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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

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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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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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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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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

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

GENERAL PRINCIPLES of labor to its just share in the fruits of


production and the right of enterprises to
Constitutional Provisions on Labor (1998)
What are the salient features of the protection to reasonable returns on investments, and to
labor provision of the Constitution? [5%] expansion and growth.
SUGGESTED ANSWER:
The salient features of the Protection to Labor Interpretation of Labor Laws (1998)
provision of the Constitution (Article XIII. Section 3) 3. Article 4 of the Labor Code provides that in case
are as follows: of doubt in the implementation and interpretation of
1. Extent of Protection - Full protection to labor; the provisions of the Code and its Implementing
2. Coverage of Protection - Local and overseas, Rules and Regulations, the doubt shall be resolved
organized and unorganized; in favor of labor. Article 1702 of the Civil Code also
3. Employment Policy - Full employment and provides that in case of doubt, all labor legislation
equality of employment opportunities for all; and all labor contracts shall be construed in favor
4. Guarantees of the safety and decent living for the laborer.
4.1. Unionism and Method of Determination
Conditions of Employment - Right of all Mica-Mara company assails the validity of these
workers to self-organization, collective statutes on the ground that they violate its
bargaining and negotiations. constitutional right to equal protection of the laws.
4.2. Concerted Activities - Right to engage in Is the contention of Mica Mara Company tenable?
peaceful concerted activities, including the Discuss fully
right to strike in accordance with law. SUGGESTED ANSWER:
4.3. Working Conditions - Right to security of No, the Constitution provides that the state shall
tenure, humane conditions of work and a living afford full protection to labor. Furthermore, the
wage. State affirms labor as a primary economic force. It
4.4. Decision Making Processes - Right to shall protect the rights of workers and promote
participate hi policy and decision making their welfare.
processes affecting their rights and benefits as ALTERNATIVE ANSWER:
way to provided by law. a) No, because a law which promotes a
constitutional mandate does not violate the equal
5. Share in Fruits of production - Recognition of protection clause. The constitutional mandate is
right of labor to its just share in fruits of for the State to afford full protection to labor such
production. that, when conflicting interests of labor and capital
ANOTHER SUGGESTED ANSWER: are to be weighed on the scales of justice, the
o The Constitution (In Article XIII, Section 3) heavier influence of the latter should be counter-
provides that the State shall afford protection balanced by the sympathy the law should accord
to labor, local and overseas, organized and the underprivileged.
unorganized.
o The State shall afford protection to labor by b) The contention of Mica-Mara Company is not
promoting full employment and equality of tenable. The constitutional right to equal protection
employment opportunities for all. of the laws is not violated by reasonable
o Workers are entitled to security of tenure, classification. Thus, it is constitutionally possible to
humane conditions of work and a living wage. treat workers differently from employers.
o The State shall guarantee the right of all
workers to self organization, collective The social justice principle embodied in the
bargaining and negotiations, and peaceful Constitution could be the basis for treating workers
concerted activities, including the right to more favorably than employers, in the
strike, in accordance with law. implementation and interpretation of the provisions
o Workers shall also participate in policy and of the Labor Code and of its implementing rules
decision making processes affecting their and regulations.
rights and benefits as may be provided by law.
o The State shall promote the principle of shared Interpretation of Labor Laws; Liberal
responsibility between workers and employers Approach (2006)
and the preferential use of voluntary modes in What is the concept of liberal approach in
settling labor disputes, including conciliation, interpreting the Labor Code and its Implementing
and shall enforce mutual compliance therewith Rules and Regulations in favor of labor? (2.5%)
to foster industrial peace. SUGGESTED ANSWER:
o The State shall regulate the relations between The workers' welfare should be the paramount
workers and employers, recognizing the right consideration in interpreting the Labor Code and
its Implementing Rules and Regulations. This is
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LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
rooted in the Constitutional mandate to afford full SUGGESTED ANSWER:
protection to labor. Article 4 of the Labor Code LABOR RELATIONS law focuses its provisions on
provides that "all doubts in the implementation and the collective aspects of employer-employee
interpretation of the provisions of the Labor Code relationship. Its legal provisions deal with
including its implementing rules and regulations employees organizing unions and how through
shall be resolved in favor of labor" (PLOT v. NLRC, these unions, employees are able to have
G.R No. 111933, July 23,1997). It underscores the collective bargaining with their employer.
policy of social justice to accommodate the
interests of the working class on the humane On the other hand, LABOR STANDARDS law
justification that those who have less in life shall focuses on the terms and conditions of
have more in law (PAL v. Santos, G.R. No. 77875, employment of employees as individual employees
February 4, 1993). or those legal provisions dealing with wages, hours
of work and other terms and conditions of
Labor Legislations; Purpose (2006) employment.
What is the purpose of labor legislation? (2.5%)
SUGGESTED ANSWER: There may be instances when the provisions of
Labor legislation is an exercise of police power. labor relations law may interrelate with provisions
The purpose of labor legislation is to regulate the of labor standards law. Thus, a CBA which is dealt
relations between employers and employees with in labor relations law may have provisions that
respecting the terms and conditions of improves upon the minimum terms and conditions
employment, either by providing for certain of employment prescribed in labor standards law,
standards or for a legal framework within which like a CBA providing for a higher minimum wage,
better terms and conditions of work could be or for the computation of a higher overtime pay or
negotiated through collective bargaining. It is the payment of holiday pay not only for regular
intended to correct the injustices inherent in holidays but also for certain special holidays.
employer-employee relationship.
Labor Statutes; Classification (1995 No. 1:)
Labor Standard vs. Labor Relation (1997) 1. What are the three (3) general classifications of
Differentiate labor standards law from labor labor statutes? Describe and give an example of
relations law. Are the two mutually exclusive? each classification.
SUGGESTED ANSWER: SUGGESTED ANSWER:
LABOR STANDARDS law is that labor law which The three (3) general classifications of labor
prescribes terms and conditions of employment statutes are:
like Book in Book IV, Title I and Book VI of the a) Labor Relations Laws;
Labor Code. These Books of the Labor Code deal b) Labor Standards Laws; and
with working conditions, wages, working conditions c) Social Security Laws.
for women, minors, househelpers and home-
workers, medical and dental services, occupational LABOR RELATIONS Laws are those labor statutes
health and safety, termination and retirement. that deal with the relations of labor and
management, like the laws on unions, collective
On the other hand, LABOR RELATIONS law is that bargaining, unfair labor practices, strikes, lockouts
labor law which regulates the relations between and picketing.
employers and workers like Book V of the Labor
Code which deals with labor organizations, LABOR STANDARDS are those labor statutes that
collective bargaining, unfair labor practices and prescribe standards relating to terms and
strikes and lockouts. conditions of employment for compliance by
employers, like the laws on hours of work, weekly
Labor standards laws and labor relations laws are rest periods, holiday pay, wages, and laws dealing
not mutually exclusive; they are complement to with women, minors, house-helpers, and industrial
each other. Thus, the law on strikes and lockouts home-workers.
which is an example of labor relations law includes
some provisions on the security of tenure of SOCIAL SECURITY Laws are those labor statutes
workers who go on strike or who are locked out. that provide protection not only to a worker but also
These provisions are examples of labor standards to members of his family in case of loss of income
law. or when there is need for medical care brought
about by contingencies like sickness, disability,
Labor Standard vs. Labor Relation (2003) death, and old age. Examples of social security
How do the provisions of the law on labor relations laws are the Social Security Law, Revised
interrelate, if at all, with the provisions pertaining to Government Service Insurance Act, the Articles of
labor standards? 5% the Labor Code on Employees Compensation, the
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State Insurance Fund, and the National Health laws are social legislation, but not all social
Insurance Act. legislation is labor law.

Labor Statutes; Principle of Solutio Indebiti; Labor; as Property Right (2006)


Not Applicable (1994) What property right is conferred upon an employee
Concepcion Textile Co. included the overtime pay, once there is an employer-employee relationship?
night-shift differential pay, and the like in the Discuss briefly. (5%)
computation of its employees' 13th-month pay. SUGGESTED ANSWER:
Subsequently, with the promulgation of the His employment is not merely a contractual
decision of the Supreme Court in the case of San relationship. One's employment is a property right
Miguel Corporation vs. Inciong (103 SCRA 139) within the mantle of constitutional protection
holding that these other monetary claims should (Callanta v. Carnation Phil., No. L-70615, October
not be included in the computation of the 13th- 28, 1986). Hence, the employee enjoys security of
month pay, Concepcion Textile Co. sought to tenure and he cannot be dismissed except for
recover under the principle of solutio indebiti its cause and only after due process. The worker is
overpayment of its employees' 13th-month pay, by thus protected and insulated against any arbitrary
debiting against future 13th-month payments deprivation of his job (Philips Semi Conductors
whatever excess amounts it had previously made. [Phils.] v. Fadriquela, G.R. No. 141717, April 14,
1) Is the Company's action tenable? 2004).
SUGGESTED ANSWER:
1) The Company's action is not tenable. The Rights of Employer/Employee (1996)
principle of salutio indebiti which is a civil law 2) What are the rights of an employer and an
concept is not applicable in labor law. Thus, solutio employee?
indebiti is not applicable to the instant case, SUGGESTED ANSWER:
(Davao Fruits Corporations vs. National Labor The Constitution in Art. XIII, Section 3 provides for
Relations Commission, et at. 225 SCRA 562) the following rights of employers and employees:
ALTERNATIVE ANSWERS: A. Employers Right to a reasonable return on
a) The Company's action would be tenable if investments, and to expansion and growth.
payment was done by mistake, In which case 1. To a just share in the fruits of production;
recovery can be done under the principle of solutio 2. Right to self organization, collective bargaining
indebiti. But if there was no mistake, the and negotiations and peaceful concerted
Company's action would be untenable because it activities, including the right to strike in
would violate Article 100 of the Labor Code which accordance with law;
prohibits elimination or diminution of benefits. 3. To security of tenure, humane conditions of
work, and a living wage; and
Labor vs. Social Legislation 4. To participate in policy and decision-making
2. Is there any distinction between labor legislation processes affecting their rights and benefits as
and social legislation? Explain. may be provided by law,
SUGGESTED ANSWER: ALTERNATIVE ANSWER:
LABOR LEGISLATION is sometimes distinguished In an employer-employee relationship, it is the right
from social legislation by the former referring to of the employer to use the services of an employee
labor statutes, like Labor Relations Law and Labor who is under his (employer's) orders as regards
Standards, and the latter to Social Security Laws. the employment. On the other hand, it is the right
Labor legislation focuses on the rights of the of the employee to receive compensation for the
worker in the workplace. services he renders for the employer.

SOCIAL LEGISLATION is a broad term and may Rights of the Employer; Management
include not only laws that give social security Prerogative (2000)
protection, but also those that help the worker a) An exclusive school for girls, run by a religious
secure housing and basic necessities. The order, has a policy of not employing unwed
Comprehensive Agrarian Reform law could also be mothers, women with live-in partners, and
considered a social legislation. lesbians. Is the policy violative of any provision of
the Labor Code on employment of women? (3%)
ALTERNATIVE ANSWER:
Yes. Labor Legislation is limited in scope, and b) The same school dismissed two female faculty
deals basically with the rights and duties of members on account of pregnancy out of wedlock.
employees and employers. Social Legislation is Did the school violate any provision of the Labor
more encompassing and includes such subjects as Code on employment of women? (3%)
agrarian relations, housing and human settlement, SUGGESTED ANSWER:
protection of women and children, etc. All labor
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a) No, the policy does not violate the Labor (d) No, because this amounts to a diminution of
Code. The practice is a valid exercise of benefits which is prohibited by the Labor
management function. Considering the nature and Code;
reason for existence of the school, it may adopt (e) No, because it is a fringe benefit that has
such policy as will advance its laudable objectives. already ripened into a demandable right or
In fact, the policy accords with the constitutional entitlement. (10%)
precept of inculcating ethical and moral values in ALTERNATIVE ANSWER:
schools. The school policy does not discriminate (b) Yes, because it is suffering losses for the first
against women solely on account of sex (Art. 135, time;
Labor Code) nor are the acts prohibited under Art. (c) Yes, because this is a management
137 of the Labor Code. prerogative which is not due any legal or
ALTERNATIVE ANSWER: contractual obligation;
The school violated Art. 137 (2) of the Labor Code
which states that: "It shall be unlawful for any An employer cannot be forced to continue giving a
employer to discharge such woman on account of benefit, being given as a management prerogative,
pregnancy". The pregnancy here could obviously when it can no longer afford to pay for it. To hold
have resulted from love and such only lends otherwise, would be to penalize the employer for
substance to the saying that "the heart has his past generosity. (Producer's Bank of the
reasons of its own which reason does not know", a Philippines v. NLRC, G.R. No. 100701, March 28,
matter that cannot "be so casually equated with 2001)
immorality". [Chua-Qua v. Clave, 189 SCRA 117 ALTERNATIVE ANSWER:
(1990)]. (d) No, because this amounts to a diminution of
SUGGESTED ANSWER: benefits which is prohibited by the Labor Code;
b) No, because to tolerate pregnancy out of (e) No, because it is a fringe benefit that has
wedlock will be a blatant contradiction of the already ripened into a demandable right or
school's laudable mission which, as already stated, entitlement.
accords with high constitutional precepts.
A company practice favorable to employees had
This answer does not contradict the ruling in Chua- indeed been established and the payments made
Qua where the teacher merely fell in love with a pursuant thereto, ripened into benefits enjoyed by
bachelor student and the teacher, also single, did them. And any benefit and supplement being
not get pregnant out of wedlock. enjoyed by the employees cannot be reduced,
diminished, discontinued or eliminated by the
Rights of the Employer; Management employer by virtue of Article 100 of the Labor Code
Prerogative; Benefits; Unilaterally Given of the Philippines which prohibits the diminution or
(2005) elimination of the employer of the employees'
Little Hands Garment Company, an unorganized existing benefits. (Sevilla Trading Co. v. Semana,
manufacturer of children's apparel with around G.R. No. 152456, April 28, 2004)
1,000 workers, suffered losses for the first time in ALTERNATIVE ANSWER:
history when its US and European customers (b) Yes, because it is suffering losses for the first
shifted their huge orders to China and Bangladesh. time;
The management informed its employees that it (d) No, because this amounts to a diminution of
could no longer afford to provide transportation benefits which is prohibited by the Labor Code.
shuttle services. Consequently, it announced that a You cannot compel an employer to continue
normal fare would be charged depending on the paying the benefits if it is suffering from serious
distance traveled by the workers availing of the business losses. However, the benefit has already
service. ripened into an employer practice or policy, and
therefore it cannot be withdrawn without violating
Was the Little Hands Garments Company within its Article 100 of the Labor Code on non-diminution of
rights to withdraw this benefit which it had benefits.
unilaterally been providing to its employees?
Select the best answer(s) and briefly explain your Rights of the Employer; Management
reason(s) therefor. Prerogative; Contracting Out Services (1994)
(a) Yes, because it can withdraw a benefit that Harbor View Hotel has an existing Collective
is unilaterally given; Bargaining Agreement (CBA) with the union of
(b) Yes, because it is suffering losses for the rank-and-file employees consisting, among others,
first time; of bartenders, waiters, roomboys, housemen and
(c) Yes, because this is a management stewards. During the lifetime of the CBA, Harbor
prerogative which is not due any legal or View Hotel, for reasons of economy and efficiency,
contractual obligation; decided to abolish the position of housemen and
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stewards who do the cleaning of the hotel's public Rights of the Employer; Management
areas. Over the protest of the Union, the Hotel prerogatives (1994)
contracted out the aforementioned job to the City Bulacan Medical Hospital (BMH) entered into a
Service Janitorial Company, a bonafide Collective Bargaining Agreement (CBA) with its
independent contractor which has a substantial Union, wherein it is expressly stipulated in the
capital in the form of Janitorial tools, equipment, Management Prerogative Clause that BMH shall,
machineries and competent manpower. in the exercise of its management prerogatives,
Is the action of the Harbor View Hotel legal and have the sole and exclusive right to promulgate,
valid? amend and modify rules and regulations for the
SUGGESTED ANSWER: employees within the bargaining unit. A year after
The action of Harbor View Hotel is legal and valid. the contract was signed, BMH issued its Revised
The valid exercise of management prerogative, Rules and Regulations and furnished a copy
discretion and judgment encompasses all aspects thereof to the Union for dissemination to all
of employment, including the hiring, work employees covered by the CBA. The Union wrote
assignments, working methods, time, place and BMH demanding that the Revised Rules and
manner of work, tools to be used, processes to be Regulations be first discussed with them before its
followed, supervision of workers, working implementation. BMH refused. So, the Union filed
regulations, transfer of employees, work an action for unfair labor practice (ULP) against
supervision, lay-off of workers, and the discipline, BMH.
dismissal and recall of workers, except as provided 1. Is the Union correct?
for, or limited by special laws. 2. Assuming that the CBA was signed "or
executed before the 1987 Constitution was
Company policies and regulations are, unless ratified, would your answer to the preceding
shown to be gross oppressive or contrary to law, question be different?
generally binding and valid on the parties and must SUGGESTED ANSWER:
be complied with until finally revised or amended 1) The Union is correct. A provision in the
unilaterally or preferably through negotiation or by collective bargaining agreement concerning
competent authority. (San Miguel Corporation vs. management prerogatives, may not be interpreted
Reynaldo R. Ubaldo and Emmanuel Noel A. Cruz, as cession of the employees right to participate in
Chairman and Member respectively of the the deliberation of matters which may affect their
Voluntary Arbitration Panel, et al G.R No. 92859, 1 right and the formulation of policies relative thereto,
February 1993. J. Campos, Jr., 218 SCRA 293) such as the formulation of a code of discipline.
ALTERNATIVE ANSWER:
a) The action of the Harbor View Hotel is legal and A line must be drawn between management
valid. CONTRACTING OUT SERVICES or prerogatives regarding business operations per se
functions being performed by union members is and those which affect the rights of the employees,
not illegal per se. In fact, it is the prerogative of and in treating the latter, management should see
management to adopt cost-saving measures to to it that its employees are at least properly
ensure economy and efficiency. Contracting out informed of its decisions or modes of action.
services or functions being performed by Union
members becomes illegal only when it interferes The attainment of a harmonious labor-
with, restrains or coerces employees in the management relationship and the existing state
exercise of their right to self-organization. policy of enlightening workers concerning their
rights as employees demand no less than the
b) The action of Harbor View Hotel would, at first observance of transparency in managerial moves
glance, appear to be an unfair labor practice under affecting employees' rights. [Philippine Airlines,
Article 248(c), e.g.. "to contract out services or Inc. vs. National Labor Relations Commission, et
functions being performed by union members if al, G.R No. 85985, 13 August 1993. J. Melo. 225
such will interfere with, restrain or coerce SCRA 258, 301.)
employees in the exercise of their right to self- ALTERNATIVE ANSWER:
organization." a) The Union is correct. Workers have the right to
participate in policy and decision-making
Considering, however, that in the case at bar, there processes affecting their rights, benefits and
is no showing that the contracting out of services welfare. (Art. 255J.
would violate the employees right to self-
organization, it is submitted that the hotel's action b) Yes. The Union is correct in asking for
is a valid exercise of its management prerogatives discussion of the revised rules prior to their
and the right to make business judgments in effectivity. The reason is Art. XIII, Sec. 3 of the
accordance with law. 1987 Constitution, allowing workers the right to

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participate in policy and decision-making on circumstances. Not all labor cases will be
matters related to their welfare and benefits. automatically decided in favor of the worker.
Management has also rights which are entitled to
The Union's remedy however should not be to file recognition and protection; justice must be
a ULP case but to initiate a GRIEVANCE dispensed according to facts and law; and social
proceeding, and if unresolved, submit the matter to justice is not designed to destroy or oppress the
voluntary arbitration. employer.
ANOTHER SUGGESTED ANSWER:
SUGGESTED ANSWER: Social justice as a guiding principle in Labor Law
2) The answer would be the same even if the CBA can be implemented side by side with the equal
was signed or executed before the ratification of protection clause of the Constitution.
the 1987 Constitution because it has always been
the policy of the State to promote the In implementation of the principle of social justice,
enlightenment of workers concerning their rights the Constitution commands that the State shall
and obligations as employees. (Art. 211; PAL vs. afford protection to labor. Thus Labor Law may be
NLRC, GR 85985, August 13, 1993) pro-labor in the sense that labor is given certain
benefits not given to management. But this is not
Rule; Injunction in Labor Cases (2000) necessarily violative of the equal protection clause
Professor Juan dela Cruz, an author of the of the Constitution because said clause allows
textbook Commentaries on the Labor Code of the reasonable classification.
Philippines, citing an American case, wrote: It is
said that the prohibition against the issuance of a JURISDICTION
writ of Injunction in labor cases creates substantive CBA; Implementation & Interpretation (1995)
and not purely procedural law." Is there any How are cases arising from the Interpretation or
statutory basis for the statement/comment under implementation of collective bargaining
Philippine law? (5%) agreements handled and disposed?
SUGGESTED ANSWER: SUGGESTED ANSWER:
Yes. The statutory basis is Article 254 of the Labor Through the grievance machinery and if not
Code. It prohibits issuance of injunction, as a resolved by the grievance machinery, through
matter of policy, to resolve disputes except as voluntary arbitration.
otherwise provided in Articles 218 and 264 of the
Labor Code. [Caltex Filipino Managers and
Damages; Absence of E-E Relationship
Supervisors Association v. CZR, 44 SCRA 350
(1995)
(1972)]
Pablo Bagsakin. a law graduate who got tired of
taking the bar examinations after several
unsuccessful attempts, joined the Investigation
Social Justice as Guiding Principles in Labor Division of Warak Transport Company. From the
(2003) very beginning Pablo never liked his manager
May social justice as a guiding principle in labor because the latter always made fun of the former's
law be so used by the courts in sympathy with the accident reports. When Pablo's patience ran out he
working man if it collides with the equal protection walked up to his manager who was reviewing the
clause of the Constitution? Explain. 5% investigator's assignments and workload and
SUGGESTED ANSWER: boxed him until the latter collapsed. The incident
Yes. The State is bound under the Constitution to happened during office hours at the Investigation
afford full protection to Labor; and when conflicting Division in the presence of his co-employees.
interests collide and they are to be weighed on the Pablo was dismissed without any investigation and
scales of social justice, the law should accord more was no longer allowed to enter the company
sympathy and compassion to the less privileged premises.
workingman. (Fuentes v. NLRC. 266 SCRA 24 f
19971) However, it should be borne in mind that The manager filed a complaint for damages
social justice ceases to be an effective instrument against Pablo before the Pasig Regional Trial
for the "equalization of the social and economic Court (RTC). In turn, Pablo filed a case for illegal
forces" by the State when it is used to shield dismissal with the Labor Arbiter against the
wrongdoing. (Corazon Jamer v. NLRC. 278 SCRA manager and the transport company. Pablo asked
632 F1 99711 for reinstatement without loss of seniority rights
ANOTHER SUGGESTED ANSWER: with full back wages. Pablo also filed before the
No, social justice as a guiding principle in law may Pasig RTC a motion to dismiss the damage suit
not be used by the courts if it collides with the against him alleging that the Labor Arbiter before
equal protection clause of the Constitution. Social
justice is not a magic wand applicable in all
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whom the case for illegal dismissal was pending Labor Code. (Medina v. Castro-Bartolome, 116
had exclusive jurisdiction over both cases. SCRA 597)
Resolve the motion to dismiss. Discuss fully. ALTERNATIVE ANSWER:
SUGGESTED ANSWER: The Motion to dismiss should be granted.
The motion to dismiss filed by Pablo before the According to the Labor Code (in Article 217 (a) 4),
Pasig RTC should be denied. the Labor Arbiter has original and exclusive
jurisdiction to hear and decide, among others,
The damage suit filed by the manager against claims for actual, moral, exemplary and other
Pablo does not arise from employer-employee forms of damages arising from the employer-
relationship. While the case involves an employer employee relations.
and his employee. It is not the employer- employee The claim for damages in the case in question
relationship between the two that gives rise to the arose from the fact that the President of the
damage suit. Instead, it is based solely on an Company shouted invectives at Marlet Demetrio in
alleged tort which could give rise to a damage suit the presence of employees and visitors for a minor
under the Civil Code. Thus, the Labor Arbiter has infraction she committed. If the infraction has
no jurisdiction over the damage suit. something to do with her work, then, the claim for
damages could be considered as arising from
Damages; Not arising from the E-E Relations employer-employee relations. Thus, the claim is
(1999) under the exclusive jurisdiction of the Labor
FACTS: Mariet Demetrio was a clerk-typist in the Arbiter.
Office of the President of a multi-national
corporation. One day she was berated by the Dismissal; Int’l Agency (1994)
President of the company, the latter shouting In 1990, Vic Garcia was hired by the International
invectives at her in the presence of employees and Labor Organization (ILO) Office in Manila as a
visitors for a minor infraction she committed. Mariet bookkeeper for five years. On January 5. 1994, he
was reduced to tears out of shame and felt so was advised that his services were being
bitter about the incident that she filed a civil case terminated for loss of confidence. Garcia
for damages against the company president before questioned his dismissal by ILO-Manila as arbitrary
the regular courts. Soon thereafter, Mariet received and without benefit of due process.
a memorandum transferring her to the Office of the 1) If you were counsel for ILO, what defense/s
General Manager without demotion in rank or should you put up?
diminution in pay. Mariet refused to transfer. 2) If you were the Labor Arbiter, how would you
decide the case?
With respect to the civil suit for damages, the SUGGESTED ANSWER:
company lawyer filed a Motion to Dismiss for lack 1) The defense that I will put up will be to claim
of jurisdiction considering the existence of an that being an international agency, the ILO enjoys
employer-employee relationship and therefore, it is immunity, namely functional independence and
claimed that the case should have been filed freedom from control of the state in whose territory
before the Labor Arbiter. its office is located and is thus beyond the
2. Rule on the Motion to Dismiss. Should it be jurisdiction of the Labor Arbiter. (Southeast Asian
granted or denied? Explain briefly (3%). Fisheries Development Center - Aqua Culture
SUGGESTED ANSWER: Department, et al vs. National Labor Relations
The Motion to Dismiss should be denied. It is a Commission, et al G.R No, 86773, 14 February
regular court and not a Labor Arbiter that has 1992)
jurisdiction on the suit for damages.
2) If I were the Labor Arbiter. I will grant the
The damages are not arising from the employer- motion to dismiss. The ILO being an International
employee relations which would have placed the agency, the same is beyond the jurisdiction of the
suit under the jurisdiction of a Labor Arbiter. The Labor Arbiter and immune from the legal writs and
suit arises from the fact that the President of the processes of the administrative agencies of the
company shouted invectives at Marlet Demetrio in country, where it is found, for the reason that the
the presence of employees and visitors. Her subjection of such an organization to the authority
complaint for damages is against an officer of the of the local agencies would afford a convenient
Company based on slanderous language allegedly medium through which the host government may
made by the latter. This falls under the Jurisdiction interfere in its operations or even influence or
of the ordinary courts. There is here a simple control its policies and decisions, and besides,
action for damages for tortious acts allegedly such subjection to local jurisdiction would Impair
committed by the defendant. Such being the case, the capacity of such body to impartially discharge
the governing statute is the Civil Code and not the its responsibilities.

