve notice to both the worker
illegally dismissed employee may be
and the Regional Office of the
awarded separation pay in lieu of
Department of Labor and Employment,
reinstatement. (3%)
at least one (1) month before the
SUGGESTED ANSWER: intended date of closure. (Art. 283, Labor
Code); and (2) provide proof of ABC‘s
These four instances are: (i) in case the
serious business losses or financial
establishment where the employee is to
reverses (Balasbas v. NLRC, G.R. No.
be reinstated has closed or ceased
85286, August 24, 1992)
operations; (ii) where the company has
been declared insolvent; (iii) former
position no longer exists at the time of
Dismissal; Authorized Causes; Closure &
reinstatement for reason not attributable
Cessation of Business; Separation Pay
to the fault of the employer; and (iv)
(2012)
where the employee decides not to be
reinstated as when he does not pray for
No. VIII. b. ABC Tomato Corporation,
reinstatement in his complaint or
owned and managed by three (3) elderly
position paper.
brothers and two (2) sisters, has been in
business for 40 years. Due to serious
business losses and financial reverses
Dismissal; Authorized Causes; Closure &
during the last five (5) years, they decided
Cessation of Business (2012)
to close the business.

No. VIII. a. ABC Tomato Corporation, owned

Are the employees entitled to separation
and managed by three (3) elderly brothers
pay? (2%)
and two (2) sisters, has been in business for

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SUGGESTED ANSWER: Dismissal; Just Cause; Loss of Trust and

Confidence (2009)
No, where closure is due to serious
business losses, no separation pay is No. V. b. Domingo, a bus conductor of San
required. (North Davao Mining Corp. v. Juan Transportation Company,
NLRC, 254 SCRA 721; JAT General intentionally did not issue a ticket to a
Services v. NLRC, 421 SCRA 78 [2004]) female passenger, Kim, his long-time crush.
As a result, Domingo was dismissed from
employment for fraud or willful breach of

Dismissal; Authorized Causes; Closure & trust. Domingo contests his dismissal,

Cessation of Business; Separation Pay claiming that he is not a confidential

(2012) employee and, therefore, cannot be

dismissed from the service for breach of
No. VIII. d. ABC Tomato Corporation, trust. Is Domingo correct? Reasons. (2%)
owned and managed by three (3) elderly
brothers and two (2) sisters, has been in SUGGESTED ANWER:

business for 40 years. Due to serious

Domingo as bus conductor holds a
business losses and financial reverses
position wherein he was reposed with
during the last five (5) years, they decided
the employer‘s trust and confidence. In
to close the business.
Bristol Myers Squibb (Phils.) v. Baban
(574 SCRA 198 [2008]), the Court
Are the employees entitled to separation
established a second class of positions of
benefits? (3%)
trust that involve rank-and-file

SUGGESTED ANSWER: employees who, in the normal and

routine exercise of their functions,
Yes, in case of cessation of operations of regularly handle significant amounts of
establishment or undertaking not due to money. A bus conductor falls under such
serious business losses or financial second class persons. This does not
reverses, the separation pay shall be mean, however, that Domingo should be
equivalent to one (1) month pay or at dismissed. In Etcuban v. Sulpicio Lines
least one-half (1/2) month pay for every (448 SCRA 516 [2005]), the Court held
year of service, whichever is higher. A that where the amount involve is
fraction of at least six (6) months shall miniscule, an employee may not be
be considered as one (1) whole year (Art. dismissed for loss of trust and
283, Labor Code). confidence.

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Dismissal; Just Cause; Serious employment for any serious misconduct

Misconduct (2013) or willful disobedience by the employee
of the lawful orders of his employer or
No. I. a. Jose and Erica, former
his representatives in connection with
sweethearts, both worked as sales
his work.
representatives for Magna, a multinational
firm engaged in the manufacture and sale Misconduct involves ―the transgression
of pharmaceutical products. Although the of some established and definite rule of
couple had already broken off their action, forbidden act, a dereliction of
relationship, Jose continued to have special duty, willful in character, and implies
feelings for Erica. wrongful intent and not mere error in
judgment.‖ For misconduct to be serious
One afternoon, Jose chanced upon Erica and therefore a valid ground for
riding in the car of Paolo, a co-employee dismissal, it must be:
and Erica's ardent suitor; the two were on
their way back to the office from a sales call 1. Of grave and aggravated character

on Silver Drug, a major drug retailer. In a and not merely trivial or

fit of extreme jealousy, Jose rammed Paolo's unimportant and

car, causing severe injuries to Paolo and 2. Connected with the work of the

Erica. Jose's flare up also caused heavy employee.

damage to the two company-owned cars

ALTERNATIVE ANSWER:
they were driving.
Article 282(e) of the Labor Code talks of
As lawyer for Magna, advise the company other analogous causes or those which
on whether just and valid grounds exist to are susceptible of comparison to another
dismiss Jose. (4%) in general or in specific detail as a cause
for termination of employment.
SUGGESTED ANSWER:
In one case, the Court considered theft
Jose can be dismissed for serious
committed against a co-employee as a
misconduct, violation of company rules
case analogous to serious misconduct,
and regulations, and commission of a
for which the penalty of dismissal form
crime against the employer‘s
service may be meted out to the erring
representatives.
employee. (Cosmos Bottling Corp. v.
Article 282 of the Labor Code provides Fermin, G.R. No. 193676/194303
that an employer may terminate an [2012]). Similarly, Jose‘s offense

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perpetrated against his co-employees, Yes, serious misconduct is a ground for

Erica and Paolo, can be considered as a termination of employment. The term
case analogous to serious misconduct. ―misconduct‖ denotes intentional
wrongdoing or deliberate violation of a
rule of law or standard of behavior.
Dismissal; Just Cause; Serious
ANOTHER SUGGESTED ANSWER:
Misconduct (2009)
No, the case for illegal dismissal with
No. XIII. b. Atty. Renan, a CPA-lawyer and
damages filed in the Office of Labor
Managing Partner of an accounting firm,
Arbiter will not prosper. Renan was
conducted the orientation seminar for
terminated for serious misconduct which
newly-hired employees of the firm, among
is a just cause under Art. 282 of the
them, Miss Maganda. After the seminar,
Labor Code. The act of Renan is grave
Renan requested Maganda to stay,
and aggravated in character, and
purportedly to discuss some work
committed in connection with his work
assignment. Left alone in the training room,
(Echaverria v. Venutek Media, 516 SCRA
Renan asked Maganda to go out with him
72 [2007]), and indicates that he has
for dinner and ballroom dancing.
become unfit to continue working for his
Thereafter, he persuaded her to accompany
employer (Torreda v. Toshibe Info.
him to the mountain highway in Antipolo
Equipment, Inc. Phils., 515 SCRA 133
for sight-seeing. During all these, Renan
[2007]).
told Maganda that most, if not all, of the
lady supervisors in the firm are where they
are now, in very productive and lucrative
Dismissal; Just Cause; Serious
posts, because of his favorable
Misconduct; Performance of Official
endorsement.
Work (2013)
The lady supervisors in the firm, slighted by
No. I. b. Jose and Erica, former
Renan’s revelations about them, succeeded
sweethearts, both worked as sales
in having him expelled from the firm. Renan
representatives for Magna, a multinational
then filed with the Arbitration Branch of the
firm engaged in the manufacture and sale
NLRC an illegal dismissal case with claims
of pharmaceutical products. Although the
for damages against the firm. Will the case
couple had already broken off their
prosper? Reasons. (2%)
relationship, Jose continued to have special
SUGGESTED ANSWER: feelings for Erica.

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One afternoon, Jose chanced upon Erica Additionally, there was no compliance
riding in the car of Paolo, a co-employee with the rudimentary requirement of due
and Erica's ardent suitor; the two were on process.
their way back to the office from a sales call
on Silver Drug, a major drug retailer. In a
fit of extreme jealousy, Jose rammed Paolo's Dismissal; Just Cause; Without Due
car, causing severe injuries to Paolo and Process (2012)
Erica. Jose's flare up also caused heavy
damage to the two company-owned cars No. II. a. In the Collective Bargaining
they were driving. Agreement (CBA) between Dana Films and
its rank-and-file Union (which is directly
Assuming this time that Magna dismissed affiliated with MMFF, a national federation),
Jose from employment for cause and you a provision on the maintenance of
are the lawyer of Jose, how would you membership expressly provides that the
argue the position that Jose's dismissal was Union can demand the dismissal of any
illegal? (4%) member employee who commits acts of
disloyalty to the Union as provided for in its
SUGGESTED ANSWER:
Constitution and By-Laws. The same
The offense committed by Jose did not provision contains an undertaking by the
relate to the performance of his duties. Union (MMFF) to hold Dana Films free from
any and all claims of any employee
For misconduct or improper behavior to
dismissed. During the term of the CBA,
be a just cause for dismissal, it (a) must
MMFF discovered that certain employee-
be serious; (b) must relate o the
members were initiating a move to
performance of the employee‘s duties;
disaffiliate from MMFF and join a rival
and (c) must show that the employee has
federation, FAMAS. Forthwith, MMFF
become unfit to continue working for the
sought the dismissal of its employee-
employer.
members initiating the disaffiliation

On the basis of the foregoing guidelines, movement from MMFF to FAMAS. Dana

it can be concluded that Paolo was not Films, relying on the provision of the

guilty of serious misconduct; Paolo was aforementioned CBA, complied with

not performing official work at the time MMFF's request and dismissed the

of the incident (Lagrosas v. Bristol employees identified by MMFF as disloyal to

Mayers Squibb, G.R. No. 168637/170684 it.

[2008]).

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Will an action for illegal dismissal against begged off, explaining to the General
Dana Films and MMFF prosper or not? Manager that he had to see off his wife who
Why? (5%) was leaving to work abroad. The company
dismissed Arnaldo for insubordination. He
SUGGESTED ANSWER: filed a case for illegal dismissal. Decide (6%)

Yes, while Dana Films, under the CBA, is SUGGESTED ANSWER:

bound to dismiss any employee who is
expelled by MMFF for disloyalty (upon Compulsory overtime work may be
its written request), this undertaking required when the completion or
should not be done hastily and continuation of work started before the
summarily. Due process is required 8th hour is necessary to prevent serious
before a member can be dropped from obstruction or prejudice to the business
the list of union members of good or operations of the employer (Art. 89,
standing. The company‘s dismissal of its Par. E, Labor Code; Section 10, Rule I,
workers without giving them the benefit Book III, Implementing Rules).
of a hearing, and without inquiring from
the workers on the cause of their On the other hand, dismissal for willful

expulsion as union members, constitute disobedience of the employer‘s lawful

bad faith. (Liberty Cotton Mills Workers orders, requires that: (a) the assailed

Union, et al v. Liberty Cotton Mills, Inc. conduct must have been willful or

et al., G.R. No L-33987, May 31, 1979). intentional, characterized by a ―wrongful

and perverse attitude;‖ and (b) the order
violated must have been reasonable,
lawful, made known to the employee and
Dismissal; Just Cause; Willful
must pertain to his duties (Dimabayao v.
Disobedience (2008)
NLRC, G.R. No. 122178, February 25,

No. XII. Arnaldo, President of "Bisig" Union 1999; Alcantara, Jr. v. CA, G.R. No.

in Femwear Company, readied himself to 143397, August 06, 2002).

leave exactly at 5:00 p.m. which was the

Although the order to rendr overtime is
end of his normal shift to be able to send off
valid. Arlando should not be dismissed
his wife who was scheduled to leave for
because he was motivated by his honest
overseas. However, the General Manager
belief that the order unreasonably
required him to render overtime work to
prevented him from sending off his wife
meet the company's export quota. Arnaldo
who was leaving for overseas.

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Labor Law Q&As (2007-2013)
While the circumstances do not justify
his violation of the order to render
overtime, they do not justify Arnaldo‘s
dismissal either (Alcantara, Jr. v. CA,
G.R. No. 143397, August 06, 2002).
Dismissal; Constructive
Transfer (2013)
No. IV. b. Bobby, who was assigned as
company branch accountant
where his family also lives, was dismissed
by Theta Company after anomalies in the
company's accounts were discovered in the
branch Bobby filed a complaint and was
ordered reinstated with full backwages after
the Labor Arbiter found that he had been
denied due process because
investigation actually took place.
Theta Company appealed to the National
Labor Relations Commission (NLRC) and at
the same time wrote Bobby, advising him to
report to the main company office in Makati
where he would be reinstated pending
appeal Bobby refused to comply with his
new assignment because Makati is very far
from Tarlac and he cannot bring his family
to live with him due to the higher cost of
living in Makati.
Advise Bobby on the best course of action
to take under the circumstances. (4%)
SUGGESTED ANSWER:
“Never Let The Odds Keep You From Pursuing What You Know In Your Heart You Were Meant To Do.”-Leroy Satchel Paige
hectorchristopher@yahoo.com faithrollan5@yahoo.com
The best course of action for Bobby to
take under the circumstances is to allege
constructive dismissal in the same case,
and pray for separation pay in lieu of
reinstatement.
Dismissal; OFW (2010)
Dismissal;
No. VII. a. A was an able seaman contracted
by ABC Recruitment Agency for its foreign
in Tarlac principal, Seaworthy Shipping Company
(SSC). His employment contract provided
that he would serve on board the Almieda II
for eight (8) months with a monthly salary
of US$450. In connection with his
employment, he signed an undertaking to
observe the drug and alcohol policy which
no bans possession or use of all alcoholic
beverages, prohibited substances and un-
prescribed drugs on board the ship. The
undertaking provided that: (1) disciplinary
action including dismissal would be taken
against anyone in possession of the
prohibited substances or who is impaired
by the use of any of these substances, and
(2) to enforce the policy, random test
sampling would be done on all those on
board the ship.
On his third month of service while the
Almieda II was docked at a foreign port, a
random drug test was conducted on all
members of the crew and A tested positive
for marijuana. He was given a copy of the
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drug test result. In compliance with the Dismissal; Payroll Reinstatement (2009)
company’s directive, he submitted his
written explanation which the company did No. VIII. c. Alexander, a security guard of

not find satisfactory. A month later, he was Jaguar Security Agency (JSA), could not be

repatriated to the Philippines. given any assignment because no client

would accept him. He had a face only a
Upon arrival in the Philippines, A filed with mother could love. After six (6) months of
the National Labor Relations Commission being on "floating" status, Alexander sued
(NLRC) a complaint against the agency and JSA for constructive dismissal. The Labor
the principal for illegal dismissal with a Arbiter upheld Alexander’s claim of
claim for salaries for the unexpired portion constructive dismissal and ordered JSA to
of his contract. immediately reinstate Alexander. JSA
appealed the decision to the NLRC.
Was A’s dismissal valid? Explain. (3%) Alexander sought immediate enforcement of
the reinstatement order while the appeal
SUGGESTED ANSWER:
was pending.
No, A‘s dismissal was not valid. A was
not found to be ―in possession of the JSA hires you as lawyer, and seeks your

prohibited substance‖ nor was he advice on the following:

―impaired by the use‖ thereof. Being

If the order of reinstatement is being
―tested positive for marijuana‖ is not a
enforced, what should JSA do in order to
ground for ―disciplinary action‖ under
prevent reinstatement? (2%)
the ―undertaking‖ he signed.

Explain your answers.

ALTERNATIVE ANSWER:

Yes, A‘s dismissal was valid. He was SUGGESTED ANSWER:

tested positive for marijuana. This is in
The employer cannot prevent
violation of the drug and alcohol policy,
reinstatement but may, however, opt for
which bans possession, or use of all
reinstatement of the employee in the
alcoholic beverages, prohibited
payroll of the company without requiring
substances and un-prescribed drugs on
him to report back to his work
board the ship.
(Zamboanga City Water Distrcit v. Buat,
232 SCRA 587 [1994]).

PLEASE NOTE

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In connection with security guards, rendered moot by the bona fide closure
Department Order No. 14 series of 2001, of business; or when the position
if there is lack of assignment then the previously held by the employee no
security guard is entitled to separation longer exists and there is no equivalent
pay. position available; or that the employee
is sick with an illness that cannot be
cured within 6 months, or that the

Dismissal; Reinstatement; Non- employee has reached the age of

Compliance (2007) retirement; or that the employee himself

refuses to be reinstated for one reason or
No. X. Discuss briefly the instances when another; in view of the expiration of the
non-compliance by the employer with a 4-year prescriptive period; RA 8042
reinstatement order of an illegally (Migrant Workers and Overseas Act) does
dismissed employee is allowed. (5%) not allow reinstatement to overseas
Filipino workers especially seamen. In
SUGGESTED ANSWER: these instances, separation pay in lieu of
reinstatement may be ordered at the
Despite a reinstatement order, an
rate of one month for every year of
employer may not reinstate an employee
service, a fraction of at least 6 months
in the following instances: (a) when the
equivalent to one year, whichever is
position or any substantial equivalent
higher.
thereof no longer exists; (b) when
reinstatement has been rendered moot
and academic by supervening events,
such as insolvency of the employer as Dismissal; Reinstatement; Backwages;

declared by the court or closure of the Damages (2009)

business; or (c) the existence of strained

No. XVIII. b. Explain the impact of the
relations between the employer and the
union security clause to the employees’
illegally dismissed employee, provided
right to security of tenure. (2%)
the matter is raised before the Labor
Arbiter. SUGGESTED ANSWER:

ALTERNATIVE ANSWER: A valid union security clause when

enforced or implemented for cause, after
When reinstatement is not feasible due
according the worker his substantive and
to the strained employer-employee
procedural due process rights (Alabang
relationship; or that the reinstatement is

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Country club, inc. v. NLRC, 545 SCRA No, Baldo is not entitled to
357 [2008]; does not violate the reinstatement and backwaages. The
employee‘s right to security of tenure. dismissal was for cause, i.e., AWOL.
Art. 248(e) of the labor Code allows Baldo failed to timely inform the
union security clauses and a failure to employer of the cause of his failure to
comply with the same is a valid ground report for work; hence, prolonged
to terminate employment. Union absence is a valid ground to terminate
security clauses designed to strengthen employment.
unions and valid law policy.

Dismissal; Reinstatement; Self-

Dismissal; Reinstatement Without Executory (2009)
Backwages (2009)
No. VIII. b. Alexander, a security guard of
No. V. a. Baldo was dismissed from
Jaguar Security Agency (JSA), could not be
employment for having been absent without
given any assignment because no client
leave (AWOL) for eight (8) months. It turned
would accept him. He had a face only a
out that the reason for his absence was his
mother could love. After six (6) months of
incarceration after he was mistaken as his
being on "floating" status, Alexander sued
neighbor’s killer. Eventually acquitted and
JSA for constructive dismissal. The Labor
released from jail, Baldo returned to his
Arbiter upheld Alexander’s claim of
employer and demanded reinstatement and
constructive dismissal and ordered JSA to
full backwages. Is Baldo entitled to
immediately reinstate Alexander. JSA
reinstatement and backwages? Explain
appealed the decision to the NLRC.
your answer. (3%)
Alexander sought immediate enforcement of

SUGGESTED ANSWER: the reinstatement order while the appeal

was pending.
Yes, Baldo is entitled to reinstatement.
Although he shall not be entitled to JSA hires you as lawyer, and seeks your
backwages during the period of his advice on the following:
detention, but only from the time the
Can the order of reinstatement be
company refuse to reinstate him.
immediately enforced in the absence of a
(Magtoto v. NLRC, 140 SCRA 58 [1985]).
motion for the issuance of a writ of
ALTERNATIVE ANSWER: execution? (2%)

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SUGGESTED ANSWER: issued on the same day (November 5) a

return to work order. Upon receipt of the
Yes, in Pioneer Texturizing Corp. v.
order, the striking union officers and
NLRC, the Court held that an award or
members, on November 1, filed a Motion for
order of reinstatement is self-executory
Reconsideration thereof questioning the
and does not require a writ of execution
Labor Secretary's assumption of
to implement and enforce it. To require
jurisdiction, and continued with the strike
the application for and issuance of a writ
during the pendency of their motion. On
of execution as prerequisite for the
November 30, the Labor Secretary denied
execution of a reinstatement award
the reconsideration of his return to work
would certainly betray and run counter
order and further noting the strikers' failure
to the very object and intent of Article
to immediately return to work, terminated
223 of the Labor Code (on the immediate
their employment. In assailing the Labor
execution of a reinstatement order).
Secretary's decision, the Union contends

ALTERNATIVE ANSWER: that:

The decision to reinstate pending appeal
is not self-executory. A motion for a writ
of execution is mandatory before an
order of reinstatement can be enforced
because of an employee
assistance of the NLRC Sheriff to enforce
the Order.
Dismissal; Striking Members and Officers
(2012)
No. I. b3. A deadlock in the negotiations for
the collective bargaining agreement between
College X and the Union prompted the
latter, after duly notifying the DOLE, to
declare a strike on November 5. The strike
totally paralyzed the operations of the
school. The Labor Secretary immediately
assumed jurisdiction over the dispute and
The strike being legal, the employment of
the striking Union officers and members
cannot be terminated. Rule on these
contentions. Explain. (5%)
needs, the
SUGGESTED ANSWER:
Responsibility of the striking members
and officers must be on an individual
and not collective basis. Art. 264 (a) of
the Labor Code mandates that ―No strike
or lockout shall be declared after the
assumption by the President or the
Secretary of Labor.‖ In Manila Hotel
Employee Association v. Manila Hotel
Corporation [517 SCRA 349 (2007)], it
was held that defiance of the
Assumption Order or a return-to-work
order by a striking employee, whether a
Union Officer or a plain member, is an

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illegal act which constitutes a valid A carpenter employed by a university is

ground for loss of employment status. It a casual employee. The carpenter is
thus follow that the defiant strikers were engaged to perform a job, work or
validly dismissed. service which is mostly incidental to the
business of the employer, and such job,
work or service is for a definite period
made known to the employee at the time
Employee; Casual Employee (2007)
of engagement: Provided, that any
employee who has rendered at least one
No. XVI. A carpenter is employed by a
year of service, whether such service is
private university in Manila. Is the
continuous or not, shall be considered a
carpenter a regular or a casual employee?
regular employee with respect to the
Discuss fully. (5%)
activity in which he is employed and his

SUGGESTED ANSWER: employment shall continue which such

activity exists.
If the employment of the carpenter is
sporadic and brief in nature or
occasional, his employment is casual Employee; Contractual Employee (2010)
especially because the work he is
performing is not in the usual course of No. I. 2. The relations between employer

the school‘s trade or business. However, and employee are purely contractual in

if the carpenter has rendered service at nature. (2%)

least one year, whether continuous or

SUGGESTED ANSWER:
broken, he becomes a regular employee
by operation of law, with respect to the False, some aspects of the relations
activity of which he is employed and his between employer and employee are
employment shall continue while such determined by certain labor standards.
activity exists (Article 280, Labor Code;
ALTERNATIVE ANSWER:
See also Philippine Geothermal, Inc. v.
NLRC, 189 SCRA 211 [1990]; Kimberly False, the Constitution, Labor Code,
Independent Labor Union, etc. v. Drilon, Civil Code and other social legislations
18 SCRA 190 [1990]). are replete with provisions that define
employment relationship even without
ALTERNATIVE ANSWER:
contract, with the intention of insuring
that all rights of labor are protected.

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Article 1700 of the Civil Code provides
that ―The relations between capital and
labor are not merely contractual. They
are so impressed with public interest
that labor contracts must yield to the
paid him his old monthly salary rate, but
without the allowances that he used to
enjoy.
After five (5) years under this arrangement,

common good.‖ the company finally severed all employment

relations with Albert; he was declared fully
In Article 106 of the Labor Code, the retired in a fitting ceremony but the
principal is deemed as a direct employer company did not give him any further
in labor-only contracting, despite the retirement benefits. Albert thought this
absence of contractual relationship treatment unfair as he had rendered full
between the worker and the principal service at his usual hours in the past five
reduced in writing. (5) years. Thus, he filed a complaint for the
allowances that were not paid to him, and
Equity likewise affords the aggrieved
for retirement benefits for his additional five
party relief in a case where an agent was
(5) working years, based either on the
given apparent authority by the
company's Retirement Plan or the
employer to represent it to third
Retirement Pay Law, whichever is
persons, such as in a relationship
applicable.
between hospitals and doctors practicing
medicine in its establishment (Nograles
After Albert's retirement at age 65, should
v. Capitol Medical Center, 511 SCRA 204
he be considered a regular employee
[2006]).
entitled to all his previous salaries and
benefits when the company allowed him to
continue working? (4%)
Employee; Contractual Employee;
Employing Retired Employee (2013) SUGGESTED ANSWER:

No. VIII. a. After thirty (30) years of service, He would be considered a contractual
Beta Company compulsorily retired Albert employee, not a regular employee. His
at age 65 pursuant to the company's salaries and benefits will be in
Retirement Plan. Albert was duly paid his accordance with the stipulation of the
full retirement benefits of one (1) month pay contract he signed with the company.
for every year of service under the Plan.
The present case is similar in a case
Thereafter, out of compassion, the company
decided by the Supreme Court (Januaria
allowed Albert to continue working and

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Rivera v. United Laboratories, G.R. No. ―substantial capital‖, ―OR‖ ―substantial

155639 [2009]) where the Court held investment in the form of tools‖, and the
that the company, in employing a retired like. Conversely, therefore, the
employee whose knowledge, experience performance by a job-contractor‘s
and expertise the company recognized, employee of activities that are directly
as an employee or as a consultant, is not related to the main business of the
an illegality; on the contrary, it is a principal does not make said employee a
recognized practice in this country. regular employee of the principal.

Employee; Contractual Employee of Employee; Contract of Partnership

Legitimate Contractor (2012) (2012)

No. X. b. Does the performance by a No. VII. a. Inggu, an electronics technician,

contractual employee, supplied by a worked within the premises of Pit Stop, an
legitimate contractor, of activities directly auto accessory shop. He filed a Complaint
related to the main business of the for illegal dismissal, overtime pay and other
principal make him a regular employee of benefits against Pit Stop. Pit Stop refused to
the principal? Explain. (5%) pay his claims on the ground that lnggu
was not its employee but was an
SUGGESTED ANSWER:
independent contractor . . It was common
No, the element of an employee‘s practice for shops like Pit Stop to collect the
―performing activities which are directly service fees from customers and pay the
related to the principal business of such same to the independent contractors at the
employer‖ does not actually matter for end of each week. The auto shop explained
such is allowed by Art. 107 of the Labor that lnggu was like a partner who worked
Code. An ―independent contractor for within its premises, using parts provided by
the performance of any work, task, job the shop, but otherwise lnggu was free to
or project‖ such as Security and render service in the other auto shops. On
Janitorial Agencies, naturally hire the other hand, lnggu insisted that he still
employees whose tasks are not directly was entitled to the benefits because he was
related to the principal business of‖ the loyal to Pit Stop, it being a fact that he did
company hiring them. Yet, they can be not perform work for anyone else. Is lnggu
labor-only contractors if they suffer from correct? Explain briefly. (5%)
either of the twin handicaps of

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SUGGESTED ANSWER: owning cooperative members who will

henceforth perform PizCorp's pizza delivery
Yes, Inggu is an employee of the Pit service. RSC assumes under the agreement
Stop. Article 1767 of the Civil Code --- full obligation for the payment of the
states that in a contract of partnership salaries and other statutory monetary
two or more persons bind themselves to benefits of its members deployed to
contribute money, property or industry PizCorp. The parties also stipulated that
to a common funs, with the intention of there shall be no employer-employee
dividing the profits among themselves. relationship between PizCorp and the RSC
Not one of these circumstances is members. However, if PizCorp is materially
present in this case. No written prejudiced by any act of the delivery impose
agreement exists to prove the disciplinary sanctions on, including the
partnership between the parties. Inggu power to dismiss, the erring RSC
did not contribute money, property or member/s.
industry for the purpose of engaging in
the supposed business. There in no proof Is the contractual stipulation that there is
that he was receiving a share in the no employer-employee relationship binding
profits as a matter of course. Neither is on labor officials? Why? Explain fully. (3%)
there any proof that he had actively
participated in the management, SUGGESTED ANSWER:

administration and adoption of policies

No, a contract of employment is
of the business (Sy, et al v. Court of
impressed with public interest. The
Appeals, G.R. No. 142293, February 27,
provisions of the applicable statutes are
2003).
deemed written into the contract, and
the parties are not at liberty to insulate
themselves and their relationships from
Employee; Employment Contract
the impact of labor laws and regulations
Impressed with Public Interest (2008)
by simply contracting with each other
(Magsalin v. National Organization of
No. V. a. The Pizza Corporation (PizCorp)
Working Men, G.R. No. 148492, May 09,
and Ready Supply Cooperative (RSC)
2003).
entered into a "service agreement" where
RSC in consideration of service fees to be
paid by PizCorp's will exclusively supply
PizCorp with a group of RSC motorcycle-

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Employee; Field Personnel vs. years, his right of action to claim ALL of
Contractual Employee; Benefits (2010) his SIL benefits accrued at the time
when the employer refused to pay his
No. XX. A, a driver for a bus company, sued
rightful SIL benefits (Art. 291, Labor
his employer for nonpayment of
Code).
commutable service incentive leave credits
upon his resignation after five years of ALTERNATIVE ANSWER:
employment. The bus company argued that
The money claim as cause of action has
A was not entitled to service incentive leave
prescribed because the claim was filed
since he was considered a field personnel
after five (5) years from date of
and was paid on commission basis and
negotiation. Art. 291 of the Labor Code
that, in any event, his claim had
provides that all money claims arising
prescribed. If you were the Labor Arbiter,
from employer-employee relations
how would you rule? Explain. (6%)
occurring during the effectivity of the
SUGGESTED ANSWER: Code shall be filed within three (3) years
form that time the cause of action has
I will grant the prayer of A.
accrued, otherwise, they shall be forever
Payment on commission basis alone does barred.
not prove that A is a field personnel.
There must be proof that A is left to
perform his work unsupervised by his Employee; Fixed Term Employee (2012)
employer. Otherwise, he is not a field
personnel, thus entitled to commutable No. VI. a. For humanitarian reasons, a

service incentive leave (SIL) credits bank hired several handicapped workers to

(Auto Bus v. Bautista, 458 SCRA 578 count and sort out currencies. The

[2005]). handicapped workers knew that the

contract was only for a period of six-months
His action has not yet prescribed, in and the same period was provided in their
Auto Bus v. Bautista (supra), the employment contracts. After six months,
Supreme Court recognized that SIL is the bank terminated their employment on
such a unique labor standard benefit, the ground that their contract has expired.
because it is commutable. An employee This prompted the workers to file with the
may claim his accrued SIL upon his Labor Arbiter a complaint for illegal
resignation, retirement, or termination. dismissal. Will their action prosper? Why or
Therefore, when A resigned after five why not? (5%)

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SUGGESTED ANSWER: of the parties‘ employment relationship

was to be a ―day certain‖ – the day when
No, an employment contract with a fixed the phase of work would be completed –
term terminates by its own terms at the the employee cannot be considered to
end of such period. The same is valid if have been a regular employee (Filipinas
the contract was entered into by the Pre-Fabricated Building Systems v.
parties on equal footing and the period Puente, 43 SCRA 820 [2005]).
specified was not designed to
circumvent the security of tenure of the To satisfy due process requirement, the

employees. (Brent School v. Zamora, 181 DOLE Department Order No. 19, series of

SCRA 702). 1993, the employer is required to report

to the relevant DOLE Regional Office the
fact of termination of project employees
as a result of the completion of the
Employee; Project Employee (2009)
project or any phase thereof in which

No. IV. Diosdado, a carpenter, was hired by one is employed.

Building Industries Corporation (BIC), and

ALTERNATIVE ANSWER:
assigned to build a small house in Alabang.
His contract of employment specifically No, the completion of the house is not a
referred to him as a "project employee," valid cause for termination of
although it did not provide any particular employment of Diosdado, because of the
date of completion of the project. failure of the BIC to state ―the specific
project or undertaking the completion or
Is the completion of the house a valid cause termination of which has been
for the termination of Diosdado’s determined at the time of the
employment? If so, what are the due engagement of the employee.‖ (Labor
process requirements that the BIC must Code, Art. 280). There being no valid
satisfy? If not, why not? (3%) termination of employment, there is no
need to comply with the requirements of
SUGGESTED ANSWER:
procedural due process.

The completion of the house should be

valid cause for termination of Diosdado‘s
employment. Although the employment
contract may not state a particular date,
but if it did specify that the termination

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Employee; Regular Employee; Driver waiter" for more than 10 years. He is also
(2012) called upon to work on weekends, on
holidays and when there are big affairs at
NO. V. b. The weekly work schedule of a the hotel.
driver is as follows: Monday, Wednesday,
Friday - drive the family car to bring and What is Pedro's status as an employee
fetch the children to and from school. under the Labor Code? Why? Explain your
Tuesday, Thursday, Saturday - drive the answer fully. (6%)
family van to fetch merchandise from
suppliers and deliver the same to a SUGGESTED ANSWER:

boutique in a mall owned by the family.

Pedro has acquired the status of a

The same driver claims that for work regular employee.

performed on Tuesday, Thursday and

Pedro has engaged to perform activities
Saturday, he should be paid the minimum
which are necessary or desirable to the
daily wage of a driver of a commercial
usual business or trade of the employer.
establishment. Is the claim of the driver
valid? (5%)
Moreover, Pedro has been an ―extra
waiter‖ for more than 10 years. Any
SUGGESTED ANSWER:
employer who has rendered service for

Yes, as during said days, he already one year, whether continuous or broken,

works not as a domestic servant but as a shall be considered a regular employee

regular employee in his employer‘s with respect to the activities of which he

boutique in a mall (Apex Mining is employed and his employment shall

Company, Inc. v. NLRC [supra]). continue while such activity exists (Art.
280, Labor Code).

Employee; Regular Employee; (2008)

Employee; Regular Employee; OFW

No. IV. Super Comfort Hotel employed a
(2009)
regular pool of "extra waiters" who are
called or asked to report for duty when the No. XI. a. Seafarers who have worked for
Hotel's volume of business is beyond the twenty (20) years on board the same vessel
capacity of the regularly employed waiters are regular employees. (5%)
to undertake. Pedro has been an "extra

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SUGGESTED ANSWER: connection between the particular

activity performed by the employee in
False, seafarers as overseas Filipino
relation to the usual trade or business of
workers are fixed0term employees whose
the employer (Pier 8 Arrastre &
continued rehiring should not be
Stevedoring Services, Inc., et. al. v. Jeff
interpreted as a basis for regularization
B. Boclot,534 SCRA 431 [2007]).
but rather as a series of contact renewals
Considering that A, as plantation worker,
sanctioned under the doctrine set by
performs work that is necessary and
Millares vs. NLRC (Gu-Miro v. Adorable,
desirable to the usual business of the
437 SCRA 162 [2004]).
plantation owner, he is therefore a
regular seasonal employee and is
entitled to reinstatement upon onset of
Employee; Regular Seasonal Employee
the next season unless he was hired for
(2010)
the duration of only one season

No. XVII. A was hired to work in a sugar (Hacienda Bino v. Cuenca, 4556 SCRA

plantation performing such tasks as 300 [2005]).

weeding, cutting and loading canes,

Converting A to a mere house boy at the
planting cane points, fertilizing and
house of the plantation owner amounts
cleaning the drainage. Because his daily
to an act of serving his employment
presence in the field was not required, A
relations as its plantation worker
also worked as a houseboy at the house of
(Angeles v. Fernandez, 213 SCRA 378
the plantation owner. For the next planting
[2007]).
season, the owner decided not to hire A as
a plantation worker but as a houseboy
instead. Furious, A filed a case for illegal
Quitclaims; Waivers; Release (2010)
dismissal against the plantation owner.
Decide with reason. (3%) No. I. 1. Deeds of release, waivers and
quitclaims are always valid and binding.
SUGGESTED ANSWER:
(2%)
A is a regular seasonal employee.
Therefore, he cannot be dismissed SUGGESTED ANSWER:
without just or valid cause.
False, deeds of release, waivers and
The primary standard for determining quitclaims are not always valid and
regular employment is the reasonable binding. An agreement is valid and

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binding only if: (a) the parties Resignation; Voluntary; Quitclaim (2010)
understand the terms and conditions of
their settlement; (b) it was entered into No. XI. Because of continuing financial

freely and voluntarily by them; and (c) it constraints, XYZ, Inc. gave its employees

is contrary to law, morals, and public the option to voluntarily resign from the

policy. company. A was one of those who availed of

ALTENATIVE ANSWER:
False, not all deeds of release, waivers
and quitclaims are valid and binding.
The Supreme Court, in Periquet v. NLRC
(186 SCRA 724 [1990]) and affirmed in
Solgus Corporation v. Court of Appeals
(514 SCRA 522 [2007]), provided the
following guide in determining
validity of such release, waivers and
quitclaims:
―Not all waivers and
invalid as against public policy. If the
agreement was voluntarily entered into
and represents a reasonable settlement,
it is binding on the parties and may not
later be disowned simply because of a
change of mind. But where it is shown
that the person making the waiver did so
voluntarily. With full understanding of
what he was doing,
the option. On October 5, 2007, he was
paid separation benefits equivalent to seven
(7) months pay for his six (6) years and
seven (7) months of service with the
company and he executed a waiver and
quitclaim.
A week later, A filed against XYZ, Inc. a
complaint for illegal dismissal. While he
the
admitted that he was not forced to sign the
quitclaim, he contended that he agreed to
tender his voluntary resignation on the
quitclaims are belief that XYZ, Inc. was closing down its
business. XYZ, Inc., however, continued its
business under a different company name,
he claimed.
Rule on whether the quitclaim executed by
A is valid or not. Explain. (3%)
SUGGESTED ANSWER:
and the The quitclaim executed by A is valid and

consideration for the quitclaim is binding.

credible and reasonable, the transaction

Generally, deeds of release, waiver or
must be recognized as a valid and
quitclaims cannot bar employees from
binding undertaking.‖
demanding benefits to which they are
legally entitled or form contesting the
legality of their dismissal, since
quitclaims are looked upon with disfavor

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and are frowned upon as contrary to under another name is an indication of

public policy. However, where the person bad faith and fraud.
making the waiver has done so
voluntarily, with a full understanding
thereof, and the consideration for the Retirement; Additional Service Rendered
quitclaim is credible and reasonable, the (2013)
transaction must be recognized as being
No. VIII. b. After thirty (30) years of service,
a valid and binding undertaking
Beta Company compulsorily retired Albert
(Francisco Soriano, Jr. v. NLRC, et. al.,
at age 65 pursuant to the company's
530 SCRA 526 [2007]).
Retirement Plan. Albert was duly paid his
A elected to voluntarily resign, and full retirement benefits of one (1) month pay
accepted a credible and reasonable for every year of service under the Plan.
separation benefits package. In Thereafter, out of compassion, the company
exchange, A executed a waiver and allowed Albert to continue working and
quitclaim. paid him his old monthly salary rate, but
without the allowances that he used to
A‘s resignation could not have possibly
enjoy.
been vitiated by any fraud or
misrepresentation on the part of XYZ, After five (5) years under this arrangement,
Inc. the company offered its voluntary the company finally severed all employment
resignation package because of relations with Albert; he was declared fully
continuing financial constraints, and not retired in a fitting ceremony but the
preliminary to closure of business. A‘s company did not give him any further
belief is not the kind of proof required retirement benefits. Albert thought this
that will show he was defrauded, his treatment unfair as he had rendered full
consent vitiated, and therefore the service at his usual hours in the past five
termination of his employment illegal. (5) years. Thus, he filed a complaint for the
allowances that were not paid to him, and
ALTERNATIVE ANSWER:
for retirement benefits for his additional five
The quitclaim is invalid. The signing of (5) working years, based either on the
the quitclaim was based on a wrong company's Retirement Plan or the
premise, and the employer was deceitful Retirement Pay Law, whichever is
by not divulging full information. The applicable.
subsequent re-opening of the business

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Is he entitled to additional retirement eligible for retirement. He was entitled to

benefits for the additional service he retirement benefits. During the entire
rendered after age 65? (4%) duration of his service, Dennis was not
given his 13th month pay or his service
SUGGESTED ANSWER: incentive leave pay.

No, he cannot be compulsorily retired

Is Dennis entitled to 13th month pay and
twice in the same company.
service leave incentive pay? Explain. (5%)

SUGGESTED ANSWER:
Retirement; Types (2007)
No, a taxi driver paid under the
No. XI. a. A rule, when is retirement due?
―boundary system‖ is not entitled to a
(5%)
13th and SIL pay. Hence, his retirement

SUGGESTED ANSWER: pay should be computed solely on the

basis of his salary. Specifically, Sec. 3(e)
Article 287 provides for two types of of the Rules and Regulations
retirement: implementing P.D. 851 excludes form
the obligation of 13th Month Pay
(A) Optional retirement – which may be
―Employees of those who are paid on xxx
availed of by an employee reaching the
boundary ―basis. On the other hand, Sec.
age of 60 years;
1(d), Rule V, Book III of the Omnibus
(B) Compulsory retirement – which may
Rule provides that those ―employees
be availed of by an employee upon
whose performance is unsupervised by
reaching the age of 65 years. In both
the employer‖ are not entitled to Service
instances, the law imposes the minimum
Incentive Leave. A taxi driver paid under
service requirement of 5 years with the
the Boundary System is an
establishment.
―unsupervised‖ employee.

Retirement Benefits; Boundary System

(2012)
Retirement Benefits; Computation
No. IX. a. Dennis was a taxi driver who was (2012)
being paid on the "boundary" system basis.
No. IX. b. Dennis was a taxi driver who was
He worked tirelessly for Cabrera Transport
being paid on the "boundary" system basis.
Inc. for fourteen (14) years until he was

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He worked tirelessly for Cabrera Transport
Inc. for fourteen (14) years until he was
eligible for retirement. He was entitled to
retirement benefits. During the
duration of his service, Dennis was not
given his 13th month pay or his service
incentive leave pay.
Since he was not given his 13th month pay
and service incentive leave pay, should
Dennis be paid upon retirement, in addition
to the salary equivalent to fifteen (15) days
for every year of service, the additional 2.5
forego Richie’s deployment because it had
already hired another Filipino driver-
mechanic, who had just completed his
entire contract in Qatar. Aggrieved, Richie filed
with the NLRC a complaint against SR and
MRA for damages corresponding to his two
years’ salary under the POEA-approved
contract.
SR and MRA traversed Richie’s complaint,
raising the following arguments:
Even assuming that they are liable, their

days representing one-twelfth (1/12) of the liability would, at most, be equivalent to

13th month pay as well as the five (5) days Richie’s salary for only six (6) months, not

representing the service incentive leave for two years. (3%)

a total of 22.5 days? Explain. (5%)

Rule on the validity of the foregoing

SUGGESTED ANWER: arguments with reasons.

No, since he is not entitled to 13th SUGGESTED ANSWER:

month pay and SIL, his retirement pay

No, in the recent case of Serrano v.
should be computed on the basis of his
Gallant Maritime (G.R. No. 167614,
salary (R&E Transport v. Latag, G.R. No.
March 24, 2009) the Supreme Court held
155214, February 13, 2004)
that the clause ―three (3) months for
every year of the unexpired term,
whichever is less‖ in Section 10, R.A. No
Wages; Money Claims, Computation 8042 is unconstitutional. Richie is
(2009) therefore entitled to two (2) years
salaries due him under the POEA
No. III. c. Richie, a driver-mechanic, was
approved contract.
recruited by Supreme Recruiters (SR) and
its principal, Mideast Recruitment Agency
(MRA), to work in Qatar for a period of two
(2) years. However, soon after the contract
was approved by POEA, MRA advised SR to

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Social Legislations mass in Tammy's uterus showed a

beginning malignancy that required an
GSIS; Compulsory Coverage (2009) immediate series of chemotherapy once a
week for four (4) weeks.
No. X. a. State briefly the compulsory
coverage of the Government Service What can Roger-Tammy's 2nd husband and

Insurance Act. (2%) the father of her two (2) younger children -
claim as benefits under the circumstances?
SUGGESTED ANSWER: (4%)

The following are compulsorily covered SUGGESTED ANSWER:

by the GSIS pursuant to Sec. 3 of R.A.
Under R.A. No. 8187 or the Paternity
8291.
Leave Act of 1996, Roger can claim
(A) All employees receiving paternity leave of seven (7) days with full
compensation who have not reached the pay if he is lawfully married to Tammy
compulsory retirement age, irrespective and cohabiting with her at the time of
of employment status. the miscarriage.

(B) Members of the judiciary and

constitutional commission for life
SSS; Compulsory Coverage; Cooperative
insurance policy.
Member (2009)

No. X. b. Can a member of a cooperative be

Paternity Leave Act of 1996 (2013) deemed an employee for purposes of
compulsory coverage under the Social
No. IV. b. Because of the stress in caring for
Security Act? Explain. (2%)
her four (4) growing children, Tammy
suffered a miscarriage late in her pregnancy SUGGESTED ANSWER:
and had to undergo an operation. In the
Yes, an employee of a cooperative, not
course of the operation, her obstetrician
over sixty (60) years of age, under the
further discovered a suspicious-looking
SSS Law, subject to compulsory
mass that required the subsequent removal
coverage. The Section 8(d) SSS Law
of her uterus (hysterectomy). After surgery,
defines an employee as –
her physician advised Tammy to be on full
bed rest for six (6) weeks. Meanwhile, the ―Sec. 8(d) – any person who performs
biopsy of the sample tissue taken from the services for an employer in which either

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or both mental and physical efforts are among others (See Section 14-A, Rep.
used and who receives compensation for Act No. 8282).
such service, where there is an
The same maternity benefits are ensured
employer-employee relationship.‖
by Sec. 22 (b)(2) of the magna Carta of
Women (Rep. Act No. 9710).

SSS; Maternity Benefits (2010)

No. III. A, single, has been an active SSS; Maternity Benefits (2007)
member of the Social Security System for
the past 20 months. She became pregnant No. XIV. AB, single and living-in with CD (a

out of wedlock and on her 7th month of married man), is pregnant with her fifth

pregnancy, she was informed that she child. She applied for maternity leave but

would have to deliver the baby through her employer refused the application

caesarean section because of some because she is not married. Who is right?

complications. Can A claim maternity Decide. (5%)

benefits? If yes, how many days can she go

SUGGESTED ANSWER:
on maternity leave? If not, why is she not
entitled? (3%) AB is right. The Social Security Law,
which administers the Maternity Benefit
SUGGESTED ANSWER:
Program does not require that the
Yes, the SSS Law does not discriminate relationship between the father and the
based on the civil status of a female mother of the child be legitimate. The
member-employee. As long as said law is compensating the female worker
female employee has paid at least three because of her maternal function and
(3) monthly contributions in the twelve- resultant loss of compensation. The law
month period immediately preceding the is morality free.
semester of her childbirth, she can avail
of the maternity benefits under the law. ALTERNATIVE ANSWER:

Since A gave birth through C-section, Neither party is correct. The employer

she is entitled to one hundred percent cannot refuse the application on the

(100%) of her average salary credit for ground that she is only living with CD,

seventy-eight (78) days, provided she as legitimate marriage is not a

notifies her employer of her pregnancy precondition for the grant of maternity

and the probable date of her childbirth, leave. Neither AB is correct, since

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maternity leave is only available for the
first four deliveries or miscarriage.
SSS; Magna Carta of Women (2013)
No. VI. a. Because of the stress in caring for
her four (4) growing children, Tammy
suffered a miscarriage late in her pregnancy
and had to undergo an operation. In the
course of the operation, her obstetrician
further discovered a suspicious-looking
mass that required the subsequent removal
of her uterus (hysterectomy). After surgery,
her physician advised Tammy to be on full
bed rest for six (6) weeks. Meanwhile, the
biopsy of the sample tissue taken from the
mass in Tammy's uterus showed
beginning malignancy that required an
immediate series of chemotherapy once a
week for four (4) weeks.
What benefits can Tammy claim under
existing social legislation? (4%)
SSS; Money Claims (2008)
No. VIII. Carol de la Cruz is the secretary of
the proprietor of an auto dealership in
Quezon City. She resides in Caloocan City.
Her office hours start at 8 a.m. and end at
5 p.m. On July 30, 2008, at 7 a.m. while
waiting for public transport at Rizal Avenue
Extension as has been her routine, she was
sideswiped by a speeding taxicab resulting
in her death. The father of Carol filed a
claim for employee's compensation with the
Social Security System. Will the claim
prosper? Why? (6%)
SUGGESTED ANSWER:
Yes, under the ―Going-To-And-Coming-
a
From-Rule,‖ the injuries (or death, as in
this case) sustained by an employee
―going to and coming from‖ his place of
work are compensable (Bael v.
Workmen‘s Compensation Commission,
G.R. No. L-42255, January 31, 1977).

SUGGESTED ANSWER:

Assuming she is employed, Tammy is SSS; Monthly Contribution (2008)

entitled to a special leave benefit of two
No. VII. Tito Paciencioso is an employee of a
moths with full pay (Gynecological
foundry shop in Malabon, Metro Manila. He
Leave) pursuant to R.A. No. 9710 or the
is barely able to make ends meet with his
Magna Carta of Women. She can also
salary of P4,000.00 a month. One day, he
claim Sickness Leave benefit in
asked his employer to stop deducting from
accordance with the SSS Law.
his salary his SSS monthly contribution,

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reasoning out that he is waiving his social MULTIPLE CHOICE

security coverage.
QUESTIONS (MCQ)
If you were Tito's employer, would you
grant his request? Why? (6%) 2013 Labor Law Exam MCQ

SUGGESTED ANSWER:
(October 6, 2013)

No, payment of SSS monthly I. The parties to a labor dispute can validly

contribution is compulsory and cannot submit to voluntary arbitration _________.

be waived. To grant Tito‘s request will (1%)

violate the SSS law and expose me to the

(A) any disputed issue they may
risk of punishment of fine or
agree to voluntarily arbitrate
imprisonment or both at the discretion
of the Court (Sec. 9, Social Security Act,
(B) only matters that do not fall
R.A. 8282).
within the exclusive jurisdiction of
the Labor Arbiter

(C) any disputed issue but only after

conciliation at the National
Conciliation and Mediation Board
fails

(D) any disputed issue provided that

the Labor Arbiter has not assumed
jurisdiction over the case on
compulsory arbitration

(E) only matters relating to the

interpretation or implementation of
a collective bargaining agreement

SUGGESTED ANSWER:

(A), Article 262 (now Article 268) of the

Labor Code. The Voluntary Arbitrator,

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upon agreement of the parties, can III.

assume jurisdiction over the dispute.
Mr. Del Carmen, unsure if his foray into
II. When there is no recognized collective business (messengerial service catering
bargaining agent, can a legitimate labor purely to law firms) would succeed but
organization validly declare a strike against intending to go long-term if he hurdles the
the employer? (1%) first year, opted to open his operations with
one-year contracts with two law firms
(A) Yes, because the right to strike is although he also accepts messengerial
guaranteed by the Constitution and service requests from other firms as their
cannot be denied to any group of orders come. He started with one
employees. permanent secretary and six (6) messengers
on a one-year, fixed-term, contract.
(B) No, because only an exclusive
bargaining agent may declare a Is the arrangement legal from the
strike against the employer. perspective of labor standards? (1%)

(C) Yes, because the right to strike is (A) No, because the arrangement will
a basic human right that the circumvent worker's right to security of
country's international agreements tenure.
and the International Labor
Organization recognize. (B) No. If allowed, the arrangement will
serve as starting point in weakening the
(D) Yes, but only in case of unfair security of tenure guarantee.
labor practice.
(C) Yes, if the messengers are hired through
(E) No, in the absence of a a contractor.
recognized bargaining agent, the
workers' recourse is to file a case (D) Yes, because the business is temporary
before the Department of Labor and and the contracted undertaking is specific
Employment. and time-bound.

SUGGESTED ANSWER: (E) No, because the fixed term provided

is invalid.
(D), Article 263(c) (now Article 269(c)) of
the Labor Code. SUGGESTED ANSWER:

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(A) (D) six (6) years

(E), the employer and employee must (E) ten (10) years
deal with each other on more or less
equal terms. SUGGESTED ANSWER:

IV. Chito was illegally dismissed by DEF (A), Article 297 (formerly 291) of the

Corp. effective at the close of business Labor Code.

hours of December 29, 2009.

V. After vainly struggling to stay financially

IV(1). He can file a complaint for illegal afloat for a year, LMN Corp. finally gave up

dismissal without any legal bar within and closed down its operations after its

_________. (1%) major creditors filed a petition for LMN's

insolvency and liquidation.
(A) three (3) years
In this situation, LMN's employees are
(B) four (4) years entitled to _________ as separation pay. (1%)

(C) five (5) years (A) one-half month pay for every year of
service
(D) six (6) years
(B) one month pay for every year of service
(E) ten (10) years
(C) one-half month pay
SUGGESTED ANSWER:
(D) one month pay
(B), Article 1146 of the Civil Code.
(E) no separation pay at all
IV(2). If he has money claims against DEF
Corp., he can make the claim without any SUGGESTED ANSWER:
legal bar within _________. (1%)
(E), Article 283 (now Article 289) of the
(A) three (3) years Labor Code. (North Davao Mining Corp.
v. NLRC, G.R. No. 112546 [1996]).
(B) four (4) years
VI. At age 65 and after 20 years of sewing
(C) five (5) years work at home on a piece rate basis for PQR
Garments, a manufacturer-exporter to

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Hongkong, Aling Nena decided it was time
to retire and to just take it easy.
Is she entitled to retirement pay from PQR?
(1%)
(A) Yes, but only to one month pay.
(B) No, because she was not a regular
employee.
(C) Yes, at the same rate as regular
employees.
(E) the wage that the parties agree upon,
depending on the capability of the disabled,
but not less than 50% of the applicable
minimum wage
SUGGESTED ANSWER:
(B), this is the general rule. As an
exception, if the employee is qualified to
work and the disability has nothing to do
with the work, the employee is entitled
to 100%.

VIII. What is the financial incentive, if any,

(D) No, because retirement pay is deemed
granted by law to SPQ Garments whose
included in her contracted per piece pay.
cutters and sewers in its garments-for-
export operations are80% staffed by deaf
(E) No, because homeworkers are not
and deaf-mute workers? (1%)
entitled to retirement pay.

(A) Additional deduction from its gross

SUGGESTED ANSWER:
income equivalent to 25% of amount

(C) paid as salaries to persons with

disability.
VII. The minimum wage prescribed by law
for persons with disability is __________. (B) Additional deduction from its gross

(1%) income equivalent to 50% of the direct costs

of the construction of facilities for the use of
(A) 50% of the applicable minimum wage persons with disability.

(B) 75% of the applicable minimum wage (C) Additional deduction from its net
taxable income equivalent to 5% of its total
(C) 100% of the applicable minimum wage payroll

(D) the wage that the parties agree upon, (D) Exemption from real property tax for
depending on the capability of the disabled. one (1) year of the property where facilities

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for persons with disability have been SUGGESTED ANSWER:

constructed.
(C)
(E) The annual deduction under (A), plus a
one-time deduction under (B). X. Samahang Tunay, a union of rank-and-
file employees lost in a certification election
SUGGESTED ANSWER: at Solam Company and has become a
minority union. The majority union now
(A), Magna Carta for Disabled Persons. has a signed CBA with the company and
the agreement contains a maintenance of
IX. Mr. Ortanez has been in the building
membership clause.
construction business for several years. He
asks you, as his new labor counsel, for the What can Samahang Tunay still do within
rules he must observe in considering the company as a union considering that it
regular employment in the construction still has members who continue to profess
industry. continued loyalty to it? (1%)

You clarify that an employee, project or (A) It can still represent these members in
non-project, will acquire regular status if grievance committee meetings.
__________. (1%)
(B) It can collect agency fees from its
(A) he has been continuously employed for members within the bargaining unit.
more than one year
(C) It can still demand meetings with the
(B) his contract of employment has been company on company time.
repeatedly renewed, from project to project,
for several years (D) As a legitimate labor organization, it
can continue to represent its members
(C) he performs work necessary and on non-CBA-related matters.
desirable to the business, without a fixed
period and without reference to any (E) None of the above.
specific project or undertaking
(F) All of the above.
(D) he has lived up to the company's
regularization standards SUGGESTED ANSWER:

(E) All of the above.

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(D), Article 248 (formerly Art. 242) of the of 10 days. This is deemed a compliance
Labor Code. with the requirement of service
incentive leave under the law.
XI. The members of the administrative staff
of Zeta, a construction company, enjoy ten XII. Upon the expiration of the first three (3)
(10) days of vacation leave with pay and ten years of their CBA, the union and the
(10) days of sick leave with pay, annually. company commenced negotiations. The
The workers' union, Bukluran, demands union demanded that the company
that Zeta grant its workers service incentive continue to honor their 30-day union leave
leave of five (5) days in compliance with the benefit under the CBA. The company
Labor Code. refused on the ground that the CBA had
already expired, and the union had already
Is the union demand meritorious? (1%) consumed their union leave under the CBA.

(A) Yes, because non-compliance with the Who is correct? (1%)

law will result in the diminution of
employee benefits. (A) The company is correct because the
CBA has expired; hence it is no longer
(B) Yes, because service incentive leave is a bound to provide union leave.
benefit expressly provided under and
required by the Labor Code. (B) The company is correct because the
union has already consumed the allotted
(C) No, because Zeta already complies union leave under the expired CBA.
with the law.
(C) The union is correct because it is still
(D) No, because service incentive leave is a the bargaining representative for the next
Labor Code benefit that does not apply in two (2) years.
the construction industry.
(D) The union is correct because union
(E) Yes, because Labor Code benefits are leaves are part of the economic terms
separate from those voluntarily granted by that continue to govern until new terms
the company. are agreed upon.

SUGGESTED ANSWER: (E) They are both wrong.

(C), Article 95 of the Labor Code. The SUGGESTED ANSWER:

employee is already given vacation leave

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(B) or (D) (B) I would advise him that the previous

grant of separation pay to his colleagues
(D), Article 259 (formerly Article 253) of cannot be considered a company practice
the Labor Code. because several other employees had
resigned and were not given separation pay.
XIII. Hector, a topnotch Human Resource
Specialist who had worked in multinational (C) I would advise him to ask for separation
firms both in the Philippines and overseas, pay, not on account of company practice,
was recruited by ABC Corp., because of his but on the basis of discrimination as he is
impressive credentials. In the course of similarly situated as the two resigned
Hector's employment, the company department heads who were paid their
management frequently did not follow his separation pay.
recommendations and he felt offended by
this constant rebuff. (D) I would not give him any legal advice
because he is not my client.
Thus, he toyed with the idea of resigning
and of asking for the same separation pay (E) I would maintain that his question
that ABC earlier granted to two (2) involves a policy matter beyond the
department heads when they left the competence of a legal counsel to give.
company.
SUGGESTED ANSWER:
To obtain a legal opinion regarding his
options, Hector sent an email to ABC's (A) or (D)

retained counsel, requesting for advice on

XIV. Aleta Quiros was a faculty member at
whether the grant by the company of
BM Institute, a private educational
separation pay to his resigned colleagues
institution. She was hired on a year-to-year
has already ripened into a company
basis under the probationary employment
practice, and whether he can similarly avail
period provision of the Manual of
of this benefit if he resigns from his job.
Regulations for Private Schools. The terms

As the company's retained legal counsel, and conditions of her engagement were

how will you respond to Hector? (1%) defined under her renewable yearly
contract.
(A) I would advise him to write
management directly and inquire about For reasons of its own, BM Institute no

the benefits he can expect if he resigns. longer wanted to continue with Aleta's

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teaching services. Thus, after the contract
for her second year expired, BM Institute
advised Aleta that her contract would no
longer be renewed. This advice prompted
Aleta to file a complaint for illegal dismissal
against BM Institute.
Will the complaint prosper? (1%)
(A) Yes, because no just or authorized
cause existed for the termination of her
probationary employment.
(B) Yes, because under the Labor Code,
Aleta became a regular employee after 6
months and she may now only
dismissed for cause.
XV. Robert, an employee of ABC Company,
is married to Wanda. One day, Wanda
visited the company office with her three (3)
emaciated minor children, and narrated to
the Manager that Robert had been
squandering his earnings on his mistress,
leaving only a paltry sum for the support of
their children. Wanda tearfully pleaded with
the Manager to let her have one half of
Robert's pay every payday to ensure that
her children would at least have food on the
table. To support her plea, Wanda
presented a Kasulatan signed by Robert
giving her one half of his salary, on the
condition that she would not complain if he
be
stayed with his mistress on weekends.

If you were the Manager, would you release

(C) No, because there was no dismissal to
one half of Robert's salary to Wanda? (1%)
speak of. Her employment was
automatically terminated upon the
(A) No, because an employer is prohibited
expiration of her year-to-year fixed term
from interfering with the freedom of its
employment.
employees to dispose of heir wages.

(D) No, because BM Institute may dismiss

(B) Yes, because of Robert's signed
its faculty members at will in the exercise of
authorization to give Wanda one half of his
its academic freedom.
salary.

(E) No, because Aleta was still on

(C) No, because there is no written
probationary employment.
authorization for ABC Company to
release Robert's salary to Wanda.
SUGGESTED ANSWER:

(D) Yes, because it is Robert's duty to

(A), (Yolanda Mercado v. AMA Computer
financially support his minor children.
College, G.R. No. 183572 [2010])

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(E) No, because Robert's Kasulatan is based (A) Yes, because the employees are not
on an illegal consideration and is of receiving equal treatment in the
doubtful legal validity. distribution of service charge benefits.

SUGGESTED ANSWER: (B) Yes, because the law provides that the
85% employees' share in the service charge
(A) or (C) collection should be equally divided among
all the employees, in this case, among the
XVI. Ricardo operated a successful Makati
Cebu and Makati employees alike.
seafood restaurant patronized by a large
clientele base for its superb cuisine and (C) No, because the employees in Makati
impeccable service. Ricardo charged its are not similarly situated as the Cebu
clients a 10% service charge and employees with respect to cost of living and
distributed 85% of the collection equally conditions of work.
among its rank-and-file employees, 10%
among managerial employees, and 5% as (D) No, because the service charge
reserve for losses and break ages. Because benefit attaches to the outlet where
of the huge volume of sales, the employees service charges are earned and should be
received sizeable shares in the collected distributed exclusively among the
service charges. employees providing service in the
outlet.
As part of his business development efforts,
Ricardo opened a branch in Cebu where he (E) No, because the market and the
maintained the same practice in the clientele the two branches are serving, are
collection and distribution of service different.
charges. The Cebu branch, however, did
not attract the forecasted clientele; hence, SUGGESTED ANSWER:

the Cebu employees received lesser service

(D)
charge benefits than those enjoyed by the
Makati-based employees. As a result, the
XVI(2). In order to improve the Cebu service
Cebu branch employees demanded
and sales, Ricardo decided to assign some
equalization of benefits and filed a case
of its Makati-based employees to Cebu to
with the NLRC for discrimination when
train Cebu employees and expose them to
Ricardo refused their demand.
the Makati standard of service. A chef and
three waiters were assigned to Cebu for the
(l) Will the case prosper? (1%)

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task. While in Cebu, the assigned personnel XVII. Constant Builders, an independent
shared in the Cebu service charge collection contractor, was charged with illegal
and thus received service charge benefits dismissal and non-payment of wages and
lesser than what they were receiving in benefits of ten dismissed employees. The
Makati. complainants impleaded as co-respondent
Able Company, Constant Builder's principal
If you were the lawyer for the assigned in the construction of Able's office building.
personnel, what would you advice them to The complaint demanded that Constant
do? (1%) and Able be held solidarily liable for the
payment of their backwages, separation
(A) I would advise them to file a
pay, and all their unpaid wages and
complaint for unlawful diminution of
benefits.
service charge benefits and for payment
of differentials. If the Labor Arbiter rules in favor of the
complainants, choose the statement that
(B) I would advise them to file a complaint
best describes the extent of the liabilities of
for illegal transfer because work in Cebu is
Constant and Able. (1%)
highly prejudicial to them in terms of
convenience and service charge benefits. (A) Constant and Able should be held
solidarily liable for the unpaid wages and
(C) I would advise them to file a complaint
benefits, as well as backwages and
for discrimination in the grant of service
separation pay, based on Article 109 of
charge benefits.
the Labor Code which provides that
"every employer or indirect employer
(D) I would advise them to accept their
shall be held responsible with his
Cebu training assignment as an exercise of
contractor or subcontractor for any
the company's management prerogative.
violation of any provision of this Code."