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Intra-corporate Matters/Officers (1996) 3. cases accompanied with a claim for
Diego, Executive Vice-President of Evergreen reinstatement, and involving wages, rates of
Development Corporation (EDC) was dismissed by pay, hours of work, and other terms and
the Board of Directors for his involvement in conditions of employment;
irregularities prejudicial to EDC's interests. He filed 4. claims for actual, moral, exemplary and other
a complaint for illegal dismissal with the Labor forms of damages arising from
Arbiter, praying for reinstatement with back-wages, employer-employee relations:
P5 million pesos as moral damages, P1 million 5. cases arising from any violation of Article 264
pesos as exemplary damages and attorney's fees. of the Labor Code, including questions
EDC questioned the Jurisdiction of the Labor involving the legality of strikes and lockout; and
Arbiter. Diego, in turn contended that the Labor 6. except claims of Employees Compensation,
Arbiter has jurisdiction over the case as it involves Social Security. Medicare and maternity
the termination of an employee and claims for benefits, all other claims arising from
backwages, benefits and damages. Decide. employer-employee relations including those
SUGGESTED ANSWER: persons in domestic or household service,
The dismissal of an Executive Vice-president of a Involving an amount exceeding five thousand
Corporation, who is a corporate officer, by the pesos (P5,000 00) regardless of whether
Board of Directors of the corporation is not a accompanied with a claim for reinstatement.
termination dispute under the Jurisdiction of a
Labor Arbiter. It is an intra-corporate dispute that is Labor Arbiter; Appeals (2001)
under the jurisdiction of the Securities and The affected members of the rank and file elevated
Exchange Commission. a labor arbiter's decision to the NLRC via a petition
for review filed after the lapse of the ten-day
Intra-corporate Matters/Officers (1997) reglementary period for perfecting an appeal.
Mr. Jonathan Pe, a registered stockholder of New Should the NLRC dismiss the petition outright or
Wave Beauty Shop, Inc. was elected Vice- may the NLRC take cognizance thereof? (5%).
President of New Wage at a regular monthly SUGGESTED ANSWER:
meeting. At a subsequent meeting of the Board of The NLRC should dismiss the appeal outright
Directors, it was resolved to dismiss Jonathan as because the same was filed beyond the
Vice-president due to loss of trust and confidence. reglementary period of appeal. Article 223 of the
Jonathan Pe filed with the National Labor Labor Code reads:
Relations Commission a complaint for illegal "Decisions, awards, or orders of the Labor
dismissal with damages against New Wage Arbiter are final and executory unless
claiming that he was dismissed without due appealed to the Commission by any or
process. New Wage filed a Motion to Dismiss both parties within ten (10) calendar days
based on lack of jurisdiction. from, receipt of such decisions, awards, or
Resolve the motion. orders."
SUGGESTED ANSWER: ANOTHER SUGGESTED ANSWER:
The Motion to Dismiss should be granted. The The NLRC could dismiss outright the appeal for
election of Jonathan Pe as Vice President of New being filed out of time. But if there are good
Wave Beauty Shop, Inc, made him a corporate reasons that may justifiably explain why there was
officer. a delay in the filing of the appeal, substantial
justice may be the basis for the NLRC to take
His subsequent dismissal as such corporate officer cognizance of the appeal.
is considered an intra-corporate matter. Thus, the
dismissal of Pe is not a case of a termination Labor Dispute ( 2001)
dispute which is under the Jurisdiction of a "A" was able to obtain a Judgment against his
Regional Branch of the NLRC. Instead, it is under former employer, Company "B", for P750,000.00.
the Jurisdiction of the Securities and Exchange In executing the judgment in favor of A, the Labor
Commission, it having jurisdiction over intra- Arbiter sought to levy on B's office equipment. B
corporate matters. filed an action for damages and injunction against
the Labor Arbiter before the Regional Trial Court of
Labor Arbiter (1995) the province where B's offices are located. Is B's
1. Give the original and exclusive jurisdiction of action tenable? Why? (5%).
Labor Arbiters. SUGGESTED ANSWER:
SUGGESTED ANSWER: B's action is not tenable. In the case of Delta
Labor Arbiters have original and exclusive Ventures Resources vs. Hon. Fernando P. Labato,
jurisdiction over: G.R. No. 118216, March 9, 2000, the Supreme
1. unfair labor practices; Court ruled that the regular courts have no
2. termination disputes; jurisdiction to act on labor cases or various
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incidents arising therefrom, including the execution visitorial powers under Art. 128 and of Art. 129 of
of decisions, awards or orders. the Labor Code, as amended, which empowers the
ANOTHER SUGGESTED ANSWER: Regional Director to hear and decide, among
Yes, B's action before the Regional Trial Court is others, matters involving recovery of wages.
tenable if said action is limited to the filing of a 1. Whose position will you sustain? Explain.
damage suit against the Labor Arbiter because 2. Will your answer be the same if Sara's claim is
there exists no employer-employee relationship P4,500.00 with reinstatement? Explain.
between "B" and the Labor Arbiter, and there is no SUGGESTED ANSWER:
labor dispute between them. In Agricultural 1) I will sustain the position of the Bojilov spouses.
Development Corporation vs. Court of Appeals, Art. 128 is not applicable because the case did not
G.R. No. 112139. January 31, 2000, the Supreme arise as a result of the exercise of visitorial and
Court, ruled: enforcement powers by the Regional Director, as
"It is well settled in law and jurisprudence the duly authorized representative of the Secretary
that where NO employer-employee of Labor and Employment. Instead, the case is a
relationship exists between the parties and simple money claim under Art. 129, which could be
no issue is involved which may be under the jurisdiction of the Regional Director if the
resolved by reference to the Labor Code, claim does not exceed P5,000.
other labor statutes or any collective
bargaining agreement, it is the Regional But the claim exceeds P5,000.00. Thus, it is the
Trial Court that has jurisdiction." Labor Arbiter who has jurisdiction under Art. 217(a)
of the Labor Code.
Med-arbiter (1996)
The national council of X Union, the exclusive 2) I will still hold that it is the Labor Arbiter that has
bargaining representative of all daily paid workers jurisdiction. It is true that the money claim no
of Z Corp., called a general meeting and passed a longer exceeds P5,000. But there is a claim for
resolution which provides that each union member reinstatement. Thus, this claim is under the
was to be assessed P 1,000 to be deducted from jurisdiction of a Labor Arbiter, per Art. 129 of the
the lump sum of P10,000.00 which each employee Labor Code.
was to receive under the CBA. Sergio, a Union
member, protested and refused to sign the Nat’l Labor Relations Commission (1995)
authorization slip for the deduction. X Union then 3. What is the jurisdiction of the National Labor
passed a resolution expelling Sergio from the Relations Commission?
union. Sergio filed a complaint before the Labor SUGGESTED ANSWER:
Arbiter for illegal deduction and expulsion from the Jurisdiction of the NLRC:
union. Will the complaint prosper? Explain. 1. exclusive appellate jurisdiction over all cases
SUGGESTED ANSWER: decided by Labor Arbiter;
The complaint will not prosper before the Labor 2. exclusive appellate jurisdiction over all cases
Arbiter because there is here an intra-union conflict decided by Regional Directors or hearing
which is under the Jurisdiction of the Med-Arbiter. officers involving the recovery of wages and
(See Art, 226 and Rule V of Book V of the Rules other monetary claims and benefits arising
and Regulations Implementing the Labor Code). from employer-employee relations where the
aggregate money claim of each employee or
Money Claims; Reinstatement (1996) househelper does not exceed five thousand
Sara has been working as housemaid for the pesos (P5,000.00);
Bojilov spouses for three (3) years. In the early 3. original Jurisdiction to act as a compulsory
morning of July 28, the spouses and Sara were arbitration body over labor disputes certified to
watching the live coverage of the finals of an NLRC by the Secretary of Labor and
Olympic boxing match between a Bulgarian and a Employment; and
Filipino which the foreign fighter won on points. 4. power to issue a labor injunction.
Peeved by Sara's angry remarks that the scoring
was unfair, the Bojilov spouses fired her on the Nat’l Labor Relations Commission (2001)
spot. Company "A" and Union "B" could not resolve their
negotiations for a new CBA. After conciliation
Sara thereafter filed a complaint with the Regional proceedings before the NCMB proved futile, B
Director of the DOLE for unpaid salaries totalling went on strike. Violence during the strike prompted
P5,500.00. The Bojilov spouses moved to dismiss A to file charges against striker-members of B for
the complaint on the belief that Sara's claim falls their illegal acts. The Secretary of Labor assumed
within the Jurisdiction of the Labor Arbiter. Sara, Jurisdiction, referred the strike to the NLRC and
however, claimed that the Regional Director can issued a return-to-work order. The NLRC directed
decide on her claim by virtue of his plenary the parties to submit their respective position
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papers and documentary evidence. At the Initial Bitonio, G.R. No. 120220, June 16, 1999, the
hearing before the NLRC, the parties agreed to Supreme Court ruled:
submit the case for resolution after the submission 'Appellate authority over decisions of the
of the position papers and evidence. Regional Director involving examination of union
accounts is expressly conferred on the BLR
Subsequently, the NLRC issued an arbitral award under the Rule of Procedure on Mediation-
resolving the disputed provisions of the CBA and Arbitration.
ordered the dismissal of certain strikers for having xxx
knowingly committed Illegal acts during the strike. Section 4. Jurisdiction of the Bureau — (b) The
The dismissed employees elevated their dismissal Bureau shall exercise appellate jurisdiction over
to the Court of Appeals claiming that they were all cases originating from the Regional Director
deprived of their right to due process and that the involving .... Complaints for examination of
affidavits submitted by A were self-serving and of union books of accounts.
no probative value. Should the appeal prosper?
State the reason(s) for your answer clearly. (5%). The language of the law is categorical. Any
SUGGESTED ANSWER: additional explanation on the matter is superflous."
The appeal should not prosper. The Supreme
Court, in many cases, has ruled that decisions Nat’l Labor Relations Commissions (2001)
made by the NLRC may be based on position Company "A", within the reglementary period,
papers. In the question, it is stated that the parties appealed the decision of a Labor Arbiter directing
agreed to submit the case for resolution after the the reinstatement of an employee and awarding
submission of position papers and evidence. Given backwages. However, A's cash bond was filed
this fact, the striker-members of B cannot now beyond the ten day period. Should the NLRC
complain that they were denied due process. They entertain the appeal? Why? (5%).
are in estoppel. After voluntarily submitting a case SUGGESTED ANSWER:
and encountering an adverse decision on the No, the NLRC should not entertain the appeal, as
merits, it is too late for the loser to question the the same was not perfected for failure to file a
jurisdiction or power of the court. A party cannot bond. Art. 223 of the Labor Code reads:
adopt a posture of double dealing. (Marquez vs. "In case of a judgment involving a monetary
Secretary of Labor, 16 March 1989). award, an appeal by the employer may be
ANOTHER SUGGESTED ANSWER: perfected only upon the posting of cash or
No, the appeal will not prosper. In CMP Federal surety bond... In the amount equivalent to the
Security Agency vs. NLRC, G.R. No. 125298, monetary award in the judgment appealed
February 11, 1999, the Supreme Court ruled: from."
"The standard of due process that must be met
in administrative tribunals allows a certain In ABA vs. NLRC, G.R. No. 122627. July 18, 1999,
degree of latitude as long as fairness is not the Supreme Court ruled:
ignored. Hence, it is not legally objectionable for "An appeal bond is necessary......the appeal
being violative of due process, for the labor may be perfected only upon the posting of cash
arbiter to resolve a case based solely on the or surety bond issued by a reputable bonding
position papers, affidavits or documentary company duly accredited by the Commission in
evidence submitted by the parties. The affidavits the amount equivalent to the monetary award in
of witnesses in such case may take the place of the judgment appealed from."
direct testimony." ANOTHER SUGGESTED ANSWER:
The NLRC may still entertain the appeal.
Nat’l Labor Relations Commission (2001) It is true that the Labor Code (in Art. 223) provides
Some disgruntled members of Bantay Labor, that appeal is perfected only upon the posting of a
Union filed with the Regional Office of the DOLE a cash or surety bond. But if Company A filed a
written complaint against their union officers for motion for the reduction of the bond, and said
mismanagement of union funds. The Regional motion was only acted upon after the reglementary
Director did not rule in the complainants' favor. Not period, then, the NLRC, in the interest of
satisfied, the complainants elevated the Regional substantial justice, may still take cognizance of the
Director's decision to the NLRC. The union officers appeal.
moved to dismiss on the ground of lack of
Jurisdiction. Are the union officers correct? Why? Overseas Employment; Claim; Torts (2004)
(3%). A. Under a seaman’s contract of employment with
SUGGESTED ANSWER: a local manning agent of a foreign shipping
Yes, the union officers are correct in claiming that company, Capt. TROY embarked on an ocean-
the NLRC has no jurisdiction over the appealed going vessel in good health. One stormy night at
ruling of the Regional Director. In Barles vs. sea, he was drenched with rainwater. The
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following morning, he contracted fever which lasted violations; he shall be repatriated at his own
for days. He suffered loose bowel movement, lost expense or at the expense of his employer as the
his appetite, and eventually he died before a case may be.
scheduled airlift to the nearest port.
Recovery of Wages (1994)
Subsequently, the widow of Capt. TROY Tina Aquino, a domestic helper in the household of
complained against the local manning agent and Fidel Aldeguer, filed an action In the Regional
its foreign principal before the Regional Arbitration Office of the Department of Labor and Employment
Branch of DOLE, for actual and exemplary (DOLE) for recovery of unpaid wages amounting to
damages and attorney’s fees. She invoked the P3,500.00 and P1,499.00 as moral damages.
Labor Code provision which requires the employer Aquino claimed that the amount of P3,500.00 is
to provide all necessary assistance to ensure the equivalent to the P500.00 a month she failed to
adequate and necessary medical attendance and receive for the last seven months of her
treatment of the injured or sick employee in case of employment with Aldeguer, based on their agreed
emergency. P2,500,00 monthly salary. Aldeguer moved to
have Aquino's complaint dismissed, alleging that
Respondents moved to dismiss the complaint on as a domestic helper Ms. Aquino should have first
the ground that the Labor Arbiter has no brought the matter to the Lupong Barangay.
jurisdiction over the complaint for damages arising If you were the Regional Director, how would you
from illness and death of Capt. TROY abroad. resolve the matter?
Resolve the motion with reasons. (5%) SUGGESTED ANSWER:
SUGGESTED ANSWER: As Regional Director, I will assume Jurisdiction.
In Tolosa v. NLRC, (G.R. 149578, April 10,2003), The provisions of P.D. No. 1508 requiring the
the Supreme Court held that what we have in this submission of disputes before the Barangay
case is a claim arising from tort or quasi-delict. In Lupong Tagapayapa prior to their filing with the
such a situation, the seaman who died on court or other government offices are not
November 18, 1992, cannot sue before the Labor applicable to labor cases.
Arbiter. But this will not apply now, as under Sec.
10, R.A. 8042, [effective June 7, 1995], what we Article 129 of the Labor Code empowers the
have is a claim "arising out of an employer- Regional Director to hear and decide any matter
employee relationship or by virtue of any law or involving the recovery of wages and other
contract involving Filipino workers for overseas monetary claims and benefits owing to an
deployment including claims for actual, moral, employee or person employed in domestic or
exemplary and other forms of damages", household service, provided that the money claim
cognizable by the "Labor Arbiters of the National does not exceed P5.OOO.OO. (Montoya vs
Labor Relations Commission" (NLRC) who have .Escayo, G.R. Nos, 82211-12, March 21. 1989)
the original and exclusive jurisdiction thereon.
Remedies; illegal dismissal (1999)
Overseas Employment; Mandatory The Labor Arbiter dismissed the complaint for
Remittance; Foreign Exchange (2006) illegal dismissal filed by Genevieve Cruz against
Can an overseas worker refuse to remit his Bulag Optical Inc. (BOI) which denied her prayer
earnings to his dependents and deposit the same for reinstatement but awarded financial assistance
in the country where he works to gain more in her favor. BOI appealed the decision of the
interests? Explain. (5%) Labor Arbiter to the NLRC within the reglementary
SUGGESTED ANSWER: period. Genevieve filed an opposition to the
NO. Art. 22 of the Labor Code provides that it shall appeal. The NLRC affirmed in toto the decision of
be mandatory for all Filipino workers abroad to the Labor Arbiter. Both the BOI and Genevieve are
remit a portion of their foreign exchange earnings not satisfied with the decision of the NLRC,
to their families, dependents, and/or beneficiaries 1. What is the remedy, if any, of BOI and before
in accordance with the rules and regulations what forum? Explain briefly. (3%)
prescribed by the Secretary of Labor and SUGGESTED ANSWER:
Employment. Executive Order No. 857 prescribes BOI can file a Motion for Reconsideration with the
the percentage of foreign exchange remittance NLRC after ten (10) calendar days from receipt of
from 50% to 80% of the basic salary, depending on the decision.
the worker's kind of job.
If the NLRC denies the Motion for Reconsideration,
Hence, an overseas worker cannot refuse to remit BOI can file a petition for certiorari with the Court of
his earnings. Otherwise, he shall be suspended or Appeals under Rule 65 of the Rules of Court since
excluded from the list of eligible workers for the decision of the NLRC is final and executory.
overseas employment and in cases of subsequent
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2. Can Genevieve Cruz avail herself of the same Secretary of Labor and Employment the authority
remedy as that of BOI? Why? (2%) to enjoin the employer from terminating the
SUGGESTED ANSWER: employment of the workers? If so, on what
Genevieve Cruz can avail herself of the same grounds? [5%1
remedy as that of the BOI. The remedies described SUGGESTED ANSWER:
for the BOI are also the same remedies available The Secretary of Labor and Employment has the
to Genevieve Cruz as a party to the case, pursuant authority to enjoin an employer from terminating
to the Labor Code (Article 223) and the Rules of the employment of workers.
Court (Rule 65).
The Labor Code (in Article 377(b) provides that the
Panel: But the facts of the case indicates that Secretary of Labor and Employment may suspend
Genevieve did not appeal. She therefore cannot the effectivity of the termination of workers pending
avail of the remedy. the resolution of a labor dispute in the event of a
prima facie finding of an appropriate official of the
Secretary of Labor; Authority (1998) Department of Labor and Employment before
An airline which flies both the international and whom such dispute is pending that the termination
domestic routes requested the Secretary of Labor may cause a serious labor dispute or is in
and Employment to approve the policy that all implementation of a mass lay off.
female flight attendants upon reaching age forty
(40) with at least fifteen (15) years of service shall Voluntary Arbitrator (1997)
be compulsorily retired; however, flight attendants State the cases when a labor dispute would fall
who have reached age forty (40) but have not under the Jurisdiction of voluntary arbitrators or
worked for fifteen (15) years will be allowed to panel of voluntary arbitrators.
continue working in order to qualify for retirement SUGGESTED ANSWER:
benefits, but in no case will the extension exceed A labor dispute falls under the jurisdiction of a
four (4) years. voluntary arbitrator or a panel of voluntary
Does the Secretary of Labor and Employment arbitrator if a labor disputes arises from an
have the authority to approve the policy? [5%| unresolved grievance which in turn arises from the
SUGGESTED ANSWER: interpretation or implementation of a Collective
Yes, the Secretary of Labor and Employment has Bargaining Agreement or of company personnel
the authority to approve a policy dealing with the policies. [Art. 261)
retirement of flight attendants of airlines.
Upon agreement of parties, a voluntary arbitrator
Article 132 (d) of the Labor Code provides that the or panel of voluntary arbitrators may also hear and
Secretary of Labor and Employment shall establish decide all other labor disputes including unfair
standards that will ensure the safety and health of labor practices and bargaining deadlock. (Art. 262)
women employees, including the authority to
determine appropriate minimum age and other Voluntary Arbitrator (2003)
standards for retirement or termination in special The employer company, in a directive to the union
occupations such as those of flight attendants and president, ordered the transfer of some of its
the like. employees, including a number of union officials, to
CAVEAT: its plant offices. The order was opposed by the
It could be argued that Article 132 (d) may be union. Ultimately, the union filed an unfair labor
unconstitutional because this may constitute practice against the company alleging that the
discrimination in violation of the spirit of purported transfer of its union officials was unjust
Section 14 of Article XIII of the Constitution and in violation of the Collective Bargaining
which provides that the State shall protect Agreement (CBA), Pursuant to the terms of the
working women by providing safe and healthful CBA, the dispute was referred to a voluntary
working conditions, taking into account their arbitrator who later ruled on the issues raised by
maternal functions, and such facilities and the parties. Could it later be validly asserted that
opportunities that will enhance their welfare and the "decision" of the voluntary arbitrator would
enable them to realize their full potential in the have no "compulsory" effect on the parties?
service of the nation. Explain.
SUGGESTED ANSWER:
Secretary of Labor; Dismissal of Employees No. A voluntary arbitrator chosen under the
(1998) Grievance Machinery of a CBA can exercise
The Secretary of Labor and Employment, after jurisdiction not only on disputes involving
receipt of a Notice to Terminate Employment of interpretation/implementation of a CBA and/or
one hundred (100) workers, enjoined the employer company rules, personnel policies (Art. 261, Labor
from implementing their termination. Has the Code) but also, upon agreement of the parties, "all
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other labor disputes including unfair labor practice' Voluntary Arbitrator may hear and decide any labor
(Art. 262, Labor Code). As no objection was raised dispute, including bargaining deadlocks, the
by any of the parties when 'the dispute was Arbiter's decision providing for retroactivity is
referred to a voluntary arbitrator who later ruled on tenable. Exercising his compulsory arbitration
the issues raised by the parties", it follows that power, the Arbiter could decide the issue of
what we have is voluntary arbitration agreed upon retroactivity in any way which is not contrary to law,
by the parties. His decision is binding upon the morals, good customs, public order or public
parties and may be enforced through any of the policy.
sheriffs, including those of the NLRC, he may But in a case (Manila Electric Co vs. Secretary of
deputize. Labor Leonardo Quisumbing, G.R. No. 127598,
ANOTHER SUGGESTED ANSWER: February 22, 2000), the Supreme Court said that
No. The award of voluntary arbitrators acting within an arbitral award shall retroact to the first day after
the scope of their authority determines the rights of the six-month period following the expiration of the
the parties, and their decisions have the same last day of the CBA that was being re-negotiated.
legal effects as a judgment of the Court. Such ANOTHER SUGGESTED ANSWER:
decisions on matters of fact or law are conclusive, The retroactive Order of the Labor Arbiter is void
and all matters in the award are thenceforth res for want of jurisdiction. Jurisdiction is conferred by
judicata on the theory that the matter has been law. Nowhere in the Labor Code, more specifically,
adjudged by the tribunal which the parties have Article 217, is the Labor Arbiter given jurisdiction
agreed to make final as tribunal of last resort. over unresolved issues in collective bargaining,
[Volkschel Labor Union v. NLRC. 98 SCRA 314 including determining the period or duration of a
(1980). Collective Bargaining Agreement.

CBA; Arbitral Awards; Effectivity (1994)


LABOR RELATIONS Company X, a transportation company, and Union
Y were in the process of negotiating a new
CBA; Appropriate Bargaining Unit (1998) Collective Bargaining Agreement (CBA) to replace
What is an appropriate bargaining unit for the one which expired on March 15. 1990. The
purposes of collective bargaining? [5%] negotiations reached an impasse on economic
SUGGESTED ANSWER: issues on June 30, 1990. The Secretary of Labor
An APPROPRIATE BARGAINING UNIT is a group assumed Jurisdiction over the dispute and certified
of employees of a given employer comprised of all the same to the NLRC for proper disposition.
or less than all of the entire body of employees, Proceedings before the NLRC ended on
which the collective interest of all the employees, November 30. 1990 and a decision was rendered
consistent with the interest of the employer, on December 15, 1990, The said decision made
indicate to be the best suited to serve reciprocal retroactive to March 15, 1990 the new CBA
rights and duties of the parties under the collective containing the issues resolved by the NLRC, as
bargaining provisions of the law. (See, e.g., well as those concluded and agreed upon by the
University of the Philippines v. Ferrer-Calleja, 211 parties prior to their arriving at a deadlock in their
SCRA 451 (1992). negotiations. Company X questioned the
retroactivity of the CBA alleging that the same
contravenes Art. 253-A of the Labor Code, which
CBA; Arbitral Award; Retroactive Effect
provides for the automatic retroactivity of the
(2001)
renewed CBA only if the same is entered into
Company A and Union B had a 3-year CBA that
within six (6) months from its expiry date, and, if
expired on June 12, 1990. Negotiations proved
not, the parties must agree on the duration of
futile so the unresolved issues were referred to an
retroactivity.
Arbiter who rendered a decision on March 15,
1) Is Company X's position correct?
1992 retroactive to December 14, 1990. Is the
2) Would your answer be different if the
Arbiter's decision providing for retroactivity tenable
assumption of jurisdiction by the Secretary of
or not? Why? (5%)
Labor was at the request or instance of Company
SUGGESTED ANSWER:
X?
The referral of the unresolved issues of the
SUGGESTED ANSWER:
collective bargaining negotiations to an Arbiter is
1) The Company's position is not correct. In the
not within the jurisdiction of the Arbiter.
absence of a specific provision of law prohibiting
retroactivity of the effectivity of arbitral awards
But assuming that the unresolved issues in the
issued by the Secretary of Labor, the same is
collective bargaining negotiations were properly
deemed vested with plenary and discretionary
referred to the Arbiter pursuant to the provision of
powers to determine the effectivity thereof, (St
the Labor Code (Art. 262} that states that a
Luke's Medical Center, Inc. vs. Hon. Ruben O.
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Torres, etal,-G.R. No. 99395, 29 June 1993, J. the parties, they are duly bound to keep the
Melo. 222 SCRA 779) status quo and to continue in full force and
effect the terms and conditions of the existing
2) No. Regardless of which party sought the agreement. The law does not provide for any
assumption by the Labor Secretary, the effect exception or qualification as to which of the
would be the same. An assumption case gives the economic provisions of the existing agreement
Labor Secretary the plenary arbitration powers to are to retain force and effect, therefore, it must
rule on the issues presented for resolution, be understood as encompassing all the terms
including the retroactivity of the new CBA. and conditions in the said agreement."
ANOTHER SUGGESTED ANSWER:
CBA; Automatic Renewal Clause (1999) With Art. 253 of the Labor Code as basis, the
What is the "automatic renewal clause" in a disgruntled employees should be paid the annual
collective bargaining agreement? (2%) salary increases and other related annual
SUGGESTED ANSWER: increases provided in the 1990-1992 CBA even
The "AUTOMATIC RENEWAL CLAUSE" in a CBA after the expiration of said CBA as long as said
refers to that provision of the Labor Code (Article CBA did not provide that said increases were to be
253) which states that "It shall be the duty of both paid only for certain specific years.
parties (to a CBA) to keep the status quo and to
continue in full force and effect the terms and CBA; Bargaining Representative (2000)
conditions of the existing agreement during the 60- The Ang Sarap Kainan Workers Union appointed
day (freedom) period and/or until a new agreement Juan Javier, a law student, as bargaining
is reached by the parties." representative. Mr. Javier is neither an employee
of Ang Sarap Kainan Company nor a member of
CBA; Automatic Renewal Clause (2001) the union. Is the appointment of Mr. Javier as a
Company "A" and Union "B" negotiated the last bargaining representative in accord with law?
two years of their five-year CBA on April 1, 1990 to Explain, (3%)
expire on March 31, 1992. Considering the SUGGESTED ANSWER:
amicable relations between the parties, neither one Yes, the law does not require that the bargaining
moved for the extension or termination of the representative be an employee of the company nor
agreement. an officer or member of the union. {Art 212 (j),
Labor Code}.
Sometime in 1995. some disgruntled employees
filed a complaint demanding that they be paid the CBA; Certification Election (2005)
annual salary increases and other related annual As Human Resources Department (HRD) manager
increases specified in the CBA of April 1990, citing of EZ Components, an unorganized manufacturer
the provision in Art. 253 of the Labor Code which of electric and electronic components for
requires the parties to "xxx keep the status quo household appliances, you are suddenly
and to continue in full force and effect the terms confronted with demands for recognition and
and conditions of the existing agreement during collective bargaining negotiations from two
the 60 day period and/or until a new agreement is competing labor unions. They both claim to
reached by the parties". represent all the rank-and-file employees. Union A
is led by a moderate faction, while Union B is
A, however, maintained that the annual salary affiliated with a militant federation identified with
increases and related benefits specifically provided leftist ideology.
for in the CBA were, pursuant to contract and law,
effective only for the term specified therein, Which of the following courses of action should you
namely, until March 31, 1992 only. Who is correct? take to best protect the interests of your company
State the reason(s) for your answer. (5%) and employees?
SUGGESTED ANSWER: (a.) Recognize Union A as the rightful bargaining
The disgruntled employees are correct in their representative because it will be more
claim that the expired CBA remains in full force reasonable to deal with;
and effect until a new CBA is signed in accordance (b.) Recognize Union B because you do not want
with Article 253 of the Labor Code. to antagonize its leftist connections and
foment inter-union conflicts;
The SC ruled in New Pacific Timber and Supply (c.) Ignore the demands of either union since you
Co, Inc. us. NLRC, GR No. 124224. March 17, cannot be compelled legally to deal with them
2000: at this stage; or
"Article 253 of the Labor Code explicitly (d.) Petition the Bureau of Labor Relations to
provided that until a new Collective Bargaining conduct a certification election to determine
Agreement has been executed by and between
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which union really represents the majority of
the employees in the bargaining unit. (10%) But to have the above-mentioned effect, the CBA
ALTERNATIVE ANSWER: should have been filed and registered with the
(d) Petition the Bureau of Labor Relations to Department of Labor and Employment (See Article
conduct a certification election to determine which 231, 253-A and 256)
union really represents the majority of the
employees in the bargaining unit. (Haw at Buklod Thus, a CBA that has not been filed and registered
ng Manggagaiva [IBM] v. Calleja, G.R. No. 84685, with the Department of Labor and Employment
February 23,1990) cannot be a bar to a certification election and such
ALTERNATIVE ANSWER: election can be held outside of the freedom period
(c) Ignore the demands of either union since you of such CBA.
cannot be compelled legally to deal with them at
this stage. ALTERNATIVE ANSWER:
A petition for certification election may be filed
CBA; Certification Election; “No-Union" Win outside the freedom period of a current CBA if
(2006) such CBA is a new CBA that has been prematurely
Can a "no-union" win in a certification election? entered into, meaning, it was entered into before
(2.5%) the expiry date of the old CBA. The filing of the
SUGGESTED ANSWER: petition for certification election shall be within the
YES. Sec. 20, Rule 9, Book V provides that where freedom period of the old CBA which is outside of
the votes cast results in "no union" obtaining the the freedom period of the new CBA that had been
majority, the med arbiter shall declare such fact in prematurely entered into.
the order. Hence, the employees may choose not
to be represented by anyone (Reyes-Trajano v. CBA; Certification Election; Probationary
Trajano, G.R. No 84433, June 2, 1992). Employees (1999)
2. Are probationary employees entitled to vote in a
CBA; Certification Election; Consent certification election? Why? (2%).
Election; Run-Off Election (2000) SUGGESTED ANSWER:
Distinguish between "Certification Election", In a certification election, all rank-and-file
"Consent Election," and "Run-off Election", (6%) employees in the appropriate bargaining unit are
SUGGESTED ANSWER: entitled to vote. This principle is clearly stated in
CERTIFICATION ELECTION requires a petition for Article 255 of the Labor Code which states that the
a Certification Election filed by a union or "labor organization designated or selected by the
employer. A Med-Arbiter grants the petition and an majority of the employees in such unit shall be the
election officer is designated by the regional exclusive representative of the employees in such
director to supervise the election. (Art. 256, 257, unit for the purpose of collective bargaining."
258, Labor Code).
Collective bargaining covers all aspects of the
CONSENT ELECTION is held by agreement of the employment relation and the resultant CBA
unions with or without participation of the med- negotiated by the certified union binds all
arbiter. [Warren Manufacturing Workers Union v. employees in the bargaining unit. Hence, all rank-
Bureau of Labor Relations, 159 SCRA 387 (1988)] and-file employees, probationary or permanent,
have a substantial interest in the selection of the
RUN-OFF ELECTION takes place between the bargaining representative. The Code makes no
unions who received the two highest number of distinction as to their employment status as basis
votes where not one of the unions obtained the for eligibility to vote in the petition for certification
majority of the valid votes cast, provided that the election. The law refers to "all" the employees in
total union votes is at least 50% of the votes cast. the bargaining unit. All they need to be eligible to
(Art. 256, Labor Code). vote is to belong to the "bargaining unit," (Airtime
Specialists, Inc. v. Ferrer-Calleja, ISO SCRA 749)
CBA; Certification Election; Freedom Period ALTERNATIVE ANSWER:
(1999) PROBATIONARY EMPLOYEES may not be
1. In what instance may a petition for certification entitled to vote in a certification election where only
election be filed outside the freedom period of a regular employees belong to a bargaining unit and
current collective bargaining agreement? (3%). probationary employees do not belong to such
SUGGESTED ANSWER: bargaining unit. It is the belonging to a bargaining
As a general rule, in an establishment where there unit that entitles an employee to vote in a
is in force and effect a CBA, a petition for certification election.
certification election may be filed only during the ANOTHER ALTERNATIVE ANSWER:
freedom period of such CBA.
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YES. Any employee, whether employed for a Constitution and By-laws of the AWOL, then it was
definite period or not, shall, beginning on his first lawful for LTC to terminate Magallona.
day of service, be considered an employee for Panel: The termination is unlawful (Ferrer v. NLRC).
purposes of membership in any labor union (Art.
277(c)). CBA; Closed Shop vs. Agency Shop (1997)
(a) Describe a "closed shop agreement, does it
CBA; Closed Shop Provision; When not differ from an "agency shop agreement."
applicable (1999) (b) Are the above agreements legal?
FACTS: In a certification election conducted by the SUGGESTED ANSWER:
Department of Labor, Associated Workers (a) A "CLOSED SHOP AGREEMENT" is that
Organization in Laguna (AWOL) headed by Cesar agreement embodied in a collective bargaining
Montanyo, won over Pangkat ng mga agreement (CBA) whereby the employer binds
Manggagawa sa Laguna (PML), headed by Eddie itself not to hire any person unless he is first a
Graciaa. Hence, AWOL was certified as the union member of the collective bargaining
exclusive bargaining agent of the rank-and-file representative.
employees of the Laguna Transportation Company
(LTC). An "AGENCY SHOP AGREEMENT" is different
from a closed shop agreement in that under the
Shortly, thereafter, a Collective Bargaining former, the employer does not bind itself not to hire
Agreement was concluded by LTC and AWOL a person unless he is first a union member of the
which provided for a closed shop. Consequently, collective bargaining representative. Instead, the
AWOL, demanded that Eddie Graciaa and all the employer binds itself to check off from those who
PML members be required to become members of are not union members of the collective bargaining
AWOL as a condition for their continued representative a reasonable fee equivalent to the
employment: otherwise, they shall be dismissed dues and other fees paid by union members if the
pursuant to the closed shop provision of the CBA. non-union members accept the benefits of the
CBA.
The union security clause of the CBA also provided
for the dismissal of employees who have not (b) The above agreements are legal or they are
maintained their membership in the union. For one expressly allowed by the Labor Code.
reason or another, Francis Magallona, a member
of AWOL, was expelled from the union CBA; Contract Bar Rule vs. Deadlock Bar
membership for acts inimical to the interest of the Rule (1999)
union. Upon receipt of the notice that Francis Distinguish between "contract bar rule" and
Magallona failed to maintain his membership in "deadlock bar rule". (3%)
good standing with AWOL, LTC summarily SUGGESTED ANSWER:
dismissed him from employment. Under the "CONTRACT BAR RULE," a certification
1. Can Eddie Graciaa and all the PML members election cannot be held if there is in force and in
be required to become members of the AWOL effect a collective bargaining agreement that has
pursuant to the closed shop provision of the been duly registered with the Department of Labor
CBA? Why? (3%) and Employment except during the freedom period
SUGGESTED ANSWER: of such CBA which is the 60-day period prior to the
Eddie Gracla and all the PML members can not be expiry date of said CBA. (See Articles 231, 253-A
required to become members of AWOL pursuant to and 256)
the closed shop provision of the CBA. According to
the Labor Code (Article 248(e), a closed shop Under the "DEADLOCK BAR RULE" a certification
provision cannot be applied to those employees election can not be held if a bargaining deadlock to
who are already members of another union at the which an incumbent or certified bargaining agent is
time of the signing of the CBA. a party had been submitted to conciliation or
mediation or had become the subject of a valid
2. Is the termination from employment of Francis notice of strike or lockout. (See Section 3, Rule XI,
Magallona by LTC lawful? Why? (2%) Book V of the Implementing Rules and Regulations
SUGGESTED ANSWER: of the Labor Code)
Pursuant to the closed shop provision of the CBA
entered into by AWOL with LTC, membership in CBA; Coverage; Non-Union Members;
AWOL has become a condition of employment in Religious Sect (2005)
LTC. As long as the expulsion of Francis A group of employees in XYZ Factory belonging to
Magallona from AWOL was done in accordance a religious sect, in conformity with the teachings
with applicable provisions of law and with the 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 rendering exactly, or no less than, three (3) hours
collective bargaining agreement with management. of actual overtime work.
A provision therein stated that the wage increase Which interpretation do you think should prevail?
would be paid to the members of the union only in Why? (5%)
view of a "closed shop" union security clause in the
new agreement. The members of the sect CBA; Jurisdictional Pre-Conditions (1996)
protested and demanded that the wage increase 2) What jurisdictional pre-conditions must be
be extended to them. The officers of the union present to set in motion the mechanics of a
countered by demanding their termination from the collective bargaining?
company pursuant to the "closed shop" provision in SUGGESTED ANSWER:
the just-concluded CBA. (6%)
(a) Is the CBA provision valid? To set in motion the mechanics of collective
SUGGESTED ANSWER: bargaining, these jurisdictional pre-conditions must
No, the CBA provision is not valid. The benefits of be present, namely:
a CBA are extendible to all employees regardless 1. The employees in a bargaining unit should
of their membership in the union because to form a labor organization;
withhold the same from non-union members would 2. The labor organization should be a legitimate
be to discriminate against them. (National Brewery labor organization;
& Allied Industries Labor Union of the Philippines v. 3. As such legitimate labor organization, it should
San Miguel Brewery, Inc., G.R. No. L-18170, be recognized or certified as the collective
August 31,1963) bargaining representative of the employees of
the bargaining unit; and
(b) Should the company comply with the 4. The labor organization as the collective
union's demand of terminating the members of bargaining representative should request the
the religious sect? employer to bargain collectively. (See Arts.
SUGGESTED ANSWER: 243, 234, 255 and 250 of the Labor Code)
No. The right to join includes the right not to join by
reason of religious beliefs. Members of said ALTERNATIVE ANSWER:
religious sect cannot be compelled or coerced to The mechanics of collective bargaining are set in
join the labor union even when the union has a motion only when the following Jurisdictional pre-
closed shop agreement with the employer; that in conditions are met:
spite of any closed shop agreement, members of (1) possession of the status of majority
said religious sect cannot be refused employment representation of the employees'
or dismissed from their jobs on the sole ground representative in accordance with any of the
that they are not members of the collective means of selection or designation provided
bargaining union. (Victoriano v. Elizalde Rope for by the Labor Code;
Workers' Union, G.R. No. L-25246, September (2) proof of majority of representation; and
12,1974) (3) a demand to bargain under Art. 251(g), of the
Labor Code. (Kiok Loy v. NLRC. 141 SCRA
179 [1986])
CBA; interpretation (2004)
B. The CBA between the Company and the rank- CBA; Lock-out vs. Closed Shop (2004)
and-file Union contained the following provision: Distinguish clearly but briefly between Lock-out
“Section 3. MEAL ALLOWANCE. The and Closed Shop.
Company agrees to grant a MEAL SUGGESTED ANSWERS:
ALLOWANCE of TEN PESOS (P10.00) to all LOCKOUT refers to the temporary refusal of an
employees who render at least TWO (2) hours employer to furnish work as a result of a labor or
or more of actual overtime work on a workday, industrial dispute. CLOSED SHOP, on the other
and FREE MEALS, as presently practiced, not hand, refers to a union security clause in a
exceeding TWENTY FIVE PESOS (P25.00) collective bargaining agreement whereby the
after THREE (3) hours of actual overtime work.” employer agrees not to employ any person who is
not a member of the exclusive collective bargaining
Dispute in the interpretation of the above provision representative of the employees in a bargaining
arose as the Company asserts that the phrase unit.
“after three (3) hours of actual overtime work” does
not mean after exactly three (3) hours of actual CBA; Mandatory Subjects of Bargaining
overtime work; it means after more than three (3) (1996)
hours of actual overtime work. The Union, on the 1) What matters are considered mandatory
other hand, maintained that “after three (3) hours subjects of collective bargaining?
of actual overtime work” simply means after SUGGESTED ANSWER:
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Wages, hours of work and all other terms and The employees received their respective
conditions of employment including proposals for separation pay under protest and thereafter filed
adjusting any grievances or questions arising from an action against CRP and Lyra Music Corporation
the collective bargaining agreement are for unfair labor practice (ULP). The Arbiter ruled in
considered mandatory subjects of collective favor of the workers and ordered Lyra Music
bargaining. (See Art. 252 of the Labor Code) Corporation to absorb the former workers of CRP.
Was the Labor Arbiter correct in his decision?
CBA; Registration Requirement; Contract SUGGESTED ANSWER:
Bar-Rule (2000) No. The Labor Arbiter is not correct. As held in the
A Collective Bargaining Agreement was signed case of San Felipe Neri School of Mandaluyong vs.
between the Ang Sarap Kainan Company and the NLRC, when there is a legitimate sale of a
Ang Sarap Kainan Workers Union. Should the company's assets, the buyer in good faith cannot
Collective Bargaining Agreement be registered be legally compelled to absorb the employees of
with the Bureau of Labor Relations? If so, why? the seller in good faith. In the case at bar, the
(3%) employees of the CRP were validly terminated
SUGGESTED ANSWER: based on Article 284, e.g. closure of operations
So that the contract-bar rule may apply the CBA and separation pay was paid at a rate much higher
should be registered, assuming it has been validly than the law.
ratified and contains the mandatory provisions.
(Art. 232, Labor Code). Furthermore, the case filed by the employees was
UNFAIR LABOR PRACTICE. It is highly irregular
CBA; Run-Off Election (2006) to order absorption of employees in a ULP case.
When does a "run-off' election occur? (2.5%)
SUGGESTED ANSWER: CBA; Social Security vs. Union Security
A run-off election occurs when the following (2004)
elements occur: Distinguish clearly but briefly between Social
1. Between three (3) or more choices, and no security and union security
choice receiving a majority of the valid votes SUGGESTED ANSWERS:
cast; SOCIAL SECURITY is the protection given by
2. The total number of votes for all contending social insurance programs such as the programs of
unions is at least 50% of the number of vote the SSS, GSIS and PHIC undertaken pursuant to
cast; and their respective charters, including the employees
3. Between the labor unions receiving the two compensation program provided for in the Labor
highest number of votes (Article 256, Labor Code. The aforesaid programs provide income
Code). benefits and/or medical care when contingencies
like sickness, (also maternity in the case of SSS)
CBA; Sale of Establishment; Effect (1994) disability, death, or retirement, including in the
Coronet Records Phil. (CRP) manufactures case of the GSIS, separation and unemployment
audio/video record players, compact discs, video benefits.
discs, cassettes and the like. CRPs shareholdings
is 40% foreign and 60% domestic. CRP signed a On the other hand, UNION SECURITY refers to a
Collective Bargaining Agreement (CBA) with its clause in a collective bargaining agreement
rank-and-file workers for three years starting from whereby the employer agrees to employ or
January 1, 1990 and ending on December 31, continue in employment only workers who are
1993. members of the exclusive collective bargaining
representative of the employees of said employer
Before the expiration of the CBA, CRP decided to in a bargaining unit.
sell all its assets to Lyra Music Corporation
effective September 30, 1993. In this regard, CBA; Substitutionary Doctrine (2000)
notice was sent on August 30, 1993 to each a) The Samahan ng Mga Manggagawa sa Pids
employee advising them of the sale of the and Co. Inc. lost its majority status in the
Company's assets to Lyra Music Corporation and bargaining unit one year after the signing of the
the closure of the company's operations effective Collective Bargaining Agreement. Bickerings
September 30, 1993. CRP, likewise, requested among all the three other unions in the bargaining
that each employee receive his separation pay unit were a daily occurrence, with each union
equivalent to one-and-one-half (1 & 1/2) month's asserting majority status. To resolve this pestering
pay per year of service, exclusive of all unused problem, the Company and the three other unions
leaves which were also converted to cash, and his agreed to hold a consent election under the
13th-month pay for 1993. 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 Does the union security clause sufficiently justify
representative in the bargaining unit. Is the Pids the demand for dismissal of the three employees
and Co. Workers Union bound by the Collective or not? May the Hotel Management validly refuse
Bargaining Agreement signed between the the Union’s demand? (5%)
Company and the Samahan ng Mga Manggagawa
Sa Pids and Co. Inc.? Explain. (3%) CBA; Union Security Clause; Closed Shop
Provision (1995)
b) Shortly after the consent election, Pids and Co. Reconcile the compulsory nature of the closed
Inc. sold the Groceries Division to Metro Manila shop provision in a Collective Bargaining
Grocery Inc. The employees of the sold division Agreement with the constitutional guarantee of
formed part of the bargaining unit described in the freedom of association. Discuss fully.
Collective Bargaining Agreement, and all were SUGGESTED ANSWER:
absorbed by Metro Manila Grocery Inc. Is Metro Among the policies of the State in the field of labor
Manila Grocery Inc., as the new employer, bound relations is to promote trade unionism and to foster
by the Collective Bargaining Agreement existing at the organization of a strong and united labor
the time of the sale? Explain. (3%) movement. UNION SECURITY CLAUSES, like a
SUGGESTED ANSWER: closed shop agreement, is one way of
a) Yes, because the Collective Bargaining implementing the aforementioned labor relations
Agreement is not invalidated by the change of the policy. Implementing to some extent the concept of
bargaining agent while the CBA is still effective. freedom of association, an employee who is
The "substitutionary doctrine'' applies. (Benguet already a member of a union could not be
Consolidated Inc. v. BCI Employees, 23 SCRA 465 compelled to become a member of a bargaining
(1968)) union, even if there is a closed shop agreement.
ALTERNATIVE ANSWER:
b) No. There are no indications that the sale is It could be argued that a closed shop provision in a
simulated or intended to defeat the employees' Collective Bargaining Agreement, because it
right to organize. A bona fide sale terminates the requires that a person should first be a member of
employment relationship between the selling the bargaining union before he is employed, is
company and its employees. The CBA does not violative of the right to freedom of association,
bind the purchaser in good faith because the CBA because said right subsumes not only a right to
is a personam contract, unless the buyer agrees to join, but also a right not to join a union.
be bound. [Sundowner Dev. Corp. v. Drilon, 180
SCRA 14 (1989); Associated Labor Union v. On the other hand, it could be argued that the
NLRC, 204 SCRA 913 (1993)]. exercise of the freedom of association means that
workers should join unions. A closed shop
CBA; Union Security Clause (2004) agreement, as a union security clause, encourages
A. MPH Labor Union is the duly certified bargaining the joining of unions.
representative of the rank-and-file employees of
MM Park Hotel since the 1970’s. The collective CBA; Union; Representation Issue (1999)
bargaining agreement contained union shop FACTS: Jenson & Jenson (J & J) is a domestic
security provisions. After the signing of the 2000– corporation engaged in the manufacturing of
2005 CBA, the Union demanded the dismissal of 3 consumer products. Its rank-and-file workers
employees, XX, YY and ZZ, pursuant to the union organized the Jenson Employees Union (JEU), a
security clause in the CBA. duty registered local union affiliated with PAFLU, a
national union. After having been certified as the
The Hotel Management replied that it was legally exclusive bargaining agent of the appropriate
impossible to comply with the demand of the bargaining unit, JEU-PAFLU submitted its
Union. It might even be construed as unfair labor proposals for a Collective Bargaining Agreement
practice. For it appeared that XX, YY and ZZ had with the company.
been recently promoted as supervisors and
resigned from the Union. But according to the In the meantime, a power struggle occurred within
Union, the three submitted their resignations the national union PAFLU between its National
outside the freedom period after the 1996–2000 President, Manny Pakyao, and its National
CBA expired on June 30, 2000. The Union argued Secretary General, Gabriel Miro. The
that the Hotel Management could not skirt its representation issue within PAFLU is pending
obligation to respect and implement the union resolution before the Office of the Secretary of
security clause by promoting the three employees. Labor.
That could be viewed as rewarding employees for
their disloyalty to the union, said the union officers.
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By reason of this intra-union dispute within PAFLU, Distinguish clearly but briefly between Company
J & J obstinately and consistently refused to offer union and union shop.
any counterproposal and to bargain collectively SUGGESTED ANSWERS:
with JEU-PAFLU until the representation issue A COMPANY UNION is a union of employees
within PAFLU shall have been resolved with dominated or under the control of the employer of
finality. JEU-PAFLU filed a Notice of Strike. The said employees. A UNION SHOP, on the other
Secretary of Labor subsequently assumed hand, refers to a union security clause in a
jurisdiction over the labor dispute. collective bargaining agreement whereby the
1. Will the representation issue that has arisen employer agrees to terminate the employment of
involving the national union PAFLU, to which the an employee who has not become a member of
duty registered local union JEU is affiliated, bar the union which is the exclusive collective
collective bargaining negotiation with J & J? bargaining representative of the employees in a
Explain briefly. (3%) bargaining unit within a certain period after the
employment of said employee or has ceased to
2. Can the Secretary of Labor decide the labor become a union member.
dispute by awarding the JEU CBA Proposals as
the Collective Bargaining Agreement of the CBU; Confidential Employees (1994)
parties? Explain briefly. (2%) 1. Can an employer legally oppose the inclusion
SUGGESTED ANSWER: of confidential employees in the bargaining unit
1. The representation issue that has arisen of rank-and-file employees?
involving the national union PAFLU should not bar 2. Would your answer be different if the
collective bargaining negotiation with J and J. It is confidential employees are sought to be
the local union JEU that has the right to bargain included in the supervisory union?
with the employer J and J, and not the national SUGGESTED ANSWER:
union PAFLU. 1) Yes, an employer can legally oppose the
inclusion of confidential employees in the
It is immaterial whether the representation issue bargaining unit of the rank-and-file. This issue has
within PAFLU has been resolved with finality or been settled in the case of Golden Farms vs.
not. Said squabble could not possibly serve as a Calleja, and reiterated in the case of Philips
bar to any collective bargaining since PAFLU is not Industrial Dev. Inc. vs. NLRC.
the real party-in-interest to the talks; rather, the ALTERNATIVE ANSWERS:
negotiations are confined to the corporation and a) Yes, an employer can legally oppose the
the local union JEU. Only the collective bargaining inclusion of the confidential employees in the
agent, the local union JEU, possesses the legal bargaining unit of rank-and-file employees
standing to negotiate with the corporation. A duly because confidential employees are ineligible to
registered local union affiliated with a national form, assist or join a labor union. By the nature of
union or federation does not lose its legal their functions, they assist and act in a confidential
personality or Independence (Adamson and capacity to, or have access to confidential matters
Adamson, Inc. v. The Court of Industrial Relations of, persons who exercise managerial functions in
and Adamson and Adamson Supervising Union the field of labor relations, and the union might not
(FFW), 127 SCRA 268 [1984]). be assured of their loyalty in view of evident
conflict of interest.
2. Yes. It is within assumption power.
b) An employer can legally oppose the inclusion
CBA; Wage Increase Coverage; Non-Union of confidential employees in the bargaining unit of
Employees (2005) rank -and-file employees because confidential
(b) May a rank-and-file employee, who is not a employees are considered part of management.
member of the union representing his bargaining (Philtranco vs. BLR, 174 SCRA 388).
unit, avail of the wage increases which the union
negotiated for its members? (4%) SUGGESTED ANSWER:
SUGGESTED ANSWER: 2) The answer would be the same if confidential
Yes, because the bargaining representative employees are sought to be included in the
(union) does not act for its members alone. It supervisory union because confidential employees,
represents all the employees covered by the being a part of management would not qualify to
bargaining unit. (Mactan Workers Union v. Aboitiz, join, much less form a labor union. (Philtranco vs.
G.R. No. L-30241, June 30, 1972) However, non- BLR, 174 SCRA 388),
members who avail of CBA benefits are required ALTERNATIVE ANSWER:
under the law to pay agency fees. My answer would remain the same, even if the
confidential employees were sought to be included
CBU; Company Union vs. Union Shop (2004) in the supervisory union. Confidential employees
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would have the same adverse impact on the But this may be noted: The Bank officials
bargaining unit of supervisors: Confidential mentioned in the case, have control, custody
employees' access to highly sensitive information and/or access to confidential matters. Thus, they
may become the source of undue advantage by are confidential employees and in accordance with
the union over the employer. (Philips Industrial earlier Supreme Court decisions, as confidential
Development Inc., vs. National Labor Relations employees, the Branch Manager, Cashier,
Commission, et. al, G.R No. 88957, 25 June 1992) Controller are disqualified from joining or assisting
the supervisor's union of the Bank.
CBU; Consent Election vs. Certification ALTERNATIVE ANSWER:
Election (2004) The contention of the Fanners Bank is partially
Distinguish clearly but briefly between Consent correct. The Department managers and Branch
election and certification election. managers, if they in fact have the powers implied
SUGGESTED ANSWERS: by their titles, are managerial personnel. In
A certification election and a consent election are accordance with the Labor Code, managerial
both elections held to determine through secret personnel are not eligible to join and form labor
ballot the sole and exclusive representative of the unions.
employees in an appropriate bargaining unit for the
purpose of collective bargaining or negotiations. On the other hand, cashiers who are in charge of
There is this difference, however, a money received or expended, and comptrollers
CERTIFICATION ELECTION is ordered by the who examine and supervise expenditures, are not
Department of Labor and Employment while a managerial personnel, and if they supervise
CONSENT ELECTION is voluntarily agreed upon personnel, they could be supervisors, and are
by the parties, with or without the intervention of therefore to be included in the bargaining unit of
the Department of Labor and Employment. supervisors.