(E) I would advise them to demand the

(B) Constant and Able should be held
continuation of their Makati-based benefits
solidarily liable for the unpaid wages and
and to file a complaint under (B) above if
benefits, and should order Constant, as the
the demand is not heeded.
workers' direct employer, to be solely liable

SUGGESTED ANSWER: for the backwages and separation pay.

(A) (C) Constant and Able should be held

solidarily liable for the unpaid wages and

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benefits and the backwages since these Is the dismissal of the Petition for
pertain to labor standard benefits for which Certification Election by the Med-Arbiter
the employer and contractor are liable proper? (1%)
under the law, while Constant alone – as
the actual employer - should be ordered to (A) Yes, because Article 245 of the Labor

pay the separation pay. Code prohibits supervisory employees from

joining the union of he rank and file
(D) Constant and Able should be held employees and provides that a union
solidarily liable for the unpaid wages and representing both rank and file and
benefits, and Constant should be held supervisory employees as members is not a
liable for their backwages and separation legitimate labor organization.
pay unless Able is shown to have
participated with malice or bad faith in the (B) No, because the grounds for the

workers' dismissal, in which case both dismissal of a petition for certification

should be held solidarily liable. election do not include mixed membership

in one umon.
(E) The above statements are all inaccurate.
(C) No, because a final order of cancellation
SUGGESTED ANSWER: of union registration is required before a
petition for certification election may be
(A) dismissed on the ground of lack of legal
personality of the union.
XVIII. The Pinagbuklod union filed a
Petition for Certification Election, alleging (D) No, because Delta Company did not
that it was a legitimate labor organization of have the legal personality to participate
the rank-and-file employees of Delta in the certification election proceedings
Company. On Delta's motion, the Med and to file a motion to dismiss based on
Arbiter dismissed the Petition, based on the the legitimacy status of the petitioning
finding that Pinagbuklod was not a union.
legitimate labor union and had no legal
personality to file a Petition for Certification SUGGESTED ANSWER:
Election because its membership was a
mixture of rank-and-file and supervisory (D) No, because Delta Company did not

employees. have the legal personality to participate

in the certification election proceedings
and to file a motion to dismiss based on

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the legitimacy status of the petitioning (A) Yes, because Farm A paid wages
union. directly to these workers without the
intervention of any third party
independent contractor

2012 Bar Law Exam MCQ (B) Yes, their work is directly related,
necessary and vital to the operations of
(October 7, 2012)
the farm;

(1) The workers worked as cargadores at

(2) The following are excluded from the
the warehouse and rice mills of farm A for
coverage of Book III of the Labor Code of the
several years. As cargadores, they loaded,
Philippines (Conditions of employment)
unloaded and pilled sacks of rice from the
except:
warehouse to the cargo trucks for delivery
to different places. They were paid by Farm (A) Field personnel;
A on a piece-rate basis. Are the workers
considered regular employees? (B) Supervisors;

(A) Yes, because Farm A paid wages (C) Managers;

directly to these workers without the
intervention of any third party (D) Employees of government-owned and

independent contractor; controlled corporations.

(B) Yes, their work is directly related, SUGGESTED ANSWER:

necessary and vital to the operations of

(B) Supervisors [Art. 82, Labor Code]
the farm;

(3) Work may be performed beyond eight (8)

(C) No, because Farm A did not have the
hours a day provided that:
power to control the workers with respect to
the means and methods by which the work
(A) Employee is paid for overtime work
is to be accomplished;
an additional compensation equivalent
to his regular wage plus at least 25%
(D) A and B.
thereof;

SUGGESTED ANSWER:

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(B) Employee is paid for overtime work an or basic salary includes the overtime
additional compensation equivalent to his pay;
regular wage plus at least 30% thereof;
(D) A and B.
(C) Employee is paid for overtime work an
additional compensation equivalent to his SUGGESTED ANSWER:

regular wage plus at least 20% thereof;

(C) No, the employer and employee

(D) None of the above. cannot stipulate that the latter‘s regular
or basic salary includes the overtime
SUGGESTED ANSWER: pay; [Art. 87, Labor Code]

(A) Employee is paid for overtime work ALTERNATIVE ANSWER:

an additional compensation equivalent
to his regular wage plus at least 25% (B) Yes, provided the mathematical

thereof [Art. 87, Labor Code] result shows that the agreed legal wage
rate and the overtime pay, computed
(4) May the employer and employee separately, are equal to or higher than
stipulate that the latter’s regular or basic the separate amounts legally due.
salary already includes the overtime pay,
such that when the employee actually (5) The following are instances where an

works overtime he cannot claim overtime employer can require an employee to work

pay? overtime, except:

(A) Yes, provided there is a clear written (A) In case of actual or impending

agreement knowingly and freely entered emergencies caused by serious accident,

into by the employees; fire, flood, typhoon, earthquake,

epidemic or other disaster or calamity to
(B) Yes, provided the mathematical prevent loss of life and property, or
result shows that the agreed legal wage imminent danger to public safety;
rate and the overtime pay, computed
separately, are equal to or higher than (B) When the country is at war or when

the separate amounts legally due; other national or local emergency has
been declared by the national assembly
(C) No, the employer and employee or the chief executive;
cannot stipulate that the latter‘s regular

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Labor Law Q&As (2007-2013)
(C) When there is urgent work to be
performed on machines, installations, or
equipment or some other
similar nature;
(D) Where the completion or contribution
of the work started before the eight hour
is necessary to prevent
obstruction or prejudice to the business
or operations of the employer.
SUGGESTED ANSWERS:
(A), (B), (C), (D)
(6) Z owns and operates a carinderia. His
regular employees are his wife, his two (2)
children, the family maid, a cook, two (2)
waiters, a dishwasher and a janitor. The
family driver occasionally works for him
during store hours to make deliveries. On
April 09, the dishwasher did not report for
work. The employer did not give his pay for
that day. Is the employer correct?
(A) No, because employees have a right
to receive their regular daily wage during
regular holidays;
(B) Yes, because April 09 is not regular
holidays;
(C) Yes, because of the principle of "a fair
day’s wage for a fair day’s work";
(D) Yes, because he employs less than
ten (10) employees.
“Never Let The Odds Keep You From Pursuing What You Know In Your Heart You Were Meant To Do.”-Leroy Satchel Paige
hectorchristopher@yahoo.com faithrollan5@yahoo.com
SUGGESTED ANSWER:
cause of (A) No, because employees have a right
to receive their regular daily wage during
regular holidays [Art. 94, Labor Code,
and a carenderia is not in the category of
an excluded or service establishment]
serious
ALTERNATIVE ANSWER:
(D) Yes, because he employs less than
ten (10) employees [i.e., is we are to
consider a carenderia as a retail or
service establishment].
(7) For misconduct or improper behavior to
be just cause for dismissal, the following
guidelines must be met, except:
(A) It must be serious;
(B) It must relate to the performance of the
employee’s duties;
(C) It should not be used as a subterfuge
for causes which are improper, illegal or
unjustified;
(D) It must show that the employee has
become unfit to continue working for the
employer.
SUGGESTED ANSWER:
(C) It should not be used as a subterfuge
for causes which are improper, illegal or
unjustified [Solid Development Corp.
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Workers Association vs. Solid the reasons therefor, complies with the
Development Corp., 530 SCRA 132 two-notice rule.
(2007)].
SUGGESTED ANSWER:
(8) The Company lawyer sent a memo to the
employee informing him of the specific (D) No, because the written notice of the

charges against him and giving him an cause of dismissal afforded him ample

opportunity to explain his side. In a opportunity to be heard and defend

subsequent letter, the employee was himself, and the written notice of the

informed that, on the basis of the results of decision to terminate him which states

the investigation conducted, his written the reasons therefor, complies with the

explanation, the written explanation of two-notice rule.

other employees as well as the audit report,

(9) The Supreme Court categorically
the management has decided to terminate
declared that separation pay shall be
his employment. The employee contended
allowed as a measure of social justice only
that his termination was illegal for lack of
in those instances where the employee is
procedural due process. Is the employee’s
validly dismissed for cause other than:
contention correct?

(A) Serious Misconduct;

(A) No, the employee’s written explanation
and written explanation of the other
(B) Gross and habitual neglect of duties;
employees were sufficient basis for the
employer to terminate his employment; (C) Willful disobedience to lawful orders;

(B) Yes, because the employer did not abide (D) Fraud or willful breach of trust.
by the two-notice rule;
SUGGESTED ANSWER:
(C) Yes, because he was not properly
afforded the chance to explain his side in a (A) Serious Misconduct [Tirazona vs PET
conference; Inc., 576 SCRA 625]

(D) No, because the written notice of the But Apacible (G.R. No. 178903, May 30,
cause of dismissal afforded him ample 2011) disallows separation pay for
opportunity to be heard and defend employees who are dismissed under any
himself, and the written notice of the of 4 grounds in Art. 282, thus NO
decision to terminate him which states CORRECT ANSWER.

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(10) K is a legitimate contractor hired by G gives loans to employees of Corporation X.

for six (6) months. On the third month, G
remitted to K the salaries and wages of the
employees. However, K absconded with the
money leaving the employees unpaid. The
disgruntled employees demanded from G
the payment of their salaries. Is G liable?
(A) No, because G has already remitted the
employees’ salaries to K, validly excusing G
from liability;
It was customary that loan payment were
paid to M by directly deducting from the
employee’s monthly salary. Is this practice
of directly deducting payments of debts
from the employee’s wages allowed?
(A) Yes, because where the employee is
indebted to the employer, it is
sanctioned by the law on compensation
under Article 1706 of the Civil Code;

(B) Yes, because he is jointly and (B) Yes, because it has already become
solidarily liable for whatever monetary customary such that no express
claims the employees may have against authorization is required;
K;
(C) No, because an employee’s payment of
(C) Yes, because of the principle of "a fair obligation to a third person is deductible
day‘s wage for a fair day‘s work"; from the employee’s wages if the deduction
is authorized in writing;
(D) B and C.
(D) No, because Article 116 of the Labor
SUGGESTED ANSWER: Code absolutely prohibits the
withholding of wages and kickbacks.
(B) Yes, because he is jointly and
Article 116 provides for no exception.
solidarily liable for whatever monetary
claims the employees may have against SUGGESTED ANSWER:
K [Art. 106, Labor Code]
(D) No, because Article 116 of the Labor
ALTERNATIVE ANSWER: Code absolutely prohibits the
withholding of wages and kickbacks.
Article 116 provides for no exception.
(C) Yes, because of the principle of "a fair
day‘s wage for a fair day‘s work. ALTERNATIVE ANSWER:

(11) Corporation X is owned by L’s family. L (A) Yes, because where the employee is
is the President. M, L’s wife, occasionally indebted to the employer, it is

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sanctioned by the law on compensation (13)Which of the following is not a valid

under Article 1706 of the Civil Code. reason for a strike?

(12) Union X staged a strike in front of (A) There is a bargaining deadlock;

Company B because of A CBA deadlock.
During the strike, Company B hired (B) There is a prevailing intra-union

replacement workers. Upon resuming their dispute;

employment, the strikers found that

(C)The company engaged in unfair labor
Company B hired replacement workers in
practice;
their place. Is Company B obliged to
reinstate the returning workers?
(D) Theirs is a flagrant violation of CBA’s
economic provisions.
(A) No, because the strike caused work
stoppage;
SUGGESTED ANSWER:

(B) No, because it is a valid exercise of

(B) There is a prevailing intra-union
management prerogative;
dispute [Art. 263(b), Labor Code]

(C) Yes, because workers who go on

(14) Iya, 15 years old, signed up to model a
strike do not lose their employment
clothing brand. She worked from 9am to
status;
4pm on weekdays and 1pm to 6pm on
Saturdays for two (2) weeks. She was
(D) Yes, because workers are entitled to
issued a child working permit under RA
such retention every time during a valid
9231. Which of the following statements is
strike.
the most accurate?

SUGGESTED ANSWER:
(A) Working permit for Iya’s employment is

(D). Yes, because workers are entitled to not required because the job is not

such retention every time during a valid hazardous;

strike.
(B) Her work period exceeds the required

ALTERNATIVE ANSWER: working hours for children aged 15 years

old;
(C) Yes, because workers who go on
strike do not lose their employment
status [Art. 264(a), last par., Labor Code]

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(C) To require a 15-year old to work without
obtaining the requisite working permit is a
form of child labor;
(D) Iya, who was engaged in a work that
is not child labor, is a working child.
(16)Which of the frollowing injuries/death
is not compensable?
(A) Injuries sustained by a technician while
at a field trip initiated by the Union and
sponsored by the Company;

SUGGESTED ANSWER: (B) Injuries received by a janitor at a

Union election meeting;
(D) Iya, who was engaged in a work that
is not child labor, is a working child [Sec. (C) Death of a bank teller because of a bank
12-A, 8 hours but not beyond 40 hours]. robbery;

(15) Under employee’s compensation, the (D) Death of a professor who was hit by a
so-called "Theory of Increased Risks" is van on his way home from work.
relevant when:
SUGGESTED ANSWER:
(A) There is a need to categorize a disability
as permanent and total; (B) Injuries received by a janitor at a
Union election meeting.
(B) It is not clear as to how an injury was
sustained; (17) The provisions of the Labor Code on
the Working Conditions and Rest Periods of
(C) The ailment or sickness is not employees are inapplicable to the following
classified as an occupational disease; employees, except :

(D) There is a prima facie finding that the (A) A supervisor in a fast food chain;
employee had willful intention to hurt
himself. (B) A family driver;

SUGGESTED ANSWER: (C) A laborer without any fixed salary, but

receiving a compensation depending upon
(C) The ailment or sickness is not the result of his work;
classified as an occupational disease
[Jebsens Maritime, Inc., Dec. 14, 2011; (D) A contractual employee.

Juala vs ECC, G.R. No. 57623, March 29,

SUGGESTED ANSWER:
1984].

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(D) A contractual employee. (D) Neither of them.

(18) Bugay, an employee with only six (6) SUGGESTED ANSWER:

months of service, was dismissed due to
redundancy. He is, under Art. 283 of the (B) The POEA Administrator [POEA Rules

Labor Code, entitled to a separation pay of: on Overseas land-based employment

{2012}].
(A) One (1) month pay;
ALTERNATIVE ANSWERS:
(B) One (1) year pay, Art. 283 of the Labor
Code being explicit that "a fraction of at (A) The Secretary of Labor and

least six (6) months shall be considered one Employment;

( 1) whole year"; (B) The POEA Administrator;

(C) A and B concurrently: [Transaction
(C) Six (6) months pay; Overseas Corp., vs. Sec. of Labor, G.R.
No. 109583, Sept. 5, 1997]
(D) One (1) year and six (6) months pay, as
Art. 4 of the Labor Code mandates that (20) The State shall allow the deployment of
"(a)ll doubts in the implementation and overseas Filipino workers only in countries
interpretation of this Code xxx shall be where the rights of Filipino migrant workers
resolved in favor of labor". are protected. Which of the following is not
a guarantee, on the part of the receiving
SUGGESTED ANSWER: country, for the protection of the rights of
OFW's?
(A) One (1) month pay [Art. 283, Labor
Code]. (A) It has existing labor and social laws
protecting the rights of migrant workers;
(19) The power to suspend or cancel a
license to recruit employees is vested on: (B) It promotes and facilitates re-
integration of migrants into the national
(A) The Secretary of Labor and
mainstream;
Employment;

(C) It is a signatory to and/or ratifier of

(B) The POEA Administrator;
multilateral conventions, declarations or
resolutions relating to the protection of
(C) A and B concurrently;
migrant workers;

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(D) It has concluded a bilateral agreement (22) In what situation is an employer

or arrangement with the government on the permitted to employ a minor?
protection of the rights of overseas Filipino
workers. (A) 16-year old child actor as a cast member
in soap opera working 8 hours a day, 6
SUGGESTED ANSWER: days a week;

(B) It promotes and facilitates re- (B) A 17-year old in deep sea-fishing;
integration of migrants into the national
mainstream [Sec. 4 of RA 8042 as (C) A 17 -year old construction worker;

amended by Sec. 3 of RA 10023].

(D) A 17-year old assistant cook in a

(21) Which is not a procedural requirement family restaurant.

for the correction of wage distortion in an

SUGGESTED ANSWER:
unorganized establishment?

(D) A 17-year old assistant cook in a

(A) Both employer and employee will
family restaurant [Sec. 12, R.A. 7610, as
attempt to correct the distortion;
amended by Sec. 2, RA 9231, Dec. 19,

(B) Settlement of the dispute through 2003].

National Conciliation and Mediation Board

(23)The most important factor in
(NCMB);
determining the existence of an employer-

(C) Settlement of the dispute through employee relationship is the:

voluntary arbitration in case of failure to

(A) Power to control the method by which
resolve dispute through CBA dispute
employees are hired and selected;
mechanism;

(B) Power to control the manner by which

(D) A and B.
employees are transferred from one job site

SUGGESTED ANSWER: to another;

(C) Settlement of the dispute through (C) Power to control the results achieved by

voluntary arbitration in case of failure to giving guidelines to the employees;

resolve dispute through CBA dispute

mechanism [Art. 124, Labor Code].

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(D) Power to control the results to be between the local agent and the foreign
achieved and the employee's method of principal dissolves the liability of the local
achieving the task. agent recruiter;

SUGGESTED ANSWER: (B) Local agency is solidarily liable with the

foreign principal; severance of relations
(D) Power to control the results to be between the local agent and the foreign
achieved and the employee's method of principal dissolves the liability of the foreign
achieving the task. principal. only;

(C) Local agency is solidarily liable with

(24) A neighbor's gardener comes to you
and asks for help because his employer
withheld his salary for two (2) months
amounting to P4,000.00. Where will you
advise him to file his complaint?
(A) Labor Arbiter;
(B) DOLE Regional Director;
the foreign principal; severance of
relations between the local agent and
foreign principal does not affect the
liability of the foreign principal;
(D) Local agency is jointly liable with the
foreign principal; severance of the relations
between the local agent and the foreign
principal does not affect the liability of the
local recruiter.

(C) Conciliator/Mediator;
SUGGESTED ANSWER:

(D) MTC Judge.

(C) Local agency is solidarily liable with

SUGGESTED ANSWER: the foreign principal; severance of

relations between the local agent and
(B) Dole Regional Director [Art. 129, foreign principal does not affect the
Labor Code] liability of the foreign principal

(25) What is the nature of the liabilities of

the local recruitment agency and its foreign
principal? (26) Which phrase is the most accurate to
complete the statement - A private
(A) The local agency is jointly liable with the employment agency is any person or entity
foreign principal; severance of relations

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engaged in the recruitment and placement SUGGESTED ANSWER:

of workers:
(A) Labor Arbiter [Sec. 10, Art. 8042]
(A) for a fee, which is charged directly from
the workers. (28) Which of the following is not a valid
wage deduction?
(B) for a fee, which is charged directly from
employers. (A) Where the worker was insured with his
consent by the employer, and the deduction
(C) for a fee, which is charged directly or is allowed to recompense the employer for
indirectly from workers, employers or the amount paid by him as the premium on
both. the insurance;

(D) for a fee, which is charged from workers (B) When the wage is subject of execution
or employers, which covers both local and or attachment, but only for debts incurred
overseas employment. for food, shelter, clothing and medical
attendance;
SUGGESTED ANSWER:
(C) Payment for lost or damaged
(C) For a fee, which is charged directly or equipment provided the deduction does
indirectly from workers, employers or not exceed 25°/o of the employee's
both [Art. 13 (c), Labor Code] salary for a week;

(27) Who has jurisdiction over a money (D) Union dues.

claim instituted by an overseas Filipino
worker? SUGGESTED ANSWER:

(A) Labor Arbiter; (C) Payment for lost or damaged

(B) National Labor Relations Commission;
(C) Labor Arbiter concurrently with the
regular courts.;
equipment provided the deduction does
not exceed 25% of the employee‘s salary
for a week [Implementing Rules Book III,
Rule VIII, Section 11: 20% of employee‘s
salary in a week, not 25%]

(D) National Labor Relations Commission

(29) Is the contractor a necessary party in a
concurrently with the regular courts.
case where labor contracting is the main

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issue and labor-only contracting is found to
exist?
(A) Yes, the contractor is necessary in
the full determination of the case as he
is the purported employer of the worker;
(C) Selina, a cook employed by and who
lives with an old maid and who also tends
the sari-sari store of the latter;
(D) Roger, a house gardener who is required
to report to work only thrice a week.

(B) Yes, no full remedy can be granted SUGGESTED ANSWER:

and executed without impleading the
purported contractor; (B) Rafael, the secretary of a Senator
[Section 3 (b), Dec. 22, 1975 Rules and
(C) No, the contractor becomes a mere Regulations Implementing PD 851]
agent of the employer-principal in labor
contracting; (31) Which type of employee is entitled to a
service incentive leave?
(D) No, the contractor has no standing in a
labor contracting case. (A) managerial employees;

SUGGESTED ANSWER: (B) field personnel;

(A) Yes, the contractor is necessary in (C) government workers;

the full determination of the case as he

(D) part-time workers.
is the porpoted employer of the worker.

SUGGESTED ANSWER:
(B) Yes, no full remedy can be granted
and executed without impleading the
(D) Part-time workers [Art. 82, Labor
purpoted contractor.
Code]

(30) Who among the following is not entitled

(32) A wage order may be reviewed on
to 13th month pay?
appeal by the National Wages and
Productivity Commission under these
(A) Stephanie, a probationary employee of a
grounds, except:
cooperative bank who rendered six (6)
months of service during the calendar year
(A) grave abuse of discretion;
before filing her resignation;

(B) non-conformity with prescribed

(B) Rafael, the secretary of a Senator;
procedure;

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(C) questions of law; (C) The inclusion of members outside the

bargaining unit;
(D) gross under or over-valuation.
(D) Filed within an existing election bar.
SUGGESTED ANSWER:
SUGGESTED ANSWER:
(D) Gross under over-valuation
(C) The inclusion of members outside the
(33) The following may file a Petition for bargaining unit [Art. 245-A, Labor Code,
Certification Election, except: as amended]

(A) The employer; (35) In response to Company X's unfair

labor practices, a union officer instructed
(B) The legitimate labor organization;
its members to stop working and walk out
of the company premises. After three (3)
(C) The Federation on behalf of the chapter;
hours, they voluntarily returned to work.

(D) The Work Was there a strike and was it a valid

activity?
SUGGESTED ANSWER:
(A) Yes, it was a strike; yes, it was a valid
(D) Workers‘ Association [Arts. 258 activity;
(employer), 242, 258 (legitimate labor
organization) and 257 (Federation which (B) Yes, it was a strike; no, it was not a

has issued a charter certificate) Labor valid activity;

Code]
(C) No, it was not a strike; yes, it was a

(34) The following are grounds to deny valid activity;

Petition for Certification Election, except:

(D) No, it was not a strike; no, it was not a

(A) The petitioning union is illegitimate or valid activity.

improperly registered
SUGGESTED ANSWER:

(B) Non-appearance for two consecutive

(B) Yes, it was a strike; no, it was not a
schedules before the Med-Arbiter by
valid activity [Airline Pilots Association
petitioning union;
of the Phils. vs. CIR, 76 SCRA 274; and

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first City Interlinks Transportation vs. contributions to the SSS. Jennifer claims
Roldan Confessor, 272 SCRA 124]. maternity leave benefits and sickness
benefits. Which of these two may she
(36) Which of the following is not claim?
considered an employer by the terms of the
Social Security Act? (A) None of them;

(A) A self-employed person; (B) Either one of them;

(B) The government and any of its (C) Only maternity leave benefits;
political subdivisions, branches or
instrumentalities, including corporations (D) Only sickness benefits.

owned or controlled by the government;

SUGGESTED ANSWER:

(C) A natural person, domestic or foreign,

(C) Only maternity leave benefits [Sec.
who carries on in the Philippines, any
14-A (c), RA 1161 (SSS) Law) as amended
trade, business, industry, undertaking or
by RA 8282]
activity of any kind and uses the services of
another person who is under his orders as
regards the employment;

(38) H files for a seven-day paternity leave

(D) A foreign corporation.
for the purpose of lending support to his
wife, W, who suffered a miscarriage through
SUGGESTED ANSWER:
intentional abortion. W also filed for

(B) The government and any of its maternity leave for five weeks. H and W are

political subdivisions, branches or legally married but the latter is with her

instrumentalities. Including parents, which is a few blocks away from

corporations owned or controlled by the H's house. Which of the following

government. [Sec. 8 (c), RA 8282] statements is the most accurate?

(37) Jennifer, a receptionist at Company X, (A) Paternity leave shall be denied because

is covered by the SSS. She was pregnant it does not cover aborted babies;

with her fourth child when she slipped in

(B) Paternity leave shall be denied
the bathroom of her home and had a
because W is with her parents;
miscarriage. Meanwhile, Company X
neglected to remit the required

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(C)Maternity leave shall be denied because (B) Eidil Fitr;

it does not cover aborted babies;
(C) Father's Day;
(D) Maternity leave shall be denied because
grant of paternity leave bars claim for (D) lndependence Day.

maternity leave.
SUGGESTED ANSWER:

SUGGESTED ANSWER:
(C) Father‘s Day [Art. 94 (c), Labor Code]

(B) Paternity leave shall be denied

(41)Which is a characteristic of a labor-only
because W is with her parents [RA 8187,
contractor?
Section 2]

(A) Carries an independent business

(39) Which of the following is not a privilege
different from the employer's;
of a person with disability under the Magna
Carta for disabled persons?
(B) The principal's liability extends to all
rights, duties and liabilities under labor
(A) At least 20% discount on purchase of
standards laws including the right to self-
medicines in all drugstores;
organization;

(B) Free transportation in public railways;

(C) No employer-employee relationship;

(C) Educational assistance in public and

(D) Has sufficient substantial capital or
private schools through scholarship grants;
investment in machinery, tools or

(D) A and C. equipment directly or intended to be related

to the job contracted.
SUGGESTED ANSWER:
SUGGESTED ANSWER:
(A) At least 20% discount on purchase of
medicines in all drugstores [Magna Carla (C) No employer-employee relationships

of PWDs] [Art. 106, Labor Code]

(40) Which of the following is not a regular (42) What is not an element of legitimate

holiday? contracting?

(A) New Year's Eve; (A) The contract calls for the performance of
a specific job, work or service;

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(B) It is stipulated that the performance of a (44) What is not a prerequisite for a valid
specific job, work or service must be within apprenticeship agreement?
a definite predetermined period;
(A) Qualifications of an apprentice are met;
(C) The performance of specific job, work or
service has to be completed either within or (B) A duly executed and signed

outside the premises of the principal; apprenticeship agreement;

(D) The principal has control over the (C) The apprenticeship program is

performance of a specific job, work or approved by the Secretary of Labor;

service.
(D) Included in the list of apprenticeable

SUGGESTED ANSWER: occupation of TESDA.

(D) The principal has control over the SUGGESTED ANSWER:

performance of a specific job, work or

(C) The apprenticeship program is
service. [Art. 106, Labor Code]
approved by the Secretary of Labor. [Sec.

(43) Which is a characteristic of the 18, RA 7796- The apprenticeship

learner? Program of DOLE shall be transferred to

TESDA which shall implement and
(A) A person is hired as a trainee in an administer said program].
industrial occupation;
(45) Which is not a constitutional right of
(B) Hired in a highly technical industry; the worker?

(C) Three (3) months practical on-the-job (A) The right to engage in peaceful
training with theoretical instruction; concerted activities;

(D) At least 14 years old. (B) The right to enjoy security of tenure;

SUGGESTED ANSWER: (C) The right to return on investment;

(A) A person is hired as a trainee in an (D) The right to receive a living wage.
industrial occupation. [Art. 73, Labor
Code] SUGGESTED ANSWER:

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(C) The right to return on investment becomes solidarily liable with the contractor
[Art. XIII, Sec. 3, Constitution] not only for unpaid wages but also for all
the rightful! claims of the employees under
(46) Employee-employer relationship exists the Labor Code;
under the following, except :
(B) Treated as direct employer of his
(A) Jean, a guest relations officer in a contractor's employees in all instances; he
nightclub and Joe, the nightclub owner; becomes subsidiarily liable with the
contractor only in the event the latter fails
(B) Atty. Sin' Cruz, who works part-time as
to pay the employees' wages and for
the resident in house lawyer of X
violation of labor standard laws;
Corporation;

(C) An indirect employer, by operation of

(C) Paul, who works as registered agent
law, of his contractor's employees; he
on commission basis in an insurance
becomes solidarily liable with the
company;
contractor only in the event the latter
fails to pay the employees' wages and for
(D) Jack and Jill, who work in X Company,
violation of labor standard laws;
an unregistered Association.

(D) Treated as direct employer of his

SUGGESTED ANSWER:
contractor's employees in all instances; the

(C) Paul, who works as registered agent principal becomes solidarily liable with the

on commission basis in an insurance contractor not only for unpaid wages but

company. [Great Pacific Life assurance also for all the rightful claims of the

Corp. vs. Judico, G.R. No. 73887, Dec. employees under the Labor Code;

21, 1989].
SUGGESTED ANSWER:

(C) An indirect employer, by operation

(47) With respect to legitimate independent of law, of his contractor‘s employees; he

contracting, an employer or one who becomes solidarily liable with the

engages the services of a bona fide contractor in the even the latter fails to

independent contractor is - pay the employees‘ wages and for

violation of labor standard laws. [Arts.
(A) An indirect employer, by operation of 107 and 109, Labor Code]
law, of his contractor's employees; he

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(48)Kevin, an employee of House of Sports, Regional Director has jurisdiction. [Art.

filed a complaint with the DOLE requesting 128 (b), Labor Code]
the investigation and inspection of the said
establishment for labor law violations such (49) Which of the following is not

as underpayment of wages, non-payment of compensable as hours worked?

13th month pay, non-payment of rest day

(A) Travel away from home;
pay, overtime pay, holiday pay, and service
incentive leave pay. House of Sports alleges
(B) Travel from home to work;
that DOLE has no jurisdiction over the
employees' claims where the aggregate (C) Working while on call;
amount of the claims of each employee
exceeds P5,000.00, whether or not (D) Travel that is all in a day's work.
accompanied with a claim for
reinstatement. Is the argument of House of SUGGESTED ANSWER:

Sports tenable?
(A) Travel away from home. [Art. 84,

(A) Yes, Article 1 ~9 of the Labor Code shall Labor Code]

apply, and thus, the Labor Arbiter has

(B) Travel from home to work.
jurisdiction;

(50) It is defined as any union or

(B) No, Article 128 (b) of the Labor Code
association of employees which exists in
shall apply, and thus, the DOLE Regional
whole or in part for the purpose of collective
Director has jurisdiction;
bargaining with employers concerning

(C) Yes, if the claim exceeds P5,000.00, the terms and conditions of employment.

DOLE Secretary loses jurisdiction;

(A) Bargaining representative;

(D) No, a voluntarily arbitrator has

(B) Labor organization;
jurisdiction because the matter involved is
a grievable issue.
(C) Legitimate labor organization;

SUGGESTED ANSWER:
(D) Federation.

(B) No, Article 128(b) of the Labor Code

SUGGESTED ANSWER:
shall apply, and thus, the DOLE

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(B) Labor Organization. [Art. 212(g), (A) Employer contests the findings of the
Labor Code] labor regulations officers and raises issues
thereon;
(51) This process refers to the submission
of the dispute to an impartial person for (B) In order to resolve any issues raised,
determination on the basis of the evidence there is a need to examine evidentiary
and arguments of the parties. The award is matters;
enforceable to the disputants.
(C) The issues raised should have been
(A) Arbitration; verifiable during the inspection;

(B) Mediation; (D) The evidentiary matters are not

verifiable in the normal course of
(C) Conciliation; inspection.