CBU; Managerial Employees; Supervisory 2. Is there any statutory basis for the petition of the
Employees (1995) union? Explain.
A supervisor's union filed a petition for certification SUGGESTED ANSWER:
election to determine the exclusive bargaining There is statutory basis for the petition of the
representative of the supervisory employees of supervisors' union. Under the Labor Code,
Farmers Bank. Included in the list of supervisory supervisors have the right to form and join unions,
employees attached to the petition are the but only unions of supervisory employees.
Department Managers, Branch Managers,
Cashiers and Comptrollers. Farmers Bank CBU; Managerial Employees; Supervisory
questioned this list arguing that Department Employees (1999)
Managers, Branch Managers, Cashiers and FACTS: Samahan ng mga Manggagawa sa
Comptrollers inherently possess the powers Companya ng Tabaco (SMCT) filed a Petition for
enumerated in Art. 212, par. (m), of the Labor Certification Election among the supervisory
Code, i.e., the power and prerogative to lay down employees of the Tabaco Manufacturing Company
and execute management policies and/or to hire, (Tabaco) before the NCR Regional Office of the
transfer, suspend, lay-off, recall, discharge, assign Department of Labor and Employment. It alleged,
or discipline employees. among other things, that it is a legitimate labor
1. Is the contention of Farmers Bank correct? organization, a duly chartered local of NAFLU; that
Discuss fully. Tabaco is an organized establishment; and that no
SUGGESTED ANSWER: certification election has been conducted within
The contention of the Farmers Bank is not correct, one year prior to the filing of its petition for
if, on examination of the actual powers exercised certification election.
by the Department Managers, Bank Managers,
Cashiers and Comptrollers, they are not vested The Petition filed by SMCT showed that out of its
with powers or prerogatives to lay down and 50 members, 15 were rank-and-filers and two (2)
execute management policies or to hire, transfer, were managers.
suspend, lay-off, recall, discharge, assign or
discipline employees. If their powers are to carry Tabaco filed a Motion to Dismiss on the ground
out their duties and responsibilities in accordance that SMCT union is composed of supervisory and
with the policies promulgated by the Board of rank-and-file employees and, therefore, cannot act
Directors of the Bank, or by external authorities, as bargaining agent for the proposed unit.
like the Central Bank, then, they are not
managerial but may be supervisory personnel. 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 bargaining unit where SMCT wishes to be the
proceedings wherein those employees who are exclusive collective bargaining representative.
occupying rank-and-file positions will be excluded
from the list of eligible voters. CBU; Modes; Determination of Exclusive
Bargaining Agreement (2006)
1. Should the Motion to Dismiss filed by the The modes of determining an exclusive bargaining
Tabaco be granted or denied? Explain. (3%) agreement are:
SUGGESTED ANSWER: a. voluntary recognition
The Motion to Dismiss filed by Tabaco should be b. certification election
granted. According to the Labor Code (in Article c. consent election
245), supervisory employees shall not be eligible Explain briefly how they differ from one another.
for membership in a labor organization of rank- (5%)
and-file employees but may join or form separate SUGGESTED ANSWER:
labor organizations of their own. (a.) VOLUNTARY RECOGNITION — is the
voluntary recognition by the employer of the
Because of the above-mentioned provision of the status of the union as the bargaining
Labor Code, a labor organization composed of representative of the employees [Section
both rank-and-file and supervisory employees is no l(bbb), Rule I, Book V, Rules to Implement
labor organization at all. It cannot, for any guise or the Labor Code, as amended by Department
purpose, be a legitimate labor organization. Not Order No. 40-03, Series of 2003 (17 February
being a legitimate labor organization, it cannot 2003)].
possess the requisite personality to file a petition (b.) CERTIFICATION ELECTION is the process
for certification election. (See Toyota Motor of determining the sole and exclusive
Philippines Corp. vs. Toyota Motor Philippines bargaining agent of the employees in an
Corp. Labor Union, 268 SCRA 573) appropriate bargaining unit [Section l(h), Rule
I, Book V, Rules to Implement the Labor
ALTERNATIVE ANSWER: Code, as amended by Department Order No.
The Motion to Dismiss should be denied. In the 40-03, Series of 2003 (17 February 2003)].
first place, the general rule is that in a certification (c.) CONSENT ELECTION is an agreed election,
election the employer is a mere bystander. An conducted with or without the intervention of
employer has no legal standing to question a the DOLE to determine the issue of majority
certification election as it is the sole concern of the representation of all the workers in the
workers. The exceptions to the general rule of appropriate bargaining unit (Algire v. De
which are 1) when the existence of an employer- Mesa, G.R. No. 97622, October 19, 1994).
employee relationship is denied; and 2) when the
employer questions the legal personality of the Due Process; Disciplinary Cases (1995)
union because of irregularities in its registration are 1. Gary, a salesman of Astro Chemical Company
not present in this case. (ASTRO), was reported to have committed some
serious anomalies in his sale and distribution of
2. Can the two (2) Managers be part of the company products. ASTRO designated its Chief
bargaining unit? Why? (2%) Legal Officer to investigate Gary. Instead of
SUGGESTED ANSWER: submitting to the investigation, Gary filed a petition
No, the two (2) Managers cannot be part of the to enjoin the investigation on the ground that
bargaining unit composed of supervisory ASTRO would appear to be his accuser,
employees. A bargaining unit must effect a prosecutor and judge at the same time. Will the
grouping of employees who have substantial, petition to enjoin the investigation prosper?
mutual interests in wages, hours, working Discuss fully.
conditions and other subjects of collective SUGGESTED ANSWER:
bargaining. (San Miguel Corp. Supervisors and The petition to enjoin the investigation will not
Exempt Employees Union v. Laguesma, 227 prosper. It is inevitable that in disciplinary cases,
SCRA 37O) the employer would appear to be accuser,
prosecutor, and judge at the same time since it is
The Labor Code (in Article 245) provides that the employer who charges an employee for the
managerial employees are not eligible to join, commission of an offense; he is also the person
assist or form any labor organization. who directs the investigation to determine whether
the charge against the employee is true or not and
The above provision shows that managerial he is the one who will judge if the employee is to
employees do not have the same interests as the be penalized or not. But if the employee is given
supervisory employees which compose the ample opportunity to defend himself, he could not

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validly claim that he was deprived of his right to Distinguish managerial employees from
due process of law. supervisory employees, (3%)
ALTERNATIVE ANSWER: SUGGESTED ANSWER:
No. The employer is merely complying with the A MANAGERIAL EMPLOYEE is one who is vested
legal mandate to afford the employee due process with powers or prerogatives to lay down and
by giving him the right to be heard and the chance execute management policies and/or to hire,
to answer the charges against him and accordingly transfer, suspend, lay-off, recall, discharge, assign
to defend himself before dismissal is effected. or discipline employees. SUPERVISORY
EMPLOYEES, on the other hand, are those who in
Employees; groups of employees (1996) the interest of the employer, effectively recommend
1) Who are the managerial, supervisory and rank- such managerial actions, if the exercise of such
and-file employees? authority is not merely routinary or clerical in nature
SUGGESTED ANSWER: but requires the use of independent judgment [Art.
"MANAGERIAL EMPLOYEE" is one who is vested 212 (m), Labor Code]
with powers or prerogatives to lay down and
execute management policies or to hire, transfer, In a case, the Supreme Court said: "In the petition
suspend, layoff, recall, discharge, assign or before us, a thorough dissection of the job
discipline employees. description of the concerned supervisory
employees and section heads indisputably show
SUPERVISORY EMPLOYEES are those who, in that they are not actually managerial but only
the interest of the employer, effectively recommend supervisory employees since they do not lay down
such managerial actions if the exercise of such company policies. PICOP's contention that the
authority is not merely routinary or clerical in nature subject section heads and unit managers exercise
but requires the use of independent judgment. the authority to hire and fire is ambiguous and
quite misleading for the reason that any authority
All employees who are neither managerial or they exercise is not supreme but merely advisory
supervisory employees are considered RANK- in character. Theirs is not a final determination of
AND-FILE EMPLOYEES. (Art. 212(m) of the Labor the company policies Inasmuch as any action
Code) taken by them on matters relative to hiring,
promotion, transfer, suspension and termination of
Employees; Managerial Employee vs. employees is still subject to confirmation and
Managerial Staff (1994) approval by their respective superior. [See Atlas
Distinguish the rights of managerial employees Lithographic Services, Inc. v. Laguesma, 205
from members of a managerial staff. SCRA 12, 17 (1992)] Thus, where such power,
SUGGESTED ANSWER: which is in effect recommendatory in character, is
MANAGERIAL EMPLOYEES have no collective subject to evaluation, review and final action by the
bargaining rights because, they cannot join or form department heads and higher executives of the
any other labor organization while officers of a company, the same, although present, is not
managerial staff are not prohibited from joining, effective and not an exercise of independent
assisting or forming or arresting a supervisor's judgment as required by law. [Philippine Appliance
union; hence, they can bargain collectively. (Art. Corp. v. Laguesma, 229 SCRA 730, 737 (1993)
245, Labor Code; National Sugar Refineries Corp. citing Franklin Baker Company of the Philippines v.
vs. NLRC, 220 SCRA 452). Trajano, 157 SCRA 416, 422-433 (1988)]." (Paper
ALTERNATIVE ANSWER: Industries Corp. of the Philippines v. Bienvenido E.
MANAGERIAL EMPLOYEES, under Article 212(m) Laguesma 330 SCRA 295, (2000)]
of the Labor Code are vested with the prerogatives
to lay down and execute management policies Employees; Managerial vs. Supervisory vs.
and/or to hire, fire, transfer, promote, lay-off and Rank-and-File Employees (2003)
discipline employees. They are not eligible for the The Labor Code treats differently in various
right to self-organization for purposes of collective aspects the employment of (i) managerial
bargaining. employees, (ii) supervisory employees, and (iii)
rank-and-file employees. State the basic
Upon the other hand, members of MANAGERIAL distinguishing features of each type of
STAFF, under Article 82 of the Labor Code, are not employment.
vested with the above-cited prerogatives. They SUGGESTED ANSWER:
are not entitled to overtime pay and other benefits Under Book Three of the Labor Code, a
under Book III, Title 1 of the Code. MANAGERIAL EMPLOYEE refers to one whose
primary duty consists of the management of the
Employees; managerial employees vs. establishment in which he is employed or of a
supervisory employees (2002) department or subdivision thereof, and to other
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officers or members of the managerial staff. A strike to publicly protest a certain policy or action
supervisor and a rank and file employee can be taken by the government. Thus, for instance, a
considered as members of the managerial staff, general strike may be declared by workers to
and therefore, a managerial employee if their publicly protest the stand of President Arroyo that
primary duty consists of work directly related to she is against an increase of the minimum wage at
management policies; if they customarily and this time.
regularly exercise discretion and independent
judgment; regularly and directly assist a proprietor Right to Strike; Assumption Power
or a managerial employee whose primary duty FACTS: Jenson & Jenson (J & J) is a domestic
consists of the management of the establishment corporation engaged in the manufacturing of
in which they are employed or a subdivision consumer products. Its rank-and-flle workers
thereof; or execute under general supervision work organized the Jenson Employees Union (JEU), a
along specialized or technical lines requiring duty registered local union affiliated with PAFLU, a
special training, experience, or knowledge; or national union. After having been certified as the
execute under general supervision special exclusive bargaining agent of the appropriate
assignments and tasks; and who do not devote bargaining unit, JEU-PAFLU submitted its
more than 20 percent of their hours worked in a proposals for a Collective Bargaining Agreement
work-week to activities which are not directly and with the company.
closely related to the performance of the work
described above. All others are rank and file In the meantime, a power struggle occurred within
employees under said Book (Art. 82, Labor Code, the national union PAFLU between its National
Sec. 2 (c), Rule I, Bk. III, Omnibus Rules President, Manny Pakyao, and its National
Implementing the Labor Code). Secretary General, Gabriel Miro. The
representation issue within PAFLU is pending
Under Book Five of the Labor Code, resolution before the Office of the Secretary of
"MANAGERIAL EMPLOYEE" is one who is vested Labor.
with powers or prerogatives to lay down, and
execute management policies and/or to hire, By reason of this intra-union dispute within PAFLU,
transfer, suspend, lay-off, recall, discharge, assign J & J obstinately and consistently refused to offer
or discipline employees. A SUPERVISORY any counterproposal and to bargain collectively
EMPLOYEE is one who, in the interest of the with JEU-PAFLU until the representation issue
employer, effectively recommends such within PAFLU shall have been resolved with
managerial actions if the exercise of such authority finality. JEU-PAFLU filed a Notice of Strike. The
is not merely routinary or clerical in nature but Secretary of Labor subsequently assumed
requires the use of independent judgment. All jurisdiction over the labor dispute.
employees not falling within any of the above 1) Will the representation issue that has arisen
definitions are considered rank-and-file employees involving the national union PAFLU, to which
for purposes of this Book (Art. 212 (M), Labor the duty registered local union JEU is affiliated,
Code). bar collective bargaining negotiation with J &
J? Explain briefly. (3%)
On the matter of right to self-organization, a 2) Can the Secretary of Labor decide the labor
managerial employee cannot exercise such right; dispute by awarding the JEU CBA Proposals
while a supervisor and a rank and file employee as the Collective Bargaining Agreement of the
can (Arts. 245, 243, Labor Code). parties? Explain briefly. (2%)
SUGGESTED ANSWER:
Right to Strike: Sympathy vs. General Strike 1. Representation issue in this case is not a bar...
(2004)
Distinguish clearly but briefly between: Sympathy 2. Yes. The Secretary of Labor can decide the
strike and general strike. labor dispute by awarding the JEU CBA proposals
SUGGESTED ANSWERS: as the Collective Bargaining Agreement of the
In both a sympathy strike and in a general strike, parties because when the Secretary of Labor
there is a stoppage of work by the concerted action (under Article 263[g]) assumes jurisdiction over a
of employees. In both kinds of strike, the strike is labor dispute causing or likely to cause a strike or
not the result of a labor or industrial dispute. lockout in an industry indispensable to the national
interest, the Secretary of Labor exercises the
As the name implies, workers go on a SYMPATHY power of compulsory arbitration over the labor
STRIKE to show their sympathy for certain workers dispute, meaning, that as an exception to the
who are on strike. On the other hand, in a general rule, the Secretary of Labor now has the
GENERAL STRIKE, workers in the country or in a power to set or fix wages, rates of pay, hours of
region, province, or city or municipality go on a work or terms and conditions of employment by
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determining what should be the CBA of the parties. officer and did not commit any illegal act) may be
(See Divine Word University vs. Secretary of entitled to reinstatement.
Labor, 213 SCRA 759)
ALTERNATIVE ANSWER: Right to Strike; Effects; illegal strike (1995)
What is involved in the case in the question is a If the strike is declared illegal, will the strikers be
corporation engaged in the manufacturing of entitled to their wages for the duration for the
consumer products. If the consumer products that strike? Explain,
are being manufactured are not such that a strike SUGGESTED ANSWER::
against the company cannot be considered a strike NO. The applicable doctrine will be: No work, no
in an Industry indispensable for the national pay, unless there is an agreement to pay strike
interest, then the assumption of Jurisdiction by the duration pay.
Secretary of Labor is not proper. Therefore, he
cannot legally exercise the powers of compulsory Right to Strike; Effects; illegal strike (2000)
arbitration in the labor dispute. A division manager of a company taunted a union
officer two days after the union submitted to the
Right to Strike; Compulsory Arbitration; Department of Labor and Employment (DOLE) the
Certification to NLRC (1995) result of the strike vote. The division manager said:
What are the objectives of the Secretary of Labor The union threat of an unfair labor practice strike is
and Employment in certifying a labor dispute to the phony or a bluff. Not even ten percent (10%) of
NLRC for compulsory arbitration? Explain. your members will join the strike." To prove union
SUGGESTED ANSWER: member support for the strike, the union officer
The objectives of the Secretary of Labor and immediately instructed its members to cease
Employment in certifying a labor dispute to the working and walk out. Two hours after the walkout,
NLRC for compulsory arbitration is to prevent a the workers voluntarily returned to work.
work stoppage that may adversely affect the A. Was the walkout a strike? And if so, was it a
national interest and to see to it that a labor valid activity? (3%)
dispute is expeditiously settled. B. Can the union officer who led the short walk-
out, but who likewise voluntarily led the
Right to Strike; Effects; Hired Replacements workers back to work, be disciplined by the
(2006) employer? (3%)
If due to the prolonged strike, ROSE Corporation SUGGESTED ANSWERS:
hired replacements, can it refuse to admit the a) Yes, it was a strike because there was a work
replaced strikers? stoppage by concerted action and there is an
SUGGESTED ANSWER: existing labor dispute. It was not a valid activity
No. While present law recognizes the right of the because the requisites for a valid strike were not
employer to continue his business in the course of observed, (Art. 212, (o), (l) Labor Code).
an economic strike, it assures the right of the
strikers to return to their former positions at the b) Yes, the employer may discipline the union
expense of the replacements. Art. 264(a) of the officer. An illegal strike is a cause for the union
Labor Code provides that mere participation of a officer to be declared to have lost his employment
worker in a lawful strike shall not constitute status. [Art 263 (c), (d),(e), (f); Art 264 (a), Labor
sufficient ground for termination of his employment, Code].
even if a replacement had been hired by the
employer during such lawful strike (PT&T v. NLRC, Right to Strike; Effects; Strikers’ illegal Acts
G.R. No. 109281, December 7, 1995; Diwa ng (2006)
Pagkakaisa v. Filtex International Corporation, Assuming the company admits all the strikers, can
Nos. L-23960 & L-23961, February 26, 1968). it later on dismiss those employees who committed
illegal acts?
Right to Strike; Effects; illegal strike (1995) SUGGESTED ANSWER:
Are the strikers in an illegal strike entitled to No, when the company admits all the strikers, it is
reinstatement under the Labor Code? Explain. deemed to have waived the issue and condoned
SUGGESTED ANSWER: the strikers who committed illegal acts (Citizen's
NO. Union officers and members who commit Labor Union v. Standard Vacuum Oil Co., G.R. No.
illegal acts lose their employment status. Any union L-7478, May 6,1955; TASLI-ALU v. CA, G.R. No.
officer who knowingly participates in an illegal 145428, July 7, 2004).
strike, and any worker or union officer who
knowingly participates in the commission of illegal Right to Strike; illegal dismissal (2003)
acts during a strike may be declared to have lost Magdalo, a labor union in Oakwood, a furniture
his employment status. Participants (not a union 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 Thus, the company committed an illegal lockout in
conciliation hearings to resolve the deadlock. refusing to accept the offer of the strikers to return
Unable to agree despite efforts of the DOLE, to work. Under the set of facts in the question, the
Magdalo called a strike participated in by its Company did not give the required notice to
officers and union members including Cesar Trinio, lockout, much less did it observe the necessary
a rank-and-file employee, who led the "walk out." waiting period, nor did it take a needed vote on the
Oakwood filed a petition to declare illegal the strike lockout. Thus, the lockout is illegal.
which Magdalo staged without observing the
seven-day ban under the Labor Code. Oakwood Right to Strike; illegal strike; Loss of
claimed that the strike being illegal, all those who Employment (1994)
participated therein, including Cesar Trinio, could Union A filed a Notice of Strike with the National
be dismissed as, in fact, they were so dismissed by Conciliation and Mediation Board (NCMB) of the
Oakwood. Decide the case. Department of Labor and Employment. Upon a
SUGGESTED ANSWER: motion to dismiss by the Company on the ground
When Oakwood dismissed all the officers and that the acts complained of in the notice of strike
members of the union who participated in the strike are non-strikeable. The NCMB dismissed the
which was declared illegal because it was staged Notice of Strike but continued to mediate the
without observing the seven-day ban under the issues contained therein to prevent the escalation
Labor Code. of the dispute between the parties. While the
NCMB was conducting mediation proceedings, the
Oakwood illegally dismissed the union members, Union proceeded to conduct a strike vote as
including Cesar Trinio. The Labor Code provides provided for under the Labor Code. After
that a union officer who knowingly participates in observance of the procedural processes required
an illegal strike loses his employment status. Thus, under the Code, the Union declared a strike.
the union officers were legally dismissed. But for a 1. Is the strike legal?
union member to lose his employment status, he 2. Can the employer unilaterally declare those
should have committed illegal acts during the who participated in the strike as having lost
strike, like acts of violence, coercion or intimidation their employment status?
or obstruction of ingress to or egress from the 3. What recourse do these employees (declared
employer's premises for lawful purposes or by the employer to have lost their employment
obstruction of public thoroughfares. The union status) have, if any?
members, including Cesar Trino, did not commit SUGGESTED ANSWER:
any of these acts. Thus, it would be illegal to 1) NO. The strike is not legal. The Labor Code
dismiss them. provides that no labor organization shall declare a
strike without first having bargained collectively in
Right to Strike; illegal lockout (1995) accordance with its Title VII of Book V, which in
Fifty percent (50%) of the employees of Grandeur turn provides that during conciliation proceedings
Company went on strike after negotiations for a at the NCMB, the parties are prohibited from doing
collective bargaining agreement ended in a any act that may disrupt or impede the early
deadlock. Grandeur Company, being a public settlement of the dispute. (Arts. 264(a), also
utility, immediately petitioned the Secretary of 250(d); Labor Code)
Labor and Employment to assume jurisdiction and ALTERNATIVE ANSWER:
certify the case to the NLRC. On the fourth day of a) The strike is not legal, considering that it was
the strike and before the DOLE Secretary could declared after the NCMB dismissed the Notice of
assume jurisdiction or certify the case to the Strike. Hence, it is as if, no notice of strike was
NLRC, the strikers communicated in writing their filed. A strike declared without a notice of strike is
offer to return to work. Grandeur Company refused illegal, (GOP-CCP vs. CIR, 93 SCRA 118).
to accept the offer of the strikers because it
realized that they were not at all capable of b) No. The strike is illegal. It is already settled in
paralyzing the operations of the company. The the case of PAL vs. Secretary of Labor (Drilon) that
strikers accused Grandeur Company of illegal the pendency of a mediation proceedings is a bar
lockout. to the staging of a strike even if all the procedural
requirements were complied with.
Has Grandeur Company committed the act
charged by refusing to accept the offer of the SUGGESTED ANSWER:
strikers to return to work? Discuss fully. 2) The employer may unilaterally declare those
SUGGESTED ANSWER: who participated in the strike as having lost their
There is no law that prohibits strikers to decide not employment status but such unilateral declaration
to continue with a strike that they have started. does not necessarily mean that thereby the strikers
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are legally dismissed. The strikers could still file a Certification of labor dispute for immediate
case of illegal dismissal and prove, if they can, that assumption of jurisdiction by the Secretary of the
there was no just cause for their dismissal. Department of Labor and Employment, as
ALTERNATIVE ANSWER: indispensable to national interest. (Art. 263 [g],
a) The employer cannot unilaterally declare those Labor Code).
who participated in the Illegal strike as having lost 1. Bulletin Daily Newspaper. Access to information,
their employment status. Only the union officers e.g., local, foreign, or otherwise are requirements
who knowingly participated In the strike and for an informed citizenry.
workers who knowingly participated in the 2. Shipping and port services in Cebu and Manila.
commission of illegal acts. If any, may be declared The country needs domestic sea transport due to
to have lost their employment status. (Art. 264). our topography and for the smooth flow of
business and government operations.
b) The employer has two options:
1. It may declare the strikers as having lost 3. LBC, DHL, FEDEx Centers. Couriers are
their employment status pursuant to Art. essential to foreign and domestic business and
264 of the Labor Code, or government operations.
2. It may file a case before the Labor Arbiter,
under Art, 217, to have the strike declared Right to Strike; Industries Vital to National
illegal and after that proceed to terminate Interest; Return to Work Order (1996)
the strikers. A deadlock in the negotiations for the collective
bargaining agreement between X College and the
SUGGESTED ANSWER: Union prompted the latter, after duly notifying the
3) They could file a case of illegal dismissal. The DOLE, to declare a strike on November 5 which
strikers who are union officers may contend that totally paralyzed the operations of the school.
the strike is not illegal. The strikers who are mere
union members may contend that they did not The Labor Secretary immediately assumed
commit any Illegal acts during the strike. (Art, 264, Jurisdiction over the dispute and issued on the
Labor Code) same day (November 5) a return to work order.
ALTERNATIVE ANSWER: Upon receipt of the order, the striking union officers
a) The employees who were declared to have lost and members on November 7, filed a motion for
their employment status can file a complaint for reconsideration thereof questioning the Labor
illegal dismissal with the NLRC, or seek the Secretary's assumption of jurisdiction, and
assistance of the NCMB for conciliation/ mediation. continued with the strike during the pendency of
their motion.
b) The recourse of the workers whose employment
status are declared to have been lost is to file a On November 30, the Labor Secretary denied
case of illegal dismissal under Art. 217 of the reconsideration of his return to work order and
Code, and to pray for the suspension of the effects further noting the striker's failure to immediately
of termination under Article 277(b) of the said Code return to work terminated their employment.
because this involves a mass lay-off.
In assailing the Labor Secretary's decision, the
Right to Strike; Industries Vital to National Union contends that:
Interest (2004) 1. the Labor Secretary erroneously assumed
Which of the following may be considered among jurisdiction over the dispute since X College
industries most vital to national interest as to be could not be considered an industry
the subject of immediate assumption of jurisdiction indispensable to national interest;
by the Secretary of Labor and Employment or 2. the strikers were under no obligation to
certification for compulsory arbitration in case of immediately comply with the November 5
strike or work stoppage arising from a labor return to work order because of their then
dispute? pending motion for reconsideration of such
(1) Bulletin daily newspaper publishing order: and
company. 3. the strike being legal, the employment of the
(2) Local franchise of Jollibee and Starbucks. striking Union officers and members cannot be
(3) Shipping and port services in Cebu and terminated.
Manila. Rule on these contention. Explain.
(4) Enchanted Kingdom, Elephant Island and SUGGESTED ANSWERS:
Boracay Resort. 1} The Supreme Court has already ruled that
(5) LBC, DHL and FedEx centers. educational institutions are in an industry
Justify your answer or choice. (5%) indispensable to the national interest, considering
SUGGESTED ANSWER:
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the grave adverse effects that their closure entails ground for termination of his employment, even if a
on their students and teachers. replacement had been hired by the employer
during such lawful strike.
2) The striking workers must immediately comply
with a Return to Work Order even pending their Right to Strike; Lawful; Right to Rein-
motion for reconsideration. Compliance is a duty statement (2006)
imposed by law, and a Return to Work Order is As a result of bargaining deadlock between ROSE
immediately executory in character. Corporation and ROSE Employees Union, its
members staged a strike. During the strike, several
The nature of a Return to Work Order, was employees committed illegal acts. The company
characterized by the Supreme Court in Sarmiento refused to give in to the union's demands.
v. Juico, 162 SCRA 676 (1988) as: Eventually, its members informed the company of
It is also important to emphasize that the return their intention to return to work. (10%)
to work order not so much confers a right as it 1. Can ROSE Corporation refuse to admit all the
imposes a duty. It must be discharged as a strikers?
duty even against the workers' will. Returning SUGGESTED ANSWER:
to work in this situation is not a matter of Rose Corporation cannot refuse to admit all the
options or voluntariness but of obligation. strikers. Participants in a lawful strike generally
have the right to reinstatement to their positions
In Baguio Colleges Foundation v. NLRC, 222 upon the termination of the strike (Insular Life
SCRA 604 (1993) the Court ruled: Assurance Co. Employees Assn. v. Insular Life
Assumption and certification orders are Assurance Co., G.R. No. L-25291, January 30,
executory in character and are to be strictly 1979; Consolidated Labor Assn. of the Phil. v.
complied with by the parties even during the Marsman & Co., Inc., G.R. No. L-17038, July 31,
pendency of any petition questioning their 1964). However, the Labor Code provides that any
validity. worker or union officer who knowingly participates
in the commission of illegal acts during a strike
3) The continuing strike is illegal because it is in may be deemed to have lost his employment
defiance of a return to work order of the Secretary status (Bascon v. CA, G.R. No. 144899, February
of Labor and Employment, hence, termination of 5, 2004; First City Interlink Trans. Co., Inv. v.
employment of all those who participated whether Confessor, G.R. No. 106316, May 5,1997;
officer or member, is legal. Lapanday Workers' Union v. NLRC, G.R. Nos.
95494-97, September 7, 1995; Art. 264, Labor
In Sta. Scholastica's College v. Torres. 210 SCRA Code).
565 (1992), the Court ruled:
Any worker or union officer who knowingly Right to Strike; Limitations (2000)
participates in a strike defying a return to work A. What is the rationale for the State regulation of
order may, consequently, be declared to have strike activity and what are the interests
lost his employment status in accordance with involved that the State must balance and
Art. 246 of the Labor Code. reconcile? (3%)
B. Cite two (2) examples on how the law
Right to Strike; Lawful Strike; Effect on regulates the use of the strike as a form of
Participants (1997) concerted activity. (2%)
A strike was staged in Mella Corporation because SUGGESTED ANSWER:
of a deadlock in CBA negotiations over certain a) The first rationale is the constitutional provision
economic provisions. During the strike, Mella that the right to strike is to be exercised "in
Corporation hired replacements for the workers accordance with law". Another rationale is the Civil
who went on strike. Thereafter, the strikers decided Code provision that the relations between
to resume their employment. employer and employee are imbued with public
Can Mella Corporation be obliged to reinstate the interest and are subject to the provisions of special
returning workers to their previous positions? law. A third rationale is the police power of the
SUGGESTED ANSWER: state.
YES. Mella Corporation can be obligated to
reinstate the returning workers to their previous The interests to be balanced are the rights of the
positions. Workers who go on strike do not lose workers, as primary socio-economic force, to
their employment status except when, while on protection of the law, to security of tenure, to
strike, they knowingly participated in the concerted activities, etc. These should be
commission of illegal acts. The Labor Code balanced with the right of the employer to
expressly provides: Mere participation of a worker reasonable return on investment and to expansion
in a lawful strike should not constitute sufficient and growth. General welfare or the general peace
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and progress of society should also be considered. Labor Union, 100 Phil 789 (1957): Cruz v. Cinema
This is why assumption of Jurisdiction and Stage, etc., 101 Phil 1259 (1957}]
certification to NLRC are allowed in "national ALTERNATIVE ANSWER:
interest" cases. {Art. 263, Labor Code; Raw at No, the picketing activity itself cannot be curtailed.
Buklod ng Manggagawa v. NLRC, 198 SCRA 586 What can be curtailed are the Illegal acts being
(1991); Lapanday Workers Union v. NLRC, 248 done in the course of the picket. However, if this is
SCRA 96 (1995)} a "national Interest" case under Art 263(g), the
strike or work stoppage may be stopped by the
EXAMPLES: (1) procedural requirements should power of assumption of Jurisdiction or certification
be observed, namely, filing of notice of strike, of the case to the National Labor Relations
observance of cooling-off period, taking of strike Commission. {Nagkakaisang Mangagawa sa
note, and report of the strike vote; (2) use of Cuison Hotel v. Libron, 124 SCRA 448 (1983);
violence, intimidation or coercion and blockade of Free Telephone Workers Union v. PLDT, 113
ingress-egress are not allowed. (Art 263 SCRA 662 (1982)].
(b)(c)(f)(g), Labor Code).
Right to Strike; Picketing Activity; illegal
Right to Strike; National Interest; DOLE Sec. dismissal (2004)
intervention (2004) B. President FX, head of a newly formed labor
Employees of ABC declared a strike after filing a union composed of 1/3 of the total number of rank-
Notice of Strike with the DOLE. They barricaded and-file employees in Super Stores, Inc., agitated
company gates and damaged vehicles entering his fellow employees to demand from management
company premises. On the second day of the pay increases and overtime pay. His supervisor
strike, ABC filed a petition with the DOLE summoned him to explain his tardiness and refusal
Secretary to intervene through the issuance of an to obey regulations. Feeling threatened, he
assumption of jurisdiction order that the Secretary gathered 20 of his members and staged a 2-day
may issue when a strike or lock-out will adversely picket in front of the shopping mall. Security staff
affect national interest. ABC furnished the arrived and dismantled the placards and
Secretary with evidence to show that company barricades blocking the employees’ entry to the
vehicles had been damaged; that electric power mall. In retaliation, FX threw stones at the guards,
had been cut off; and equipment and materials but the other striking workers just stood by
were damaged because electric power was not watching him. Seven days after the picket, FX who
immediately restored. ABC forecast that the had gone absent without leave returned to the mall
country’s supply of chlorine for water treatment and announced that he had filed a complaint for
(which the company produces) would be affected illegal dismissal and unfair labor practice against
adversely if ABC’s operations were closed down by SSI.
the strikers.
SSI learned that FX’s group was not registered.
Could the DOLE Secretary intervene, assume No strike vote and strike notice were filed prior to
jurisdiction and issue a TRO (Temporary the picket. The guards were told not to allow FX
Restraining Order)? Briefly justify your answer. entry to the company premises as management
(5%) considered him effectively terminated. Other union
members were accepted back to work by SSI.
Was the dismissal of FX for a valid cause? Was
Right to Strike; Picketing Activity (2000) due process observed? (5%)
The workers engaged in picketing activity in the SUGGESTED ANSWER:
course of a strike. There is a valid cause for the dismissal of FX, but
a) Will picketing be legal if non-employees of the due process was not observed.
strike-bound employer participate in the activity?
(3%) Peaceful picketing is part of the constitutional
b) Can picketing activity be curtailed when illegal freedom of speech. The right to free speech,
acts are committed by the picketing workers in the however, has its limits, and picketing as a
course of the activity? (3%) concerted activity is subject to the same limitations
SUGGESTED ANSWER: as a strike, particularly as to lawful purpose and
Yes, the picketing is legal even though non- lawful means. But it does not have to comply with
employees join it. Picketing is a form of the the procedural requirements for a lawful strike, like
exercise of freedom of speech. Picketing, provided the notice of strike or the strike vote.
it is held peacefully, is a constitutional right. The
disputants in a legal dispute need not be employer- However, in the problem given, picketing became
employee of each other. [De Leon v. National 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 who participated in the strike dismissed from
guards. There was thus, valid cause for the employment.
dismissal of FX, however, due process was not
observed because SSI did not comply with the twin (a) Was the act of Manila Airlines' management in
requirements of notice and hearing. dismissing the participants in the strike valid?
(b) What are the effects of an assumption of
Right to Strike; Return to Work Order (1994) jurisdiction by the Secretary of Labor upon the
The Secretary of Labor assumed jurisdiction over a striking employees and Manila Airlines?
strike under Art. 263(g) of the Labor Code and SUGGESTED ANSWER:
issued a return-to-work order. The Union defied the (a) Yes. The act of Manila Airlines' management
return-to-work order and continued the strike. The in dismissing the participants in the strike is valid,
Company proceeded to declare all those who in a number of Supreme Court decisions, it has
participated in the strike as having lost their ruled that the defiance by workers of a return to
employment status. work order of the Secretary of Labor issued when
1) Was the Company's action valid? he assumes jurisdiction over a labor dispute is an
2) Was the Company still duty bound to observe illegal act and could be the basis of a legal
the requirements of due process before declaring dismissal. The return to work order imposes a duty;
those who participated in the strike as having lost it must be discharged as a duty even against the
their employment status? workers' will.
SUGGESTED ANSWER:
1) The Company's action is valid. Any (b) When the Secretary of Labor assumes
declaration of a strike after the Secretary of Labor jurisdiction over a strike, all striking employees
has assumed jurisdiction over a labor dispute is shall immediately return to work and the employer
considered an illegal act, and any worker or union shall immediately resume operations and readmit
officer who knowingly participates in a strike all workers under the same terms and conditions
defying a return-to-work order may consequently prevailing before the strike. [Art. 263(q)].
be declared to have lost his employment status
and forfeited his right to be readmitted, having Right to Strike; Return to Work Order (1998)
abandoned his position, and so could be validly The Secretary of Labor and Employment, after
replaced. assumption of jurisdiction over a labor dispute in
an airline issued a Return to Work Order. The
For the moment a worker defies a return-to-work airline filed a Motion for Reconsideration of the
order, he is deemed to have abandoned his job, as Order and pending resolution of the motion,
it is already in itself knowingly participating in an deferred the implementation of the Order.
illegal act, otherwise the worker will simply refuse Can the airline defer the implementation of the
to return to his work and cause a standstill in Return to Work Order pending resolution of the
company operations while returning the position he motion for reconsideration? [5%]
refuses to discharge or allow management to fill. SUGGESTED ANSWER:
(St. Scholastica's College vs. Hon. Ruben Torres, The airline cannot defer the implementation of the
Secretary of Labor, etal., G.R. No. 100158. 29 Return to Work Order on the basis of there being a
June 1992.) pending Motion for Reconsideration re: the
assumption of jurisdiction by the Secretary of
SUGGESTED ANSWER: Labor and Employment of a labor dispute.
2) Considering that the workers who defied the According to the Supreme Court, the Return to
return-to-work order are deemed to have Work Order issued by the Secretary of Labor and
abandoned their employment, the only obligation Employment upon his assumption of jurisdiction
required of an employer is to serve notices over a labor dispute in an industry indispensable
declaring them to have lost their employment for the national interest is immediately executory.
status at the worker's last known address. (Sec. 2 ANOTHER SUGGESTED ANSWER:
Rule XIV, Book V, Rules Implementing the Labor No, the airline cannot defer the implementation of
Code) a return to work order pending resolution of a
Motion for Reconsideration.
Right to Strike; Return to Work Order (1997) The Labor Code reads –
The Secretary of Labor assumed Jurisdiction over Art. 263. Strikes, picketing, and lockouts. - xxx
a strike in Manila Airlines and eventually issued a (g) When, in his opinion, there exists a labor
return-to-work. The Manila Airlines Employees dispute causing or likely to cause a strike or
Union defied the return-to-work order and lockout in an industry indispensable to the
continued with their strike. The management of national interest, the Secretary of Labor and
Manila Airlines then declared all the employees 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 1. What are the statutory requisites for a valid
assumption or certification shall have the effect strike by the workers? Should these requisites
of automatically enjoining the intended or be complied with substantially or strictly?
impending strike... as specified in the SUGGESTED ANSWERS:
assumption or certification order. If one has The STATUTORY REQUISITES for a valid strike
already taken place at the time of assumption are the following:
or certification, all striking employees ...shall 1. A strike may be declared only in cases of
immediately return to work, (underscoring bargaining deadlocks or unfair labor practices.
supplied) Violations of Collective bargaining agreements,
except flagrant and/or malicious refusal to
The Supreme Court, in Baguio Colleges comply with its economic provisions, shall not
Foundation V NLRC. 222 SCRA 604 (1995), ruled be considered unfair labor practice and shall
- not be strikeable. No strike or lockout may be
xxx assumption and certification orders are declared on grounds involving inter-union and
executory in character and are to be strictly intra-union disputes.
complied with by the parties even during the 2. No strike may be declared without first having
pendency of any petition questioning their filed a notice of strike or without the necessary
validity. strike vote having been obtained and reported
to the National Conciliation and Mediation
Being executory in character, there was Board. A strike may actually take place only
nothing for the parties to do but implement the after a 30-day waiting period after notice was
same, (underscoring supplied) filed for a strike arising from a bargaining
deadlock or after & 15-day waiting period for
Right to Strike; Return to Work Order; an unfair labor practice strike. Notice about a
Assumption Order (2003) strike vote should be given seven days before
In a labor dispute, the Secretary of Labor issued the intended strike.
an "Assumption Order". Give the legal implications 3. No strike can be declared after assumption of
of such an order. jurisdiction by the Secretary of Labor and
SUGGESTED ANSWER: Employment or after certification or submission
Under Art. 263(g) of the Labor Code, such of the dispute to compulsory or voluntary
assumption shall have the effect of automatically arbitration or during the pendency of cases
enjoining the intended or impending strike or involving the same grounds for the strike or
lockout as specified in the assumption order. If one lockout.
had already taken place at the time of assumption,
all striking or lockout employees shall immediately The above requisites are to be complied with
return to work and the employer shall immediately strictly. Thus, the Supreme Court has ruled that
resume operations and re-admit all workers under non-compliance of the requirements of notice or a
the same terms and conditions prevailing before strike vote or of the waiting periods makes a strike
the strike or lockout. an illegal strike.