(D) Reconciliation. SUGGESTED ANSWER:

SUGGESTED ANSWER: (C) The issues raised should have been

verifiable during the inspection. [SSK
(A) Arbitration
Parts Corporation vs. Camas, 181 SCRA
675 (1990); Art. 128 (b), Labor Code]

(53) In what instances do labor arbiters

have jurisdiction over wage distortion

(52) The Regional Director or his cases?

representative may be divested of his

(A) When jurisdiction is invoked by the
enforcement and visitorial powers under
employer and employees in organized
the exception clause of Article 128 of the
establishments;
Labor Code and, resultantly, jurisdiction
may be vested on the labor arbiter when
(B) When the case is unresolved by
three (3) elements are present. Which of the
Grievance Committee;
following is not one of the three (3)
elements? (C) After the panel of voluntarily arbitrators
has made a decision and the same is
contested by either party;

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(D) In unorganized establishments when (55) Peter worked for a Norwegian cargo
the same is not voluntarily resolved by vessel. He worked as a deckhand, whose
the parties before the NCMM. primary duty was to assist in the unloading
and loading of cargo and sometimes, assist
SUGGESTED ANSWER: in cleaning the ship. He signed a five-year
contract starting in 2009. In 2011, Peter's
(D) In unorganized establishment when
employers began treating him differently.
the same is not voluntarily resolved by
He was often maltreated and his salary was
the parties before the NCMB. [Art. 124,
not released on time. These were frequently
Labor Code]
protested to by Peter. Apparently
exasperated by his frequent protestations,
(54) Is a termination dispute a grievable
Peter's employer, a once top official in
issue?
China, suddenly told him that his services

(A) Yes, if the dismissal arose out of the would be terminated as soon as the vessel

interpretation or Implementation of the arrived at the next port, in Indonesia. Peter

CBA; had enough money to go back home, and

immediately upon arriving, he filed a money
(B) No, once there's actual termination, claim with the NLRC against his former
the issue is cognizable by a Labor employer's local agent. Will Peter's case
Arbiter; prosper?

(C)Yes, it is in the interest of the parties (A) Yes, he is entitled to full reimbursement
that the dispute be resolved on the of his placement fee, with' interest at 12°/o
establishment level; per annum, plus salary for the unexpired
portion of his employment contract or for
(D) No, a voluntary arbitrator must take three (3) months for every year of the
cognizance once termination is made unexpired portion, whichever is higher;
effective.
(B) Yes, he is entitled to full reimbursement
SUGGESTED ANSWER: of his placement fee, with interest at 12%
per annum, plus his salary for the
(B) No, once there‘s actual termination,
unexpired portion of his employment
the issue cognizable by a Labor Artbiter
contract or for three (3) months for every
[Art. 217 (a), Labor Code; San Miguel
year of the unexpired portion, whichever is
Corporation vs. NLRC, G.R No. 108001,
less;
March 15, 1996]

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(C) Yes, he is entitled to his salaries for (D) Workers in the duty registered
the unexpired portion of his employment cooperative. [Sec. 3 (d), Rule VII, Book III
contract, plus full reimbursement of his of Omnibus Rules requires
placement fee with interest at ·12°/o per recommendations of Bureau of
annum; Cooperative Development and approval
of DOLE Secretary-matters that are not
(D) Yes, he is entitled to his salaries for in the suggested answer]
three (3) months for every year of the
unexpired portion of his employment
contract, plus full reimbursement of his
placement fee with interest at 12°/o per (57) Which of the following is a right

annum. and/or condition of membership in a labor

organization?
SUGGESTED ANSWER:
(A) No arbitrary or excessive initiation fees
(C) Yes, he is entitled to his salaries for shall be required of the members of a
the unexpired portion of his employment legitimate labor organization nor shall
contract, plus full reimbursement of his arbitrary, excessive or oppressive fine and
placement fee with interest at 12% per forfeiture be imposed;
annum [Serrano vs. Gallant maritime,
G.R. No. 167614, March 24, 2009] (B) The members shall be entitled to full
and detailed reports from their officers and
(56)The following are exempt from the rules representatives of all financial transactions
on minimum wages, except: as provided for in the constitution and
bylaws of the organization;
(A) Household or domestic helpers; .
(C) No labor organization shall knowingly
(B) Homeworkers engaged in needle work; admit as members or continue in
membership any individual who belongs to
(C) Workers' in duly registered
a subversive organization or who is engaged
establishment in the cottage industry;
directly or indirectly in any subversive
activity;
(D) Workers in the duly registered
cooperative.
(D) All of the above.

SUGGESTED ANSWER:
SUGGESTED ANSWER:

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(D) All of the above. [Art. 241, Labor (C) cannot invoke the right to collective
Code]: bargaining because each member is
considered an owner.
(A) No arbitrary or excessive initiation
fees shall be required of the members of (D) cannot invoke the right to collective
a legitimate labor organization nor shall bargaining because they are expressly
arbitrary, excessive or oppressive fine prohibited by law.
and forfeiture be imposed; [Art. 241 (a),
Labor Code] SUGGESTED ANSWER:

(B) The members shall be entitled to full (C) Cannot invoke the right to collective

and detailed reports from their officers bargaining because each member is

and representatives of all financial considered an owner. [Benguet Electric

transactions as provided for in the Cooperative vs. Pura Ferrer-Calleja, G.R.

constitution and by-laws of the No. 79025, Dec. 29, 1989]

organization; [Art. 241 (b), Labor Code]

(59) Which of the following is not true in

(C) No labor organization shall unfair labor practices committed by an

knowingly admit as members or employer?

continue in membership any individual

(A) Unfair labor practices cannot be
who belongs to a subversive organization
committed unless the union has been
or who is engaged directly or indirectly
formed and registered;
in any subversive activity. {Art. 241 (c)
Labor Code]
(B) The commission of unfair labor practice
requires an employer-employee
(58) Which phrase most accurately
relationship;
completes the statement - Members of
cooperatives:
(C) The offense of unfair labor practice
prescribes in one ( 1) year;
(A) can invoke the right to collective
bargaining because it is a fundamental
(D) The list of unfair labor practices is
right under the Constitution.
exclusive.

(B) can invoke the right to collective

SUGGESTED ANSWER:
bargaining because they are permitted by
law.

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(A) Unfair labor practices cannot be (61) Which of the following is not a
committed unless union has been procedural due process requirement in the
performed and registered. [Art. 247 termination of an employee for just cause?
Labor Code].
(A) A written notice to the employee
(60) Which of the following is correct with specifying the grounds for his termination;
respect to the extent of the application of
security of tenure? (B) A written notice to the DOLE at least
thirty (30) days before the effectivity of
(A) It applies to managerial and to all termination;
rank-and-file employees i f not yet
regular, but not to management trainees; (C) A written notice to the employee stating
that upon consideration of the
(B) It applies to managerial and to all circumstances, grounds have been
rank-and-file employees including those established to justify his termination;
under probation;
(D) An opportunity for the employee to
(C) It applies to seasonal and project present his evidence.
employees, if they are hired repeatedly;
SUGGESTED ANSWER:
(D) It applies to all kinds of employees
except those employed on a part-time basis. (B) A written notice to the DOLE at least
thirty (30) days before the effectivity of
SUGGESTED ANSWER: termination.

(A) It applies to managerial and to all (62) Under current jurisprudence, when the
rank-and-file employees if not yet dismissal is for a just or authorized cause
regular, but not to management trainees. but due process is not observed, the
[Management trainees are not employees dismissal is said to be:
yet]
(A) Void for denial of due process; hence,
(B) It applies to managerial and to all the employee should be reinstated;
rank-and-file employees including those
under probation. (B) Void for lack. of due process, the
employee should be paid full backwages;

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(C) Valid, for the dismissal is with (B) Such amount of relevant evidence
just/authorized cause, but the employer which a reasonable mind might accept as
shall be liable for nominal damages; adequate to justify a conclusion.
[Tancirco vs. GSIS G.R. No. 132916, Nov.
(D) Valid, even if due process is not 16, 2001]
observed, hence reinstatement should not
be ordered. (64) Which of the following statements is
the most accurate?
SUGGESTED ANSWER:
(A) Domestic helpers with monthly income
(C) Valid, for the dismissal is with of at least P3,000.00 are compulsory
just/authorized cause, but the employer members of the SSS Law;
shall be liable for nominal damages.
[Agabon vs. NLRC, G.R. No. 158693, (B) House helpers with monthly income of
November 17, 2004] at least P2,000.00 are compulsory members
of the SSS Law;
(63) What is the quantum of evidence
required in labor cases? (C) Domestic helpers, 55 years of age and
who worked for at least five (5) years, are
(A) The degree of proof which produces the covered by the Retirement Pay Law under
conclusion that the employee is guilty of the optional retirement, in the absence of a
offense charged in an unprejudiced mind; CBA;

(B) Such amount of relevant evidence (D) Domestic helpers in the personal
which a reasonable mind might accept as service of another are not entitled to
adequate to justify a conclusion; 13th month pay.

(C) That degree of proof which is greater in SUGGESTED ANSWER:

weight than the opposing party's evidence;
(D) Domestic helpers in the personnel
(D) Such evidence which must be highly service of another are not entitled to
and substantially more probable to be true 13th month pay.
than not which convinces the trier of facts
of its factuality. (65) The decision of the Labor Arbiter in a
labor dispute case is:
SUGGESTED ANSWER:
(A) immediately executory;

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(B) requires a writ of execution; (C) Contest for the position of MG Union
President brought by Ka Joe, the losing
(C) is immediately executory insofar as candidate in the recent union elections.
the reinstatement of the employee is [Art. 226. Labor Code].
concerned;
(67) J refused to comply with his
(D) is stayed by the appeal of the employer deployment assignment with K, a manning
and posting of appeal bond. agency. K filed a complaint against him for
breach of contract before the Philippine
SUGGESTED ANSWER:
Overseas Employment Administration
(POEA). The POEA penalized J with one (1)
(C) Is immediately executor insofar as
year suspension from overseas deployment.
the reinstatement of the employee is
On appeal, the suspension was reduced to
concerned. [Art. 223, Labor Code]
six (6) months by the Secretary of Labor. Is

(66) Which of the following is cognizable by the remedy of appeal still available to J and

the Bureau of Labor Relations Med- where should he file his appeal?

Arbiters?
(A) Yes, he can file an appeal before the

(A) Unfair labor practice for violation of the Court of Appeals via a Petition for

CBA filed by the Workers Union of Certiorari under rule 65;

Company X against Company X;

(B) Yes, he can file an appeal before the

(B) Claim for back wages filed by overseas Supreme Court via a Petition for Certiorari

contract worker Xena against her Saudi under Rule 65;

Arabian employer;
(C) Yes, he can file an appeal before the

(C) Contest for the position of MG Union Office of the President since this is an

President brought by Ka Joe, the losing administrative case;

candidate in the recent union elections;

(D) Yes, he can file an appeal before the

(D) G contesting his removal as Chief National Labor Relations Commission

Executive Officer of Company Z. because there is an employer-employee

relationship.
SUGGESTED ANSWER:
SUGGESTED ANSWER:

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(A) Yes, he can file an appeal before the Hence, there is no violation of the rule
court of appeals via a petition for against diminution of pay;
certiorari under Rule 65 [NFL vs
Laguesma] (C) No, R's re-assignment did not amount
to constructive dismissal because the
(68) R was employed as an instructor of college has the right to transfer R based
Cruz College located in Santiago City, on contractual stipulation;
lsabela. Pursuant to a stipulation in R's
employment contract that the college has (D) B and C.

the prerogative to assign R in any of its

SUGGESTED ANSWER:
branches or tie-up schools as the necessity
demands, the college proposed to transfer
(B) No, R failed to present evidence that
him to llagan, a nearby town. R filed a
the college committed to provide the
complaint alleging constructive dismissal
additional allowance or that they were
since his re-assignment will entail an
consistently granting such benefit us to
indirect reduction of his salary or
have ripened into a practice which
diminution of pay considering that
cannot be peremptorily withdrawn.
additional allowance will not be given to
Hence, there is no violation of the rule
cover for board and lodging expenses. R,
against diminution of pay.
however, failed to prove that allowances
were given in similar instances in the past. ALTERNATIVE ANSWER:
Is R's contention that he will suffer
constructive dismissal in view of the alleged (C) No, R's re-assignment did not amount
diminution of benefit correct? to constructive dismissal because the
college has the right to transfer R based
(A) Yes, such transfer should require an on contractual stipulation.
automatic additional allowance; the non-
granting of said allowance amounts to a (69) At what particular point does a labor
diminution of benefit; organization acquire a legal personality?

(B) No, R failed to present evidence that (A) On the date the agreement to organize
the college committed to provide the the un1on is signed by the majority of all
additional allowance or that they were its members;
consistently granting such benefit as to
have ripened into a practice which
cannot be peremptorily withdrawn.

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(B) On the date the application for (71) What is the prescriptive period of all
registration is duly filed with the criminal offenses penalized under the Labor
Department of Labor.; Code and the Rules Implementing the Labor
Code?
(C) On the date appearing on the Certificate
of Registration; (A) 3 years;

(D) On the date. the Certificate of (B) 4 years;

Registration is actually issued.
(C) 5 years;
SUGGESTED ANSWER:
(D) 10 years.
(D) On the date the certificate of
registration is actually issued [Art. 234, SUGGESTED ANSWER:

Labor Code]
(A) 3 years [Art. 290, Labor Code]

(70) How many years of service is the

(72) What is the nature of employment of
underground mine employee required to
househelpers?
have rendered in order to be entitled to
retirement benefits?
(A) Seasonal;

(A) 5;
(B) Fixed-term;

(B) 10;
(C) Regular;

(C) 15;
(D) Probationary.

(D) 20.
SUGGESTED ANSWER:

SUGGESTED ANSWER:
(B) Fixed-Term [Not to exceed 2 years
but ―renewable for such periods as many
(A) 5 [Section 2.1 0005-04 -1998, Rules
be agreed upon by the parties‖ [Art. 242,
Prescribing the retirement Age for
Labor Code]
Underground Mine Employees, May 9,
1998]
(73) The appeal to the NLRC may be
entertained only on any of the following
grounds, except:

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(A) If there is prima facie evidence of abuse (D) Withdrawal by the employer of holiday
of discretion on the part of the Labor pay benefits stipulated under a
Arbiter; supplementary agreement with the union.

(B) If the decision, order or award was SUGGESTED ANSWER:

secured through fraud or coercion,
including graft and corruption; (B) The grant of profit-sharing benefits to
managers, supervisors and all rank-and-file
(C) If made purely on questions of fact employees not covered by the CBA [Art 248,
and law; Labor Code]

(D) If serious errors in the findings of facts (75) According to Article 78 of the Labor
are raised which would cause grave or Code., a handicapped worker is one whose
irreparable damage or injury to the earning capacity is impaired by the
appellant following, except :

SUGGESTED ANSWER: (A) Age;

(C) If made purely on Question of fact (B) Physical Deficiency;

and law. [Art. 223, Labor Code]
(C) Mental Deficiency;
(74) The following are unfair labor practices
of employers, except: (D) Psychological Deficiency.

(A) Interrogating its employees in SUGGESTED ANSWER:

connection with their membership in the

(D) Psychological Deficiency [Art. 78,
union or their union activities which
Labor Code]
hampers their exercise of free choice;

(B) The grant of profit-sharing benefits to

managers, supervisors and all rank-and-
file employees not covered by the CBA;
(C) The cessation of a company's operations
shortly after the organization of a labor
union and the resumption of business
barely a month after;
2011 Labor Law Exam MCQ
(November 6, 2011)
(1) The union’s by-laws provided for burial
assistance to the family of a member who
dies. When Carlos, a member, died, the

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Labor Law Q&As (2007-2013)
union denied his wife's claim for burial
assistance, compelling her to hire a lawyer
to pursue the claim. Assuming the wife
wins the case, may she also
attorney's fees?
(A) No, since the legal services rendered has
no connection to CBA negotiation.
(B) Yes, since the union should have
provided her the assistance of a lawyer.
(C) No, since burial assistance is not the
equivalent of wages.
(D) Yes, since award of attorney's fee is
not limited to cases of withholding of
wages.
(2) Pol requested Obet, a union officer and
concurrently chairman of the company's
Labor-Management Council, to appeal to
the company for a recomputation of Pol’s
overtime pay. After 5 p.m., his usual knock-
off time, Obet spent two hours at the
Personnel Office, reconciling the differing
computations of Pol’s overtime. Are those
two hours compensable?
(A) Yes, because Obet performed work
within the company premises.
(B) No, since Obet’s action has nothing to
do with his regular work assignment.
“Never Let The Odds Keep You From Pursuing What You Know In Your Heart You Were Meant To Do.”-Leroy Satchel Paige
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(C) No, because the matter could have been
resolved in the labor-management council
of which he is the chairman.
claim
(D) Yes, because the time he spent on
grievance meetings is considered
hoursworked.
(3) The Labor Code on retirement pay
expands the term “one-half (½) month
salary” because it means
(A) 15 days' pay plus 1/12th of the 13th
month pay and 1/12th of the cash value of
service incentive leave.
(B) 15 days' pay plus 1/12th of the 13th
month pay and the cash equivalent of five
days service incentive leave.
(C) 15 days pay plus a full 13th month pay.
(D) 15 calendar days' pay per year of
service plus allowances received during
the retirement year.
(4) A foreign guest in a luxury hotel
complained that he lost certain valuable
items in his hotel room. An investigation by
the hotel pointed to two roomboys as the
most probable thieves. May the
management invoke “loss of confidence” as
a just cause for dismissing the roomboys?
(A) No, “loss of confidence” as reason for
dismissal does not apply to rank and file
employees.
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(B) No, “loss of confidence” applies only to (6) Both apprenticeship and learnership are
confidential positions. government programs to provide practical
on-the-job training to new workers. How do
(C) Yes, “loss of confidence” is broad they differ with respect to period of
enough to cover all dishonest acts of training?.
employee.
(A) In highly technical industries,
(D) RIGHT ANSWER Yes, ―loss of apprenticeship can exceed 6 months;
confidence‖ applies to employees who learnership can exceed one year.
are charged with the care and custody of
the employer's property. (B) Apprenticeship cannot exceed 6 months;
learnership can.
(5) Tower Placement Agency supplies
manpower to Lucas Candy Factory to do (C) Apprenticeship shall not exceed six
work usually necessary for work done at its months; while learnership shall not
factory. After working there for more than exceed three months.
two years under the factory manager’s
supervision, the workers demanded that (D) The law lets the employer and the

Lucas extend to them the same apprentice agree on the apprenticeship

employment benefits that their directly period; but the law fixes learnership period

hired workers enjoyed. Is their demand at six months in non-technical industries.

valid?
(7) Venus Department Store decided to

(A) Yes, since it was Lucas that actually contract out the security services that its

hired and supervised them to work at its 10 direct-hired full-time security guards

factory. provided. The company paid the men

(B) No, since the agency workers are not
employees of the client factory.
(C) Yes, since they have been working at the
factory in excess of two years.
(D) No, since it was the placement agency
that got them their jobs.
separation pay. With this move, the Store
was able to cut costs and secure efficient
outside professional security services. But
the terminated security guards complained
of illegal dismissal, claiming that regular
jobs such as theirs could not be contracted
out. Will their complaint prosper?

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(A) No. the management has the right to (9) A golf and country club outsourced the
contract out jobs to secure efficient and jobs in its food and beverage department
economical operations. and offered the affected employees an early
retirement package of 1 ½ month’s pay for
(B) Yes. They should be reinstated or each year of service. The employees who
absorbed by the security agency as its accepted the package executed quitclaims.
employees. Thereafter, employees of a service
contractor performed their jobs.
(C) No. They are estopped from demanding
Subsequently, the management contracted
reinstatement after receiving their
with other job contractors to provide other
separation pay.
services like the maintenance of physical
facilities, golf operations, and
(D) Yes. The company cannot contract out
administrative and support services. Some
regular jobs such as they had.
of the separated employees who signed

(8) Although both are training programs, quitclaims later filed complaints for illegal

apprenticeship is different from learnership dismissal. Were they validly dismissed?

in that
(A) Yes. The jobs were given to job

(A) a learner may be paid 25% less than the contractors, not to labor-only

legal minimum wage while an apprentice is contractors, and the dismissed

entitled to the minimum wage. employees received higher separation

pay than the law required.
(B) apprenticeship has to be covered by a
written agreement; no such formality is (B) No. The outsourcing and the

needed in learnership. employment termination were invalid since

the management failed to show that it
(C) in learnership, the employer suffered severe financial losses.
undertakes to make the learner a regular
employee; in apprenticeship, no such (C) No. Since the outsourcing of jobs in

undertaking. several departments entailed the separation

of many employees, the club needed the
(D) a learner is deemed a regular employee Secretary of Labor’s approval of its actions.
if terminated without his fault within one
month of training; an apprentice attains (D) No. Since the outsourced jobs were held

employment status after six months of by old-time regular employees, it was illegal

apprenticeship.

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Labor Law Q&As (2007-2013)
for the club to terminate them and give the
jobs to others.
(10) Sampaguita Company wants to embark
on a retrenchment program in view of
declining sales. It identified five employees
that it needed to separate. The human
resource manager seems to recall that she
has to give the five employees and the
DOLE a 30-day notice but she feels that
she can give a shorter notice. What will you
advise her?
(A) Instead of giving a 30-day notice, she
can just give a 30-day advanced salary and
make the separation effective immediately.
(B) So long as she gave DOLE a 30-day
prior notice, she can give the employees a
shorter notice.
(C) The 30-day advance notice to the
employee and the DOLE cannot
shortened even with a 30-day advance
salary.
(D) She can give a shorter notice if the
retrenchment is due to severe
substantial losses.
(11) Under the Labor Code, its provisions
on working conditions, including the eight-
hour work day rule, do not apply to
domestic helpers. Does it follow from this
that a domestic helper's workday is not
limited by law?
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(A) No, since a domestic helper cannot be
required to work more than ten hours a
day.
(B) Yes, since a domestic helper's hours of
work depend on the need of the household
he or she works for.
(C) No, because a domestic helper is legally
entitled to overtime pay after ten hours of
work.
(D) Yes, a domestic helper may be required
to work twelve hours a day or beyond.
(12) Under the Labor Code on Working
Conditions and Rest Periods, a person hired
by a high company official but paid for by
the company to clean and maintain his staff
house is regarded as
(A) a person rendering personal service to
be another.
(B) a regular company employee.
(C) a family member.
and
(D) domestic helper.
(13) The union filed a notice of strike due to
a bargaining deadlock. But, because the
Secretary of Labor assumed jurisdiction
over the dispute, the strike was averted.
Meanwhile, the employer observed that the
union engaged in a work slowdown.
Contending that the slowdown was in fact
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an illegal strike, the employer dismissed all (B) No, ―confidential employees‖ are
the union officers. The union president those who assist persons who formulate,
complained of illegal dismissal because the determine, or enforce management
employer should first prove his part in the policies in the field of labor relations.
slowdown. Is the union president correct?
(C) Yes, secretaries and clerks of company
(A) Yes, since the employer gave him no executives are extensions of the
notice of its finding that there was a management and, therefore, should not join
slowdown. the union.

(B) Yes. The employer must prove the (D) No, “confidential” employees are those
union president‘s part in slowdown. who handle executive records and payroll or
serve as executive secretaries of top-level
(C) No. When a strike is illegal, the managers.
management has the right to dismiss the
union president. (15) Jose Lovina had been member of the
board of directors and Executive Vice
(D) No. As the union president, it may be President of San Jose Corporation for 12
assumed that he led the slowdown. years. In 2008, the San Jose stockholders
did not elect him to the board of directors
(14) The existing collective bargaining unit
nor did the board reappoint him as
in Company X includes some fifty
Executive Vice President. He filed an illegal
“secretaries” and “clerks” who routinely
dismissal complaint with a Labor Arbiter.
record and monitor reports required by
Contending that the Labor Arbiter had no
their department heads. Believing that
jurisdiction over the case since Lovina was
these secretaries and clerks should not be
not an employee, the company filed a
union members because of the confidential
motion to dismiss. Should the motion be
nature of their work, the management
granted?
discontinued deducting union dues from
their salaries. Is the management’s action (A) No, the Labor Arbiter has jurisdiction
legal? over all termination disputes.

(A) No, only managers are prohibited from (B) Yes, it is the NLRC that has jurisdiction
joining unions; the law does not bar over disputes involving corporate officers.
“confidential employees” from joining
unions.

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(C) No, a motion to dismiss is a prohibited work hours and, by law, meal break is
pleading under the NLRC Rules of without pay.
Procedure.
(B) No, because lunchbreak regardless of
(D) Yes, jurisdiction lies with the regular time should be with pay.
courts since the complainant was a
corporate officer. (C) Yes, the management has control of its
operations.
(16) An employee proved to have been
illegally dismissed is entitled to (D) No, because existing practice cannot be

reinstatement and full backwages discontinued unilaterally.

computed on the basis of his

(18) The employees’ union in San Joaquin

(A) basic salary plus the regular Enterprise continued their strike despite a

allowances and the thirteenth month return to work order from the Secretary of

pay. Labor. Because of this defiance, the

employer dismissed the strikers. But the
(B) basic salary plus the salary CBA Labor Arbiter declared as illegal the
increases during the pendency of his case. dismissal of those whose commission of
unlawful acts had not been proved. They
(C) basic salary plus the increases were ordered immediately reinstated. The
mandated by wage orders issued during the employer refused, however, to reinstate
pendency of his case. them on the ground that the rule on
immediate reinstatement applies only to
(D) basic salary at the time of dismissal.
terminations due to just or authorized
causes. Is the employer’s refusal justified?
(17) The meal time (lunch break) for the
dining crew in Glorious Restaurant is either
(A) No, every employee found to have
from 10 a.m. to 11 a.m. or from 1:30 p.m.
been illegally dismissed is entitled to
to 2:30 p.m., with pay. But the
immediate reinstatement even pending
management wants to change the mealtime
appeal.
to 11: a.m. to 12 noon or 12:30 p.m. to 1:30
p.m., without pay. Will the change be legal? (B) Yes. The employer’s refusal is legal and
justified as a penalty for defying the
(A) Yes, absent an agreement to the
secretary’s lawful order.
contrary, the management determines

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(C) Yes, the rule on immediate (20) Is it correct to say that under
reinstatement does not apply to employees Philippine law a househelper has no right
who have defied a return-to-work order. to security of tenure?

(D) No. The dismissal of the employees was (A) No, since a househelper can be
valid; reinstatement is unwarranted. dismissed only for just cause or when his
agreed period of employment ends.
(19) Llanas Corporation and Union X, the
certified bargaining agent of its employees, (B) Yes, since it is the employer who
concluded a CBA for the period January 1, determines the period of his service.
2000 to December 31, 2004. But, long
before the CBA expired, members of Union (C) Yes, since a househelper can be

Y, the minority union, showed dismissed with or without just cause.

dissatisfaction with the CBA under the

(D) No, since a househelper can be
belief that Union X was a company union.
dismissed only for just cause, except when
Agitated by its members, Union Y filed a
he has been employed for a definite period
petition for a Certification Election on
not exceeding one year.
December 1, 2002. Will the petition
prosper?
(21) Reach-All, a marketing firm with
operating capital of P100,000, supplied
(A) No, such a petition can only be filed
sales persons to pharmaceutical companies
within the freedom period of the CBA.
to promote their products in hospitals and

(B) No, since a petition for certification can doctors' offices. Reach-All trained these

be filed only upon the expiration of the sales persons in the art of selling but it is

CBA. the client companies that taught them the

(C) Yes, a certification is the right remedy
for ousting a company union.
(D) Yes, employees should be allowed to
cancel at the earliest opportunity a CBA
that they believed was obtained by a
company union.
pharmacological qualities of their products.
Reach-All’s roving supervisors monitored,
assessed, and supervised their work
performance. Reach-All directly paid their
salaries out of contractor's fees it received.
Under the circumstances, can the sales
persons demand that they be absorbed as
employees of the pharmaceutical firms?

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(A) No, they are Reach-All‘s employees
since it has control over their work
performance.
(B) Yes, since they receive training from the
pharmaceutical companies regarding the
products they will promote.
(C) No, since they are bound by the agency
agreement between Reach-All
confidentiality of his or her job. Instead, the
househelper shall be paid
(A) an indemnity equivalent to 15 days'
pay plus compensation already earned.
(B) a separation pay equivalent to one
month's pay per year of service.
and the (C) a separation pay equivalent to one-half

pharmaceutical companies. month's pay per year of service.

(D) Yes, since Reach-All does does not (D) 15 days' pay as indemnity plus wages

qualify as independent contractoremployer, lost from dismissal to finality of decision.

its clients being the source of the

(24) The CBA for the period January 2007
employees’ salaries.
to December 2009 granted the employees a

(22) Executive Order No. 180, which P40 per day increase with the

protects government employees, does NOT understanding that it is creditable as

apply to “high-level employees,” namely, compliance to any future wage order.

Subsequently, the regional wage board
(A) presidential appointees. increased by P20 the minimum wage in the
employer’s area beginning January 2008.
(B) those performing policy-determining The management claims that the CBA
functions, excluding confidential employees increase may be considered compliance
and supervisors. even if the Wage Order itself said that “CBA
increase is not creditable as compliance to
(C) confidential employees and those
the Wage Order.” Is the management's
performing policy-determining
claim valid?
functions.

(A) Yes, since creditability of the CBA

(D) elective officials.
increase is the free and deliberate
agreement and intention of the parties.
(23) In the case of a househelper,
reinstatement is not a statutory relief for
unjust dismissal because of the

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(B) Yes, since the Wage Order cannot (B) if a labor-management council does not
prejudice the management’s vested interest exist.
in the provisions of the CBA.
(C) if a union exists and it agrees to the
(C) No, disallowing creditability of CBA pay creation of a labor-management council.
increase is within the wage board's
authority. (D) whether or not a labor-management
council exists.
(D) No, the CBA increase and the Wage
Order are essentially different and are to be (27) If not used by the end of the year, the

complied with separately. service incentive leave shall be

(25) When an employee works from 8 a.m. (A) carried over to the next year.

to 5 p.m. on a legal holiday falling on his

(B) converted to its money equivalent.
rest day, which of the following formulas do
you use to compute for his day's wage on
(C) forfeited.
that day?

(D) converted to cash and paid when the

(A) His regular daily wage multiplied by
employee resigns or retires.
200% plus 30% of the 200%

(28) An employee is NOT entitled to

(B) His regular daily wage multiplied by
“financial assistance” in cases of legal
200%
dismissal when the dismissal

(C) His regular daily wage plus 200%

(A) is based on an offense reflecting the
depraved character of the employee.
(D) His daily regular wage

(B) is based on serious misconduct or

(26) The employees’ rights to organize and
breach of the employer's trust.
to bargain collectively are means of
exercising the broader right to participate in
(C) is grounded on any of the just causes
policy or decision-making processes. The
provided by the Labor Code.
employees' right to participate in policy and
decision making processes is available (D) when the employee has less than 10
years of service.
(A) if a labor-management council exists.

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(29) In a work-related environment, sexual
harassment is committed when
(A) the offender has authority, influence, or
moral ascendancy over his subordinate
victim.
(B) the victim‘s continued employment
is conditioned on sexual favor from her.
(C) the female victim grants the demand for
sexual favor against her will.
(D) the victim is not hired because she
turned down the demand for sexual favor.
(30) Government employees may elect a
union as their exclusive representative but
this right is not available to
(A) regular employees in
instrumentalities and agencies.
(B) employees of government-owned and
-controlled corporations without original
charters.
(C) employees of government-owned-or-
conrolled corporations with
charters.
(D) employees of provincial
government units.
(31) Celia, an OFW that Moonshine Agency
recruited and deployed, died in Syria, her
place of work. Her death was not work-
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related, it appearing that she had been
murdered. Insisting that she committed
suicide, the employer and the agency took
no action to ascertain the cause of death
and treated the matter as a “closed case.”
The worker's family sued both the employer
and the agency for moral and exemplary
damages. May such damages be awarded?
(A) Yes, the agency and the employer‘s
uncaring attitude makes them liable for
such damages.
(B) Yes, but only the principal is liable for
such damages since the agency had
nothing to do with Celia’s death.
(C) No, since her death is not at all work-
related.
government
(D) No, since her death is not attributable
to any act of the agency or the employer.
(32) When the employer or his
representative hurls serious insult on the
honor or person of the employee, the law
says that the employee
original
(A) may leave work after at least a five-day
notice to the employer.
and local
(B) may leave work at any time and file for
constructive dismissal.
(C) may leave work without giving a 30-
day notice to the employer.
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(D) may abandon his job at once. (D) the piece rate formula accords with
the labor department‘s approved rates.
(33) A sugar mill in Laguna, capitalized at
P300 million, suffered a P10,000.00 loss (35) An employer may require an employee
last year. This year it dismissed three to work on the employee's rest day
young female employees who gave birth in
the last three years. In its termination (A) to avoid irreparable loss to the

report to DOLE, the sugar mill gave as employer.

reason for the dismissal “retrenchment

(B) only when there is a state of calamity.
because of losses.” Did it violate any law?

(C) provided he is paid an extra of at least

(A) Yes, the law on retrenchment, the
50% of his regular rate.
sugar mill‘s loses not being substantial.

(D) subject to 24-hour advance notice to the

(B) Yes, the law against violence committed
employee.
on women and children.

(36) The State has a policy of promoting

(C) No, except the natural law that calls for
collective bargaining and voluntary
the protection and support of women.
arbitration as modes of settling labor

(D) No, but the management action disputes. To this end, the voluntary

confirms suspicion that some companies arbitrator’s jurisdiction has not been

avoid hiring women because of higher limited to interpretation and

costs. implementation of collective bargaining

agreements and company personnel
(34) “Piece rate employees” are those who policies. It may extend to “all other labor
are paid by results or other non-time basis. disputes,” provided
As such they are NOT entitled to overtime
pay for work done beyond eight hours if (A) the extension does not cover cases of
union busting.
(A) their workplace is away from the
company's principal place of work. (B) the parties agreed to such extended
jurisdiction.
(B) they fail to fill up time sheets.
(C) the parties are allowed to appeal the
(C) the product pieces they do are not voluntary arbitrator's decision.
countable.

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(D) the parties agreed in their CBA to assault two weeks earlier. May the
broaden his jurisdiction. employer deny her request for leave with
pay?
(37) Philworld, a POEA-licensed agency,
recruited and deployed Mike with its (A) Yes, the reason being purely personal,
principal, Delta Construction Company in approval depends on the employer’s
Dubai for a 2-year project job. After he had discretion and is without pay.
worked for a year, Delta and Philworld
terminated for unknown reason their (B) No, as victim of physical violence of

agency agreement. Delta stopped paying her husband, she is entitled to five days

Mike's salary. When Mike returned to the paid leave to attend to her action

Philippines, he sued both Philworld and against him.

Delta for unpaid salary and damages. May

(C) No, the employer must grant the request
Philworld, the agency, be held liable?
but the leave will be without pay.

(A) No, since Philworld, the recruitment

(D) Yes, since she is not yet a permanent
agency, is not the employer liable for
employee.
unpaid wages.

(39) Quiel, a househelper in the Wilson

(B) Yes, since the agency is equally liable
household since 2006, resigned from his
with the foreign principal despite the
job for several reasons. One reason was the
termination of their contract between
daily 12-hour workday without any rest
them.
day. When he left his job he had unpaid

(C) Yes, since the law makes the agency wages totaling P13,500.00 which his

liable for the principal’s malicious refusal to employer refused to pay. He wants to claim

pay Mike’s salary. this amount though he is not interested in

getting back his job. Where should he file
(D) No, since Mike did not get paid only his claim?
after Delta and Philworld terminated their
contract. (A) He should file his claim with the DSWD,
which will eventually endorse it to the right
(38) Melissa, a coffee shop worker of 5 agency.
months, requested her employer for 5 days'
leave with pay to attend to the case that she (B) Since he has no interest in

filed against her husband for physical reinstatement, he can file his claim with the

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office of the regional director of the (C) Within a reasonable time from the
Department of Labor. expected deliver date of his wife.

(C) He should file his claim exceeding (D) When a physician has already
P5,000.00 with the office of the labor ascertained the date the wife will give birth.
arbiters, the regional arbitrators
representing the NLRC. (42) The constitution promotes the principle
of shared responsibility between workers
(D) He should go to the Employee’s and employers, preferring the settlement of
Compensation Commission. disputes through

(40) For labor, the Constitutionally adopted (A) compulsory arbitration.

policy of promoting social justice in all
phases of national development means (B) collective bargaining.

(A) the nationalization of the tools of (C) voluntary modes, such as conciliation

production. and mediation.

(B) the periodic examination of laws for the (D) labor-management councils.

common good.
(43) Which of the following is NOT a

(C) the humanization of laws and requisite for entitlement to paternity leave?

equalization of economic forces.

(A) The employee is cohabiting with his wife

(D) the revision of laws to generate greater when she gave birth or had a miscarriage.

employment.
(B) The employee is a regular or

(41) To avail himself of paternity leave with permanent employee.

pay, when must the male employee file his

(C) The wife has given birth or suffered a
application for leave?
miscarriage.

(A) Within one week from the expected date

(D) The employee is lawfully married to his
of delivery by the wife.
wife.

(B) Not later than one week after his wife’s

(44) Of the four grounds mentioned below,
delivery or miscarriage
which one has been judicially affirmed as

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Labor Law Q&As (2007-2013)
justification for an employee’s refusal to
follow an employer’s transfer order?
(A) A transfer to another location is not in
the employee's appointment paper.
(B) The transfer deters the employee
from exercising his right
organization.
(C) The transfer will greatly inconvenience
the employee and his family.
(D) The transfer will result in additional
housing and travel expenses
employee.
(45) Of the four definitions below, which
one does NOT fit the definition of “solo
parent” under the Solo Parents Welfare Act?
(A) Solo parenthood while the other parent
serves sentence for at least one year.
(B) A woman who gives birth as a result of
rape.
(C) Solo parenthood due to death of spouse.
(D) Solo parenthood where the spouse
left for abroad and fails to give support
for more than a year.
(46) Albert and four others
employment contracts with
Publishers from January 1 to March 31,
2011 to help clear up encoding backlogs.
“Never Let The Odds Keep You From Pursuing What You Know In Your Heart You Were Meant To Do.”-Leroy Satchel Paige
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By first week of April 2011, however, they
remained at work. On June 30 Reign’s
manager notified them that their work
would end that day. Do they have valid
reason to complain?
(A) No, since fixed term employment, to
to self- which they agreed, is allowed.
(B) Yes, their job was necessary and
desirable to the employer’s business and,
therefore, they are regular employees.
(C) Yes, when they worked beyond March
for the without an extended fixed term
employment contract, they became
regular employees.
(D) No, since the 3-month extension is
allowed in such employment.
(47) A handicapped worker may be hired as
apprentice or learner, provided
(A) he waives any claim to legal minimum
wage.
(B) his work is limited to apprenticeable job
suitable to a handicapped worker.
(C) he does not impede job performance
in the operation for which he is hired.
signed (D) he does not demand regular status as
Reign an employee.
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(48) The Secretary of Labor and (C) the workers are under very little
Employment or his duly authorized supervision in the performance or
representative, including labor regulations method of work.
officers, shall have access to employer's
records and premises during work hours. (D) the workers are simply called

Why is this statement an inaccurate “homeworkers,” not “employees,” hence not

statement of the law? covered by the social security law.

(A) Because the power to inspect applies (50) Which of the following grounds

only to employer records, not to the exempts an enterprise from the service

premises. incentive leave law?

(B) Because only the Secretary of Labor and (A) The employees already enjoy 15 days

Employment has the power to inspect, and vacation leave with pay.

such power cannot be delegated.

(B) The employer's business has been

(C) Because the law allows inspection suffering losses in the past three years.

anytime of the day or night, not only

(C) The employer regularly employs seven
during work hours.
employees or less.

(D) Because the power to inspect is already

(D) The company is located in a special
delegated to the DOLE regional directors,
economic zone.
not to labor regulations officers.

(51) Which of the following acts is NOT

(49) In industrial homework, the
considered unfair labor practice (ULP)?
homeworker does at his home the work that
his employer requires of him, using
(A) Restraining employees in the exercise of
employer-supplied materials. It differs from
the right to self-organization.
regular factory work in the sense that

(B) Union's interference with the

(A) the workers are not allowed to form
employee's right to self-organization.
labor organizations.

(C) Refusal to bargain collectively with the

(B) the workers' pay is fixed by informal
employer.
agreement between the workers and their
employer.

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(D) Gross violation of the collective (C) names and number of employees that
bargaining agreement by the union. initiated the union formation in the
enterprise.
(52) In computing for 13th month pay,
Balagtas Company used as basis both the (D) names of the employees that sought
employee’s regular base pay and the cash assistance from the federation in creating
value of his unused vacation and sick the chapter.
leaves. After two and a half years, it
announced that it had made a mistake and (54) Under the Limited Portability law,

was discontinuing such practice. Is the funds from the GSIS and the SSS maybe

management action legally justified? transferred for the benefit of a worker who
transfers from one system to the other. For
(A) Yes, since 13th month pay should only this purpose, overlapping periods of
be one-twelfth of the regular pay. membership shall be

(B) No, since the erroneous computation (A) credited only once.
has ripened into an established,
nonwithdrawable practice. (B) credited in full.

(C) Yes, an error is not a deliberate (C) proportionately reduced.

decision, hence may be rectified.

(D) equally divided for the purpose of

(D) No, employment benefits can be totalization.

withdrawn only through a CBA negotiation.

(55) Of the four tests below, which is the

(53) Where the petition for a certification most determinative of the status of a

election in an unorganized establishment is legitimate contractor-employer?

filed by a federation, it shall NOT be

(A) The contractor performs activities not
required to disclose the
directly related to the principal's main

(A) names of the local chapter's officers business.

and members.
(B) The contractor has substantial

(B) names and addresses of the federation investments in tools, equipment, and other

officers. devices.

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(C) The contractor does not merely recruit, (B) while overtime pay is paid to an
supply, or place workers. employee whether on day shift or night
shift, night shift differential is only for
(D) The contractor has direct control employees regularly assigned to night work.
over the employees‘ manner and method
of work performance. (C) while overtime pay is for work done
beyond eight hours, night differential is
(56) X Company’s CBA grants each added to the overtime pay if the overtime
employee a 14th month year-end bonus. work is done between 6:00 p.m. and 12
Because the company is in financial midnight.
difficulty, its head wants to negotiate the
discontinuance of such bonus. Would such (D) while overtime pay is 25% additional to
proposal violate the “nondiminution rule” in the employee's hourly regular wage, night
the Labor Code? differential is 10% of such hourly wage
without overtime pay.
(A) No, but it will certainly amount to
negotiating in bad faith. (58) Differentiate a “labor organization”
from a “legitimate labor organization.”
(B) Yes since the rule is that benefits
already granted in a CBA cannot be (A) While the employees themselves form a
withdrawn or reduced. “labor organization,” a “legitimate labor
organization” is formed at the initiative of a
(C) No, since the law does not prohibit a national union or federation.
negotiated discontinuance of a CBA
benefit. (B) While the members of a “labor
organization” consists only of rank and file
(D) Yes, since such discontinuance will employees, a “legitimate labor organization”
cancel the enjoyment of existing benefits. consists of both supervisory and rank and
file employees.
(57) Night differential is differentiated from
overtime pay in that (C) While a ―labor organization‖ exists
for a lawful purpose, a ―legitimate labor
(A) while overtime pay is given for
organization‖ must, in addition, be
overtime work done during day or night,
registered with the labor department.
night differential is given only for work
done between 10:00 p.m. and 6:00 a.m.

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(D) While the officers in a “labor (60) Which of the following acts is NOT part
organization” are elected in an informal of the regulatory and visitorial power of the
way, the officers in “legitimate labor Secretary of Labor and Employment over
organization” are formally elected according recruitment and placement agencies? The
to the union's constitution and by-laws. power to

(59) The negotiating panels for the CBA of X (A) order arrest of an illegal recruiter
Company established a rule that only
employees of the company will seat in each (B) inspect premises, books and records

panel. In the next session, the management

(C) cancel license or authority to recruit
panel objected to the presence of the union
counsel. Still the negotiation proceeded. At
(D) garnish recruiter's bond
the next session, the management panel
again objected to the presence of the union (61) Where there is a bargaining deadlock,
counsel as a non-observance of the “no who may file a notice of strike?
outsider” rule. The negotiation nonetheless
proceeded. Does the management panel's (A) The majority members of the bargaining
objection to the presence of the union unit.
counsel constitute unfair labor practice
through bad-faith bargaining? (B) The recognized bargaining agent.

(A) Yes, the management is harping on a (C) Any legitimate labor organization in the

non-mandatory matter instead of employer’s business.

proceeding with the mandatory subjects of

(D) The majority members of the bargaining
bargaining.
union.

(B) No, there is no bargaining in bad faith

(62) When a recruitment agency fails to
since the bargaining proceeded anyway.
deploy a recruit without valid reason and

(C) Yes, the management panel has no legal without the recruit's fault, the agency is

basis for limiting the composition of the obligated to

union negotiating panel.

(A) reimburse the recruit's documentary

(D) No, since it is the union that violates the and processing expenses.

ground rules fashioned by the parties, it is

the one negotiating in bad faith.

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(B) reimburse the recruit’s expenses with inappropriate and its registration invalid. Is
6% interest. this correct?

(C) pay the recruit damages equivalent to (A) Yes, union membership should be
one year’s salary. confined to direct-hired employees of the
company.
(D) find another employer and deploy the
recruit within 12 months. (B) Yes, the “community of interest”
criterion should be observed not only in the
(63) Which of the following is an essential composition of a bargaining unit but also in
element of illegal recruitment? the membership of a union.

(A) The recruiter demands and gets money (C) Yes, a union must have community of
from the recruit but issues no receipt. interest; the non-regulars do not have such
interest.
(B) The recruiter gives the impression
that he is able to send the recruit (D) No, union membership may include
abroad. non-regulars since it differs from
membership in a bargaining unit.
(C) The recruiter has insufficient capital
and has no fixed address. (65) Which is NOT a guideline for the
dismissal of an employee on the ground of
(D) The recruiter has no authority to
“loss of confidence”?
recruit.

(A) Loss of confidence may not be arbitrarily

(64) A group of 15 regular rank-and-file
invoked in the face of overwhelming
employees of Bay Resort formed and
evidence to the contrary.
registered an independent union. On
hearing of this, the management called the (B) Loss of confidence as cause of
officers to check who the union members dismissal should be expressly embodied
were. It turned out that the members in written company rules.
included the probationary staff, casuals,
and the employees of the landscape (C) The employee holds a position of trust
contractor. The management contends that and confidence.
inclusion of non-regulars and employees of
a contractor makes the union’s composition

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(D) Loss of confidence should not be (A) Health personnel

simulated nor a mere afterthought to justify
earlier action taken in bad faith. (B) Employees with first aid training

(66) Pedring, Daniel, and Paul were (C) Security and safety personnel

employees of Delibakery who resigned from

(D) Any employee
their jobs but wanted to file money claims
for unpaid wages and 13th month pay.
(68) The management and Union X in
Pedring’s claim totals P20,000.00, Daniel’s
Atisan Mining entered into a CBA for 1997
P3,000.00, and Paul’s P22,000.00. Daniel
to 2001. After 6 months, a majority of the
changed his mind and now also wants
members of Union X formed Union Y and
reinstatement because he resigned only
sought management recognition. The latter
upon the instigation of Pedring and Paul.
responded by not dealing with either union.
Where should they file their claims?
But, when the CBA’s economic provisions
had to be renegotiated towards the end of
(A) With the DOLE regional director for
the term of the CBA, the management
Pedring and Paul’s claims with no
chose to negotiate with Union Y, the newer
reinstatement; with the labor arbiter for
union. Thus, Union X which negotiated the
Daniel’s claim with reinstatement.
existing CBA charged the company with

(B) With the Office of the Regional Director unfair labor practice (ULP). The company

of the Department of Labor for all claims to argued that it committed no unfair labor

avoid multiplicity of suits. practice since the supposed violation had

nothing to do with economic provisions of
(C) With a labor arbiter for all three the CBA. Is the management right?
complainants.
(A) No. Refusal to comply with the CBA‘s
(D) With the DOLE Regional Director economic provisions is not the only
provided they are consolidated for ground for ULP; a disregard of the entire
expediency. CBA by refusing to renegotiate with the
incumbent bargaining agent is also ULP,
(67) In a scenario like typhoon Ondoy, who
may be required by the employer to work (B) Yes. No unfair labor practice was
overtime when necessary to prevent loss of committed because the supposed violation
life or property? has nothing to do with economic provisions
of the CBA.

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(C) Yes. The management commits no ULP their CBA by requiring the ex-EBank
when it decided to renegotiate with the employees to join the union. Does the union
numerically majority union. security clause in the Broad Bank CBA
bind the ex-EBank employees?
(D) Yes. A CBA violation amounts to ULP
only if the violation is “gross,” meaning (A) No, since the ex-EBank employees were
flagrant or malicious refusal to comply with not yet Broad Bank employees when that
the CBA’s economic provisions which is not CBA was entered into.
the case here.
(B) No, Broad Bank’s absorption of ex-
(69) The apprenticeship program should be EBank employees was not a requirement of
supplemented by theoretical instruction to law or contract; hence, the CBA does not
be given by apply.

(A) the apprentice's school only where the (C) Yes, Broad Bank’s absorption of ex-
apprentice is formally enrolled as a student. EBank employees automatically makes the
latter union members of Broad Bank’s
(B) the employer if the apprenticeship is bargaining union.
done in the plant.
(D) Yes, since the right not to join a
(C) the civic organizations that sponsor the labor union is subordinate to the policy
program. of unionism that encourages collective
representation and bargaining.
(D) the Department of Labor and
Employment. (71) The employer must observe both
substantive and procedural due process
(70) The Securities and Exchange
when dismissing an employee. If procedural
Commission approved a merger that
due process is not observed, the dismissal
allowed Broad Bank to absorb the assets
will be regarded as
and liabilities of EBank. Broad Bank also
absorbed EBank’s rank-and-file employees (A) defective; the dismissal process has to
without change in tenure, salary, and be repeated.
benefits. Broad Bank was unionized but
EBank was not. The Broad Bank bargaining (B) an abuse of employer's discretion,
union requested the management to rendering the dismissal void.
implement the union security clause in

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(C) ineffectual; the dismissal will be held in (C) Every week

abeyance.
(D) At the end of each work day
(D) legal and valid but the employer will
be liable for indemnity. (74) Which of the following conditions
justifies a licensed employment agency to
(72) Mario, an expert aircon technician, charge and collect fees for employment
owns and manages a small aircon repair assistance?
shop with little capital. He employs one full-
time and two part-time technicians. When (A) The recruit has submitted his

they do repair work in homes or offices, credentials to the employment agency.

their clients do not tell them how to do their

(B) The POEA has approved the agency's
jobs since they are experts in what they do.
charges and fees.
The shop is shabby, merely rented, and lies
in a small side street. Mario and the other
(C) The agency's principal has interviewed
technicians regard themselves as informal
the applicant for the job.
partners. They receive no regular salary
and only earn commissions from service (D) The worker has obtained employment
fees that clients pay. To what categories of through the agency's efforts.
workers do they fall?
(75) During the CBA negotiation the
(A) Labor-only contractors management panel proposed a redefinition
of the “rank-and-file” bargaining unit to
(B) Job contractors
exclude “HR Specialist” in the human
resource department and “Analyst” in the
(C) Pakyaw workers
research and development department. The

(D) Manpower agency contractors union panel objected since those affected
have already been included in the
(73) How often should the collected service bargaining unit covered by the existing CBA
charges be distributed to employees in and so could no longer be excluded. Is the
hotels and restaurants? union correct in insisting that their
exclusion would amount to bad faith on the
(A) Every end of the month part of the management panel?

(B) Every two weeks

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(A) No, efforts to modify an existing CBA do

not constitute bad faith if such modification
does not diminish employment benefits.

(B) Yes, the proposed exclusion amounts to

management’s violation of its duty to
bargain because it disregards the
bargaining history between the parties.

(C) Yes, once the coverage of the bargaining

unit has been contractually defined, it can
no longer be redefined.

(D) No, bargaining history is not the only

factor that determines the coverage of
the bargaining unit; seeking its
redefinition is not negotiating in bad
faith.

References:

Answers to Bar Examination

Questions by the UP LAW COMPLEX
(2007, 2009, 2010)

PHILIPPINE ASSOCIATION OF LAW

SCHOOLS (2008)

UP LAW Review

lawphil.net

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Page 183 of 183
 ANSWERS OF A BYSTANDER
TO THE 2014 BAR QUESTIONS IN LABOR LAW
(With Comments)

Hon. Benedict G. Kato

Labor Arbiter
Law Prof., Bar Reviewer, MCLE Lecturer
Author

Linda was employed by Sectarian University (SU) to cook for the members
of a religious order who teach and live inside the campus. While performing her
assigned task, Linda accidentally burned herself. Because of the extent of her
injuries, she went on medical leave. Meanwhile, SU engaged a replacement
cook. Linda filed a complaint for illegal dismissal, but her employer SU
contended that Linda was not a regular employee but a domestic househelp.
Decide. (4%)

ANSWER:

Linda is a regular employee.

SU’s contention that Linda is a domestic helper is without basis because

the latter did not minister to the personal comfort of the members of any
household. Although a cook, hence listed, she cannot be classified as a
Kasambahay because she rendered services for resident religious teachers in
a university which was not a household.

II

Lucy was one of approximately 500 call center agents at Hambergis, Inc.
She was hired as a contractual employee four years ago. Her contracts would
be for a duration of five (5) months at a time, usually after a one- month interval.
Her re-hiring was contingent on her performance for the immediately preceding
contract. Six (6) months after the expiration of her last contract, Lucy went to
Hambergis personnel department to inquire why she was not yet being recalled
to work. She was told that her performance during her last contract was “below
average.” Lucy seeks your legal advice about her chances of getting her job
back. What will your advice be? (4%)

ANSWER:
 I will advise Lucy to file a complaint for constructive dismissal, with prayer
for reinstatement, because her floating status has exceeded six (6) months.

By virtue of the nature of her job, Lucy attained tenure on the first day of
her employment. As a regular employee, therefore, she could only be
dismissed for a just or authorized cause. Expiration of her last contract was
neither a just nor authorized cause. Hence, she was illegally dismissed.
Moreover, her term employment contracts were contracts of adhesion; hence,
they should be taken against Hambergis Inc. because of its obvious intent to
use periods to bar her regularization.

III

Lolong Law Firm (LLF), which employs around 50 lawyers and 100 regular
staff, suffered losses for the first time in its history. The management informed its
employees that it could no longer afford to provide them free lunch.
Consequently, it announced that a nominal fee would henceforth be charged.
Was LLF justified in withdrawing this benefit which it had unilaterally been
providing to its employees? (1%)

(A) Yes, because it is suffering losses for the first time.

(B) Yes, because this is a management prerogative which is not due to

any legal or contractual obligation.

(C) No, because this amounts to a diminution of benefits which is

prohibited by the Labor Code.

(D) No, because it is a fringe benefit that has already ripened into a
demandable right.

ANSWER:

(D) “No, because it is a fringe benefit that has already ripened into a
demandable right.”

Note:

Not (A) because the losses do not appear to be substantial losses.

Not (B) because management prerogative cannot be the source of a

unilateral benefit at one point and the very justification for its taking
away at another.
 Not (C) because Article 100 of the Labor Code applies only to benefits
enjoyed before or at the time of the effectivity of the Code (Waterfront
ruling, 22 Sept. 2010, J Peralta).

IV

Linis Manpower, Inc. (LMI) had provided janitorial services to the Philippine
Overseas Employment Administration (POEA) since March 2009. Its service
contract was renewed every three months. However, in the bidding held in June
2012, LMI was disqualified and excluded. In 2013, six janitors of LMI formerly
assigned at POEA filed a complaint for underpayment of wages. Both LMI and
POEA were impleaded as respondents. Should POEA, a government agency
subject to budgetary appropriations from Congress, be held liable solidarily with
LMI for the payment of salary differentials due the complainant? Cite the legal
basis of your answer. (4%)

ANSWER:

Yes.

The POEA, although a government agency, is a statutory employer by

operation of Article 106 of the Labor Code, as implemented by D.O. 18-A. As
such, it can be held solidarily liable for salary differentials resulting from its job
contractor’s underpayment of salaries due its workers (Meralco Industrial Eng’g
ruling, 14 March 2008).

Comment:

Relative to the trilateral relationship between a principal (P), contractor

(C) and worker (W), we hardly read that P may be any person – private or
public. The Bar question tells us that P may be the POEA, SSS, GSIS or ADB.
Article 106, LC, makes no distinction; hence, any person can be a statutory
employer. Indeed, only principals of service providers in IT-assisted outsourcing,
PCAB-registered contractors, and canteen concessionaires are beyond the
reach of D.O. 18-A.

Liwayway Glass had 600 rank-and-file employees. Three rival unions – A, B,

and C participated in the certification elections ordered by the Med-Arbiter.
500 employees voted. The unions obtained the following votes: A-200; B-150; C-
50; 90 employees voted “no union”; and 10 were segregated votes. Out of the
segregated votes, four (4) were cast by probationary employees and six (6)
were cast by dismissed employees whose respective cases are still on appeal.
(10%)

(A) Should the votes of the probationary and dismissed employees be

counted in the total votes cast for the purpose of determining the winning labor
union?

(B) Was there a valid election?

(C) Should Union A be declared the winner?

(D) Suppose the election is declared invalid, which of the contending

unions should represent the rank-and-file employees?

(E) Suppose that in the election, the unions obtained the following votes:
A-250; B-150; C-50; 40 voted “no union”; and 10 were segregated votes. Should
Union A be certified as the bargaining representative?

ANSWERS:

(A). Yes. The segregated votes should be counted as valid votes.

Probationary employees are not among the employees who are ineligible to
vote. Likewise, the pendency of the appeal of the six dismissed employees
indicates that they have contested their dismissal before a forum of appropriate
jurisdiction; hence, they continue to be employees for purposes of voting in a
certification election (D.O. 40-03).

(B). Yes. The certification election is valid because it is not a barred

election and majority of the eligible voters cast their votes.

(C). No. Union A should not be declared the winner because it failed to
garner majority of the valid votes. The majority of 500 votes, representing valid
votes, is 251 votes. Since Union A received 200 votes only, it did not win the
election.

(D) None of the participating unions can represent the rank-and-file

employees for purposes of collective bargaining because none of them enjoys
majority representative status.

(E) If the 10 votes were segregated on the same grounds, Union A

cannot still be certified as the bargaining representative because its vote of 250
is still short of the majority vote of 251. However, if the 10 votes were validly
segregated, majority vote would be 246 votes. Since Union A received more
than majority vote then it won the election.
 VI

Lina has been working as a steward with a Miami, U.S.A.-based Loyal

Cruise Lines for the past 15 years. She was recruited by a local manning agency,
Macapagal Shipping, and was made to sign a 10-month employment contract
everytime she left for Miami. Macapagal Shipping paid for Lina’s round-trip
travel expenses from Manila to Miami. Because of a food poisoning incident
which happened during her last cruise assignment, Lina was not re-hired. Lina
claims she has been illegally terminated and seeks separation pay. If you were
the Labor Arbiter handling the case, how would you decide? (4%)

ANSWER:

I will dismiss the complaint for illegal dismissal.

Lina is a seafarer. As such, she is a contractual employee who cannot

require her employer to enter into another contract of employment with her
under the Principle of Freedom of Contracts. In effect, Lina cannot be awarded
separation pay. As an alternative relief, separation pay is proper only when
there is a finding of illegal dismissal.

VII

Non-lawyers can appear before the Labor Arbiter if: (1%)

(A) they represent themselves

(B) they are properly authorized to represent their legitimate labor

organization or member thereof

(C) they are duly-accredited members of the legal aid office recognized
by the DOJ or IBP

(D) they appear in cases involving an amount of less than Php5,000

ANSWER:

(A). “They represent themselves.”

Note:

Not (B) because it restricts the term “organizations” to legitimate labor

organizations.
 Not (C) because the DOJ is not an accrediting agency.

Not (D) because the “not exceeding Ph5,000” is a jurisdictional rule, not
a rule on law practice.

VIII

As a result of a bargaining deadlock between Lazo Corporation and Lazo

Employees Union, the latter staged a strike. During the strike, several employees
committed illegal acts. Eventually, its members informed the company of their
intention to return to work. (6%)

(A) Can Lazo Corporation refuse to admit the strikers?

(B) Assuming the company admits the strikers, can it later on dismiss those
employees who committed illegal acts?

(C) If due to prolonged strike, Lazo Corporation hired replacements, can it

refuse to admit the replaced strikers?

ANSWERS:

(A) No. A strike is a temporary stoppage of work only. Therefore, strikers

can go back to their work in the event of a voluntary abandonment of their
strike.

(B) After admission, the company can hold the strikers behind the
illegalities accountable for their acts. If found to have committed acts
justifying a dismissal, said employees can be terminated after due process.

(C) No. The positions left behind by strikers are deemed legally
unoccupied. Moreover, the hiring of replacement workers does not terminate
employer-employee relationship because a strike is a temporary stoppage of
work only. Finally, replacement workers are deemed to have accepted their
engagement subject to the outcome of the strike.

IX

Luisa Court is a popular chain of motels. It employs over 30 chambermaids

who, among others, help clean and maintain the rooms. These chambermaids
are part of the union rank-and-file employees which has an existing collective
bargaining agreement (CBA) with the company. While the CBA was in force,
Luisa Court decided to abolish the position of chambermaids and outsource the
cleaning of the rooms to Malinis Janitorial Services, a bona fide independent
contractor which has invested in substantial equipment and sufficient
manpower. The chambermaids filed a case of illegal dismissal against Luisa
Court. In response, the company argued that the decision to outsource resulted
from the new management’s directive to streamline operations and save on
costs. If you were the Labor Arbiter assigned to the case, how would you
decide? (4%)

ANSWER:

I would declare the chambermaids to have been illegally dismissed.

The chambermaids are regular employees for performing work necessary

or desirable to the main trade of the Luisa Court. As such, they enjoy security of
tenure. The job contracting arrangement between Luisa Court and Malinis
Janitorial Services is prohibited by D.O. 18-A because it has the effect of
introducing workers to displace Luisa Court’s regular workers.

Luisa was hired as a secretary by the Asian Development Bank (ADB) in

Manila. Luisa’s first boss was a Japanese national whom she got along with. But
after two years, the latter was replaced by an arrogant Indian national who did
not believe her work output was in accordance with international standards.
One day, Luisa submitted a draft report filled with typographical errors to her
boss. The latter scolded her, but Luisa verbally fought back. The Indian boss
decided to terminate her services right then and there. Luisa filed a case for
illegal dismissal with the Labor Arbiter claiming arbitrariness and denial of due
process. If you were the Labor Arbiter, how would you decide the case? (4%)

ANSWER:

I will dismiss the complaint for illegal dismissal.

Luisa committed serious misconduct. Her Indian boss, regardless of his

arrogant nature, had the clear right to reprimand her for her poor performance.
Absent justification for verbally fighting back, Luisa’s act amounted to serious
misconduct. Therefore, her dismissal was valid. However, she was not
accorded statutory due process. For this reason, I will award her nominal
damages of Ph30,000.

XI
 Lionel, an American citizen whose parents migrated to the U.S. from the
Philippines, was hired by JP Morgan in New York as a call center specialist.
Hearing about the phenomenal growth of the call center industry in his parents’
native land, Lionel sought and was granted a transfer as a call center manager
for JP Morgan’s operations in Taguig City. Lionel’s employment contract did not
specify a period for his stay in the Philippines. After three years of working in the
Philippines, Lionel was advised that he was being recalled to New York and
being promoted to the position of director of international call center
operations. However, because of certain “family reasons,” Lionel advised the
company of his preference to stay in the Philippines. He was dismissed by the
company. Lionel now seeks your legal advice on: (6%)

(A) whether he has a cause of action

(B) whether he can file a case in the Philippines

(C) what are his chances of winning

ANSWER:

(A) Lionel has a cause of action. He has a right to be secure in his job;
his employer has the correlative obligation to respect that right; his dismissal
constitutes a violation of his tenurial right; and said violation caused him legal
injury.

(B) Lionel can file an illegal dismissal case in the Philippines. Being a
resident corporation, JP Morgan is subject to Philippine Labor Laws. And,
although hired abroad, Lionel’s place of work is Taguig. Hence, he can lodge
his complaint with the NLRC-NCR which has territorial jurisdiction over his
workplace (Sec. 1, Rule IV, NLRC Rules of Procedure, as amended).