The Secretary of Labor and Employment may seek ANOTHER SUGGESTED ANSWER:
the assistance of law enforcement agencies to STATUTORY REQUIREMENTS for a Valid Strike
ensure compliance with this provision as well as A. STATUS OF STRIKING UNION -
with such orders as he may issue to enforce the For a ULP strike or bargaining deadlock
same. strike, only a duly-certified or -recognized
bargaining representative may declare
The mere issuance of an assumption order by the such strike.
Secretary of Labor automatically carries with it a B. PROCEDURAL REQUIREMENTS -
return-to-work order, even if the directive to return (1) Notice of Intent. Filing of Notice of Intent
to work is not expressly stated in the assumption to Strike with the NCMB.
order. Those who violate the foregoing shall be (2) Cooling-off Period.- Observance of
subject to disciplinary action or even criminal Cooling-off Period.
prosecution. Under Art. 264 of the Labor Code, no (a) ULP - 15 days before intended date of
strike or lockout shall be declared after the strike
assumption of jurisdiction by the Secretary. (b) Bargaining Deadlock - 30 days before
intended date of strike.
Right to Strike; Statutory Requisites; (3) Strike Vote and Filing of the same with the
Procedural Requirements (2004) NCMB and the observance of the seven
Enumerate and discuss briefly: (7) days strike ban. [Art. 263 (c-f), Labor
Code].
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C. CAUSE - to talk with the union leaders, alleging that they
The cause of a strike must be a labor or industrial had not as yet presented any proof of majority
dispute. [Art. 212fo). Labor Code. Compliance with status.
all legal requirements are meant to be and should
be mandatory. (National Federation of Sugar The Kilusang Kabisig then chained Microchip
Workers v. Ovajera, 114 SCRA 354 [1982]). Corporation with unfair labor practice, and declared
a "wildcat" strike wherein means of ingress and
Right to Strike; Temporary Stoppage (2002) egress were blocked and remote and isolated acts
Eaglestar Company required a 24-hour operation of destruction and violence were committed.
and embodied this requirement in the employment a) Was the strike legal?
contracts of its employees. The employees agreed b) Was the company guilty of an unfair labor
to work on Sundays and Holidays if their work practice when it refused to negotiate with the
schedule required them to do so for which they Kilusang Kabisig?
would be paid additional compensation as SUGGESTED ANSWERS:
provided by law. Last March 2000, the union filed a (a) Because what was declared is a "wildcat"
notice of strike. Upon Eaglestar's petition, the strike, the strike is illegal. A "wildcat" strike is one
Secretary of Labor certified the labor dispute to the that is one declared by a group of workers without
NLRC for compulsory arbitration. On April 20, 2000 formal union approval. Thus, it is illegal because
(Maundy Thursday), while conciliation meetings the Labor Code requires that for a strike to be
were pending, the union officers and members who legal, among others, the decision to declare a
were supposed to be on duty did not report for strike must be approved by a majority of the total
work. Neither did they report for work on April 21 union membership in the bargaining unit
(Good Friday) and on April 22 (Black Saturday), concerned, obtained by a secret ballot in meetings
disrupting the factory's operations and causing it or referenda called for that purpose.
huge losses. The union denied it had gone on a ALTERNATIVE ANSWERS:
strike because the days when its officers and a.l) The strike is illegal. The Labor Code
members were absent from work were legal recognizes only one of two (2) grounds for a strike
holidays. Is the contention of the union correct? to be legal: bargaining deadlock or unfair labor
Explain briefly. (5%) practice. A strike to compel an employer to
SUGGESTED ANSWER: recognize a union is not allowed by law.
The contention of the union is NOT correct. In the
case, it is clear that the employees agreed to work 2) The strike is not illegal. For the strike to be
on Sundays and Holidays if their work schedule illegal because of violence, it should be
required them to do so for which they would be characterized by pervasive violence. Here, there
paid additional compensation as provided by law. were only remote and violated acts of destruction
The above-mentioned agreement that the and violence. But even if the strike is not illegal,
employees voluntarily entered into is valid. It is not those strikers who committed illegal acts, namely,
contrary to law. It is provided in the agreement that those who blocked the means of ingress and
if they will work Sundays or Holidays that they will egress and who committed acts of destruction and
be paid additional compensation as provided by violence, these strikers can be legally dismissed.
law. Neither is the agreement contrary to morals,
good customs, public order or public policy. Right to Strike; Work Slowdown (1998)
The day following the workers' voluntary return to
Thus, when the workers did not report for work work, the Company Production Manager
when by agreement they were supposed to be on discovered an unusual and sharp drop in workers'
duty, there was a temporary stoppage of work by output. It was evidently clear that the workers are
the concerted action of the employees as a result engaged in a work slowdown activity.
of an Industrial or labor dispute because they were Is the work slowdown a valid form of strike activity?
on strike. [See Interphil Laboratories Employees [5%]
Union-FFW v. Interphil Laboratories Inc., GR No. SUGGESTED ANSWER:
142824, December 19, 2001} A WORK SLOWDOWN is not a valid form of strike
activity. If workers are to strike, there should be
Right to Strike; Wildcat Strike (1997) temporary stoppage of work by the concerted
The Kilusang Kabisig, a newly-formed labor union action of employees as a result of an industrial or
claiming to represent a majority of the workers in labor dispute (See Article 2l2(o) of the Labor Code)
the Microchip Corporation, proceeded to present a ANOTHER SUGGESTED ANSWER:
list of demands to the management for purposes of No, a slowdown is not a valid form of strike activity.
collective bargaining. The Microchips Corporation, The Supreme Court in Ilaw at Buklod ng
a multinational corporation engaged in the Manggagawa v. NLRC 198 SCRA 586 (1991) ruled
production of computer chips for export, declined - The Court is in substantial agreement with the
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LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
petitioner's concept of a slowdown as a "strike on When the law provides that a "labor organization
the installment plan", as a willful reduction in the xxx shall acquire legal personality xxx upon
rate of work by conceited action of workers for the issuance of the certificate of registration", the date
purpose of restricting the output of the employer, in appearing therein is legally presumed - under the
relation to a labor dispute, as an activity by which rule on presumption of regularity - to be its date of
workers, without a complete stoppage of work issuance. Actual issuance is a contentious
retard production or their performance of their evidentiary issue that can hardly be resolved, not
duties... The Court also agrees that such slowdown to mention that the law does not speak of "actual"
is generally condemned as inherently illicit and issuance.
unjustifiable, because while the employees
"continue to work and remain at their positions, Self Organization; Appropriate Bargaining
and accept wages paid to them", they at the same Unit; Confidential Employees (2002)
time select what part of their alloted tasks they Malou is the Executive Secretary of the Senior
care to perform of their own volition or refuse Vice-president of a bank while Ana is the Legal
openly, or secretly, to the employers damage, to Secretary of the bank's lawyer. They and other
do other work; in other words, they work on their executive secretaries would like to join the union of
own terms. rank and file employees of the bank. Are they
eligible to join the union? Why? Explain briefly.
Likewise, a slowdown is not a valid form of (3%)
concerted activity, absent a labor dispute between SUGGESTED ANSWER:
the parties. The Labor Code reads - Art. 212. . – The following rules will govern the right of self-
xxx Co) "Strike" means any temporary stoppage of organization of Malou, Ana, and the other
work by the concerted action of employees as a Executive Secretaries;
result of an industrial or labor dispute. 1. No Right to Self-Organization — Confidential
ANOTHER SUGGESTED ANSWER: employees who act in a confidential capacity to
No. It is a prohibited activity. It can be said to be a persons who formulate, determine, and effectuate
violation of the duty to bargain collectively. The management policies in the field of labor-
union is guilty of bad faith. The workers should management relation. The two criteria are
resume operations under the same terms and cumulative and both must be met [San Miguel
conditions prevailing prior to the strike. Corporation Union v. Laguesma, 277 SCRA 370
(1997)]
Self Organization; Acquisition of Legal
Personality (2003) 2. With Right to Self-Organization — When the
At what particular point does a labor organization employee does not have access to confidential
acquire a legal personality? labor relations information, there is no legal
a) On the date the agreement to organize the prohibition against confidential employees from
union is signed by the majority of all its forming, assisting, or joining a labor organization.
members; or [Sugbuanon Rural Bank, Inc. v. Laguesma, 324
b) On the date the application for registration is SCRA 425 (2000)]
duly filed with the Department of Labor or
c) On the date appearing on the Certificate of 3. No right of self-organization for Legal
Registration; or Secretaries — Legal Secretaries fall under the
d) On the date the Certificate of Registration is category of confidential employees with no right to
actually issued; or serf-organization. [Pier & Arrastre Stevedoring
e) None of the above, Choose the correct Services, Inc. v, Confesser, 241 SCRA 294 (1995)]
answer.
SUGGESTED ANSWER: Self Organization; BLR Certification;
d.) On the date the Certificate of Registration is Certification Election (1998)
actually issued. Can the Bureau of Labor Relations certify a union
as the exclusive bargaining representative after
Any applicant labor organization, association or showing proof of majority representation thru union
group of unions or workers shall acquire legal membership cards without conducting an election?
personality and shall be entitled to the rights and [5%]
privileges granted by law to legitimate labor SUGGESTED ANSWER:
organizations upon issuance of the certificate of The Bureau of Labor Relations CANNOT certify a
registration. union as the exclusive collective bargaining
ANOTHER SUGGESTED ANSWER: representative after showing of proof of majority
(c) "On the date appearing on the Certificate of representation thru union membership cards
Registration." without conducting a certification election.

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The Labor Code (In Arts. 256, 257 and 258} obstacles should be placed on the holding of a
provides only for a certification election as the certification election, (Samahang ng Manggagawa
mode for determining the exclusive collective sa Pacific Plastic vs. Laguesma 267 SCRA 203,
bargaining representative if there is a question of (1997) and that the law is indisputably partial to the
representation in an appropriate bargaining unit. holding of a certification election. (Western Agusan
ANOTHER SUGGESTED ANSWER: vs. Trajano, 196 SCRA 622 (1991).
No, the Bureau of Labor Relations cannot certify a
union as the exclusive bargaining representative At any rate, UNIDAD completed all the
without conducting a certification election. requirements for union registration on July 14,
The Supreme Court, in Colgate Palmolive 2001, and legitimate union status was accorded on
Philippines Inc. v. Ople. 163 SCRA 323 (1988), July 15, 2000, or at least ten (10) days before the
ruled - scheduled date for holding the Certification
The procedure for a representation case is Election.
outlined [in the] Labor Code ... the main purpose
of which is to aid in ascertaining majority Self Organization; Certification Election;
representation. The requirements under the law Bystander Rule (1996)
... are all calculated to ensure that the certified PT & T Supervisory Employees Union filed a
bargaining representative is the true choice of petition for the holding of a certification election
the employees against all contenders. xxx When among the supervisory employees of the PT & T
an ... official by-passes the law on the pretext of Company. The company moved to dismiss the
retaining a laudable objective, the intendment or petition on the ground that Union members were
purpose of the law will lose its meaning as the performing managerial functions and were not
law itself is disregarded. When the [Bureau of merely supervisory employees. The company also
Labor Relations] directly [certifies] a union, he in alleged that a certified bargaining unit existed
fact disregarded this procedure and its legal among its rank and file employees which barred
requirements. There was therefore failure to the filing of the petition.
determine with legal certainty whether the union 1. Does the company have the standing to file the
indeed enjoyed majority representation. motion to dismiss? Explain.
2. If you were the Med-Arbiter, how would you
Self Organization; Certification Election resolve the petition.
(2001) 3. What is the proper remedy of an employer to
UNIDAD, a labor organization claiming to ensure that the employees are qualified to hold
represent the majority of the rank and file workers a certification election?
of BAGSAK Toyo Manufacturing Corp. (BMTC), SUGGESTED ANSWER:
filed a petition for certification election during the 1) No, the company has no standing to file the
freedom period obtaining in said corporation. Motion to Dismiss as the employer has no right to
Despite the opposition thereto by SIGAW interfere in a purely union matter or concern.
Federation on the ground that UNIDAD was not (Philippine Fruits and Vegetable Industries, Inc.. vs
possessed with all the attributes of a duly Torres, 211 SCRA 95 (1992)
registered union, the Med-Arbiter issued an Order
calling for a certification election on July 25, 2001. The Court would wish to stress once more the rule
which It has consistently pronounced in many
This Order was promulgated and served on the earlier cases that a certification election is the sole
parties on July 12, 2001. On July 14, 2001, concern of the workers and the employer is
UNIDAD submitted and served the required regarded as nothing more than a bystander with no
documents for its registration as an independent right to interfere at all in the election.
union, which documents were approved by the
DOLE on July 15, 2001. 2) As the MED ARBITER I will:
a) Deny, for lack of merit, the employer's
During the elections, UNIDAD won over SIGAW. Motion to dismiss the Union's Petition for
SIGAW questioned UNIDAD's victory on the Certification Election.
ground that UNIDAD was not a duly registered b) Proceed to hear the merits of the petition,
union when it filed the petition for a certification especially:
election. Shall SIGAWs case prosper or not? Why? 1. the appropriation of the claimed
(5%). bargaining unit;
SUGGESTED ANSWER: 2. inclusion and exclusion of voters, or
No, SIGAW's case will not prosper. The application the proposed voter list; and
of technicalities of procedural requirements in 3. if the petition is in order, to set the
certification election disputes will serve no lawful date, time and place of the election.
objective or purpose. It is a statutory policy that no
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LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
3) The employer has no remedy. The petition for certification election shall automatically be
certification election was initiated by the Union; conducted by the Med-Arbiter upon the filing of a
hence, the employer is a total stranger or a petition by a legitimate labor organization.
bystander in the election process. (Philippine Fruits
and Vegetable Industries, Inc. v. Torres, 211 In the above-described situation, a certification
SCRA 95 [1992]). To allow an employer to assert a election is made mandatory because if there is no
remedy is an act of interference in a matter which certified bargaining agent as determined by a
is purely a concern of the Union. certification election, there could be no collective
bargaining in the said unorganized establishment
ALTERNATIVE ANSWER:
1) The company does not have the standing to Self Organization; E-E Relationship;
file a motion to dismiss the petition for certification Certification Election (1998)
election, but it could move for the exclusion of the Is it required that an employer-employee
employees it alleged to be managerial employees relationship exists between an employer and the
from the bargaining unit for which a petition for employees in the appropriate bargaining unit
certification election has been filed. before a certification election can be ordered? If
so. why? [5%]
As a general rule, an employer has no standing in SUGGESTED ANSWER:
a petition for certification election because the Yes. it is required that an employer-employee
purpose of a certification election is to determine relationship is existing between the employer and
who should be the collective bargaining the employees in the appropriate bargaining unit
representative of the employees. Thus, a before a certification election can be ordered for
certification election is the concern of the the simple reason that a certification election is
employees and not of the employer. held for the purpose of determining which labor
organization shall be the exclusive collective
But in the case at bar, the employer may have a bargaining representative of the employees in an
standing because the petition for certification appropriate bargaining unit. There could be no
election involves personnel which the employer collective bargaining between persons who do not
alleges to be managerial employees. And have any employer-employee relationship.
managerial employees under the Labor Code are ANOTHER SUGGESTED ANSWER:
not eligible to form, assist or Join labor Yes. the Supreme Court has ruled that the
organizations, implying that they cannot be part of existence of an employer-employee relationship is
the bargaining unit for which a petition for required before a certification election can be held.
certification election has been filed. The Supreme Court in Allied Force Waters Union
v. Campania Maritime 19 SCRA 268 (1967). ruled -
2) As the MED-ARBITER, I will order the holding xxx There being no employer-employee
of the certification election. The fact that there is relationship between the parties disputants, there
already a certified collective bargaining is neither "a duty to bargain collectively" to speak
representative of the rank and file employees of of. And there being no such duty, to hold
the Company is not a bar to the holding of a certification elections would be pointless. There is
certification election for the determination of the no reason to select a representative to negotiate
collective bargaining representative of the when there can be no negotiations in the first
supervisory employees. But I will exclude those place. Where there is no duty to bargain
employees found to be managerial from collectively, it is not proper to hold certification
participating in the certification election. elections in connection therewith.