(C) Lionel has reasonable chances of winning. His recall to the USA was
not a lawful lateral transfer that he could not refuse. On the contrary, it was a
scalar transfer amounting to a promotion which he could validly refuse.
Absent willful disobedience, therefore, his termination is groundless.

XII

Which of the following groups does not enjoy the right to self-
organization? (1%)

(A) those who work in a non-profit charitable institution

(B) those who are paid on a piece-rate basis

 (C) those who work in a corporation with less than 10 employees

(D) those who work as legal secretaries

ANSWER:

(D). “Those who work as legal secretaries”. Legal secretaries are

confidential employees.

Note:

Not (A) because, under Article 243 of the Labor Code, employees of
charitable, religious, educational and medical institutions are covered
employees.

Not (B) because piece-raters do not suffer any disqualification.

Not (C) because the “less than 10 rule” in the Labor Code affects right
to labor standards benefits, in particular holiday pay and service incentive
leave (Articles 94 and 95), not right to self-organization.

XIII

Don Luis, a widower, lived alone in a house with a large garden. One day,
he noticed that the plants in his garden needed trimming. He remembered that
Lando, a 17-year old out-of-school youth, had contacted him in church the
other day looking for work. He contacted Lando who immediately attended to
Don Luis’s garden and finished the job in three days. (4%)

(A) Is there an employer-employee relationship between Don Luis and

Lando?

(B) Does Don Luis need to register Lando with the Social Security System
(SSS)?

ANSWER:

(A) There is employer-employee relationship between Don Luis and

Lando. Firstly, Lando who was looking for work finally rendered personal
services for Don Luis. Secondly, Lando could not have been the master of his
time, means and methods under the circumstances (Sec. 8, RA 8282).
 (B) Don Luis does not need to register Lando with the SSS because he is
a purely casual employee, hence outside SSS coverage (RA 8282). Neither
should he report Lando for SSS coverage under the Kasambahay Act because,
although a gardener, he is an occasional if not sporadic employee. Therefore,
he is not a kasambahay who is entitled to SSS coverage (RA 10361).

Comment:

The question is tricky. The examiner wants to lead the examinees into
considering Lando as a kasambahay because he is listed ( gardener), and
giving him SSS coverage pursuant to RA 10361. However, Lando is an
occasional or sporadic gardener; hence, he is not a kasambahay.

XIV

Luisito has been working with Lima Land for 20 years. Wanting to work in
the public sector, Luisito applied with and was offered a job at Livecor. Before
accepting the offer, he wanted to consult you whether the payments that he
and Lima Land had made to the Social Security System (SSS) can be transferred
or credited to the Government Service Insurance System (GSIS). What would you
advice? (4%)

ANSWER:

I would tell Luisito that, under the Limited Portability Law, he will carry with
him his creditable service and paid contributions as he moves from one system
to the other. Hence, he may accept the job offer without fearing that he
would lose his years of service in the private sector. Actually, they can be
totalized with his years of service in the public sector in the event that he would
not be able to qualify for benefits due solely to insufficiency of creditable
service.

XV

Our Lady of Peace Catholic School Teachers and Employees Labor Union
(OLPCS-TELU) is a legitimate labor organization composed of vice- principals,
department heads, coordinators, teachers, and non-teaching personnel of Our
Lady of Peace Catholic School (OLPCS).

OLPCS-TELU subsequently filed a petition for certification election among

the teaching and non-teaching personnel of OLPCS before the Bureau of Labor
Relations (BLR) of the Department of Labor and Employment (DOLE). The Med-
Arbiter subsequently granted the petition and ordered the conduct of a joint
certification election for the teaching and non-teaching personnel of OLPCS.
 May OLPCS-TELU be considered a legitimate labor organization? (5%)

ANSWER:

Yes, OLPCS-TELU is a legitimate labor organization. Its mixed-membership

which includes supervisors and rank-and-filers does not affect its legitimacy. The
only effect of such membership is that the supervisors in the persons of vice-
principals and department heads are deemed automatically removed (RA
9481).

Comment:

Another tricky question. The body of the problem leads one to

“appropriateness of a CBU”. Hence, he might apply the Substantial Mutuality of
Interest Principle based on his observation that the employees perform separate
but interdependent tasks. Actually, the question is legitimacy of status only ( LLO
status). So the fact to tackle is mixed-membership.

XVI

Samahang East Gate Enterprises (SEGE) is a labor organization composed

of the rank-and-file employees of East Gate Enterprises (EGE), the leading
manufacturer of all types of gloves and aprons.

EGE was later requested by SEGE to bargain collectively for better terms
and conditions of employment of all the rank-and-file employees of EGE.
Consequently, EGE filed a petition for certification election before the Bureau of
Labor Relations (BLR).

During the proceedings, EGE insisted that it should participate in the

certification process. EGE reasoned that since it was the one who filed the
petition and considering that the employees concerned were its own rank- and-
file employees, it should be allowed to take an active part in the certification
process.

Is the contention of EGE proper? Explain. (5%)

ANSWER:

EGE could file the petition for certification election because it was
requested to collectively bargain and it could not do so because SEGE was not
the EBR. After it filed the petition, however, it reverted to its standby status.
Therefore, it could not interfere with the selection process which was the
exclusive prerogative of its workers. It could only participate in the inclusion-
exclusion proceedings, and nowhere else.

XVII

Philhealth is a government-owned and controlled corporation employing

thousands of Filipinos. Because of the desire of the employees of Philhealth to
obtain better terms and conditions of employment from the government, they
formed the Philhealth Employees Association (PEA) and demanded Philhealth to
enter into negotiations with PEA regarding terms and conditions of employment
which are not fixed by law. (4%)

(A) Are the employees of Philhealth allowed to self-organize and form PEA
and thereafter demand Philhealth to enter into negotiations with PEA for better
terms and conditions of employment?

(B) In case of unresolved grievances, can PEA resort to strikes, walkouts,

and other temporary work stoppages to pressure the government to accede to
their demands?

ANSWERS:

(A) Under E.O. 180, Philhealth employees can organize. Thru their
organization, they can negotiate with Philhealth over terms and conditions of
employment not fixed by its charter, Civil Service Law, or applicable salary
standardization law.

(B) No. Although the right to organize implies the right to strike, law
may withhold said right. E.O. 180 is that law which withholds from government
employees the right to strike. Hence, they cannot resort to strikes and similar
concerted activities to compel concessions from the government.

XVIII

The procedural requirements of a valid strike include: (1%)

(A) a claim of either unfair labor practice or deadlock in collective

bargaining.

(B) notice of strike filed at least 15 days before a ULP-grounded strike or at

least 30 days prior to the deadlock in a bargaining-grounded strike.
 (C) majority of the union membership must have voted to stage the strike
with notice thereon furnished to the National Conciliation and Mediation Board
(NCMB) at least 24 hours before the strike vote is taken.

(D) strike vote results must be furnished to the NCMB at least seven (7)
days before the intended strike.

ANSWER:

(A). “A claim of either unfair labor practice or deadlock in collective

bargaining.”

Explanation:

Options “B”, “C” and “D” refer to strike procedures. “B” refers to the
cooling-off period; “C” to the strike vote; and “D” to the strike ban. What is
not expressly referred to in the options is notice of strike. It is this procedural
requirement which includes ULP or bargaining deadlock which are the only
strike grounds. Hence, it is correct to say that “the procedural requirements of
a valid strike include” (see MCQ stem) “a claim for ULP or deadlock in
collective bargaining” (Option “A”). In other words, the procedural
requirements of a valid strike are notice, cooling-off period, strike vote, and strike
ban. It is in the notice that ULP and deadlock in CB are included.

Comment:

The question is fantastic. Never imagined before. The examiner used the
simple word “include” to hide the answer.

XIX

Lincoln was in the business of trading broadcast equipment used by

television and radio networks. He employed Lionel as his agent. Subsequently,
Lincoln set up Liberty Communications to formally engage in the same business.
He requested Lionel to be one of the incorporators and assigned to him 100
Liberty shares. Lionel was also given the title Assistant Vice-President for Sales
and Head of Technical Coordination. After several months, there were
allegations that Lionel was engaged in “under the table dealings” and received
“confidential commissions” from Liberty’s clients and suppliers. He was,
therefore, charged with serious misconduct and willful breach of trust, and was
given 48 hours to present his explanation on the charges. Lionel was unable to
comply with the 48-hour deadline and was subsequently barred from entering
company premises. Lionel then filed a complaint with the Labor Arbiter claiming
constructive dismissal. Among others, the company sought the dismissal of the
complaint alleging that the case involved an intra-corporate controversy which
was within the jurisdiction of the Regional Trial Court (RTC).

If you were the Labor Arbiter assigned to the case, how would you rule on
the company’s motion to dismiss? (5%)

ANSWER:

I will deny the motion to dismiss.

Lionel is not a corporate officer but a corporate employee only because:

(a) his office is not a creation of the Corporation Code; (b) it is not shown that
his office is a corporate position under Liberty’s Articles of Incorporation; and
(c) it is not shown that there is a board resolution investing his position with the
status of a corporate office.

Absent corporate controversy, the Office of the Labor Arbiter has

jurisdiction to hear and resolve Lionel’s complaint for illegal dismissal.

XX

Lito was anticipating the bonus he would receive for 2013. Aside from the
13th month pay, the company has been awarding him and his other co-
employees a two to three months bonus for the last 10 years. However, because
of poor over-all sales performance for the year, the company unilaterally
decided to pay only a one month bonus in 2013. Is Lito’s employer legally
allowed to reduce the bonus? (4%)

ANSWER:

Yes.

Bonuses enjoyed even for 10 years may be reduced for economic

reasons. Article 100 of the Labor Code will not be violated because it applies
only to benefits enjoyed before or at the time of the effectivity of the Labor
Code (Waterfront ruling). As to whether the Principle of Grants will be violated,
the reduction will not also amount to a violation because benefits given to
workers are not raw materials but the product of business success. This policy
of balancing employer-employee interests is one of the pillars of labor relations
(Prof. C. Azucena).

XXI
 An accidental fire gutted the JKL factory in Caloocan. JKL decided to
suspend operations and requested its employees to stop reporting for work.
After six (6) months, JKL resumed operations but hired a new set of employees.
The old set of employees filed a case for illegal dismissal. If you were the Labor
Arbiter, how would you decide the case? (4%)

ANSWER:

I will decide in favor of the employees.

The fire has not resulted in complete destruction of employer-employee

relationship. Said relationship has temporarily ceased only. When JKL resumed
operations, therefore, it became its obligation to recall its old employees instead
of replacing them with new employees.

Withholding of work beyond six (6) months amounts to constructive

dismissal. Hence, I will order JKL to pay the complainants’ full backwages,
separation pay because their positions are occupied already, nominal
damages for non-observance by JKL of prescribed pre-termination procedure,
moral and exemplary damages for its bad faith (Lynvil Fishing Enterprises, Inc., et
al. vs. Ariola, et al., G.R. No. 181974,1 February 2012), and 10% attorney’s fees for
compelling its employees to litigate against it (Art. 111, LC).

XXII

Despite a reinstatement order, an employer may choose not to reinstate

an employee if: (1%)

(A) there is a strained employer-employee relationship

(B) the position of the employee no longer exists

(C) the employer’s business has been closed

(D) the employee does not wish to be reinstated.

ANSWER:

(A). “There is strained employer-employee relationship.”

Note:
 Not (B) because the stem implies that the employer has a choice
between reinstatement and non-reinstatement. Here, he has no option at
all because the position in question no longer exists.

Not (C) because the employer has no option due to the closure of his
business.

Not (D) because the employer cannot choose not to reinstate due to his
employee’s decision not to be reinstated.

Comment:

This MCQ demonstrates the importance of recognizing the implications of

the stem. Since the stem implies that the employer can choose one of two
options, none of the items that give him just one choice can be the correct
answer.

XXIII

Luningning Foods engaged the services of Lamitan Manpower, Inc., a

bona fide independent contractor, to provide “tasters” that will check on food
quality. Subsequently, these “tasters” joined the union of rank-and-file
employees of Luningning and demanded that they be made regular
employees of the latter as they are performing functions necessary and
desirable to operate the company’s business. Luningning rejected the demand
for regularization. On behalf of the “tasters”, the union then filed a notice of
strike with the Department of Labor and Employment (DOLE). In response,
Luningning sought a restraining order from the Regional Trial Court (RTC) arguing
that the DOLE does not have jurisdiction over the case since it does not have an
employer-employee relationship with the employees of an independent
contractor. If you were the RTC judge, would you issue a restraining order
against the union? (4%)

ANSWER:

I will not issue a TRO.

The dispute brought to the RTC is a labor dispute despite the fact that the
disputants may not stand in the proximate relation of employer and employee
(Art. 212, LC). Moreover, the issue of regularization is resolvable solely thru the
application of labor laws. Under both Reasonable Causal Connection Rule and
Reference to Labor Law Rule, the dispute is for labor tribunals to resolve.

For lack of jurisdiction, therefore, I will dismiss the case.

 XXIV

Lanz was a strict and unpopular Vice-President for Sales of Lobinsons

Land. One day, Lanz shouted invectives against Lee, a poor performing sales
associate, calling him, among others, a “brown monkey.” Hurt, Lee decided to
file a criminal complaint for grave defamation against Lanz. The prosecutor
found probable cause and filed an information in court. Lobinsons decided to
terminate Lanz for committing a potential crime and other illegal acts prejudicial
to business. Can Lanz be legally terminated by the company on these grounds?
(4%)

ANSWER:

As to the first ground, crime to be a just cause for dismissal must be

against the employer, members of his immediate family or representative
(Article 288, LC, as renumbered). Since the potential crime of Lanz is not against
Lobinsons or its duly authorized representatives, it cannot of itself justify his
termination.

As to the second ground, Lanz’s dysfunctional conduct has made the

work environment at Lobinsons hostile as to adversely affect other employees,
like Lee. Therefore, he can be dismissed on the ground of serious misconduct
and loss of trust and confidence.

Comment:

There are two separate grounds for dismissal. One is a just cause, the
other is not. To the question “Can Lanz be legally terminated on these
grounds?”, one should not give an answer that treats the two as though they
were one and the same. This is because, based on the crafting of previous
questions, it should be obvious that the examiner has a clinical mind.

Alternative Answer:

As to the first ground, crime to be a just cause for dismissal must be

against the employer, members of his immediate family or representative
(Article 288, LC, as renumbered). Since the potential crime of Lanz is not against
Lobinsons or its duly authorized representatives, it cannot of itself justify his
termination. However, it can be treated as a cause analogous to serious
misconduct or loss of trust and confidence. Therefore, Lanz can be dismissed on
this ground.
 As to the second ground, Lanz’s dysfunctional behavior has made the
work environment at Lobinsons hostile as to adversely affect other employees,
like Lee. Therefore, he can be dismissed also on the ground of serious
misconduct and loss of trust and confidence.

XXV

Lizzy Lu is a sales associate for Luna Properties. The latter is looking to

retrench Lizzy and five other sales associates due to financial losses. Aside from a
basic monthly salary, Lizzy and her colleagues receive commissions on the sales
they make as well as cost of living and representation allowances. In computing
Lizzy’s separation pay, Luna Properties should consider her: (1%)

(A) monthly salary only

(B) monthly salary plus sales commissions

(C) monthly salary plus sales commissions, plus cost of living allowance

(D) monthly salary plus sales commissions, plus cost of living allowance
and representation allowance

ANSWER:

(A). “Monthly salary only.”

Note:

Not (B) because the basis of separation pay under Art. 289 (renumbered),
LC, is monthly salary only.

Not (C) because monthly salary means basis salary which excludes
commissions and allowances.

Not (D) because monthly salary excludes commissions and allowances.

XXVI

Liwanag Corporation is engaged in the power generation business. A

stalemate was reached during the collective bargaining negotiations between
its management and the union. After following all the requisites provided by law,
the union decided to stage a strike. The management sought the assistance of
the Secretary of Labor and Employment, who assumed jurisdiction over the strike
and issued a return-to-work order. The union defied the latter and continued the
strike. Without providing any notice, Liwanag Corporation declared everyone
who participated in the strike as having lost their employment. (4%)

(A) Was Liwanag Corporation’s action valid?

(B) If, before the DOLE Secretary assumed jurisdiction, the striking union
members communicated in writing their desire to return to work, which offer
Liwanag Corporation refused to accept, what remedy, if any, does the union
have?

ANSWER:

(A). Yes, the action of Liwanag Corporation is valid.

The DOLE Secretary can assume jurisdiction in the event of a labor

dispute likely to result in a strike in an industry involving national interest,
like energy production (Art. 263(g); D.O. 40-H-13). His AJO, once duly
served on the union, will produce an injunctive effect. Hence, if ignored,
the union’s strike would be illegal even if it may have complied with pre-
strike procedure. As a consequence, Liwanag Corporation may declare
all the strikers as having lost their employment as a consequence of their
intransigence (Sarmiento v. Tuico, 27 June 1988).

(B) The union may file a complaint for illegal lockout, with prayer for
immediate reinstatement. The refusal of Liwanag Corporation to admit
the strikers back is an illegal lockout because it is not preceded by
compliance with prescribed pre-lockout procedure. If the lockout is
unreasonably prolonged, the complaint may be amended to charge
constructive dismissal.

XXVII

The jurisdiction of the National Labor Relations Commission does not

include: (1%)

(A) exclusive appellate jurisdiction over all cases decided by the Labor
Arbiter

(B) exclusive appellate jurisdiction over all cases decided by Regional

Directors or hearing officers involving the recovery of wages and other
monetary claims and benefits arising from employer-employee relations where
the aggregate money claim of each does not exceed five thousand pesos
(Php5,000)
 (C) original jurisdiction to act as a compulsory arbitration body over labor
disputes certified to it by the Regional Directors

(D) power to issue a labor injunction

ANSWER:

(C). Regional Directors do not have assumption power; hence, they

cannot certify cases to the NLRC.

Comment:

The examiner shows contempt for the human eye.

AN APPEAL TO THE EXAMINER

This bystander initially answered the questions on a blue pad with his pen.
It took him 2 ½ hours to answer the 27 questions. This means that the
examination was really long. For another 2 hours, or more, he reviewed and
edited his raw answers for online sharing. Regardless, he is not totally sure if he
has correctly answered all. Therefore, he appeals to the examiner to be liberal.
After all, his questions are really for higher forms of life. He did a great job.
 SUGGESTED ANSWERS
TO THE 2015 BAR EXAMINATION QUESTIONS IN LABOR LAW
(The Labor Code is cited as re-numbered per DOLE Advisory 1, s. 2015)

by

DEAN SALVADOR A. POQUIZ

and
PROF. BENEDICT G. KATO, LA

A. Rocket Corporation is a domestic corporation registered

with the SEC, with 30% of its authorized capital stock owned by
foreigners and 70% of its authorized capital stock owned by Filipinos.
Is Rocket Corporation allowed to engage in the recruitment and
placement of workers, locally and overseas? Brie;y state the basis
for your answer. (2%)

B. When does the recruitment of workers become an act of

economic sabotage? (2%)

A. No. Foreign ownership of a corporation engaged in recruitment,

whether local or overseas , is limited to 25% (Art. 27, PD 442, as amended).

B. The recruitment of workers becomes economic sabotage when:

(1) committed by a syndicate, i.e., by three or more persons acting in

conspiracy with one another; and

(2) committed in large scale or quali2ed, i.e., against three or more

persons, whether dealt with individually or as a group (Art. 38, PD 442,as
amended).

II

LKG Garments Inc. makes baby clothes for export. As part of its
measures to meet its orders, LKG requires its employees to work
beyond eight (8) hours everyday, from Monday to Saturday. It pays
its employees an additional 35% of their regular hourly wage for work
rendered in excess of eight (8) hours per day. Because of additional
orders, LKG now requires two (2) shifts of workers with both shifts
working beyond eight (8) hours but only up to a maximum of four (4)
hours. Carding is an employee who used to render up to six (6) hours
of overtime work before the change in schedule. He complains that
the change adversely aCected him because now he can only earn up
to a maximum of four (4) hours' worth of overtime pay. Does Carding
have a cause of action against the company?(4%)

No.
 Absent a right recognized by law or contract, Carding has no cause of
action against the company. There is no law, contract or practice that
guarantees to Carding the right to render overtime work of not less than six
hours daily. The company can source workers from its own manpower to man a
second shift in order to meet its business target. This is a management
prerogative that was exercised in good faith by the company. As to the
reduction of Carding’s overtime, it is not an unlawful diminution of bene2ts
because the lost 2-hour overtime compensation is not an accrued right.

III

Benito is the owner of an eponymous clothing brand that is a

top seller. He employs a number of male and female models who
wear Benito's clothes in promotional shoots and videos. His deal
with the models is that Benito will pay them with 3 sets of free
clothes per week. Is this arrangement allowed? (2%)

No.

The models are Benito’s employees. As such, their services require

compensation in legal tender (Art. 102, Labor Code). The three sets of clothes,
regardless of value, are in kind; hence, the former’s compensation is not in the
form prescribed by law.

IV

Far East Bank (FEB) is one of the leading banks in the country.
Its compensation and bonus packages are top of the industry. For
the last 6 years, FEB had been providing the following bonuses
across-the-board to all its employees:

(a) 13th month pay;

(b) 14th to18th month pay;
(c) Christmas basket worth :
P6,000; (d) Gift check
worth: P4,000;and
 (e) Productivity-based incentive ranging from a 20% to 40%
increase in gross monthly salary for all employees
who would receive an evaluation of "Excellent" for 3
straight quarters in the same year.

Because of its poor performance over-all, FEB decided to cut

back on the bonuses this year and limited itself to the following:

(a) 13thmonth pay;

(b) 14th month pay;
(c) Christmas basket worth 4,000; and
(d) Gift check worth P2,000

Katrina, an employee of FEB, who had gotten a rating of

"Excellent" for the last 3 quarters was looking forward to the
bonuses plus the productivity incentive bonus. After learning that
FEB had modiIed the bonus scheme, she objected. Is Katrina's
objection justiIed? Explain. (3%)

Having enjoyed the across-the-board bonuses for six years, Katrina’s

right to them has been vested already. Hence, none of them can be
withheld or reduced without violating the Principle of Non-Diminution of
Bene2ts. Bene2ts can be reduced when the company is in the red, i.e., its
losses are substantial and duly established with 2nancial statements duly
certi2ed to by an independent external auditor. In the problem, the company
is in the black only because it has not proven its alleged losses to be
substantial losses in accordance with law. Permitting reduction of pay at the
slightest indication of losses is contrary to the policy of the State to a=ord
full protection to labor and promote full employment ( Linton Commercial
Co. v. Hellera, et al., 23 Feb. 2012 ).

As to the withheld productivity-based bonuses, the basis of payment is

not the company’s performance but Katrina’s. Therefore, Katrina is
deemed to have earned them because of her excellent performance
ratings for three quarters. On this basis, they cannot be withheld without
violating Art. 116 of the Labor Code because they are wage-type.

Soledad, a widowed school teacher, takes under her wing

one of her
students,Kiko,13yearsold,whowasabandonedbyhisparentsandhast
odoodd jobs inordertostudy. She allows Kiko to live in her house,
provides him with clean clothes, food, and a daily allowance of 200
pesos. In exchange ,Kiko does routine housework, consisting of
cleaning the house and doing errands for Soledad. One day, a
representative of the DOLE and the DSWD came to Soledad's
 house and charged her with violating the law that prohibits work
by minors. Soledad objects and oCers as a defense that she was
not requiring Kiko to work as the chores were not hazardous.
Further, she did not give him chores regularly but only
intermittently as the need may arise. Is Soledad's defense
meritorious?(4%)

No.

Soledad’s defense is not meritorious because the work rendered by

Kiko at her house is in the form of physical exertion requiring compensation.
Hence, it is an employment which no person can contract with a minor below
15 years of age (Art. 137, Labor Code). Her defense that his occasional work
did not expose him to hazardous conditions cannot take the place of the
defense allowed by law, viz., the employer is either parent or guardian. She
is neither. Therefore, her defense must fail.

VI

Ador is a student working on his master’s degree in

horticulture. To make ends meet, he takes on jobs to come up with
;ower arrangements for friends. His neighbor, Nico, is about to get
married to Lucia and needs a ;oral arranger. Ador oCers his
services and Nico agrees. They shake hands on it, agreeing that
Nico will pay Ador l20,000.00 for his services but that Ador will
take care of everything. As Ador sets about to decorate the venue,
Nico changes all of Ador's plans and ends up designing the
arrangements himself with Ador simply executing Nico's
instructions.

(a) Is there an employer-employee relationship between Nico and

Ador? (4%)

(b) Will Nico need to register Ador with the Social Security
System (SSS)? (2%)

(a) Ador is a worker paid on task basis; hence, there is employer-

employee relationship between him and Nico. When the latter assumed the
control of both result and manner of performance from Ador, all vestiges of
independent contractorship disappeared. What replaced it was employer-
employee relationship.

(b) Ador is a purely casual employee; hence, Nico need not report
him for SSS coverage.

VII

Don Don is hired as a contractual employee of CALLHELP, a

call center. His contract is expressly for a term of 4 months. Don
Don is hired for 3 straight contracts of 4 months each but at 2-
 week intervals between contracts. After the third contract ended,
Don Don is told that he will no longer be given another contract
because of "poor performance." Don Don Iles a suit for
"regularization" and for illegal dismissal, claiming that he is a
regular employee of CALLHELP and that he was dismissed without
cause. You are the Labor Arbiter. How would you decide the case?
(4%)

As Labor Arbiter, I will decide the case by applying the Contract of

Adhesion rule. Given the nature of Don Don’s work , which is usually
necessary and desirable to the usual trade of HELPCALL, as well as the short
intervals between his 2xed-term contracts, there is no doubt that periods
were resorted to for purposes of circumventing the law on tenure.
Therefore, since it was the company that prepared the three contracts, with
Don Don’s participation being limited to aAxing his signature thereto only,
the 4-month periods must be taken against it. Having attained tenure,
therefore, Don Don cannot be dismissed for poor performance because said
ground is neither a just nor authorized cause.

VIII

Star Crafts is a lantern maker based in Pampanga. It

supplies Christmas lanterns to stores in Luzon, MetroManila, and
parts of Visayas, with the months of August to November being
the busiest months. Its factory employs a workforce of
2,000 workers who make diCerent lanterns daily for the whole
year. Because of increased demand, Star Crafts entered into a
contractual arrangement with People Plus, a service contractor, to
supply the former with 100 workers for only 4 months, August to
November, at a rate diCerent from what they pay their regular
employees. The contract with People Plus stipulates that all
equipment and raw materials will be supplied by Star Crafts with
the express condition that the workers cannot take any of the
designs home and must complete their tasks within the premises
of Star Crafts.

Is there an employer-employee relationship between Star

Crafts and the100 workers from People Plus? Explain.(4%)

Yes.

People Plus is a labor-only-contractor because it is not substantially

capitalized. Neither does it carry on an independent business in which it
actually and directly uses its own investment in the form of tools,
equipment, machineries or work premises. Hence, it is just an agent or
recruiter of workers who perform work directly related to the trade of Star
Crafts. Since both essential element and con2rming element of labor-only
contracting are present, Star Crafts as principal and the supplied workers
are related as employer and employees.
 As principal, Star Crafts will always be an employer in relation to the
workers supplied by its contractor. Its status as employer is either direct
or indirect depending on the latter’s standing in law. Thus even if People
Plus were a legitimate job contractor, still Star Crafts will be treated as a
statutory employer for purposes of paying the workers’ unpaid wages and
bene2ts (Art. 106, Labor Code; D.O. 18-A).

IX

Din Din is a single mother with one child. She is employed as

a sales executive at a prominent supermarket. She and her child
live in Quezon City and her residence and workplace area 15-
minute drive apart. One day, Din Din is informed by her boss that
she is being promoted to a managerial position but she is now
being transferred to the Visayas. Din Din does not want to uproot
her family and refuses the oCer. Her boss is so humiliated by Din
Din's refusal of the oCer that she gives Din Din successive
unsatisfactory evaluations that result in Din Din being removed
from the supermarket.

Din Din approaches you, as counsel, for legal advice. What

would you advise her? (4%)

Din Din’s transfer to the Visaya’s is a scalar transfer because it is a

promotion. As such, it can be refused by her especially because her
compliance therewith will entail hardship on her part as a single parent.
Performance by her of the lawful act of refusing a promotion, therefore,
should not be punished with poor performance evaluations.

As a sales executive, Din Din’s oAce entails performance of work

usually necessary and desirable to the usual trade of the company. On this
basis, she is tenured. Hence, she cannot be dismissed on the ground of poor
performance which is neither a just nor authorized cause. For this reason,
she may 2le a complaint for illegal dismissal.

Karina Santos is a famous news anchor appearing nightly in

the country's most watched newscast. She is surprised, after one
newscast, to receive a notice of hearing before the station's Vice-
President for Human Resources and calls the VP immediately to
ask what was wrong. Karina is told over the phone that one of her
crew Iled a complaint against her for verbal abuse and that
management is duty bound to investigate and give her a chance to
air her side. Karina objects and denies that she had ever verbally
assaulted her crew. The VP then informed her that pending the
investigation she will be placed on a 30-daypreventive suspension
without pay and that she will not be allowed to appear in the
newscast during this time.
 Is the preventive suspension of Karina valid? Discuss the
reasons for your answer. (4%)

Yes.

Preventive suspension is justi2ed where the employee’s continued

employment poses serious and imminent threat to the life or property of the
employer or of the employee’s co-workers. It may be imposed in the course
of an investigation for a serious o=ense in order to prevent him from
causing harm or injury to the company or fellow employees (Secs. 8 & 9,
Rule XXIII, Bk V, ORILC; Maricalum Mining Corp. v. Decorion, G.R. No.
158673, 12 April 2006; Arti2cio v. NLRC, G.R. No. 172988, 26 July 2010).
Given the physical proximity between Karina Santos and the complaining
crew, and the likelihood of a disciplinary action, the latter must be protected
from further verbal abuse.

XI

Rico has a temper and, in his work as Division Manager of

Matatag Insurance, frequently loses his temper with his staC.
One day, he physically assaults his staC member by slapping him.
The staC member sues him for physical injuries. Matatag
Insurance decides to terminate Rico, after notice and hearing, on
the ground of loss of trust and conIdence. Rico claims that he is
entitled to the presumption of innocence because he has not yet
been convicted. Comment on Matatag's action in relation to
Rico's argument.(4%)

Matatag Insurance does not have to await the result of the criminal
case before exercising its prerogative to dismiss. Under the Three-fold
Liability Rule, a single act may result in three liabilities, two of which are
criminal and administrative. To establish them, the evidence of the crime
must amount to proof beyond reasonable doubt; whereas, the evidence of
the ground for dismissal is substantial evidence only. In this regard, the
company has some basis already for withholding the trust it has reposed on
its manager. Hence, Rico’s conviction need not precede the execution of his
intended dismissal.

XII

Blank Garments, Inc. (BLANK), a clothing manufacturer,

employs more than 200 employees in its manufacturing business.
Because of its high overhead, BLANK decided to sell its
manufacturing business to Bleach Garments,Inc. (BLEACH) lock,
stock and barrel which included goodwill, equipment,and
personnel. After taking on BLANK’s business, BLEACH reduces the
workforce by not hiring half the workers speciIcally the ones with
seniority. BLANK and BLEACH are still discerned to be sister
companies with identical incorporators. The laid-oC employees sue
both BLANK and BLEACH for unlawful termination.

(a) How would you decide this case?(4%)

(b) What is the "successor employer" doctrine?(2%)

(a) I will resolve the case by applying the Principle of Total

Insulation. Under this principle, BLANK and BLEACH have distinct and
separate legal personalities regardless of the fact that they have common
incorporators. Hence, unless BLEACH absorbs all the workers of BLANK then
it does not succeed as employer. Since it has decided not to employ the
complainants, BLEACH is totally insulated from whatever liabilities BLANK
may have incurred by reason of its closure. There are no facts to justify
imposition of unaltered responsibility on BLEACH since neither Principle of
Piercing the Veil of Corporate Fiction nor Instrumentality Rule can be applied
based on mere perception.

(b) The Successor Employer Doctrine rests on the in personam

character of employer-employee relationship. A third party that buys the
business of the employer does not become the new employer of the
employees of the latter. For this reason, it is totally insulated from the
liabilities of the latter in relation to its displaced employees. By way of
exception, when established facts justify the application of the Principle of
Piercing the Veil of Corporate Fiction or Instrumentality Rule then the
liability of the 2rst corporation may be imposed on the second in its original
form pursuant to the Principle of Unaltered Responsibility.

XIII

Luisa is an unwed mother with 3 children from diCerent

fathers. In 2004, she became a member of the Social Security
System (SSS). That same year, she suCered a miscarriage of a
baby out of wedlock from the father of her third child. She wants
to claim maternity b e n e I t s under the SSS Act. Is she entitled
to claim? (3%)

Yes.

Provided Luisa has reported to her employer her pregnancy and date of
expected delivery and paid at least three monthly contributions during the
12-month period immediately preceding her miscarriage then she is entitled
to maternity bene2ts up to four deliveries. As to the fact that she got
pregnant outside wedlock, as in her past three pregnancies , this will not bar
her claim because the SSS is non-discriminatory. Likewise, the system is
morality-free; hence, the several men in her life are immaterial.
 Therefore, regardless of non-marriage and lack of morals, Luisa is
entitled to claim maternity bene2ts under the Social Security Act.

XIV

Luis, a PNP oMcer, was oC duty and resting at home when he

heard a scuNe outside his house. He saw two of his neighbors
I g h t i n g and he rushed out to pacify them. One of the
neighbors shot Luis by mistake, which resulted in Luis's death.
Marian, Luis's widow, Iled a claim with the GSIS seeking death
beneIts. The GSIS denied the claim on the ground that the death
of Luis was not service-related as he was oC duty when the
incident happened. Is the GSIS correct? (3%)

No.

The GSIS is not correct because Luis was just o=-duty. A policeman,
just like a soldier, is covered by the 24-Hour Duty Rule. He is deemed on
round-the-clock duty unless on oAcial leave, in which case his death outside
performance of oAcial peace-keeping mission will bar death claim. In this
case, Luis was not on oAcial leave and he died in the performance of a
peace-keeping mission. Therefore, his death is compensable.

XV

Victor was hired by a local manning agency as a seafarer

cook on board a luxury vessel for an eight-month cruise. While
on board, Victor complained of chronic coughing, intermittent
fever, and joint pains. He was advised by the ship's doctor to
take complete bed rest but was not given any other medication.
His condition persisted but the degree varied from day to day. At
the end of the cruise, Victor went home to Iloilo and there had
himself examined. The examination revealed that he had
tuberculosis.

(a) Victor sued for medical reimbursement, damages and

attorney's fees, claiming that tuberculosis was a compensable
illness. Do you agree with Victor? Why or why not?(2%)

(b) Due to his prolonged illness, Victor was unable to work

for more than
120 days. Will this entitle him to claim total permanent disability
beneIts? (2%)

(a) TB is listed under Sec. 32-A of the POEA-SEC; hence, it is a work-

related disease. It was also either contracted or aggravated during the
e=ectivity of Victor’s contract. Having shown its manifestations on board,
Victor should have been medically repatriated for further examination and
treatment in the Philippines. This obligation was entirely omitted in bad faith
by the company when it waited for his contract to expire on him before
signing him o=. On this basis, Victor is entitled to medical reimbursement,
damages and attorney’s fees.

(b) No. Victor’s TB may be work-related and it may have developed

on board, thereby satisfying the twin-requisites of compensability.
However, despite his knowledge of his medical condition, he failed to report
to his manning agent within three days from his arrival as required by Sec.
20-B(3) of the POEA-SEC. Since he already felt the manifestations of TB
before his sign-o=, he should have submitted to post-employment medical
examination (Jebsens Maritime Inc. v. Enrique Undag, G.R. No. 191491, 14
December 2011). The e=ect of his omission is forfeiture by him of
disability bene2ts (Coastal Safety Marine Services, Inc. v. Elmer T. Esguerra,
G.R. No. 185352, 10 August 2011). In e=ect, the120-day rule has no
application at all.

XVI

The Alliance of Independent Labor Unions (AILU) is a

legitimate labor federation which represents a majority of the
appropriate bargaining unit at the Lumens Brewery (LB). While
negotiations were ongoing for a renewal of the collective
bargaining agreement (CBA), LB handed down a decision in a
disciplinary case that was pending which resulted in the
termination of the AILU's treasurer and two other members for
cause. AILU protested the decision, claiming that LB acted in bad
faith and asked that LB reconsider. LB refused to reconsider. AILU
then walked out of the negotiation and declared a strike without a
notice of strike or a strike vote. AILU members locked in the LB
management panel by barricading the doors and possible exits
(including windows and Ire escapes). LB requested the DOLE to
assume jurisdiction over the dispute and to certify it for
compulsory arbitration.

The Secretary of Labor declined to assume jurisdiction,

Inding that the dispute was not one that involved national
interest. LB then proceeds to terminate all of the members of the
bargaining agent on the ground that it was unlawful to:
(1)barricade the management panel in the building,and (2)
participate in an illegal strike.

(a) Was AILU justiIed in declaring a strike without a strike

vote and a notice of strike? Why or why not?(3%)

(b) Was the Secretary of Labor correct in declining to

assume jurisdiction over the dispute? (2%)

(c) Was LB justiIed in terminating all those who were

members of AILU
on the two grounds cited?(3%)
 (a) Since AILU did not fully observe prescribed pre-strike
procedure, it was not justi2ed in declaring the strike. The dismissal of a
duly elected union oAcer, like a Treasurer, is union busting if said dismissal
threatens the existence of the union. Assuming such threat was present,
the union could not validly stage a strike without serving a strike notice and
conducting a strike vote (Art. 278, Labor Code). . Even if the cooling o=
period may have been zero owing to perceived union busting, the
required strike notice and strike vote could not be dispensed with owing
to the nature of the ground relied upon.

(b) The refusal of the Secretary to assume jurisdiction is valid. Art.

278 (g) of the Labor Code leaves it to his sound discretion to determine if
national interest is involved. Assumption power is full and complete. It is
also plenary and discretionary (Philtranco Service Enterprises, Inc. v.
Philtranco Workers Union-AGLO, G.R. No. 180962, 26 February 2014). Thus,
if in his opinion national interest is not involved then the company cannot
insist that he assume jurisdiction.

(c) The company has to 2le a complaint for illegal strike 2rst. Once
the strike is declared by 2nal judgment to be illegal, it can dismiss the union
oAcers. As to members, their dismissal must be based on their having
committed illegalities on the occasion of their illegal strike. Since the
company prematurely and indiscriminately dismissed the AILU members then
their dismissal is illegal.

XVII

The Collective Bargaining Agreement (CBA) between Libra

Films and its union, Libra Films Employees' Union (LFEU), contains
the following standard clauses:

1. Maintenanceofmembership;
2. Check oC or union dues and agency fees; and
3. No strike, no lock-out.

While Libra Films and LFEU are in re-negotiations for an

extension of the CBA, LFEU discovers that some of its members
have resigned from the union, citing their constitutional right to
organize (which includes the right NOT to organize). LFEU
demands that Libra Films institute administrative proceedings to
terminate those union members who resigned in violation of
the CBA's maintenance of membership clause. Libra Films
refuses, citing its obligation to remain a neutral party. As a result,
LFEU declares a strike and after Iling a notice of strike and taking
a strike vote, goes on strike. The union claims that Libra Films
grossly violated the terms of the CBA and engaged in unfair labor
practice.

(a) Are LFEU's claims correct? Explain.(4%)

(b) Distinguish between a "closed shop" clause and

a"maintenance of membership" clause.(2%)
 (c) Distinguish between "union dues" and "agency fees.
"(2%)

(a) LFEU’s claim that Libra Films committed ULP based on its
violation of the CBA is not correct. For violation of a CBA to constitute ULP,
the violation must be violation of its economic provisions. Moreover, said
violation must be gross and Kagrant. Based on the allegation of the union,
what was violated was the maintenance of membership clause which was a
political provision; hence, no ULP was committed (BPI Employees Union -
Davao City v. BPI, G.R. No. 174912, 24 July 2013).

(b) A Closed Shop clause requires an employer to hire from the

union membership only; on the other hand, Maintenance of Membership
clause requires as a condition for continued employment continued
membership in the contracting union. Both are union security clauses.

(c) Union dues are assessed from members of the exclusive

bargaining representative (EBR) which has concluded a CBA with the
company; whereas, agency fees are collected from members of other unions
in exchange for being recipients of the same bene2ts secured by the EBR
thru collective bargaining.

XVIII

George is an American who is working as a consultant for a

local IT company. The company has a union and George wants to
support the union. How far can George go in terms of his support
for the union?(3%)

George is not an alien employee but an independent contractor. The

term “working” per se cannot be used as an indicium of employer-employee
relationship because a worker is any member of the labor force, whether
employed or not (Art. 13, Labor Code). As a consultant, he is logically the
master of his time, means and methods. What he advises the company and
how he does it are entirely left to his discretion. Not being an employee, he
cannot assist the union by joining it.

Moreover, foreigners are prohibited from engaging in trade union

activities except when employed – subject, however, to possession of alien
employment permits and proof of reciprocity (Arts. 284 & 285, Labor Code).

XIX

What is the rule on the "equity of the incumbent"? (2%)

 The Equity of the Incumbent rule has it that all existing federations or
national unions, possessing all quali2cations of an LLO and none of the
grounds for CR cancellation, shall continue to maintain their existing
aAliates regardless of their location or industry to which they belong ( Art.
249, Labor Code). In case of dissociation, aAliates are not required to
observe the one union-one industry rule (E.O. 111).

XX

A. XYZ Company and Mr.AB ,a terminated employee who

also happens to be the President of XYZ Employees Union, agree in
writing to submit Mr.AB's illegal dismissal case to voluntary
arbitration. Is this agreement a valid one?(3%)

B. XYZ Company and XYZ Employees Union (XYZEU) reach

a deadlock in their negotiation for a new collective bargaining
agreement (CBA). XYZEU Iles anotice of strike; XYZ Company
proposes to XYZEU that the deadlock be submitted instead to
voluntary arbitration. If you are counsel for XYZEU, what advice
would you give the union as to the: (1)propriety of the request of
XYZ Company, and(2) the relative advantages/disadvantages
between voluntary arbitration and compulsory arbitration?(4%)

(A) The agreement is valid because the preferred mode of settling

labor disputes is thru voluntary modes, like voluntary arbitration. The
agreement is consistent with Sec. 3, Art. XIII of the Constitution. Moreover, it
does not violate any statute, o=end morals, or defeat public policy.

(B)

(1) As counsel, I will advise the union to accede to the request of the
company. Besides being the constitutionally preferred mode of dispute
settlement, voluntary arbitration is expected to assure the parties a more
lasting industrial peace.

(2) The advantages of voluntary arbitration are:

(a) the parties’ dispute is heard and resolved by a person they

both have chosen as their judge; hence, they are self-assured of
his impartiality;

(b) if both parties are willing to submit their dispute, the

decision is 2nal and binding on them in general by reason of
their submission agreement; and

(c) in the event of a challenge, the decision is elevated to the

CA and then to the SC, i.e., less one layer of appeal.

Its disadvantages are:

 (a) in case of appeal by the employer to the CA, the monetary
award will not be secured with an appeal bond which Rule 43 of
the Rules of Court does not require; and

(b) in case of enforcement of judgment, the Voluntary

Arbitrator has no sheri= to enforce it.

The advantages of compulsory arbitration are:

(a) subject to pre-litigation mediation, a case can be initiated

thru the 2ling of a veri2ed complaint by a union member, unlike
in voluntary arbitration where the Voluntary Arbitrator acquires
jurisdiction primarily thru a submission agreement. In a case
where the company is unwilling, the EBR (and only the EBR) may
serve a notice to arbitrate; hence, a union member may be left
out in the process if the EBR does not serve that notice;

(b) a monetary award is secured with the employer’s appeal

bond; and; (c) there is a system of restitution in compulsory
arbitration.

Its disadvantages are:

(a) State interference with the a=airs of labor and

management is maximized, disregarding the inter-party nature of
the relationship; and

(b) The system of appeals entails a longer process.

XXI

Philippine News Network (PNN)engages the services of Anya,

a prominent news anchor from a rival station, National News
Network (NNN). NNN objects to the transfer of Anya claiming that
she is barred from working in a competing company for a period of
three years from the expiration of her contract. Anya proceeds to
sign with PNN which then asks her to anchor their nightly
newscast. NNN sues Anya and PNN before the National Labor
Relations Commission (NLRC),asking for a labor injunction. Anya
and PNN object claiming that it is a matter cognizable by a regular
court and not the NLRC.

(a) Is NNN's remedy correct? Why or why not? (3%)

(b) What are the grounds for a labor injunction to issue?
(2%)
(c) Distinguish the jurisdiction of a Labor Arbiter from that of
the NLRC (3%)
 (a) The NLRC has no jurisdiction.

As to PNN, there is no employer-employee relationship between itself and

NNN; hence, the NLRC cannot hear and resolve their dispute (Reasonable
Causal Connection Rule). As to Anya, the injunctive power of the NLRC is
ancillary in nature; hence, it requires a principal case which is absent. Besides,
the dispute between her and PNN is not resolvable solely thru the application
of the Labor Code, other labor statutes, CBA or employment contract (Reference
to Labor Law Rule).

(b) The NLRC may issue an injunctive writ to enjoin an illegal activity
under Art. 279 of the Labor Code; as an ancillary remedy to avoid irreparable
injury to the rights of a party in an ordinary labor dispute pursuant to Rule X,
2011 NLRC Rules of Procedure, as amended; and to correct the Labor Arbiter’s
grave abuse of discretion pursuant to Rule XII of the 2011 NLRC Rules of
Procedure, as amended.

(c) As to jurisdiction, the LA can hear and resolve cases under Art. 224
of the Labor Code, money claims under Sec. 7 of R.A. 10022; and referred
wage distortion disputes in unorganized establishments, as well as the
enforcement of compromise agreements pursuant to the 2011 NLRC Rules of
Procedure, as amended. On the other hand, the NLRC reviews decisions
rendered by the LA; decisions or orders rendered by the RD under Art. 129 of
the Labor Code; and conducts compulsory arbitration in certi2ed cases.

As to the power to issue a labor injunction, the NLRC can issue an

injunctive writ. On the other hand, the Labor Arbiter cannot issue an
injunctive writ.

XXII

Mario comes from a family of coCee bean growers. Deciding to

incorporate his ;edgling coCee venture, he invites his best friend,
Carlo, to join him. Carlo is hesitant because he does not have money
to invest but Mario suggests a scheme where Carlo can be the Chief
Marketing Agent of the company, earning a salary and commissions.
Carlo agrees and the venture is formed. After one year, the business
is so successful that they were able to declare dividends. Mario is so
happy with Carlo's work that he assigns 100 shares of stock to Carlo
as part of the latter's bonus.

Much later on, it is discovered that Carlo had engaged in

unethical conduct which caused embarrassment to the company.
Mario is forced to terminate Carlo but he does so without giving Carlo
the opportunity to explain.

Carlo Iled a case against Mario and the company for illegal
dismissal. Mario objected on the ground that the Labor Arbiter had
no jurisdiction over the case as it would properly be considered as
an intra-corporate controversy cognizable by the RTC. Further, Mario
claimed that because Carlo's dismissal was a corporate act, he
cannot be held personally liable.

(a) As the Labor Arbiter assigned to this case, how would you
resolve the jurisdiction question. (3%)

(b) What is the rule on personal liability of corporate oMcers

for a corporate act declared to be unlawful?(2%)
 (a) Carlo is an employee. Hence, as LA, I have the power to hear and
resolve his complaint.

Carlo is not a corporate oAcer of the business organization involved,

which is a corporation based on the fact that it was incorporated, declared
dividends and issued shares of stock. Being the Chief Marketing Agent only,
and not the corporate president, treasurer or secretary, he is a corporate
employee. In fact, he was paid salaries and commissions, plus bonuses, for his
personal services.

(b) Corporate oAcers are personally accountable only as provided by

Sec. 31 of the Corporation Code and not solely because they act in the interest
of the company (Carag v. NLRC, G.R. No. 147590, 2 April 2007). Hence, they
have to personally commit the illegality, or ratify it, or be guilty of bad faith or
gross neglect in order to be personally liable.
 SUGGESTED ANSWERS TO THE 2016
BAR EXAMINATIONS
IN
LABOR LAW

What are the requisites of a valid quitclaim? (5%)

SUGGESTED ANSWER:

The requisites of a valid quitclaim are:

1. a fixed amount as full and final compromise settlement;
2. the benefits of the employees if possible with the corresponding

amounts, which the employees are giving up in consideration of the

fixed compromise amount;

3. a statement that the emOoyer has clearly explained to the employees

in English, Filipino, or in the dialect known to the employees and that by

signing the waiver or quitclaim, they are forfeiting or
relinquishing their right to, receive the benefits which are due them
under the law, and

4. a statement that the employees signed and executed the document

voluntarily, and had fully understood the contents of the document

and that their consent was ifreely given without any threat, violence,

intimidation, or undue influence exerted on their person.

It is advisable that the stipulations be made in English and Tagalog or in

the dialect known to the employees. There should be two (2) witnesses to the

execution of the quitclaim who must also sign the quitclaim. The document

should be subscribed and sworn to under oath preferably before any

administering official of the Department of Labor and Employment or its

regional office, the Bureau of Labor Relations, the NLRC or a labor

attache in a foreign country. Such official shall assist the parties regarding the

execution of the quitclaim and waiver (Edi-Staffbuilders International, Inc., v.

NLRC, G.R. No. 145587, 26 October 2007).

1
 II

Gregorio was hired as an insurance underwriter by the Guaranteed

Insurance Corporation (Guaranteed). He does not receive any salary but solely
relies on commissions earned for every insurance policy approved by the
company. He hires and pays his own secretary but is provided free office space in
the office of the company. He is, however, required to meet a monthly quota of
twenty (20) insurance policies, otherwise, he may be terminated. He was made
to agree to a Code of Conduct for underwriters and is supervised by a Unit Manager.

[a] Is Gregorio an employee of Guaranteed? (2.5%)

SUGGESTED ANSWER:

No, Gregorio is not an employee of Guaranteed. Control is the most

important element of employer-employee relationship, which refers to the
means and methods by which the result is to be accomplished (Avelino
Lambo and Vicente Belocura v. NLRC and J.C. Tailor Shop and/or Johnny Co.,
375 Phil. 855 [1999]), .citing Makati Haberdashery, Inc. v. NLRC, 259 Phil. 52
[1989]. The requirement of complying with quota, company code of conduct
and supervision by unit managers do not go into the means and methods by
which Gregorio must achieve his work. He has full discretion on how to meet
his quota requirement, hence, there is no employer-
employee relationship between Gregorio and Guaranteed.

ALTERNATIVE ANSWER:
Yes, Gregorio is Guaranteed's employee. The fact that Gregorio was

made to agree to a Code of Conduct and was supervised by a Unit Manager are

indicators that he is an employee of Guaranteed by using the control test

mentioned in the Makati Haberdashery case. Furthermore, the fact that he was

given a quota and can be terminated if he does not meet it all the more

indicates that he is indeed an employee of Guaranteed. In Angelina Francisco

v. NLRC Kasei Corporation G.R. No. 170087, August 31, 2006, the court added
lationship.
another element to ascertain employer-employee re This is whether
he alleged employer for
or not the worker is dependent on t his continued
s the economic dependence
employment. This was dubbed a test. The fact that
regorio if he does not meet
Guaranteed can terminate G
the quota of 20 insurance policies a month, means that the latter is

r[0110MICAR 4001111011i Oil MP farMQU tlidiige6. negates his siaius as an

independent contractor and proves that he is an employee.

[b] Suppose Gregorio is appointed as Unit Manager and assigned to

supervise several underwriters. He holds office in the company premises,
receives an overriding commission on the commissions of his underwriters, as
well as a monthly allowance from the company, and is supervised by a branch
manager. He is governed by the Code of Conduct for Unit Managers. Is he an
employee of Guaranteed? Explain. (2.5%)

SUGGESTED ANSWER:

Yes, Gregorio is an employee. In fact, he is deemed as a regular

employee. As a unit manager who was tasked to supervise underwriters, he

can be said to be doing a task which is necessary and desirable to the usual

business of Guaranteed. Article 295 of the Labor code provides that "(T)he

provisions of written agreement to the contrary notwithstanding and

regardless of the oral agreement of the parties, an employment shall be

deemed to be regular where the employee has been engaged to perform

activities which are usually necessary or desirable in the usual business or

trade of the employer, x x x."

ALTERNATIVE ANSWER:
Yes. Article 219 (m) of the Labor Code defines a Managerial

employee as one who is vested with the powers or prerogatives to lay down and

execute management policies and/or to hire, transfer, suspend, lay-off, recall,

discharge, assign or discipline employees. As Gregorio was appointed Unit

Manager, the means and methods of accomplishing his goal come under the

guidelines laid down by Guaranteed.

ANOTHER ALTERNATIVE ANSWER:

No. Guaranteed did not define the duties and responsibilities of

he will
Gregorio; Guaranteed left, it to Gregorio's discretion as to how
e result
achieve his goal. Therefore, the only interest Guaranteed has is in th of
Gregorio's work.

3
 III

Inggo is a drama talent hired on a per drama "participation basis" by DJN

Radio Company. He worked from 8:00 a.m. until 5:00 p.m., six days a week, on a
gross rate of P80.00 per script, earning an average of P20,000.00 per month. Inggo
filed a complaint before the Department of Labor and Employment (DOLE)
against DJN Radio for illegal deduction, non-payment of service incentive
leave, and 13th month pay, among others. On the basis of the
complaint, the DOLE conducted a plant level inspection.

The DOLE Regional Director issued an order ruling that Inggo is an

employee of DJN Radio, and that Inggo is entitled to his monetary claims in the
total amount of P30,000.00. DJN Radio elevated the case to the Secretary of
Labor who affirmed the order. The case was brought to the Court of Appeals. The
radio station contended that there is no employer-employee relationship because
it was the drama directors and producers who paid, supervised, and disciplined
him. Moreover, it argued that the case falls under the jurisdiction of the NLRC and
not the DOLE because Inggo's claim exceeded PS,000.00.

[a] May DOLE make a prima facie determination of the existence of an

employer-employee relationship in the exercise of its visitorial and enforcement
powers? (2.5%)

SUGGESTED ANSWER:

Yes. Pursuant to Article 128 (b) of the Labor Code, the DOLE may do

so where the prima facie determination of employer-employee

relationship is for the exclusive purpose of securing compliance with labor

standards provisions of said Code and other labor legislation.

The DOLE, in the exercise of its visitorial and enforcement powers,

somehow has to make a determination of the existence of an employer-

employee relationship. Such determination, however, cannot be coextensive

with the visitorial and enforcement power itself. Indeed, such determination is

merely preliminary, incidental and collateral to the DOLE's primary

function of enforcing labor standards provisions (People's Broadcasting

Bombo Radyo Phils., Inc. v. Secretary of Labor, G.R. No. 179652, May 8, 2009).
ionship,
[b] If the DOLE finds that there is an employee-employer relat does
er considering that the
the case fall under the jurisdiction of the Labor Arbit claim of
Inggo is more than P5,000.00. Explain. (2.5%)

4
SUGGESTED ANSWER:

No. As held in the case of Meteoro v. Creative Creatures, Inc., G.R. No.
171275, July 13, 2009, the visitorial and enforcement powers of the

Secretary, exercised through his representatives, encompass compliance

with all labor standards taws and other labor legislation, regardless of the
amount of the claims filed by workers; thus, even claims exceeding
P5,000.00.

IV

Hagibis Motors Corporation (Hagibis) has 500 regular employees in its car
assembly plant. Due to the Asian financial crisis, Hagibis experienced very low car
sales resulting to huge financial losses. It implemented several cost-
cutting measures such as cost reduction on use of office supplies, employment
hiring freeze, prohibition on representation and travel expenses, separation o f
casuals and reduced work week. As counsel of Hagibis, what are the measures the
company should undertake to implement a valid retrenchment? Explain.
(5%)

SUGGESTED ANSWER:

For a valid retrenchment, the following requisites must be

complied with: (a) the retrenchment is necessary to prevent losses and such

losses are proven; (b) written notice to the employees and to the DOLE at

least one month prior to the intended date of retrenchment; and

(c) payment of separation pay equivalent to one-month pay or at least one-

half month pay for every year of service, whichever is higher.

Jurisprudential standards for the losses which may justify

retrenchment are: Firstly, the losses expected should be substantial and

not merely de minimis inextent. If the loss purportedly sought to be

forestalled by retrenchment is clearly shown to be insubstantial and

inconsequential in characfer, the bonafide nature of the retrenchment

would appear to be seriously in question; secondly, the substantial loss

d
must be reasonably imminent, as such imminence can be perceive
because of the
objectively and in good faith by the employer; x x x thirdly,
sonably necessary
consequential nature of retrenchment, it must be rea

5
and is likely to be effective in preventing the expected losses x x x lastly; x x x
alleged losses if already realized, and the expected imminent losses sought to
be forestalled, must be proved by sufficient and convincing
evidence (Manatad v. Philippine Telegraph and Telephone Corporation,
G.R. No. 172363, March 7, 2008).
Hagibis should exercise its prerogative to retrench employees in good

faith. It must be for the advancement of its interest and not to defeat or

circumvent the employees' right to security of tenure. Hagibis should use

fair and reasonable criteria, such as status, efficiency, seniority, physical

fitness, age, and financial hardship for certain workers in ascertaining who

would be dismissed and who would be retained among the employees.

Asia Union (Union) is the certified bargaining agent of the rank-and-file

employees of Asia Pacific Hotel (Hotel).

The Union submitted its Collective Bargaining Agreement (CBA)

negotiation proposals to the Hotel. Due to the bargaining deadlock, the Union, on
December 20, 2014, filed a Notice of Strike with the National Conciliation and
Mediation Board (NCMB). Consequently, the Union conducted a Strike Vote on
January 14, 2015, when it was approved.

The next day, waiters who are members of the Union came out of the
Union office sporting closely cropped hair or cleanly shaven heads. The next day, all
the male Union members came to work sporting the same hair style. The Hotel
prevented these workers from entering the premises, claiming that they violated
the company rule on Grooming Standards.

On January 16, 2015, the Union subsequently staged a picket outside the
Hotel premises and prevented other workers from entering the Hotel. The Union
members blocked the ingress and egress of customers and employees to the
Hotel premises, which caused the Hotel severe lack of manpower and forced the
Hotel to temporarily cease operations resulting to substantial losses.

On January 20, 2015, the Hotel issued notices to Union members,

g offenses:
preventively suspending them and charging them with the followin
ing Standards; (3)
(1) illegal picket; (2) violation of the company rule on Groom
illegal strike; and (4) commission of illegal acts during the illegal strike. The Hotel
rs who participated in the
later terminated the Union officials and membe strike. The
strike and countered that the
Union denied it engaged in an illegal

6
Hotel committed an unfair labor practice (ULP) and a breach of the freedom of
speech.

[a] Was the picketi$ legal? Was the mass action of the Union officials and
members an illegal strike? Explain. (2.5%)

SUGGESTED ANSWER:

The picket was illegal. The right to picket as a means of

communicating the facts of a labor dispute is a phase of freedom of speech
guaranteed by the constitution (De Leon v. National Labor Union 100 Phil 789
[19571). But this right is not absolute. Article 278 of the Labor Code provides
that no person engaged in picketing shall ... obstruct the free ingress to or
egress from the employer's premises for lawful purposes or obstruct public
thorough fares. The acts of the union members in blocking the entrance and
exit of th hotel which caused it to shut down temporarily makes the picket
illegal.

The actions of all the union members in cropping or shaving their

head is deemed an illegal strike. In National Union of Workers in the Hotel

Restaurant and Allied Industries (NUWHRAINAPL-IUF) Dusit Hotel Nikko

Chapter v. Court of Appeals, G.R. No. 163942 November 11 2008, the Supreme
Court ruled that the act of the Union was not merely an expression of

their grievance or displeasure but was, indeed, a calibrated and calculated

act designed to inflict serious damage to the hotel's grooming standards

which resulted in the temporary cessation and disruption of the hotel's

operations. This should be considered as an illegal strike.

ALTERNATIVE ANSWER:

As regards the shaving of heads by the union members, their mass

action was not an illegal strike. It was the Hotel administration which

prevented them from entering the hotel premises.

eedom of speech.
[b] Rule on the allegations of ULP and violation of fr
Explain. (2.5%)

7
SUGGESTED ANSWER:
The Hotel is not guilty of ULP. The act of the hotel in suspending and
eventually dismissing the union officers who concertedly antagonized and
embarrassed the hotel management and, in doing so, effectively disrupted the
operations of the hotel, is an act of self-preservation. The law in
protecting the rights of the laborer authorizes neither oppression nor self-
destruction of the employer. The right of the employer to dismiss its erring
employees is a measure of self protection (Filipro v. NLRC, G.R. No. 70546,
October 16, 1966). The power to dismiss an employee is a recognized
prerogative that is inherent in the employee's right to freely manage and
regulate its business (Philippine Singapore Transport Service v. NLRC, G.R. No.
95449 [19971).

It cannot be said that the hotel is guilty of violating the union

member's right to freedom of speech. The right to freedom of expression is not

absolute; it is subject to regulation so that it may not be injurious to the right of

another or to society. As discussed, the union member's act of cropping or

shaving their heads caused substantial losses to the hotel caused by the cessation

of its operations. The Supreme Court in one case held that the union's

violation of the hotel grooming standards was clearly a deliberate and

concerted action to undermine the authority of and to embarrass the

hotel and was, therefore, not a protected action. The physical appearance

of the hotel employees directly reflect the character and well-being of the

hotel, being a five-star hotel that provides service to topnotch clients.

ALTERNATIVE ANSWER:
Yes. The Hotel is guilty of Unfair Labor Practice under Art. 259 of the

Labor Code, specifically Art. 259 (1) To interfere with, restrain or coerce
he act
employees in the exercise of their right to self-organization. T of the
rk premises
Hotel in preventing the employees from entering the wo constitutes

this unfair laboi practice.

8
 VI

Pedro, a bus driver of Biyahe sa Langit Transport, was involved in a

collision with a car, damaging the bus. The manager accused him of being
responsible for the damage and was told to submit his written explanation within
48 hours. Pedro submitted his explanation within the period. The day after,
Pedro received a notice of termination stating that he is dismissed for reckless
driving resulting to damage to company property, effective immediately. Pedro
asks you, as his counsel, if the company complied with the procedural due
process with respect to dismissal Of employees.

[a] Explain the twin notice and hearing rule. (2.5%)

SUGGESTED ANSWER:

The twin notice and hearing rule requires a directive that the

employee be given the opportunity to submit a written explanation on why he

should not be dismissed within a reasonable period of time (King of Kings

Transport, Inc. v. Santiago 0. Mamac, G.R. No. 166208, June 29, 2007). The
grounds for terminating an employee, again as explained in the Kings case,

must be a detailed narration of the facts and circumstances that will serve as

basis for the charge against him. Further, it should mention specifically
which company rule or provision of the Labor Code was violated. The

Supreme Court defines 'reasonable period of time" to be five calendar days

from the day the employee received the NTE. As to the hearing, in Perez v.

Philipjine Telegraph Company, 584 SCRA 110 120091, the Supreme Court
enunciated the rule that a hearing is only necessary if it was asked or

requested by an employee. In case it was requested, a summary hearing

must be done by the employer where the employee must be afforded the
opportunity to adduce evidence and present witnesses in his behalf. Then the

employer must inform the employee in writing of its decision stating the
nt of
facts, the analysis of the evidence and stateme witnesses and the law or

policy which led to the decision.

the prior
[b] Did the Biyahe sa Langit Transport comply with
procedural requirements for dismissal? (2.5%)

9
SUGGESTED ANSWER:

No. The notice given by Biyahe sa Langit Transport did not give
Pedro a minimum period lof five (5) days to submit a written explanation. He
was given only 48 hours to submit the same. The fact that he met the
deadline did not cure the lapse committed by Biyahe sa Langit Transport.
There being a violation, of procedural due process, Biyahesa Langit
Transport becomes liable for nominal damages even, assuming that there was
a valid ground for dismissal.

VII

Forbes Country Club (Club) owns a golf course and has 250 rank-and-file
employees who are members of the Forbes Country Club Union (Union). The
Club has a CBA with the Union and one of the stipulations is a Union Security
Clause, which reads: "All regular rank-and-file employees who are members of the
union shall keep their membership in good standing as a condition for their
continued employment during the lifetime of this agreement."