3) The proper remedy of an employer to ensure Self Organization; Gov’t Employees (2004)
that only the employees are qualified to hold a B. Because of alleged “unfair labor practices” by
certification election is to move for the exclusion of the management of GFI System, a government-
those whom he alleges to be managerial owned and controlled financial corporation, its
personnel. employees walked out from their jobs and refused
to return to work until the management would grant
Self Organization; Certification Election; their union official recognition and start
Unorganized Establishment (2003) negotiations with them.
There are instances when a certification election is
mandatory. What is the rationale for such a legal The leaders of the walk-out were dismissed, and
mandate? the other participants were suspended for sixty
SUGGESTED ANSWER: days. In arguing their case before the Civil Service
According to the Labor Code, in any establishment Commission, they cited the principle of social
where there is no certified bargaining agent, a justice for workers and the right to self-organization
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and collective action, including the right to strike. (Mactan Workers Union v. Aboitiz, 45 SCRA
They claimed that the Constitution shielded them 577 (1972|)
from any penalty because their walk-out was a c) It is the instrumentality through which an
concerted action pursuant to their rights individual laborer who is helpless as against a
guaranteed by the basic law. powerful employer may, through concerted
effort and activity, achieve the goal of
Is the position taken by the walk-out leaders and economic well-being. (Gullarno v. CIR, 32
participants legally correct? Reason briefly. (5%) SCRA 307 [1993]).
SUGGESTED ANSWER:
The position taken by the walk-out leaders and Self Organization; Membership Policy (1998)
participants is not legally correct. They are A labor union lawyer opined V. that a labor
government employees, and as such, they do not organization is a private and voluntary
have the right to strike. According to the actual organization; hence, a union can deny
wording of Section 3 of Article XIII of the membership to any and all applicants.
Constitution, the State "shall guarantee the rights Is the opinion of counsel in accord with law? [5%]
of all workers to self-organization, collective SUGGESTED ANSWER:
bargaining and negotiations, and peaceful NO, the opinion of counsel is not in accord with
concerted activities including the right to strike in law. The Labor Code (in Article 249 (a and b)
accordance with law." provides that a labor organization has the right to
prescribe its own rules for the acquisition or
Thus, the last clause of the above-quoted provision retention of membership, but it is an unfair labor
of the Constitution makes it very clear: the right to practice act for a labor organization to restrain or
strike is not constitutional, it is statutory because coerce employees in the exercise of their right to
the right should be "in accordance with law". And self-organization. Thus, a labor organization
there is as yet no law giving government cannot discriminate against any employee by
employees the right to strike. denying such employee membership in the labor
organization on any ground other than the usual
ANOTHER SUGGESTED ANSWER: terms and conditions under which membership or
NO. What Art. XIV, Sec. 3 of the 1987 Constitution continuation of union membership is made
guarantees is "the right to strike in accordance with available to other members.
law." Assuming that what we have is a chartered ANOTHER SUGGESTED ANSWER:
government-owned and controlled corporation, Yes, the legal opinion of counsel, on the nature of
they cannot, under EO 180 and related a labor union and its admission policy is in accord
jurisprudence, stage such walk-out which is with law, but must be qualified. The Supreme Court
basically a case of strike. ruled in Salunga v. CIR, 21 SCRA 216 (1967) as
follows:
Even if GFI was organized under the corporation Generally, a state may not compel ordinary
law, still no such walk-out is allowed without the voluntary association to admit thereto any given
employees' complying with the requirements of a individual, because membership therein maybe
valid strike, among which is that said strike or walk- accorded or withheld as a matter of privilege.
out should be validly grounded on a (a) deadlock in
collective bargaining, or (b) unfair labor practice, The same case further ruled that the law can
either of which is not present here. compel a labor union to admit an applicant for
membership when the union is -
Self Organization; Importance (1996) The rule is qualified in respect of labor unions
1) What is the importance of labor organizations? holding a monopoly in the supply of labor, either
SUGGESTED ANSWER: in a given locality or as regards a particular
A labor organization exists in whole or in part for employer with which it has a closed-shop
the purpose of collective bargaining or of dealing agreement. The reason is that [union security
with employers concerning terms and conditions of provisions] cause the admission requirements of
employment. Employees may form labor trade unions to be affected with public interest.
organizations for their mutual aid and protection.
(See Arts. 212(a) and 243 of the Labor Code) Self Organization; Right to Disaffiliate from
ALTERNATIVE ANSWER: the Local Union; illegal dismissal (1994)
The importance of labor unions are: In the Collective Bargaining Agreement (CBA)
a) The enhancement of democracy and the between Royal Films and its rank-and-file Union
promotion of social justice and development. (which is directly affiliated with MFF, a national
b) As instrumentalities through which worker federation), a provision on the maintenance of
welfare may be promoted and fostered, 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 [San Jose Electric Service Cooperative v. Ministry
provided for In its Constitution and By-Laws. The of Labor, 173 SCRA 697 (1989)]
same provision contains an undertaking by the
Union (MFF) to hold Royal Films free from any and Self Organization; Union Dues; Assessment
all claims of any employee dismissed. (2002)
The union deducted P20.00 from Rogelio's wages
During the term of the CBA, MFF discovered that for January. Upon inquiry he learned that it was for
certain employee members were initiating a move death aid benefits and that the deduction was
to disaffiliate from MFF and join a rival federation, made pursuant to a board resolution of the
FAMAS. Forthwith, MFF sought the dismissal of its directors of the union. Can Rogelio object to the
employee members initiating the disafiliation deduction? Explain briefly. (5%)
movement from MFF to FAMAS. Royal Films, SUGGESTED ANSWER:
relying on the provision of the aforementioned Yes. In order that the special assessment (death
CBA, complied with MFFs request and dismissed aid benefit) may be upheld as valid, the following
the employees Identified by MFF as disloyal to it. requisites must be compiled with: (1) Authorization
(1) Will an action for Illegal dismissal against by a written resolution of the majority of all the
Royal Films and MFF prosper or not? members at the general membership meeting duly
(2) What are the liabilities of Royal and MFF to the called for the purpose; (2) Secretary's record of the
dismissed employees, if any? meeting; and (3) Individual written authorization for
SUGGESTED ANSWER: the check-off duly signed by the employee
1) The action for illegal dismissal will prosper. The concerned. [ABS-CBN Supervisors Employees
right of a local union to disaffiliate from its mother Union Members v. ABS-CBN Broadcasting Corp,
federation is well-settled. A local union, being a and Union Officers, 304 SCRA 489 (1999)]
separate and voluntary association, is free to serve
the interest of all its members including the In the problem given, none of the above requisites
freedom to disaffiliate when circumstances warrant were complied with by the union. Hence, Rogelio
this right is consistent with the constitutional can object to the deduction made by the union for
guarantee of freedom of association. Thus, the Act being Invalid.
of initiating move to disaffiliate is not an act of
disloyalty. (Tropical Hut. Employee's Union-CGW, Self Organization; Union Dues; Assessments
et al. vs. Tropical Hut Food Market, Inc., etal, G.R. (1997)
Nos. L-^3495-99, January 20. 1990) Arty. Facundo Veloso was retained by Welga
ALTERNATIVE ANSWER: Labor Union to represent it in the collective
The action for illegal dismissal will prosper. bargaining negotiations. It was agreed that Atty.
Disaffiliation cannot be considered an act of Veloso would be paid in the sum of P20,000.00 as
disloyalty. The very essence of self-organization is attorney's fees for his assistance in the CBA
for the workers to form a group for the effective negotiations.
enhancement and protection of common interest.
(PICEWO v. People Industrial & Commercial After the conclusion of the negotiations. Welga
Corp., 112 SCRA 440) Labor Union collected from its individual members
the sum of P100.00 each to pay for Atty. Veloso's
2) MFF can be held liable to pay the backwages fees and another sum of Pl00 each for services
of the dismissed employees. Royal can be held rendered by the union officers. Several members
jointly and severally liable for backwages if it acted of the Welga Labor Union approached you to seek
with undue haste in dismissing the employees advice on the following matters.
(Manila Cordage Co. v. CIR, 78 SCRA 398). In a) Whether or not the collection of the amount
addition, Royal can be ordered to reinstate the assessed on the individual members to answer
dismissed employees. for the Attorney's fees was valid.
b) Whether or not the assessment of Pl00 from
Self Organization; Right to Self-Organization the individual members of the Welga Labor
of Coop Employees (2002) Union for services rendered by the union
Do employees of a cooperative have a right to form officers in the CBA negotiations was valid.
a union? Explain briefly. (2%) SUGGESTED ANSWER:
SUGGESTED ANSWER: (a) The assessment of P100.00 from each union
Employees who are members of a cooperative member as attorney's fees - for union negotiation,
cannot form a union because, as members, they is not valid. Art. 222(b) of the Labor Code, reads:
are owners and owners cannot bargain with "No attorneys fees, negotiation fees or similar
themselves. However, employees who are not charges of any kind arising from any collective
members of the cooperative can form a union. bargaining negotiations or conclusion of the
collective agreement shall be imposed on any
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individual member of the contracting union; Self Organization; Unions; Financial Records
Provided, however, that attorneys fees may be (1999)
charged against union funds in an amount to FACTS: Polaris Drug Company had an existing
be agreed upon by the parties. Any contract, Collective Bargaining Agreement with Polaris
agreement or arrangement of any sort to be Workers Union (PWU) which was due to expire on
contrary shall be null and void." May 31, 1999. PWU had a total membership of
one hundred [100] rank-and-file employees of the
(b) The assessment of P 100.00 as negotiation company. Mike Barela, a militant member of the
fees charged to each individual union member and union, suspected that the union officers were
payable to union officers is also not valid, for the misappropriating union funds as no financial report
same reason as stated above. The assessment is was given to the general membership during the
an act violative of Art. 222(b). union's general assembly. Hence, Mike Barela
ALTERNATIVE ANSWER: prepared a sworn written complaint and filed the
(a) The collection of the amount assessed on the same with the Office of the Secretary of Labor on
individual members to answer for the attorney's May 10, 1999, petitioning for an examination of the
fees would be valid if it was authorized by a written financial records of PWU.
resolution of a majority of all the members in a 1. Is the Secretary of Labor authorized by law to
general membership meeting called for the examine the financial records of the union? If so,
purpose. what power? If not, why not? (3%)
SUGGESTED ANSWER:
(b) The assessment of P100.00 from the Individual The Secretary of Labor is expressly authorized by
members of the Welga Labor Union for services the Labor Code (in Article 274} to examine the
rendered by the union officers in the CBA financial records of the unions to determine
negotiations would be valid if it was authorized by compliance or non-compliance with the pertinent
a written resolution of a majority of all the members provisions of the Labor Code and to prosecute any
in a general membership meeting duly called for violation of the law and the union constitution-and-
the purpose. (Art. 241(N)]. by-laws. But this authority may be exercised only
upon the filing of a complaint under oath and duly
Self Organization; Unions; Assessments supported by the written consent of at least twenty
(2001) percent (20%) of the total membership of the labor
(b) What requisites must a Union comply with organization concerned.
before it can validly impose special assessments ALTERNATIVE ANSWER:
against its members for incidental expenses, Among the rights and conditions of membership in
attorney's fees, representation expenses and the a labor organization is the right implied by the
like? (3%). proviso in the Labor Code (Article 241 (m)) stating
SUGGESTED ANSWER: that the books of accounts and other records of the
The Labor Code (in Art. 241(n)) provides that "no financial activities of any labor organization shall
special assessments or other extraordinary fees be open to inspection by any officer or member
may be levied upon the members of a labor thereof during office hours.
organization unless authorized by a written
resolution of a majority of all the members at a As a union member, Mike Barela could file an intra-
general membership meeting duly called for the union case that may entail the act of the Secretary
purpose." of Labor examining the financial records of the
ANOTHER SUGGESTED ANSWER: union. (See La Tondena Workers Union v.
In the case of ABS-CBN Employees Supervisors Secretary of Labor and Employment, 239 SCRA
Union vs. ABS-CBN Boardcasting Corp., and 117)
Union Officers, G.R. No. 106518, March 11,1999, 2. Under the facts given above, could an
the Supreme Court ruled that the following are the examination or audit of the financial records of the
requisites: union be ordered? Why? (2%)
(1) Authorization by a written resolution of the SUGGESTED ANSWER:
majority of all the members at the general Under the facts given in the question, an
membership meeting duly called for the examination or audit of the financial records of the
purpose; union can not be ordered because for such
(2) Secretary's record of the minutes of the examination or audit to take place, there should be
meeting; and a complaint under oath and duly supported by
(3) Individual written authorization for check-off written consent of at least twenty (20%) per cent of
duly signed by the employee concerned. the total membership of the labor organization
(See also: Gabriel vs. Secretary of Labor, G.R. concerned. In this case, the aforementioned
No. 115949, March 16* 2000). requirement was not fulfilled. It was only a sworn

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written complaint by one union member that was Appeals, 332 SCRA 427, (2000), Lim v. NLRC,
filed. 303 SCRA 432, (1999)]
ANOTHER SUGGESTED ANSWER:
Also, the Labor Code provides that an examination Yes. The General Manager may be held jointly and
of the books of a union shall not be conducted severally liable for back wages of an illegally
during the sixty (60) day freedom period nor within dismissed employee if he or she actually
thirty (30) days immediately preceding the date of authorized or ratified the wrongful dismissal of the
election of union officials. employee under the rule of respondeat superior. In
case of illegal dismissal, corporate directors and
In the case, the complaint was filed on May 10, officers are solidarity liable with the corporation
1999 which is within the freedom period of the where termination of employment are done with
current CBA which was to expire on May 31. 1999. malice or bad faith. [Bogo-Medellin Sugar Planters
Assoc., Inc. v. NLRC, 296 SCRA 108, (1998)]
Self Organization; Unions; Financial Records
(2001) Self-Organization (2002)
(a) Under what conditions may the Secretary of Mang Bally, owner of a shoe repair shop with only
Labor or his duly authorized representative inquire nine (9) workers in his establishment, received
into the financial activities or legitimate labor proposals for collective bargaining from the Bally
organizations? (2%). Shoe Union. Mang Bally refused to bargain with
SUGGESTED ANSWER: the workers for several reasons. First, his shoe
The Labor Code (in Art. 274), the Secretary of business is just a service establishment. Second,
Labor and Employment or his duly authorized his workers are paid on a piecework basis (i.e., per
representative is empowered to inquire into the shoe repaired) and not on a time basis. Third, he
financial activities of legitimate labor organizations has less than ten (10) employees in the
upon the filing of a complaint under oath and duly establishment. Which reason or reasons is/are
supported by the written consent of at least twenty tenable? Explain briefly. (2%)
(20%) percent of the total membership of the labor SUGGESTED ANSWER:
organization concerned and to examine their NONE. First, Mang Bally's shoe business is a
books of accounts and other records. commercial enterprise, albeit a service
establishment. Second, the mere fact that the
Self Organization; Unions; Membership; workers are paid on a piece-rate basis does not
Dismissal in Bad Faith (2002) negate their status as regular employees. Payment
A On what ground or grounds may a union by piece is just a method of compensation and
member be expelled from the organization? (3%) does not define the essence of the relation.
[Lambo v. NLRC, 317 SCRA 420 (1999)]. Third,
B. May the general manager of a company be held the employees' right to self organization is not
jointly and severally liable for backwages of an delimited by their number.
illegally dismissed employee? (2%)
SUGGESTED ANSWER: The right to self-organization covers all persons
A. Union members may be expelled from the labor employed in commercial, industrial and agricultural
organization only on valid grounds provided for in enterprises and in religious, charitable, medical, or
the Union Constitution, By-Laws, or conditions for educational Institutions whether operating for profit
union membership. or not {Art. 243, Labor Code}
ANOTHER SUGGESTED ANSWER:
Whenever appropriate for any violation of the rights Self-Organization; Dismissal due to Union
as: Activities (2004)
a) Refusal to pay union dues and special A, B, C and D (treasurer, accountant, elementary
assessments; department Principal, and secretary of the Director,
b) Disloyalty to the union; and respectively), regular employees of a private
c) Violation of the constitution and by-laws of the educational institution, were administratively
union. charged for their participation in a picket held in
front of the campus after office hours. Several
SUGGESTED ANSWER: faculty members, non-academic staff and students
B. Yes. If it is shown that he acted in bad faith, or joined the peaceful prayer rally organized by
without or in excess of authority, or was motivated disgruntled employees to protest certain alleged
by personal ill-will in dismissing the employee, the abuses of the incumbent School Director.
general manager may be held jointly and severally Subsequently, the rank-and-file employees
liable for the backwages of an illegally dismissed succeeded in forming the first and only union of the
employee. [ARB Construction C. v. Court of School.

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During the investigation, the administration of the Labor Code and Sec. 3 of Executive Order
discovered that two (2) days prior to the rally, A, B, No. 180)
C and D attended the meeting of the School’s
employees’ association which planned the protest Self-Organization; Right to Join (2000)
activity. Two well-known organizers/leaders of a (1) Do workers have a right not to join a labor
national labor federation were also present. organization? (3%)
(2) Do the following workers have the right to self-
A, B, C and D were dismissed by the School on the organization? Reasons/basis (2%)
ground of violating the Labor Code which prohibits a. Employees of non-stock, non-profit
managerial employees to “join, assist or form any organizations?
labor organization”. b. Alien employees?
SUGGESTED ANSWER:
Is the contention of the School tenable? Is the Yes, workers decide whether they will or will not
dismissal of A, B, C and D valid? Explain. (5%) become members of a labor organization. That's
SUGGESTED ANSWER: why a union's constitution and by-laws need the
The dismissal of A, B, C and D on the ground that members' adoption and ratification. Moreover, if
they violated the Labor Code provision which they are members of a religious group whose
states that managerial employees "are not eligible doctrine forbids union membership, their right not
to join, assist or form any labor organization" is not to be compelled to become union members has
valid. The Labor Code does not provide for any been upheld. However, if the worker is not a
sanction for the aforesaid acts. These acts could "religious objector" and there is a union security
not be considered as just cause for the termination clause, he may be required to join the union if he
of employment, either. belongs to the bargaining unit. [Reyes v. Trajano,
ANOTHER SUGGESTED ANSWER: 209 SCRA 484 (1992)].
The dismissal of the managerial employees is
invalid. The dismissal of the management b)(i) Even employees of non-stock non-profit
employees because of union activities, no matter organizations have the right to self-organization.
how erroneous or tenous may be the basis of the This is explicitly provided for in Art. 243 of the
exercise, is a violation of the constitutional and Labor Code. A possible exception, however, are
statutory guaranteed rights of self-organization, employee-members of non-stock non-profit
and an act of unfair labor practice. (Sec. 3, Art. cooperatives.
XIII, Constitution; Art. 243, Labor Code. See also
Art. 248 (a), Labor Code). (ii) ALIEN EMPLOYEES with valid work permits in
RP may exercise the right to self-organization on
Self-Organization; Gov’t vs. Private the basis of parity or reciprocity, that is, if Filipino
Employees (1996) workers in the aliens' country are given the same
2) How does the government employees’ right to right. (Art. 269, Labor Code).
self-organization differ from that of the employees
in the private sector? ULP; Awards of Damages (2001)
SUGGESTED ANSWER: (b) "A", an employee, sued company "B" for unfair
There is no substantial difference of the right of labor practice, Illegal dismissal and damages as a
self-organization between workers in the private consequence thereof. The Arbiter granted A's
sector and those in the public sector. In the public prayer for reinstatement, backwages, and included
sector, Executive Order No. 180, the purpose of an award for attorney's fees. On appeal to the
self-organization is stated as "for the furtherance NLRC, the Commission affirmed the Arbiter's
and protection of their interest." In the private decision but deleted the award for attorney's fees
sector, Art. 243 of the Labor Code states "for the since fees were not claimed in A's complaint. Who
purpose of collective bargaining", and "for the was correct, the Arbiter or the NLRC? Why? (2%)
purpose of enhancing and defending their Interests SUGGESTED ANSWER:
and for their mutual aid and protection." The NLRC was correct in deleting the award for
ALTERNATIVE ANSWER: attorney's fees if an employee did not include
In government, managerial employees shall not be attorney's fees among his claims and, therefore,
eligible to join the organization of rank-and-file did not give any evidence to support the payment
employees per Executive Order No. 180 but said of attorney's fees.
law does not provide that they are not eligible to ANOTHER SUGGESTED ANSWER:
join, assist or form any labor organization, The decision of the Labor Arbiter to award
meaning, they could join, assist or form any labor attorney's fees even if the same is not claimed is
organization of their own. In the private sector, correct. Article 2208 of the New Civil Code allows
managerial employees are not eligible to join, the award of attorney's fees when the defendant's
assist or form any labor organization. (See Art. 243 act or omission has compelled the plaintiff to
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litigate or incur expenses to protect his interest. and collective bargaining. (See Arts 248 and 249
Attorney's fees may be considered as a part of an of the Labor Code).
equitable relief awarded in the concept of
damages. 2) Give three (3) examples of unfair labor
practices on the part of the employer and three (3)
(c) Would your answer be different if the attorney's examples of unfair labor practices on the part of
fees awarded by the Arbiter was over fifteen the labor union.
percent of the total award? Why? (1%) ANSWER;
SUGGESTED ANSWER; Any three (3) from the following enumeration in the
An award of attorney's fees which is over fifteen Labor Code:
percent of the total award is not in conformity with ART. 248. Unfair labor practices of employers. It
the provision of the Labor Code (Art. 111(a)) that in shall be unlawful for an employer to commit any of
cases of unlawful withholding of wages, the the following unfair labor practice:
culpable party may be assessed attorney's fees 1. To interfere with, restrain or coerce employees
equivalent to ten percent of the amount of wages in the exercise of their right to self-
recovered. organization;
2. To require as a condition of employment that a
ULP; Contracting Out Labor (2001) person or an employee shall not join a labor
(a) Company "A" contracts out its clerical and organization or shall withdraw from one to
janitorial services. In the negotiations of its CBA, which he belongs;
the union insisted that, henceforth, the company 3. To contract out services or functions being
may no longer engage in contracting out these performed by union members when such will
types of services, which services the union claims interfere with, restrain or coerce employees in
to be necessary in the company's business, the exercise of their rights to self-organization;
without prior consultation. Is the union's stand valid 4. To initiate, dominate, assist or otherwise
or not? For what reason(s)? (2%) interfere with the formation or administration of
SUGGESTED ANSWER: any labor organization, including, the giving of
The union's stand is not valid. It is part of financial or other support to it, or its
management prerogative to contract out any work, organizations, or supporters;
task, job or project except that it is an unfair labor 5. To discriminate in regard to wages, hours of
practice to contract out services or functions work, and other terms and conditions of
performed by union members when such will employment in order to encourage or
interfere with, restrain or coerce employees in the discourage membership in any labor
exercise of their rights to self-organization. (Art. organization. Nothing in this Code or in any
248(c) of the Labor Code) other law shall stop the parties from requiring
ANOTHER SUGGESTED ANSWER: membership in a recognized collective
The union's stand that there must be a prior bargaining agent as a condition for
consultation by the employer with the union before employment, except those employees who are
contracting out can be effected is valid. Article XIII, already members of another union at the time
Section 3 of the Constitution, and Article 255 of the of the signing of the collective bargaining
Labor Code guarantee the right of workers to agreement. Provided, that the individual
participate in policy and decision making authorization required under Article 241,
processes which affect their rights and benefits. paragraph (o) of this Code shall not apply to
Job contracting will undoubtedly and directly affect the non-members of the recognized collective
their rights, benefits and welfare. Philippine Airlines bargaining agent;
vs. NLRC, 255 SCRA 301 (1993), and Manila 6. To dismiss, discharge, or otherwise prejudice
Electric Company us. Quisumbing, 302 SCRA 173 or discriminate against an employee for having
(1999). given or being about to give testimony under
this Code;
ULP; Definition & Examples of ULP (1996) 7. To violate the duty to bargain collectively as
1) Define unfair labor practice, Answer; prescribed by this Code;
SUGGESTED ANSWER: 8. To pay negotiation or attorney's fees to the
UNFAIR LABOR PRACTICE means any unfair union or its officers or agents as part of the
labor practice as expressly defined by the Labor settlement of any issue in collective bargaining
Code (Arts. 248 and 249 of the Labor Code). or any other dispute; or
Essentially, an unfair labor practice is any act 9. To violate a collective bargaining agreement.
committed by an employer or by a labor
organization, its officers, agents or representatives ULP; Jurisdiction; Labor Arbiter (1997)
which has the effect of preventing the full exercise On 01 August 1992, Pro-Knit, a corporation
by employees of their rights to self-organization engaged in the manufacture of textile garments,
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entered into a collective bargaining agreement with The Kilusang Kabisig, a newly-formed labor union
the Kamao Union in representation of the rank and claiming to represent a majority of the workers in
file employees of the corporation. the Microchip Corporation, proceeded to present a
list of demands to the management for purposes of
The CBA was effective up to 20 June 1995. The collective bargaining. The Microchips Corporation,
contract had an automatic renewal clause which a multinational corporation engaged in the
would allow the agreement after its expiry date to production of computer chips for export, declined
still apply until both parties would have been able to talk with the union leaders, alleging that they
to execute a new agreement. had not as yet presented any proof of majority
status.
On 10 May 1995 Kamao Union submitted to Pro-
Knit's management their proposals for the The Kilusang Kabisig then chained Microchip
renegotiation of a new CBA. The next day, Pro-Knit Corporation with unfair labor practice, and declared
suspended negotiations while Kamao Union since a "wildcat" strike wherein means of ingress and
Pro-Knit had entered into a merger with Eagle egress were blocked and remote and isolated acts
Garments, a corporation also engaged in the of destruction and violence were committed.
manufacture of textile garments. Eagle Garments Was the company guilty of an unfair labor
assumed all the assets and liabilities of Pro-Knit. practice when it refused to negotiate with the
Kilusang Kabisig?
Kamao filed a complaint with the Regional Trial SUGGESTED ANSWERS:
Court for specific performance and damages with a NO. It is not an unfair labor practice (ULP) not to
prayer for preliminary injunction against Pro-Knit bargain with a union which has not presented any
and Eagle Garments. proof of its majority status. The Labor Code
imposes on an employer the duty to bargain
Pro-Knit and Eagle Garments filed a Motion to collectively only with a legitimate labor organization
Dismiss based on lack of Jurisdiction. How would designated or selected by the majority of the
you rule on the Motion to Dismiss? employees in an appropriate collective bargaining
SUGGESTED ANSWER: unit. It is not a ULP for an employer to ask a union
I will grant the Motion to Dismiss. The act of Pro- requesting to bargain collectively that such union
knit suspending negotiations with Kamao Union first show proof of its being a majority union.
could be an unfair labor practice. It could be a
violation of the duty to bargain collectively. As ULP; Rights & Obligations; Workers’
such, the case is under the jurisdiction of a Labor Association (2004)
Arbiter and not of a regular Court A. Around 100 workers of a mill in a coconut
ALTERNATIVE ANSWER: plantation organized themselves for the purpose of
I will deny the Union's Motion to Dismiss. There is promoting their common interest and welfare. The
no labor dispute between the parties; hence, the workers’ association prepared a petition for
Regional Trial Court has Jurisdiction over the increasing the daily pay of its members in
complaint. Art. 212 of the Labor Code, reads - compliance with minimum wage rates for their
Labor dispute Includes any controversy or sector in the region, and for granting benefits to
matter concerning terms or conditions of which they are entitled under the law.
employment or the association or representation
of persons in negotiating, fixing, maintaining, However, the workers became restless and
changing or arranging the terms and conditions anxious after the owner-manager threatened them
of employment regardless of whether the with mass lay-off if the association would press for
disputants stand in the proximate relations of their demands. Most of its members have worked
employer and employee. in the mill for 10 to 15 years with no improvement
in working conditions and monetary benefits.
In addition, the Company can claim that labor
contracts are contracts in personam and do not The leaders of the workers’ association
generally bind successors in interest except under approached you and asked: what legal steps could
special circumstances. In Sundowner Development they take to protect their security of tenure? What
Corporation v Drilon, 180 SCRA 14, the Court said: advice could you give them? (5%)
The rule is that unless expressly assumed, labor SUGGESTED ANSWER:
contracts such as xxx collective bargaining I would advise them to register the workers'
agreements are not enforceable against a association with the Department of Labor and
transferee of an enterprise, labor contracts being in Employment. Then, have the workers' association
personam, thus binding only between the parties. file a ULP case against the employer.
ANOTHER SUGGESTED ANSWER:
ULP; Refusal to Negotiate (1997)
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The workers are entitled to the constitutional (Art. with distinct and separate personalities from LBM
XIII, Sec. 3, 1987 Constitution) and statutory (Art. Construction Corporation and therefore, they
279, Labor Code) guarantees of security of tenure. cannot be held jointly and severally liable for the
When this right to security of tenure is violated, an money claims of workers who are not their
action for illegal dismissal is an available remedy. employees.
Rule on the Motion to Dismiss. Should it be
If they are dismissed because of union activities, granted or denied? Why? (5%)
an action for unfair labor practice can be filed (Sec. SUGGESTED ANSWER:
3, Art. XIII, Constitution; Art. 243, Labor Code.) If It is very clear that even if LBM Construction
successful, the workers will be entitled to full company, Lastimoso Construction Company, Inc.
backwages, including money value of benefits, and and RL Realty & Development Corporation all
reinstatement without loss of seniority (Art. 279, belong to the Lastimoso family and are engaged in
Labor Code). the same line of business under one management
and used the same equipment including manpower
ULP; Subject to Criminal Prosecution (2005) services, these corporations were separate
Is the commission of an unfair labor practice by an juridical entities.
employer subject to criminal prosecution? Please
explain your answer briefly. (3%) Thus, only the LBM Construction Corporation is the
SUGGESTED ANSWER: employer of Teofllo Lacson. The other corporation
Yes, because unfair labor practices are not only do not have any employer-employee relations with
violations of the civil rights of both labor and Lacson.
management but are also criminal offenses against
the State which shall be subject to prosecution and The case in question does not include any fact that
punishment. (Article 247, Labor Code; See also would justify piercing the veil of corporate fiction of
B.P. Big. 386 as amended by R.A. No. 6715). the other corporations in order to protect the rights
However, the criminal aspect can only be filed of workers.
when the decision of the labor tribunals, finding the
existence of unfair labor practice, shall have In a case (Concept Builders, Inc. v. NLRC. 257
become final and executory. SCRA 149), the Supreme Court ruled that it is a
fundamental principle of corporation law that a
LABOR STANDARDS corporation is an entity separate and distinct from
its stockholders and from other corporations to
which it may be connected. But this separate and
E-E Relationship; Corporation (1999)
distinct personality of a corporation is merely a
FACTS: Teofilo Lacson was one of more than one
fiction created by law for convenience and to
hundred (100) employees who were terminated
promote justice. So, when the notion of separate
from employment due to the closure of LBM
juridical personality is used to defeat public
Construction Corporation (LBM).
convenience, justify wrong, protect fraud or defend
crime, or is used as a device to defeat the labor
LBM was a sister company of Lastimoso
laws, this separate personality of the corporation
Construction, Inc. and RL Realty & Development
maybe disregarded or the veil of corporate fiction
Corporation. All three (3) entities formed what
pierced.
came to be known as the Lastimoso Group of
ALTERNATIVE ANSWER:
Companies. The three (3) corporations were
Motion to Dismiss should be denied. In the case at
owned and controlled by members of the
bar, the Labor Arbiter would be justified in piercing
Lastimoso Family; their incorporators and directors
the corporate veil and considering the three (3)
all belonged to the Lastimoso family. The three (3)
corporations as one and the same entity as the
corporations were engaged in the same line of
employer of Teofilo Lacson because based on the
business, under one management, and used the
facts "the three corporations were owned and
same equipment including manpower services.
controlled by members of the Lstimoso family; their
incorporators and directors all belonged to the
Teofilo Lacson and his co-employees filed a
Lastimoso family. The three (3) corporations were
complaint with the Labor Arbiter against LBM, RL
engaged in the same line of business, under one
Realty and Lastimoso Construction to hold them
management and used the same equipment
jointly and severally liable for backwages and
including manpower services." The facts show that
separation pay.
"the notion of legal entity is used to defeat public
convenience, justify wrong, protect fraud, or defend
Lastimoso Construction, Inc. and RL Realty &
crime, the law will regard the corporation as an
Development Corporation interposed a Motion to
association of persons, or in the case of two
Dismiss contending that they are Juridical entitles
corporations, will merge them into one
Page 52 of 108
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generous customers. In time, the GROs formed the
E-E Relationship; Determined by Facts & Solar Ugnayan ng mga Kababaihang Inaapi
Laws (2000) (SUKI); a labor union duly registered with DOLE.
Banco de Manila and the Ang Husay Janitorial and Subsequently, SUKI filed a petition for certification
Pest Control Agency entered into an Independent election in order to be recognized as the exclusive
Contractor Agreement with the usual stipulations: bargaining agent of its members. Solar Plexus
specifically, the absence of employer-employee opposed the petition for certification election on the
relationship, and the relief from liability clauses. singular ground of absence of employer-employee
Can the Bank, as a client, and the Agency, as an relationship between the GROs on one hand and
independent contractor, stipulate that no employer- the night club on the other hand.
employee relationship exists between the Bank
and the employees of the Agency who may be May the GROs form SUKI as a labor organization
assigned to work in the Bank? Reason. (5%) for purposes of collective bargaining? Explain
SUGGESTED ANSWER: briefly. (5%).
They can so stipulate if the relationship is indeed SUGGESTED ANSWER:
Job contracting. Yet the stipulation cannot prevail The GROs may form SUKI as a labor organization
over the facts and the laws. The existence of for purposes of collective bargaining. There is an
employer-employee relationship is determined by employer-employee relationship between the
facts and law and not by stipulation of the parties. GROs and the night club.
(Insular Life Assurance Co.. Ltd. v. NLRC. 287
SCRA 476 (1998); Tabas v. California The Labor Code (in Article 138) provides that any
Manufacturing Co. Inc., 169 SCRA 497 (1989)]. woman who is permitted or suffered to work, with
ALTERNATIVE ANSWER: or without compensation, in any nightclub, cock tail
Yes, they can stipulate provided that the contract lounge, massage clinic, bar or similar
of Independent contractor is valid in accordance establishment, under the effective control or
with Art 106 of the Labor Code. supervision of the employer for a substantial period
of time as determined by the Secretary of Labor,
E-E Relationship; Elements (1996) shall be considered as an employee of such
1) When does an employer- employee establishment for purposes of labor and social
relationship exist? legislation.
SUGGESTED ANSWER:
The Supreme Court, in a long line of decisions has In the case at bar, it is clearly stated that the
consistently ruled that the following are the women once they enter the premises of the night
elements of an employer-employee relationship: club would be under the direct supervision of the
A. Selection and engagement of the employee; manager from 8:00 p.m. to 4:00 a.m. everyday
B. Payment of wages; including Sundays and holidays. Such is indicative
C. Power of discipline and dismissal; and of an employer-employee relationship since the
D. Power to control the employee's conduct as manager would be exercising the right of control.
regards his employment.
ALTERNATIVE ANSWER; E-E Relationship; Security Guards; Floating
An employer-employee relationship exists when a Status (1999)
person (an employer) who carries on a business, FACTS: Asia Security & Investigation Agency
trade, Industry, undertaking, or activity of any kind (ASIA) executed a one-year contract with the
uses the services of another person (an employee) Baron Hotel (BARON) for the former to provide the
who, receiving compensation, is under the latter with twenty (20) security guards to safeguard
employer's orders as regards the employment. the persons and belongings of hotel guests,
among others. The security guards filled up Baron
E-E Relationship; GRO’s & Night Clubs application form and submitted the executed forms
(1999) directly to the Security Department of Baron. The
FACTS: Solar Plexus Bar and Night Club allowed pay slips of the security guards bore Baron's logo
by tolerance fifty (50) Guest Relations Officers and showed that Baron deducted therefrom the
(GRO) to work without compensation in its amounts for SSS premiums, medicare
establishment under the direct supervision of its contributions and withholding taxes. Assignments
Manager from 8:00 p.m. to 4:00 a.m. everyday, of security guards, who should be on duty or on
including Sundays and holidays. The GROs, call, promotions, suspensions, dismissals and
however, are free to ply their trade elsewhere at award citations for meritorious services were all
anytime but once they enter the premises of the done upon approval by Baron's chief Security
night club, they are required to stay up to closing officer.
time. The GROs earned their keep exclusively from
commissions for food and drinks, and tips from
Page 53 of 108
LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
After the expiration of the contract with Asia, Baron Pablo's widow filed a petition before the SSS
did not renew the same and instead executed asking that ABC & Co. be directed to pay the
another contract for security services with another premium contributions of Pablo and that his name
agency. Asia placed the affected security guards be reported for SSS coverage. ABC & Co.
on "floating status" on "no work no pay" basis. countered that Pablo was hired to plow, harrow
Having been displaced from work, the Asia security and burrow, using his own carabao and other
guards filed a case against the Baron Hotel for implements and following his own schedule of work
illegal dismissal, overtime pay, minimum wage hours, without any supervision from the company.
differentials, vacation leave and sick leave If proven, would this factual setting advanced by
benefits, and 13th month pay. ABC & Co. be a valid defense against the petition?
SUGGESTED ANSWER:
Baron Hotel denied liability alleging that Asia is the ABC & Co. has a valid defense. Pablo should be
employer of the security guards and therefore, their an employee of ABC & Co. to be under the
complaint for illegal dismissal and payment of compulsory coverage of the SSS. To be an
money claims should be directed against Asia. employee, Pablo should be under the control of
Nevertheless, Baron filed a Third Party Complaint ABC & Co. as regards his employment. But the
against Asia. facts show that he was not under the control of
1. Is there an employer-employee relationship ABC & Co. as regards his employment. Among
between the Baron Hotel, on one hand, and the others, he had his own schedule of work hours,
Asia security guards, on the other hand? Explain without any supervision from the company. Thus,
briefly, (3%) he is an independent contractor and not an
SUGGESTED ANSWER: employee. An independent contractor is not under
As a general rule, the security guards of a private the compulsory coverage of the SSS. He maybe
security guard agency are the employees of the covered as a self-employed person. But then as
latter and not of the establishment that has entered such, ABC & Co. has no legal obligation to report
into a contract with the private security guard Pablo for coverage under the SSS because ABC &
agency for security services. Co. is not Pablo's employer.
ANOTHER SUGGESTED ANSWER:
But under the facts in the question, Baron Hotel It is not a valid defense, for Pablo could be
appear to have hired the security guards, to have considered an employee of ABC & Co. The
paid their wages, to have the power to promote, elements of hiring, payment of wages, power to
suspend or dismiss the security guards and the dismiss and power to control are presumed from
power of control over them, namely, the security the fact that Pablo is working 6 days a week, for 15
guards were under orders of Baron Hotel as regard years now. Pablo's use of his plow, harrow,
their employment. burrow, carabao and other implements and his
having his own schedule of work hours without any
Because of the above-mentioned circumstances, supervision from the company do not erase the
Baron Hotel is the employer of the security guards. element of control on the part of ABC & Co.
because under the "control test", it is enough that
2. Assuming that ASIA is the employer, is the act the employer's right to control exists. It is not
of ASIA in placing the security guards on "floating necessary that the same be exercised by the
status" lawful? Why? (2%) employer, it is enough that such right to control
SUGGESTED ANSWER: exists. (Religious of the Virgin Mary v. NLRC. 316
It is lawful for a private security guard agency to SCRA 614, 629 (1999)
place its security guard on a "floating status" if it
has no assignment to give to said security guards. E-E Relationship; Workers paid by Results
(2004)
But if the security guards are placed on a "floating B. TRX, a local shipping firm, maintains a fleet of
status" for more than six (6) months, the security motorized boats plying the island barangays of AP,
guards may consider themselves as having been a coastal town. At day’s end the boat
dismissed. operators/crew members turn over to the boat
owner their cash collections from cargo fees and
E-E Relationship; Self-Employed (2003) passenger fares, less the expenses for diesel fuel,
Pablo was a farm-hand in a plantation owned by food, landing fees and spare parts.
ABC & Co., working approximately 6 days a week
for a good 15 years. Upon Pablo's death, his Fifty percent (50%) of the monthly income or
widow filed a claim for burial grant and pension earnings derived from the operations of the boats
benefits with the Social Security System (SSS). are given to the boatmen by way of compensation.
The claim was denied on the ground that Pablo Deducted from the individual shares of the
had not been a registered member-employee.
Page 54 of 108
LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
boatmen are their cash advance and peso value of relationship between students on one hand, and
their absences, if any. schools, colleges, or universities on the other,
where students work with the latter in exchange for
Are these boatmen entitled to overtime pay, the privilege to study free of charge, provided the
holiday pay, and 13th month pay? (5%) students are given real opportunity, including such
SUGGESTED ANSWER: facilities as may be reasonable and necessary to
If the boatmen are considered employees, like finish their chosen courses under such
jeepney drivers paid on a boundary system, the arrangement."
boatmen are not entitled to overtime and holiday ALTERNATIVE ANSWER;
pay because they are workers who are paid by Gomburza College can be held liable by Victor
results. Said workers, under the Labor Code are Monteverde as an employer of Ruben Padilla.
not entitled, among others, to overtime pay and Applying the control test, the College is the
holiday pay. employer of Padilla because in the latter's work of
keeping clean the lavatory facilities of the school,
In accordance with the Rules and Regulations he is under the control of the College as regards
implementing the 13th month pay law, however, his employment.
the boatmen are entitled to the 13th month pay.
Workers who are paid by results are to be paid However, Ruben Padilla was not acting within his
their 13th month pay. assigned tasks. Art. 2180. New Civil Code
ANOTHER SUGGESTED ANSWER: provides: The obligation imposed by Art. 2176
No. The arrangement between the boat owner and (Quasi-delicts) is demandable xxx (also from)
the boat operators/crew members partook of the employers (who) shall be liable for the damages
nature of a joint venture. The boatmen did not caused by their employees xxx acting within the
receive fixed compensation as they shared only in scope of their assigned tasks, even though the
the cash collections from cargo fees and former are not engaged in any business or
passenger fares, less expenses for fuel, food, industry." It could be argued that Ruben Padilla
landing fees and spare parts. It appears that there was not acting within the scope of his assigned
was neither right of control nor actual exercise of tasks; thus, his employer, Gomburza College is not
such right on the part of the boat owner over the liable.
boatmen. It is clear that there was no employer-
employee relationship between the boat owner and Employment; Aliens; Requisites (1995)
the boatmen. As such, these boatmen are not 2. Phil-Norksgard Company, Inc., a domestic
entitled to overtime pay, holiday pay and 13th corporation engaged in the optics business,
month pay. imported from Sweden highly sophisticated and
sensitive instruments for its laboratory. To install
E-E Relationship; Working Student & School the instruments and operate them, the company
(1997) intends to employ Borja Anders, a Swedish
Ruben Padilla entered into a written agreement technician sojourning as a tourist in the
win Gomburza College to work for the latter in Philippines.
exchange for the privilege of studying in said
institution. Ruben's work was confined to keeping As lawyer of the company, what measures will you
clean the lavatory facilities of the school. One take to ensure the legitimate employment of Borja
school day, Ruben got into a fist fight with a Anders and at the same time protect Philippine
classmate, Victor Monteverde, as a result of which labor. Discuss fully.
the latter sustained a fractured arm. SUGGESTED ANSWER:
To ensure the legitimate employment of Borja
Victor Monteverde filed a civil case for damages Anders, a non-resident alien, I will apply at the
against Ruben Padilla, impleading Gomburza Department of Labor and Employment for the
College due to the latter's alleged liability as an Issuance of an employment permit claiming that
employer of Ruben Padilla. there is no one in the Philippines who can do the
work that Anders is being asked to do.
Under the circumstances, could Gomburza College
be held liable by Victor Monteverde as an At the same time, to protect Philippine labor, I will
employer of Ruben Padilla? see to it that Anders will have an understudy who
SUGGESTED ANSWER: will learn, by working with Anders, how to install
Gomburza College is not liable for the acts of and operate the highly sophisticated and sensitive
Ruben Padilla because there is no employer- instruments from Sweden.
employee relationship between them. As provided ALTERNATIVE ANSWER;
in the Rules and Regulations Implementing the To protect Philippine Labor, the Labor Code
Labor Code "there is no employer-employee provides that the alien employee shall not transfer
Page 55 of 108
LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
to another Job or change his employer without commercial establishment. Is the claim of the
prior approval of the Secretary of Labor. driver valid? [2%]
SUGGESTED ANSWER:
Employment; Children; Below 15 yrs old The driver is a househelper. A person is a
(2004) househelper or is engaged in domestic or
A spinster school teacher took pity on one of her household service if he/she renders services in the
pupils, a robust and precocious 12-year old boy employer's home which are usually necessary or
whose poor family could barely afford the cost of desirable for the maintenance and enjoyment
his schooling. She lives alone at her house near thereof and includes ministering to the personal
the school after her housemaid left. In the comfort and convenience of the members of the
afternoon, she lets the boy do various chores as employer's household including the services of
cleaning, fetching water and all kinds of errands family drivers.
after school hours. She gives him rice and P30.00
before the boy goes home at 7:00 every night. A family driver who drives the family van to fetch
The school principal learned about it and charged merchandise from suppliers and delivers the same
her with violating the law which prohibits the to a boutique in a mall owned by the family for
employment of children below 15 years of age. In whom he works should be paid the minimum daily
her defense, the teacher stated that the work wage of a driver in a commercial establishment.
performed by her pupil is not hazardous, and she
invoked the exception provided in the Department The Labor Code (in Article 143) provides that no
Order of DOLE for the engagement of persons in househelper shall be assigned to work in a
domestic and household service. commercial, industrial or agricultural enterprise at a
wage or salary rate lower than that provided by law
Is her defense tenable? Reason. (5%) for agricultural or non-agricultural workers.
SUGGESTED ANSWER:
No, her defense is not tenable. Under Article 139 Employment; Handicapped Employee (1998)
of the Labor Code on "minimum employable age", A lady worker was born with a physical deformity,
no child below 15 years of age shall be employed specifically, hard of hearing, speech impaired, and
except when he works directly under the sole color blind. However, these deficiencies do not
responsibility of his parents or guardian, the impair her working ability.
provisions of the alleged Department Order of
DOLE to the contrary notwithstanding. A mere Can the employer classify the lady worker as a
Department Order cannot prevail over the express handicapped worker so that her daily wage will
prohibitory provisions of the Labor Code. only be seventy-five percent (75%) of the
applicable daily minimum wage? [5%]
[Note: Sec. 3, RA 9231 allows a child below 15 years of SUGGESTED ANSWER:
age to work for not more than 20 hours a week; provided, No, the employer cannot classify the lady worker
that the work shall not be more than four (4) hours at any as a handicapped worker because according to the
given day; provided, further, that he does not work facts in the question, her deficiencies do not impair
between 8 o'clock in the evening and 6 o'clock in the her working ability. If her earning capacity is
morning of the following day; and provided, finally, that therefore not also impaired, then she cannot be
the work is not hazardous or deleterious to his health or considered a handicapped worker.
morals. THIS IS A RECENT LAW APPROVED ONLY
ON JULY 28, 2003, which is beyond the cut-off period of Because of the above fact, the employer shall not
the Bar Exams] pay her less than the applicable daily minimum
wage. (See Article 78 of the Labor Code)
Employment; Driver as Househelper & in a ANOTHER SUGGESTED ANSWER:
Commercial Establishment (1998) Yes, the employer can classify the lady worker as
The weekly work schedule of a driver is as follows: a handicapped worker because her earning
Monday, Wednesday, Friday - Drive the family car capacity may be impaired by her physical
to bring and fetch the children to and from school. deficiencies As such handicapped worker, the
employer may enter into an employment
Tuesday, Thursday. Saturday - Drive the family agreement with her whereby the rate to be paid to
van to fetch merchandise from suppliers and her may be less than the applicable legal minimum
deliver the same to a boutique in a mall owned by wage but not less than 75% of such wage.
the family. Is the driver a househelper? [3%]
Employment; Handicapped Employee (2000)
The same driver claims that for work performed on Ana Cruz has a low IQ. She has to be told at least
Tuesday, Thursday and Saturday, he should be three times before she understands her daily work
paid the minimum daily wage of a driver of a assignment. However, her work output is at least
Page 56 of 108
LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
equal to the output of the least efficient worker in whatever being exercised by the former over the
her work section. Is Ms, Cruz a handicapped latter."
worker? Explain. (5%)
SUGGESTED ANSWER: Employment; Homeworkers (2000)
No, low IQ or low efficiency does not make the b) Mrs. Josie Juan is the confidential secretary of
worker "handicapped" in the contemplation of law. the Chairman of the Board of the bank. She is
Handicap means such physical or mental infirmity presently on maternity leave. In an arrangement
that impairs capacity to work. The deficiency may where the Chairman of the Board can still have
also be due to age or injury. (Art 78. Labor Code). access to her services, the bank allows her to work
in her residence during her leave. For this purpose,
Employment; Handicapped Workers; the bank installed a fax machine in her residence,
Contractual Employees (2006) and gave her a cellphone and a beeper. Is Mrs.
For humanitarian reasons, a bank hired several Juan a homeworker under the law? Explain. (3%)
handicapped workers to count and sort out SUGGESTED ANSWER:
currencies. Their employment contract was for six No, she is actually an office worker. She is not an
(6) months. The bank terminated their employment industrial homeworker who accepts work to be
on the ground that their contract has expired fabricated or processed at home for a contractor,
prompting them to file with the Labor Arbiter a which work, when finished, will be returned to or
complaint for illegal dismissal. Will their action repurchased by said contractor. (Art. 155, Labor
prosper? (5%) Code).
ALTERNATIVE ANSWER:
Their action will not prosper because they are Employment; Househelpers (2000)
covered by the fixed term employment contract a) Nova Banking Corporation has a resthouse and
which automatically lapsed at the end of the 6- recreational facility in the highlands of Tagaytay
month period (Brent School v. Zamora, G.R. No. City for the use of its top executives and corporate
48494, February 5, 1990; Art. 280, Labor Code). A clients. The resthouse staff includes a caretaker,
contract of employment for a definite period two cooks and a laundrywoman. All of them are
terminates on its own term at the end of its period. reported to the Social Security System as domestic
It does not necessarily follow that the parties are or household employees of the resthouse and
forbidden from agreeing on a fixed period of time recreational facility and not of the bank. Can the
for the performance of activities usually necessary bank legally consider the caretaker, cooks and
and desirable in the usual business of the laundrywoman as domestic employees of the
employer (Pangilinan v. Gen. Milling, G.R. No. resthouse and not of the bank? (3%)
149329, July 12, 2004). SUGGESTED ANSWER:
ALTERNATIVE ANSWER: No, they are not domestic employees. They are
Yes. Undeniably, handicapped workers are never bank employees because the resthouse and
on equal terms with the bank as employer. In recreational facility are business facilities as they
Philippine National Oil Company-Energy are for use of the top executives and clients of the
Development Corporation v. NLRC, G.R. No. bank. [Art. 141, Labor Code; Apex Mining Co., Inc.
97747, March 31, 1993, the v. NLRC, 196 SCRA 251 (1991); Traders Royal
Supreme Court set down two criteria under which Bank v. NLRC. G.R. No. 127864, December 22.
fixed contracts of employment do not circumvent 1999]
security of tenure, to wit:
1. The fixed period of employment was knowingly Employment; Minors (2006)
and voluntarily agreed upon by the parties, Determine whether the following minors should be
without any force, duress or improper pressure prohibited from being hired and from performing
being brought to bear upon the employee and their respective duties indicated hereunder: (5%)
about any other circumstances vitiating his 1. A 17-year old boy working as miner at the
consent; or Walwadi Mining Corporation.
2. It satisfactorily appears that the employer and SUGGESTED ANSWER:
the employee dealt with each other on more or It is absolutely Prohibited for any person below 18
less equal terms with no moral dominance years of age to be employed in hazardous work,
whatever being exercised by the former on the harmful to health and safety (Sec. 3, Rule 12, Book
latter. 3, ties Implementing the Labor Code), including
construction work, logging, firefighting, mining,
Even granting that the handicapped workers and quarrying, stevedoring, dock work, deep sea
the bank agreed to term employment, it could not fishing and mechanized fishing (Sec. 8[2], Rule 1,
be said that they "dealt with each other on more or Book 4, Rules Implementing the Labor Code).
less equal terms with no moral dominance