Peter, Paul and Mary were the Treasurer, Assistant Treasurer, and Budget
Officer of the Union, respectively. They were expelled by the Board of Directors of
the Union for malversation. The Union then demanded that the Club dismiss said
officials pursuant to the Union Security Clause that required maintenance of union
membership. The Club required the three officials to show cause in writing
why they should not be dismissed. Later, the Club called the three Union officials for
a conference regarding the charges against them. After considering the evidence
submitted by the parties and their written explanations, the Club dismissed the
erring officials. The dismissed officials sued the Club and the Union for illegal
dismissal because there was really no malversation based on the documents
presented and their dismissal from the Union was due to the fact that they were
organizing another union.

[a] Is the dismissal of Peter, Paul and Mary by the Club valid? (2.5%)

SUGGESTED ANSWER:

The dismissal of Peter, Paul and Mary is valid as it was made

pursuant to a union security clause contained in the Collective Bargaining
Agreement between the management and the union. A union security clause is
the
intended to strengthen, a contracting union and protect it from
fickleness or perfidy of its own members (Caltex Refinery Employees

10
Association v. Brillarts, G.R. no. 123782, September 16, 1997). In

terminating employees by reason of union security clause, what the

employer needs to determine and prove are: a). that the union security
clause is applicable, b). that the union is requesting for the enforcement of the
union security clause and, c). that there are sufficient evidence to support
the decision of the union to expel the employee from the union (Picop
Resources v. Tantla, G.R No. 160828, August 9, 2010). In the case at bar, the
union demanded - the dismissal of Peter, Paul and Mary after they were

expelled from the union. The Club then afforded them due process by ordering
them to show cause in writing why they should not be dismissed. Thereafter, a
conference was held in their behalf. Having complied with all the requirements
mentioned, itj can be said that the dismissal of Peter, Paul and Mary was made
validly.

[b] If the expulsion by the Union was found by the Labor Arbiter to be
baseless, is the Club liable to Peter, Paul and Mary? Explain. (2.5%)

SUGGESTED ANSWER:

Yes, the Club can be held , liable to Peter, Paul and Mary. Even if the

elements under (a) and (b), as mentioned above, are present, it behooves upon

the Club to ascertain in good faith the sufficiency of evidence that supports

the decision of expelling them from the union. The Club should have been

circumspect in the 1 sense that it should have determined the veracity of the

union's claim that Peter, Paul and Mary were indeed guilty of malversation.

Should it have been guilty of making a mistake then it should be

accountable for it. Just as the Court has stricken down unjust exploitation of

laborers by oppressive employers, so will it strike down their unfair treatment

by their own unworthy leaders. The Constitution enjoins the state to afford

protection to labor. Fair dealing is equally demanded of unions as well as of

es (Heirs of
employers, in their dealings with employe Cruz vs. CIR, G.R. Nos.
, 1969).
L-23331-32, December 27

11
 VIII

Differentiate learnership from apprenticeship with respect to the period of

training, type of work, salary and qualifications. (5%)

SUGGESTED ANSWER:
Learnership and apprenticeship are similar because they both mean
training periods for jobs requiring skills that can be acquired through
actual work experience. And because both a learner and an apprentice are
not as fully productive as regular workers, the learner and the apprentice
may be paid wages twenty-five percent lower than the applicable legal
minimum wage.

They differ in the focus and terms of training. An apprentice trains in a

highly skilled job or in any job found only in highly technical industries. Because
it is a highly skilled job, the training period exceeds three months. For a
learner, the training period is shorter because the job is more easily learned
than that of apprenticeship. The job, in other words, is "non-
apprenticeable" because it is practical skills which can be learned in three
(not six) months. A learner is not an apprentice but an apprentice is,
conceptually, also a learner.

Accordingly, because the job is more easily learnable in learnership

than in apprenticeship, the employer is committed to hire the learner-

trainee as an employee after the training period. No such commitment exists in

apprenticeship.

Finally, employment of apprentices, as stated in Article 60, is legally

allowed only in highly technical industries and only in apprenticeable

occupations approved by the DOLE. Learnership is allowed even for non-

technical jobs.

IX

Zienna Corporation (Zienna) informed the Department of Labor and

the
Employment Regional Director of the end of its operations. To carry out
NLRC for
cessation, Zienna sent a Letter Request for Intervention to the
on benefits for its fifty
permission and guidance in effecting payment of separati
(50) terminated employees.

12
 Each of the terminated employees executed a Quitclaim and Release
before Labor Arbiter Nocomora, to whom the case was assigned. After the
erstwhile employees received their separation pay, the Labor Arbiter declared the
labor dispute dismissed with prejudice on the ground of settlement.
Thereafter, Zienna sold all of its assets to Zandra Company (Zandra), which in turn
hired its own employees.

Nelle, one of the fifty (50) terminated employees, filed a case for illegal
dismissal against Zienna. She argued that Zienna did not cease from operating
since the corporation subsists as Zandra. Nelle pointed out that aside from the two
companies having essentially the same equipment, the managers and owners of
Zandra and Zienna are likewise one and the same.

For its part, Zienna countered that Nelle is barred from filing a complaint for
illegal dismissal against the corporation in view of her prior acceptance of
separation pay.

Is Nelle correct in claiming that she was illegally dismissed? (5%)

SUGGESTED ANSWER:
No. In SME Bank, Inc. v. De Guzman (G.R. No. 184517 and 186641,

October 8, 2013), there are two (2) types of corporate acquisitions: asset

sales and stock sales. In asset sales, the corporate entity sells all or

substantially all of its assets to another entity. In stock sales, the individual or
corporate shareholders sell a controlling block of stock to new or existing

shareholders. Asset sales happened in this case; hence, Zienna is authorized to

dismiss its employees, but must pay separation pay. The buyer Zandra, is not

obliged to absorb the employees affected by the sale, nor is it liable for the

payment of their claims. The most that Zandra may do, for reasons of public

policy and social justice, is to give preference is hiring to qualified separated

personnel of Zienna.

X
ion
Lazaro, an engineer, organized a union in Garantisado Construct
ediately filed a
Corporation (Garantisado) which has 200 employees. He imm
he signatures of 70
Petition for Certification Election, attaching thereto t
on, alleging that 25
employees. Garantisado vehemently opposed the petiti
visors. It submitted the
signatories are probationary employees, while 5 are super
n of the
contracts of the 25 probati9nary employees and the job descriptio
70, it gives a balance of 40
supervisors. It argued that if 30 is deducted from

13
valid signatures which is way below the minimum number of 50 signatories
needed to meet the alleged 25% requirement. If you are the Director of Labor
Relations, will you approve the holding of a Certification Election. Explain your
answer. (5%)

SUGGESTED ANSWER:

Yes, I will allow the certification election. What is required for a

certification election is that at least 25 per cent of the bargaining unit must
sign the petition. Since 25 percent of 200 is 50 then the fact that there were

70 signatories who signed means that it should be allowed. Note that out of the

70 signatories only the supervisors should be excluded. Article 254 of the

Labor Code allows supervisory employees to form, join, or assist separate

labor organizations but they are not eligible for membership in a Labor

organization of the rank-and-file. Thus, they are the only ones, that should be

disqualified. As to the probationary employees, they should be included.

The fact that an employee is given a classification such as beginner,

trainee, or probationary employee, and the fact that contemplation

of permanent tenure is subject to satisfactory completion of an initial trial

period, are insufficient to warrant such employees' exclusion from a bargaining

unit. Moreover the eligibility of probationary employees does not turn on the

proportion of such employee who, willingly or not, fails to continue to work for

the employer throughout the trial period.

ALTERNATIVE ANSWER:

Yes, I will allow the certification election. Following the Bystander

Rule, the role of the employer in certification elections is that of a mere

bystander; it has no right or material interest to assail the certification

e given
election. Thus, its opposition to the certification election must not b

credence.
has to file the
The only exception to this rule is where the employer
cle 270 of the Labor Code
petition for certification election pursuant to Arti
ectively; such exception does not
because it was requested to bargain coll apply

in this case.

14
 XI

Dion is an Accounting Supervisor in a trading company. He has rendered

exemplary service to the company for 20 years. His co-employee and kumpadre,
Mac, called him over the phone and requested him to punch his (Mac's) daily time
card as he (Mac) was caught in a monstrous traffic jam. Dion acceded to Mac's
request but was later caught by the Personnel Manager while punching. Mac's
time card. The company terminated the employment of Dion on the ground of
misconduct. Is the dismissal valid and just? Explain. (5%)

SUGGESTED ANSWER:

Yes. The ground sustaining the dismissal of Dion is serious

misconduct. The act of Dion in giving in to Mac's request to punch the

latter's daily time card is loth a wrongful conduct, grave in character and not

merely trivial or unimportant. The subject act involves dishonesty, and the

same portrays Dion's moral obliquity to make it appear that Mac was

working when actually he is not. The fact that he has rendered 20 years of

service aggravates his sitnation because, by the length of his service, he

should be well-aware that Mac must personally punch his daily time card.

ALTERNATIVE ANSWER:
No. Applying both 1he Proportionality Rule and the 1st offense rule,

dismissal was too harsh a consequence for the actions of Dion. Absent a

showing that the action amounted to serious misconduct, his length of

service may be taken as a mitigating factor in the penalty to be imposed

against him.

XII

Amaya was employed as a staff nurse by St. Francis Hospital (SFH) on July
8, 2014 on a probationary status for six (6) months. Her probationary contract
required, among others, strict compliance with SFH's Code of Discipline.

On October 16, 2014, Dr. Ligaya,, filed a Complaint with the SFH Board of
Trustees against Amaya for uttering slanderous remarks against the former.
tient, who
Attached to the complaint was a letter of Minda, mother of a pa
confirmed the following remarks against Dr. Ligaya:

"Bakit si Dr. Ligaya pa ang napili mong pedia ' eh ang

Alam mo
tanda- tanda na n'un? E makakalimutin na yun x x x ba,
apa-isolate
kahit wala namang diperensya yung baby, ipin nya?"

15
 The SFH President asks you, being the hospital's counsel, which of these two
(2) options is the legal and proper way of terminating Amaya: a) terminate her for
a just cause under Article 288 of the Labor Code (Termination by
Employer); or b) terminate her for violating her probationary contract. Explain.
(5%)

ALTERNATIVE ANSWER:

I will advise the President of SFH to terminate Amaya for violating her
probationary contract. Part and parcel of the standards of her
employment is to strictly follow the Code of Conduct of SFH. The act of
defaming Dr. Ligaya is certainly a misdemeanor that is usually not
acceptable in any work environment. With such attitude Amaya displayed, she
cannot pass the company standard of SFH.

I will not suggest the dismissal of Amaya under Article 297. Though she
displayed misconduct, the same is not work-related, as spreading a rumor
against a Doctor does not go into the duties and responsibilities of a staff nurse.

ALTERNATIVE ANSWER:
I will advise the President of SFH to terminate Amaya for a just cause

under Art. 297 of the Labor Code in relation to Art. 296. The Labor Code

assigns a separate provision, Article 296, and provides a different set of

grounds for the dismissal of probationary employees, to wit:

ART. 296. PROBATIONARY EMPLOYMENT

Probationary employment shall not exceed six (6) months from the date

the employee started working, unless it is covered by an apprenticeship

agreement stipulating a longer period. The services of an employee who has

been engaged on a probationary basis may be terminated for a just cause or

when he fails to qualify as a regular employee in accordance with reasonable

standards made known by the employer to the employee at the time of his
engagement. An employee who is allowed to work after a probationary

period shall be considered a regular employee.

The law does not preclude the employer from term inating the
that the probationary
probationary employment, if the employer finds

16
employee is not qualified for regular employment. As long as the
termination was made for reasons provided under Article 296 of the Labor
Code before the expiration of the six-month probationary period, the
employer is well within its rights to sever the employer-employee
relationship (Pasamba v. NLRC, G.R. No. 168421, 8 June 2007).

XIII

Matibay Shoe and Repair Store, as added service to its customers, devoted a
portion of its store to a shoe shine stand. The shoe shine boys were tested for their
skill before being allowed to work and given ID cards. They were told to be present
from the opening of the store up to closing time and were required to follow the
company rules on cleanliness and decorum. They bought their own shoe shine
boxes, polish, and rags. The boys were paid by their customers for their services
but the payment is coursed through the store's cashier, who pays them before
closing time. They were not supervised in their work by any managerial
employee of the store but for a valid complaint by a customer or for violation of any
company rule, they can be refused admission to the store. Were the boys employees
of the store? Explain. (5%)

SUGGESTED ANSWER:
Yes. The elements to determine the existence of an employment
relationship are: (a) the selection and engagement of the employee; (b) the

payment of wages; (c) the employer's power to control the employee's

conduct; and (d) the power of dismissal.

The first element is present, as Matibay Shoe allowed shoe shine boys in its
shoe shine stand to render services that are desirable in the line of business
of Matibay Shoe. In issuing ID's to the shoe shine boys, the same signifies that
they can represent themselves as part of the work force of Matibay Shoe.

The second element is also present. Requiring the customers to pay

through the Matibay Shoe's cashier signifies that their services were not
engaged by the customers. Equally important, it was Matibay Shoe which gave
the shoe shine boys their daily wage.

The third element is satisfied. Requiring the shoe shine boys to be

company rules
present from store opening until store closing and to follow on
t conduct their activity
cleanliness and decorum shows that they canno

17
anywhere else but inside the store of Matibay Shoe, hence, their means and
methods of accomplishing the desired services for the customers of Matibay Shoe
was controlled by it.

Lastly, the fourth element is made apparent when Matibay Shoe

barred the shoe shine boys from continuing with their work-related activity
inside its establishment.

ALTERNATIVE ANSWER:

No. The elements to determine the existence of an employment

relationship are: (a) the selection and engagement of the employee; (b) the
payment of wages; (c) the employer's power to control the employee's
conduct; and (d) the power of dismissal.

The first element is absent. The mere issuance of an ID to the boys is not

conclusive of the power of selection of Matibay Shoe. They may be given IDs

merely as a security measure for the establishment.

Furthermore, using the control test, the boys have exclusive power
over the means and method by which the shoe shining activity is to be
conducted.

XIV

Tess, a seamstress at Marikit Clothing Factory, became pregnant. Because of

morning sickness, she frequently absented herself from work and often came to the
factory only four (4) days a week. After two (2) months, the personnel manager
told her that her habitual absences rendered her practically useless to the company
and, thus, asked her to resign. She begged to be retained, citing her pregnancy as
reason for her absences. Tess asked for leave of absence but her request was
denied. She went on leave nevertheless. As a result, she was thus dismissed for
going on leave without permission of management.

Tess filed a complaint for illegal dismissal. The company's defense: she
was legally dismissed because of her numerous absences without leave and not

because of her pregnancy. On the other hand, Tess argues that her dismissal was an
act of discrimination, based as it was on her pregnancy which the company treated
Tess'?
as a disease. Whose position is meritorious-the company's or Explain.
(5%)

18
SUGGESTED ANSWER'

The position of Tess is meritorious because the dismissal was based on the
alleged failure of Tess to file a leave of absence. She filed the said leave but was
denied by Mariit Clothing Factory. Under the present law, a pregnant
worker is entitled to go on maternity leave. She asked for leave of absence only
to be denied and yet she was terminated for absence without leave. This is an
act that flagrantly violates Tess' right which translates to discrimination.

However, I do not agree with Tess' contention that her pregnancy was

treated as a form of disease. There is nothing to support this contention.

ALTERNATIVE ANSWER:

The position of Tess is meritorious. Art. 133 (2) of the Labor Code

provides that it shall he Unlawful for any employer to discharge a woman

on account of her pregnaucy, or while on leave or in confinement due to her

pregnancy. In the case at hand, the dismissal of Tess was clearly on account of
her absences related to her pregnancy.

XV

Jim is the holder of a certificate of public convenience for a jeepney. He

entered into a contract of lease with Nick, whereby they agreed that the lease
period is for one (1) year unless sooner terminated by Jim for any of the causes laid
down in the contract. The rental is thirty thousand pesos (P30,000.00) monthly.
All the expenses for the repair ofthe jeepney, together with expenses for diesel, oil
and service, shall be for the account of Nick. Nick is required to make a deposit of
three (3) months to answer for the restoration of the vehicle to its good operating
condition when the contract ends. It is stipulated that Nick is not an employee of Jim
and he holds the latter free and harmless from all suits or claims which may arise
from the implementation of the contract. Nick has the right to use the jeepney at
any hour of the day provided it is operated on the approved line o f operation.

After five (5) months of the lease and payment of the rentals, Nick
as
became delinquent in the payment of the rentals for two (2) months. Jim,
tract and
authorized by the contract, sent a letter of demand rescinding the con
the NLRC
asked for the arrearages. Nick responded by filing a complaint with

19
for illegal dismissal, claiming that the contract is illegal and he was just forced by
Jim to sign it so he can drive. He claims he is really a driver of Jim on a
boundary system and the reason he was removed is because he failed to pay the
complete daily boundary of one thousand (P1,000.00) for 2 months due to the
increase in the number of tricycles.

[a] Jim files a motion to dismiss the NLRC case on the ground that the
regular court has jurisdiction since the agreement is a lease contract. Rule on the
motion and explain. (2.5%)

SUGGESTED ANSWER:
Jim's Motion to Dismiss must be denied. Although Jim and Nick

called their contract as a lease, it is actually a contract of employment, and the

rentals that Nick must pay to Jim is actually a boundary. Martinez v.

National Labor Relations Commission,(G.R. No. 117495, May 29,1997),

teaches that jeepney owners/operators exercise control over jeepney drivers.

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 does not

affect the existence of employer-employee relationship. Nick was engaged by

Jim to perform activities which were usually necessary or desirable to the

business or trade of Jim which makes him the employer of Nick.

[b] Assuming that Nick is an employee of Jim, was Nick validly

dismissed?

SUGGESTED ANSWER:
Yes. For failing to remit five (5) months worth of boundary, Nick

apparently committed fraud against Jim. In Cosmos Bottling Corporation v.

Fermin, G.R. No. 193676 and Fermin v. Cosmos Bottling Corporation, (G.R. No.
194303, 20 June 2012), it was ruled that theft committed against a co-
employee is considered as a case analogous to serious misconduct, for which the
the erring
penalty of dismissal from service may be meted out to employee.

XVI

t of benefits, with prayer for

In a case for illegal dismissal and non-paymen
1) P200,000.00 as back.wages; 2)
Damages•, Apollo was awarded the following:
0 as unpaid holiday pay; 4) PS,000.00
P80,000.00 as unpaid wages; 3) P20,000.0

20
as unpaid service incentive leave pay; 5) P50,000.00 as moral damages; and 6)
P10,000.00 as exemplary damages. Attorney's fees of ten percent (10%) of all the
amounts covered by items 1 to 6 inclusive, plus interests of 6% per annum from the
date the same were unlawfully withheld, were also awarded.

[a] Robbie, the employer, contests the award of attorney fees

amounting to 10% on all the amounts adjudged on the ground that Article 111 of the
Labor Code authorizes only 10% "of the amount of wages recovered". Rule on the
issue and explain. (2.5%)

SUGGESTED ANSWER:

The attorney's fees should be granted to Robbie. There are two

commonly accepted concepts of attorney's fees the so-called ordinary and

extraordinary. In its ordinary concept, an attorney's fee is the reasonable

compensation paid to a lawyer by his client for the legal services he has

rendered to the latter. The basis of this compensation is the fact of his

employment by and his agreement with the client. In its extraordinary

concept, attorney's fees are deemed indemnity for damages ordered by the

court to be paid by the losing party in a litigation. The instances where

these may be awarded are those enumerated in Article 2208 of the Civil

Code, specifically par. 7 thereof which pertains to actions for recovery of

wages, and is payable not to the lawyer but to the client, unless they have

agreed that the award shall pertain to the lawyer as additional

compensation or as part thereof. The extraordinary concept of attorneys

fees is the one contemplated in Article 111 of the Labor Code, which

provides:

"Art. 111. Attorneys fees. (a) In cases of unlawful

withholding of wages, the culpable party may be assessed

attorneys fees equivalent to ten percent of the amount of

wages recovered x x x"

Article 111 is an exception to the declared policy of strict construction in

the awarding of attorneys fees. Although an express finding of facts and law is
be any
still necessary to prove the merit of the award, there need not showing
n bad faith when it
that the employer acted maliciously or i withheld the
ing that the lawful wages
wages. There need only be a show were not paid

accordingly, as in this case.

21
 In carrying out and interpreting the Labor Code's provisions and its

implementing regulations, the employees' welfare should be the primordial

and paramount consideration. This kind of interpretation gives meaning

and substance to the liberal and compassionate spirit of the law as provided in

Article 4 of the Labor Code which states that all doubts in the

implementation and interpretation of the provisions of the Labor Code,

including its implementing rules and regulations, shall be resolved in favor of
labor, and Article 1702 of the Civil Code which provides that in case of doubt,
all labor legislation and all labor contracts shall be construed in favor of
the safety and decent living for the laborer (PCL Shipping Philippines, Inc.
v. NLRC, G.R. No. 153031, [December 14, 2006]).

[b] Robbie likewise questions the imposition of interests on the amounts in

question because it was not claimed by Apollo, and the Civil Code provision on
interests does not apply to a labor case. Rule on the issue and explain. (2.5%)

SUGGESTED ANSWER:
It is now well-settled that generally, legal interest may be imposed

upon any unpaid wages, salary differential, merit increases, productivity

bonuses, separation pay, backwages on other monetary claims and benefits

awarded illegally dismissed employees. Its grant, however, remains

discretionary upon the courts (Conrado A. Lim v. HMR Philippines G.R. No.

189871, August 13, 2013). Legal interest was imposed on all the monetary

awards by the SC in the case of Bani Rural Bank v. De Guzman (G.R. No. 170904

November 13, 2013). The Court therein declared that imposition of legal

interest in any final and executory judgment does not violate the

immutability principle. The court ruled that once a decision in a labor case
becomes final, it becomes a judgment for money from which another

consequence flows - the payment of interest in case of delay.

XVII

on Dencio's
Baldo, a farm worker on pakyaw basis, had been working land
a, and clearing weeds
by harvesting abaca and coconut, processing copr from year
to year starting January 1993 up to his death in 2007. He worked continuously in
the sense that it was done for more than one harvesting season.

22
 [a] Was Dencio required to report Baldo for compulsory social security
coverage under the SSS law? Explain. (2.5%)

SUGGESTED ANSWERS:

Dencio is required to report Baldo for compulsory social security

coverage under the SSS Law. From the facts mentioned, Baldo is clearly an
employee of Dencio. Considering the length of time that Baldo has worked with
Dencio, it may be justifiably concluded that he is engaged to perform activities
necessary or desirable in the usual trade or business of Dencio and is therefore a
regular employee. Length of service was used by the Supreme Court in the case of
Brotherhood Labor Unity Movement of the Philippines v.
Zamora, (G.R. No. 485451 January 7, 1987), to pronounce that the
individual involved is a regular employee. Baldo, is thus, not a casual or
temporary employee, exempted from the coverage of the SSS Law.

[b] What are the liabilities of the employer who fails to report his
employee for social security coverage? Explain. (2.5%)

SUGGESTED ANSWER:

The employer is subject to the following liabilities: It shall pay to the SSS

damages equivalent to the benefit which the employee would have been entitled

had his name been reported on time to the SSS, except that in case of pension

benefits, the employer shall be liable to pay the SSS damages equivalent to

five years monthly pension; however, if the contingency occurs within thirty

(30) days from date of employment, the employer shall be relieved of his liability

for damages (Sec. 24 (a), R.A. 1161, as amended). It shall pay the corresponding

unremitted contributions and penalties thereon (Sec.24 (b), R.A. 1161, as

amended).

XVIII

ion
Empire Brands (Empire) contracted the services of Style Corporat
hing line. Under the contract,
(Style) for the marketing and promotion of its clot
dising Representatives (TMRs)
Style provided Empire with Trade Merchan
04 and ended on June 6, 2007, when
whose services began on September 15, 20
ith Style.
Empire terminated the promotions contract w

23
 Empire then entered into an agreement for manpower supply with Wave
Human Resources (Wave). Wave owns its condo office, owns equipment for the use
by the TMRs, and has assets amounting to P1,000,000.00. Wave provided the
supervisors who supervised the TMRs, who, in turn, received orders from the
Marketing Director of Empire. In their agreement, the parties stipulated that Wave
shall be liable for the wages and salaries of its employees or workers, including
benefits, and protection due them, as well as remittance to the proper government
entities of all withholding taxes, Social Security Service, and Philhealth
premiums, in accordance with relevant laws.

As the TMRs wanted to continue working at Empire, they submitted job

applications as TMRs with Wave. Consequently, Wave hired them for a term of five
(5) months, or from June 7, 2007 to November 6, 2007, specifically to promote
Empire's products.

When the TMRs' 5-month contracts with Wave were about to expire, they
sought renewal thereof, but were refused. Their contracts with Wave were no
longer renewed as Empire hired another agency. This prompted them to file
complaints for illegal dismissal, regularization, non-payment of service incentive
leave and 13th month pay against Empire and Wave.

[a] Are the TMRs employees of Empire? (2.5%)

SUGGESTED ANSWER:'

Yes. From the time Empire contracted the services of Style, both

engaged in labor-only contracting. In BPI Employees Union-Davao City-

FUBU v. BPI, (G.R. No. 174912, July 24, 2013), it was ruled that where any of the

following elements is present, there is labor-only contracting:

(1) The contractor or subcontractor does not have substantial

capital or investment which relates to the job, work or service to be

performed and 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; or

the
(2) The contractor, does not exercise the right to control over
loyee.
performance of the work of the contractual emp
o substantial capital
The first element is present herein, as Style has n or
of services contracted out by
investment in engaging in the supply Empire
e marketing and promotion of its
which is directly related to th

24
clothing line. The second element is present as it is inevitable for Empire to
direct the activities of the TMRs to properly market and promote its
product line. The subsequent contract of Empire with Wave did not affect the
regular employment of the TMRs with Empire as, through the Marketing
Director of Empire, the TMRs were under the control of Empire. Thus, the
five-month employment contract entered into by the TMRs with Wave did not
divest them of their regular employment status with Empire. In addition, such
scheme undermined the security of tenure of the TMRs which is
constitutionally guaranteed, hence, the contract of the TMRs with Wave is void
ad initio.

[b] Were the TMRs illegally dismissed by Wave? (2.5%)

SUGGESTED ANSWER:

No. As the TMRs are employees of Empire, Wave did not have the

power of dismissal; thus, even if Wave dismissed the TMRs the same has no

consequence.

XIX

Filmore Corporation was ordered to pay P49 million to its employees by the
Labor Arbiter. It interposed an appeal by filing a Notice of Appeal and paid the
corresponding appeal fee. However, instead of filing the required appeal bond
equivalent to the total amount of the monetary award, Filmore filed a Motion to
Reduce the Appeal Bond to P4,000,000.00 but submitted a surety bond in the
amount of P4.9 million. Filmore cited financial difficulties as

justification for its inability to post the appeal bond in full owing to the
g
shutdown of its operations. It submitted its audited financial statements showin a
e also
loss of P40 million in the previous year. To show its good faith, Filmor filed
its Memorandum of Appeal.
he ground that
The NLRC dismissed the appeal for non-perfection on t
y award is indispensable for
posting of an appeal bond equivalent to the monetar the
f the appeal bond, absent any
perfection of the appeal and the reduction o showing
e, is not warranted. Is the
of meritorious ground to justify the sam dismissal of the
appeal correct? Explain. (5%)

25
SUGGESTED ANSWER:

No. In McBurnie v. Ganzon, (G.R. Nos. 178034, 186984-85, October

17,
2013), NLRC made a serious error in denying outright the motion to
reduce the bond. Once the motion to reduce the appeal bond is
accompanied by at least 10% of the monetary awards, excluding damages and
attorney's fees, the same shall provisionally be deemed the reasonable amount
of the bond in the meantime that an appellant's motion is pending resolution
by the Commission. Only after the posting of a bond in the required
percentage shall an appellant's period to perfect an appeal under the NLRC
Rules be deemed suspended. The NLRC must resolve the motion and
determine the final amount of bond that shall be posted by the appellant, still
in accordance with the standards of meritorious grounds and reasonable
amount. Should the NLRC later determine that a greater amount or the full
amount of the bond needs to be posted by the appellant, then the party shall
comply accordingly. The appellant has ten (10) days from notice of the
NLRC order to perfect the appeal by posting the required appeal bond.

XX

Mario Brothers, plumbing works contractor, entered into an agreement with

Axis Business Corporation (Axis) for the plumbing works of its building under
construction. Mario Brothers engaged the services of Tristan, Arthur, and Jojo as
plumber, pipe fitter, and threader, respectively. These workers have worked for
Mario Brothers in numerous construction projects in the past but because of their
long relationship, they were never asked to sign contracts for each project. No
reports to government agencies were made regarding their work in the company.
al
During the implementation of the works contract, Axis suffered financi
difficulties and was not able to pay Mario Brothers its past billings . As a result, the
months and their
three (3) employees were not paid their salaries for two (2) 13th
ancelled the contract
month pay. Because Axis cannot pay, Mario Brothers c and laid
es sued Mario Brothers and
off Tristan, Arthur, and Jojo. The 3 employe Axis for
fits.
illegal dismissal, unpaid wages, and bene

26
 [a] Mario Brothers claims the 3 workers are project employees. It
explains that the agreement is, if the works contract is cancelled due to the fault of
the client, the period of employment is automatically terminated. Is the
contractor correct? Explain. (2.5%)

SUGGESTED ANSWER:

No. In GMA Network, Inc v. Pabriga, (G.R. No. 176419, November 27, 2013,
the requirements to qualify an employment as project-based was set as follows:
1) employers claiming that their workers are project employees

should not only prove that the duration and scope of the employment was

specified at the time they were engaged, but also that there was indeed a

project; and

2) the termination of the project must be reported by the

employer to the DOLE Regional Office having jurisdiction over the

workplace within the period prescribed, and failure to do so militates

against the employer's claim of project employment. This is true even

outside the construction industry.

Mario Brothers failed to comply with both requirements; hence,

Tristan, Arthur and Jojo are its regular employees. The cancellation of its

contract with Axis did not result to the termination of employment of

Tristan, Arthur and Jojo.

[b] Can Axis be made solidarily liable with Mario Brothers to pay the
unpaid wages and 13th month pay o f Tristan, Arthur, and Jojo? Explain. (2 .5%)

SUGGESTED ANSWER:
io Brothers.
Yes, Axis can be made solidarily liable with Mar
ntractors for the wages and
Principals are solidarily liable with their co
rkers.
other money benefits of their contractors' wo

- oOo -

27
SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATIONS LABOR AND SOCIAL
LEGISLATION by Atty. Voltaire Duano

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)

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.

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

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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])

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.

B.

As a rule, direct hiring of migrant workers is not allowed. What are the exceptions?
Explain your answer. (2.5%)

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LEGISLATION by Atty. Voltaire Duano

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.

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.

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)

(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%)

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LEGISLATION by Atty. Voltaire Duano

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)

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);

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LEGISLATION by Atty. Voltaire Duano

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).

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.

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LEGISLATION by Atty. Voltaire 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.

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.

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

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LEGISLATION by Atty. Voltaire Duano

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.

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
employer’s business for a continuous period of more than one year. Is Marciano’s claim
tenable? Explain.

SUGGESTED ANSWER:

Marciano’s 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

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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

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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])

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 contractor’s employees for a
limited purpose, that is, to ensure that the employees are paid their wages. Other than the

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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.

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)

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:

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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 employee’s last
known address. (Section 5, 5.1, Rule I-A, D.O. No. 147-15, Series of 2015)

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

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the intervention by the Department. (Rule I, Section 1, Book V, Rules to Implement the Labor
Code)

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 Corporation’s by-law.
Is the argument of Marcel correct? Explain your answer. (2.5%)

SUGGESTED ANSWER:

Marcel’s 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.

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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)

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
Juanito’s 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:

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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.

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.

(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.

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

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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 Employee’s 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 employee’s 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 employee’s 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.

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

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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)

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.

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.

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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 country’s 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)

(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 Certification 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)

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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)

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