Page 57 of 108
LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
2. An 11-year old boy who is an accomplished B. I will advise the paint manufacturing company
singer and performer in different parts of the that ft cannot hire a person who is aged seventeen
country. (17). Art 139 (c) of the Labor Code provides that a
SUGGESTED ANSWER: person below eighteen (18) years of age shall not
Under RA. 7610, Section 12, as amended by RA. be allowed to work in an undertaking which is
No. 9231 states that: hazardous or deleterious in nature as determined
Employment of children — children below 15 years by the Secretary of Labor. Paint manufacturing
of age shall not be employed (Art. 139, Labor has been classified by the Secretary of Labor as a
Code) except when the following conditions are hazardous work.
met:
(a) When the child's participation in public Employment; Radio-TV Show Host;
entertainment is essential; Expiration of Term (2005)
(b) There is a written contract approved by the (1) Malyn Vartan is a well-known radio-TV show
DOLE and signed by the child's parents or host. She signed a contract with XYZ
legal guardians, with the express consent of Entertainment Network to host a one-hour daily
the child; and talk show where she interviews various celebrities
(c) the employer who employs the child must on topical subjects that she herself selects. She
secure a work permit from the DOLE. was paid a monthly remuneration of P300,000.00.
The program had been airing for almost two years
3. A 15-year old girl working as a library assistant when sponsors' advertising revenues dwindled,
in a girls' high school. constraining the network to cancel the show upon
SUGGESTED ANSWER: the expiration of its latest contract with Ms. Vartan.
She may work as a library assistant provided: The talk-show host protested the discontinuance of
(1) The employment does not endanger her life, her monthly talent fee, claiming that it was
safety, morals and normal development; tantamount to her illegal dismissal from the
(2) She is given the opportunity for primary or network since she has already attained the status
secondary education; and of a regular employee. (6%)
(3) The employment does not exceed 8 hours a (a) As the network's legal counsel, how would
day and 40 hours a week (Sees. 12 & 14, RA. you justify its decision to cancel Ms. Vartan's
7610, as amended by RA. 9231). program which in effect terminated her
services in the process?
4. A 16-year old girl working as model promoting ALTERNATIVE ANSWER:
alcoholic beverages. As the network's legal counsel, I will argue that Ms.
SUGGESTED ANSWER: Vartan is under contract on a fixed term
Section 14, Article 8, RA. 7610, as amended by employment basis. The network cancelled the
Section 5, RA. 9231 states that a child shall be show "upon the expiration of its latest contract with
prohibited to act as a model in any advertisement Ms. Vartan." Hence, this does not involve dismissal
directly or indirectly promoting alcoholic beverages, but an expiration of term. (Felix v. Buenaseda,
intoxicating drinks, tobacco and its byproducts, G.R. No. 109704, January 17,1995; St. Theresa's
gambling or any form of violence or pornography. School of Novaliches Foundation v. NLRC, G.R.
No. 122955, April 15, 1998)
ALTERNATIVE ANSWER:
5. A 17-year old boy working as a dealer in a As the network's counsel, there was no termination
casino. of her services, only the expiration of her contract,
SUGGESTED ANSWER: being an independent contractor. (Sonza v. ABS-
Section 14, Article 8, RA. 7610, as amended by CBN, G.R. No. 138051, June 10, 2004)
Section 5, RA. 9231 prohibits the boy from working
as a dealer in a casino as this promotes gambling. (b) As counsel for the talk-show host, how
Moreover, DOLE Dept. Order No. 04, series of would you argue your case?
1999, expressly prohibits employment of ALTERNATIVE ANSWER.
"teenagers" in gambling halls. As a radio-TV talk show host, Ms. Vartan is
performing an activity which is necessary and
Employment; Minors; Hazardous Work (2002) desirable in the usual trade or business of XYZ
B. You were asked by a paint manufacturing Entertainment Network. Hence, Ms. Vartan is a
company regarding the possible employment as a regular employee and cannot be terminated except
mixer of a person, aged seventeen (17), who shall for cause and only after due process. The
be directly under the care of the section supervisor. cancellation of the program is tantamount to
What advice would you give? Explain briefly. (2%) closure but XYZ Entertainment Network did not
SUGGESTED ANSWER: comply with the procedural requirements of law,

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LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
i.e., 30 days notice to Ms. Vartan and to DOLE the remarks did not give due regard to the
prior to the intended date of termination. applicants' feelings and it is a chauvinistic disdain
ALTERNATIVE ANSWER: of her honor, justifying the finding of sexual
As counsel for the talk show host, I will argue that harassment [Villarama v. NLRC, 236 SCRA 280
she is a regular employee. First, she performs job (1994)]
that is necessary and desirable to the nature of the
business of the employer; Second, she serves for Employment; Women; Anti-Sexual
at least one (1) year which is an indication of Harassment Act (2004)
regular employment. A. Pedrito Masculado, a college graduate from
the province, tried his luck in the city and
Employment; Women; Anti-Sexual landed a job as utility/maintenance man at the
Harassment Act (2000) warehouse of a big shopping mall. After
A Personnel Manager, while interviewing an working as a casual employee for six months,
attractive female applicant for employment, stared he signed a contract for probationary
directly at her for prolonged periods, albeit in a employment for six months. Being well-built
friendly manner. After the interview, the manager and physically attractive, his supervisor, Mr.
accompanied the applicant to the door, shook her Hercules Barak, took special interest to
hand and patted her on the shoulder. He also befriend him. When his probationary period
asked the applicant if he could invite her for dinner was about to expire, he was surprised when
and dancing at some future time. Did the one afternoon after working hours, Mr. Barak
Personnel Manager, by the above acts, commit followed him to the men’s comfort room. After
sexual harassment? Reason. (3%) seeing that no one else was around, Mr. Barak
SUGGESTED ANSWER: placed his arm over Pedrito’s shoulder and
Yes, because the Personnel Manager, a man, is in softly said: “You have great potential to
a position to grant or not to grant a favor (a job) to become regular employee and I think I can
the applicant. Under the circumstances, inviting the give you a favorable recommendation. Can
applicant for dinner or dancing creates a situation you come over to my condo unit on Saturday
hostile or unfriendly to the applicant's chances for evening so we can have a little drink? I’m
a job if she turns down the invitation. [Sec. 3(a)(3), alone, and I’m sure you want to stay longer
R.A. No. 7877, Anti-Sexual Harassment Act]. with the company.”
ALTERNATIVE ANSWER:
There is no sexual harassment because there was Is Mr. Barak liable for sexual harassment
no solicitation of sexual favor in exchange of committed in a work-related or employment
employment. Neither was there any intimidating, environment? (5%)
hostile or offensive environment for the applicant. SUGGESTED ANSWER:
Yes, the elements of sexual harassment are all
Employment; Women; Anti-Sexual present. The act of Mr. Barak was committed in a
Harassment Act (2000) workplace. Mr. Barak, as supervisor of Pedrito
b) In the course of an interview, another female Masculado, has authority, influence and moral
applicant inquired from the same Personnel ascendancy over Masculado.
Manager if she had the physical attributes required B. Given the specific circumstances mentioned in
for the position she applied for. The Personnel the question like Mr. Barak following
Manager replied: "You will be more attractive if you Masculado to the comfort room, etc. Mr. Barak
will wear micro-mini dresses without the was requesting a sexual favor from Masculado
undergarments that ladies normally wear." Did the for a favorable recommendation regarding the
Personnel Manager, by the above reply, commit an latter's employment.
act of sexual harassment? Reason. (3%)
SUGGESTED ANSWER: It is not impossible for a male, who is a
No, the Personnel Manager's reply to the homosexual, to ask for a sexual favor from another
applicant's question whether she qualifies for the male.
position she is applying for does not constitute ANOTHER SUGGESTED ANSWER:
sexual harassment. The Personnel Manager did I do not see any sexual favor being solicited.
not ask for or insinuate a request for a sexual favor Having a "little drink" in Mr. Barak's Condo Unit, as
in return for a favorable action on her application condition for a "favorable recommendation is not
for a job. But the Manager's statement may be one of the prohibited acts enumerated in Sec. 3 (a)
offensive if attire or physical look is not a criterion of R.A. 7877, otherwise known as the Anti-Sexual
for the job being applied for. Harassment Act of 1995.
ALTERNATIVE ANSWER:
Yes. The remarks would result in an offensive or
hostile environment for the employee. Moreover,
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Employment; Women; Anti-Sexual 136), and prohibited acts (Art. 137} of the Labor
Harassment vs. Discrimination against Code.
Women (2003) STILL ANOTHER SUGGESTED ANSWER:
Can an individual, the sole proprietor of a business It may be noted that the policy is directed only to
enterprise, be said to have violated the Anti-Sexual married women. This may violate the spirit of
Harassment Act of 1995 if he clearly discriminates Article 136 of the Labor Code which provides that it
against women in the adoption of policy standards shall be unlawful for an employer to require as a
for employment and promotions in the enterprise? condition of employment or continuation of
Explain. employment that a woman shall not get married.
SUGGESTED ANSWER:
When an employer discriminates against women in Employment; Women; Discrimination by
the adoption of policy standards for employment reason of Marriage (1995)
and promotion in his enterprise, he is not guilty of Fil-Aire Aviation Company (FIL-AIRE) is a new
sexual harassment. Instead, the employer is guilty airline company recruiting flight attendants for its
of discrimination against women employees which domestic flights. It requires that the applicant be
is declared to be unlawful by the Labor Code. single, not more than 24 years old, attractive, and
familiar with three (3) major Visayan dialects, viz:
For an employer to commit sexual harassment, he Ilongo, Cebuano and Waray. Lourdes, 23 years
- as a person of authority, influence or moral old, was accepted as she possessed all the
ascendancy -should have demanded, requested or qualifications. After passing the probationary
otherwise required a sexual favor from his period, Lourdes disclosed that she got married
employee whether the demand, request or when she was 18 years old but the marriage was
requirement for submission is accepted by the already in the process of being annulled on the
object of said act. ground that her husband was afflicted with a
sexually transmissible disease at the time of the
Employment; Women; Discrimination by celebration of their marriage. As a result of this
reason of Age (1998) revelation, Lourdes was not hired as a regular flight
At any given time, approximately ninety percent attendant. Consequently, she filed a complaint
(90%) of the production workforce of a semi- against FIL-AIRE alleging that the pre-employment
conductor company are females. Seventy-five qualifications violate relevant provisions of the
percent (75%) of the female workers are married Labor Code and are against public policy.
and of child-bearing years. It is imperative that the Is the contention of Lourdes tenable? Discuss fully.
Company must operate with a minimum number of SUGGESTED ANSWER:
absences to meet strict delivery schedules. In view The contention of Lourdes is tenable. When she
of the very high number of lost working hours due was not hired as a regular flight attendant by FIL-
to absences for family reasons and maternity AIRE because she disclosed that she got married
leaves, the Company adopted a policy that it will when she was 18 years old. The airline company
employ married women as production workers only violated the provision of the Labor Code which
if they are at least thirty-five (35) years of age. states:
Is the policy violative of any law? [5%] "It shall be unlawful for an employer to require
SUGGESTED ANSWER: as a condition of employment or continuation of
Yes, it is violative of Article 140 of the Labor Code employment that a woman employee shall not
which provides that no employer shall discriminate get married, or to stipulate expressly or tacitly
against any person in respect to terms and that upon getting married a woman employee
conditions of employment on account of his age. shall be deemed resigned or separated, or to
ANOTHER SUGGESTED ANSWER: actually dismiss, discharge, discriminate or
The policy of the company to employ married otherwise prejudice a woman employee merely
women as production workers only if they are at by reason of her marriage."
least thirty-five (35) years of age is valid. There is
no prohibition in the Labor Code for such an Employment; Women; discrimination; illegal
employer to exercise this management function. dismissal (1997)
There is a justifiable basis for the company policy. Dinna Ignacio was hired by Stag Karaoke Club as
i.e., the need for continuity of production with a guest relations officer. Dinna was also required
minimum absences because of the peculiar to sing and dance with guests of the club. In Dinna
business conditions and needs of the company, Ignacio's employment contract, which she signed,
i.e., very tight delivery schedules. The company the following stipulations appeared:
respects the institution of marriage as shown by Compensation: Tips and commissions coming
the fact that it employs married women. There is from guests shall be subjected to 15%
no violation of the stipulation against marriage (Art. deduction.

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Hours of work: 5 P.M. up to 2 A.M. dairy six months. A rating of "outstanding" is rewarded
including Sundays and Holidays with a merit increase. She was given a "below
Other conditions: Must maintain a body weight average" rating in the last two periods. According
of 95 Ibs., remain single. Marriage or to the bank's personnel policy, a third rating of
pregnancy will be considered as a valid ground "below average" will result in termination. Mr. Perry
for a termination of employment. Winkle called Carissa into his office a few days
before submitting her performance ratings. He
A year later, Dinna Ignaclo requested to go on invited her to spend the night with him in his rest
leave because she would be getting married to one house. She politely declined. Undaunted, Mr.
of the club's regular guests. The management of Winkle renewed his invitation, and Carissa again
the club dismissed her. declined. He then warned her to "watch out"
because she might regret it later on. A few days
Dinna filed a complaint for illegal dismissal, night later, Carissa found that her third and last rating
shift differential pay, backwages, overtime pay and was again "below average."
holiday pay. Discuss the merits of Dinna's
complaint. Carissa then filed a complaint for sexual
SUGGESTED ANSWER: harassment against Mr. Winkle with the
The first issue to be resolved is: Is Dinna Ignacio Department of Labor and Employment. In his
an employee of the Star Karaoke Club? Yes, she is counter-affidavit, he claimed that he was enamored
an employee per the provision of the Labor Code with Carissa. He denied having demanded, much
that states: "Any woman who is permitted or less received any sexual favors from her in
suffered to work, with or without compensation, in consideration of giving her an "outstanding" rating.
any night club, cocktail lounge, massage clinic, bar He also alleged that the complaint was premature
or similar establishment, under the effective control because Carissa failed to refer the matter to the
or supervision of the employer for a substantial Committee on Decorum and Discipline for
period shall be considered an employee of such investigation and resolution before the case
establishment for purposes of labor and social against him was filed. In her reply affidavit, Carissa
legislation"(Art. 138). In Dinna's conditions of claimed that there was no need for a prior referral
employment have all the aforesaid characteristics. to the Committee on Decorum and Discipline of her
complaint.
She has been illegally dismissed. The Labor Code Resolve the case with reasons. (5%)
expressly provides, that "It shall be unlawful for an SUGGESTED ANSWER:
employer to require as a condition of employment I will hold Mr. Perry Winkle guilty of sexual
or continuation of employment that a woman harassment. This resolution is predicated mainly
employee shall not get married, or to stipulate upon the following considerations:
expressly or tacitly that upon getting married a (1) Mr. Perry Winkle exercises authority, influence
woman employee shall be deemed resigned or or moral ascendancy over Carissa;
separated, or to actually dismiss, discharge, (2) Mr. Winkle's insistence in inviting Carissa "to
discriminate or otherwise prejudice a woman spend the night with him in his rest house"
employee merely by reason of her marriage." (Art. implies a request or demand for a sexual favor;
136) (3) Mr. Winkle's warning clearly manifests that the
refusal of the sexual favor would jeopardize
Because of her illegal dismissal, she is entitled to Carissa's continued employment; and
backwages from the time her compensation was (4) Mr. Winkle's invitation for a sexual favor will
withheld from her to the time of her actual result in an intimidating, hostile, or otherwise
reinstatement. offensive working environment for Carissa.

Dinna is not entitled to night differential pay, Carissa is correct in stating that there was no need
overtime pay and holiday pay because she for prior referral to the Committee on Decorum and
belongs to one of those classes of employees who Discipline of her complaint because nothing in the
are not covered by the provision of the Labor Code law precludes the victim of sexual harassment from
providing for these benefits. She is a worker paid instituting a separate and independent action for
by results, since her compensation is determined damages and other affirmative relief. (Sec. 6, R.A.
by the tips and commission that she receives from No. 7877)
her guests.
Employment; Women; Sexual Harassment
Employment; Women; Sexual Harassment Act (2006)
Act (2005) As a condition for her employment, Josephine
Carissa, a comely bank teller, was due for her signed an agreement with her employer that she
performance evaluation which is conducted every
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will not get married, otherwise, she will be of Y. It should also be noted that X pays the salary
considered resigned or separated from the service. of Y as the employee of the former.
ANOTHER SUGGESTED ANSWER;
Josephine got married. She asked Owen, the Yes, Y's case against Company "Z" will prosper.
personnel manager, if the company can reconsider Company "Z" will be deemed the direct employer
the agreement. He told Josephine he can do because the Company directly and specifically
something about it, insinuating some sexual favors. controlled the manner by which the work should be
She complained to higher authorities but to no done and, and by doing so also the result. (See
avail. She hires you as her counsel. What action or Traders Royal Bank vs. NLRC, December 2.
actions will you take? Explain. (5%) 1999).
ALTERNATIVE ANSWER:
I will file a criminal case against Owen for violation The presence of the element or factor of control,
of RA. No. 7877, otherwise known as the "Anti- which is the most important factor in determining
Sexual Harassment Act of 1995." the existence of an employer-employee
relationship is present. In Religious of the Virgin
I will also file a separate and independent action Mary vs. NLRC, G.R. No. 103606, October 13,
for damages against Owen. By reason of the fact 1999, the Supreme Court, ruled:
that the Company did not take immediate action As this Court has consistently ruled, the power
thereon, I will include the Company in the civil suit of control is the most decisive factor in
for damages and make it jointly and severally liable determining the existence of employer-
with Owen. employee relationship.

ALTERNATIVE ANSWER: Independent Contractor (2002)


Aside from filing a criminal case against Owen for Pandoy, an electronics technician, worked within
violation of the Sexual Harassment Law (R.A. the premises of Perfect Triangle, an auto
7877) and a separate action for damages, accessory shop. He filed a complaint for illegal
impleading the company, I will also file an action dismissal, overtime pay and other benefits against
for constructive dismissal against the Company Perfect Triangle, which refused to pay his claims
since the employee was placed in a job on the ground that Pandoy was not its employee
atmosphere imposing oppressive work conditions but was an independent contractor. It was common
contrary to public policy and morals. practice for shops like Perfect Triangle to collect
the service fees from customers and pay the same
Independent Contractor (2001) to the independent contractors at the end of each
(a) "X" is a bona fide service contractor providing week. The auto shop explained that Pandoy was
manpower services to various companies, like a partner who worked within its premises,
possessing the necessary capital and equipment using parts provided by the shop, but otherwise
needed to effectively carry out its commitments. Pandoy was free to render service in the other auto
"Y" is an employee of "X" and assigned to work as shops. On the other hand, Pandoy insisted that he
a janitor in Company "Z". In the course of Y's still was entitled to the benefits because he was
assignment, Z's supervisors and employees would loyal to Perfect Triangle, it being a fact that he did
give verbal instructions to Y as to how and where not perform work for anyone else. Is Pandoy
to perform his work. X pays Y salary. correct? Explain briefly. (5%)
Subsequently, Y's services were terminated by X. SUGGESTED ANSWER:
Y sued Z for Illegal dismissal. May Y's case Pandoy is not correct. He is not an employee
against Z prosper? Why? (2%). because he does not meet the fourfold test for him
SUGGESTED ANSWER: to be an employee of Perfect Triangle. All that he
Y's case against Z will not prosper, because Z is could claim is: he worked within the premises of
not the employer of Y. The employer of "Y" is "X". Perfect Triangle. Pandoy was NOT engaged as an
"Y' would be an employee of "Z" if "X" here is a employee by Perfect Triangle. He was NOT paid
labor-only contractor but X is not a labor-only wages by Perfect Triangle. Perfect Triangle does
contractor. He possesses the necessary capital NOT have the power to dismiss him although
and equipment needed to effectively carry out its Perfect Triangle may not continue to allow him to
commitment as a service contractor. work within its premises. And most important of all,
Pandoy was NOT under the control of Perfect
Applying the control test, the fact that "Z's" Triangle as regards the work he performs for
supervisors and employees give verbal instructions customers.
to Y as to how and where to perform his work does
not necessarily mean that thereby he is under the The Supreme Court has ruled: "In stark contrast to
control of Z as regards his employment as long as the Company's regular employees, there are
X, as service contractor, actually directs the work independent, free lance operators who are
Page 62 of 108
LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
permitted by the Company to position themselves ALTERNATIVE ANSWER:
proximate to the Company premises. These a) My analytical framework will be an analysis of
independent operators are allowed by the the law on Independent contractor and labor only
Company to wait on Company customers who contracting.
would be requiring their services. In exchange for
the privileges of favorable recommendation by the If there is a valid INDEPENDENT CONTRACTOR
Company and immediate access to the customers situation, Mr. Dado will be the direct employer, and
in need of their services, these independent the Metro Grocery will be the indirect employer.
operators allow the Company to collect their
service fee from the customer and this fee is given If there is a LABOR-CONTRACTOR only
back to the Independent operator at the end of the relationship, the Metro Grocery will be the
week. In effect, they do not earn fixed wages from employer as it directly hired the employees.
the Company as their variable fees are earned by
them from the customers of the Company. The SUGGESTED ANSWER:
Company has no control over and does not restrict b) The legal significance is the determination of
the methodology or the means and manner by employee-employer relationship, which gives rise
which these operators perform their work. These to certain rights and obligation of both employer
operators are not supervised by any employee of and employee, such as SSS membership, union
the Company since the results of their work is membership, security of tenure, etc.
controlled by the customers who hire them.
Likewise, the Company has no control as an Independent Contractor; Liabilities (2004)
employer over these operators. They are not A. Clean Manpower Inc. (CMI) had provided
subject to the regular hours and days of work and janitorial services to the National Economic
may come and go as they wish. They are not Development Authority (NEDA) since April 1988.
subject to any disciplinary measures from the Its service contract was renewed every three
Company, save merely for the inherent rules of months. However, in the bidding held on July
general behavior and good conduct" {Ushio 1992, CMI was disqualified and excluded. In 1993,
Marketing v. NLRC, 294 SCRA 673(1998)] six janitors of CMI formerly assigned at NEDA filed
a complaint for underpayment of wages. Both CMI
Independent Contractor vs. Labor-Only and NEDA were impleaded as respondents for
Contracting; Four-Fold Test (2000) failure to comply with NCR Wage Orders Nos. 01
Metro Grocery Inc. arranged with Mr. Juan Dado, a and 02, which took effect on November 1, 1990
Barangay Chairman, to provide the grocery with and January 2, 1992, respectively.
workers who will work as cashiers, bag boys, shelf
counter helpers and sanitation workers. The Should NEDA, a government agency subject to
grocery will pay Mr. Dado an amount equivalent to budgetary constraints, be held liable solidarily with
the direct and hidden costs of the wages of each CMI for the payment of salary differentials due the
worker assigned, plus ten percent (10%) to cover complainants? Cite the legal basis of your answer.
the administrative costs related to their (5%)
arrangement. Mr. Dado, in turn, will pay directly the SUGGESTED ANSWER:
workers their wages. As far as the workers are NEDA shall be held solidarily liable with CMI for
concerned, Mr. Dado is their employer. A group of the payment of salary differentials due to the
concerned workers consulted you if Mr, Dado is complainants, because NEDA is the indirect
really under the law their employer. employer of said complainants. The Labor Code
A. How will you analyze the problem in order to provides that xxx (A) person, partnership,
formulate your answer? (3%) association or corporation which, not being an
B. What is the legal significance, if any, of the employer, contracts with an independent contractor
question of the concerned workers as to who is for the performance of any work, task, job or
their employer? (3%) project" xxx "shall be jointly and severally liable
SUGGESTED ANSWER: with his contractor or subcontractor to such
a) I will analyze the problem by applying the four- employees (of the contractor or subcontractor) to
fold test of employer-employee relationship. I will the extent of work performed under the contract
examine if Mr. Dado exercises power of control or xxx." (Arts. 106 and 107, Labor Code)
supervision over the workers' manner and method
of doing their work. Control is the most important Labor-Only Contract vs. Job Contracting
factor in examining employer-employee (1997)
relationship. The other factors are hiring, payment Distinguish between "job contracting" and "labor-
of wages, and power to dismiss, I will also examine only contracting."
whether there was job contracting or labor-only SUGGESTED ANSWER:
contracting.
Page 63 of 108
LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
When a person, not being an employer, contracts B. Sta. Monica Plywood Corp. is liable for the
with an independent contractor for the claims of the workers hired by Arnold. A finding
performance of any work, task, job or project, there that Arnold is a labor only contractor is equivalent
is "JOB CONTRACTING." When the independent to declaring that there exist an employer-employee
contractor does the work that is contracted out, he relationship between Sta. Monica Plywood Corp.
is not under the control of the person who and workers hired by Arnold. This is so because
contracted out the work to be done. Arnold is considered a mere agent of Sta. Monica
Plywood Corp. [Lim v. NLRC, 303 SCRA 432,
In "LABOR-ONLY CONTRACTING", a person (1999); Baguio et al, v. NLRC, 202 SCRA 465
supplies workers to an employer. Said person does (1991)]
not have substantial capital or investments in the
form of tools, equipment, machineries, work Labor-Only Contractor vs. Independent
premises, among others, and the workers recruited Contractor (1994)
and placed by such person are performing 1) What is a "labor-only" contract?
activities related to the principal business of the 2) Distinguish the liabilities of an employer who
employer to whom the workers are supplied. engages the services of a bonafide "independent
contractor" from one who engages a "labor-only"
Labor-Only Contractor (2002) contractor?
Sta. Monica Plywood Corporation entered into a SUGGESTED ANSWER:
contract with Arnold for the milling of lumber as 1) "LABOR-ONLY" CONTRACT is a contract
well as the hauling of waste wood products. The between an employer and a person who supplies
company provided the equipment and tools workers to such employer where the person
because Arnold had neither tools and equipment supplying workers does not have substantial
nor capital for the job. Arnold, on the other hand, capital or investment in the form of tools,
hired his friends, relatives and neighbors for the equipment, machineries, work premises, among
job. Their wages were paid by Sta. Monica others, and the workers recruited and placed by
Plywood Corp. to Arnold, based on their production such person are performing activities which are
or the number of workers and the time used in directly related to the principal business of such
certain areas of work. All work activities and employer. (Art. 106, Labor Code)
schedules were fixed by the company.
A. Is Arnold a job contractor? Explain briefly. (2%) 2) A person who engages the services of a bona
B. Who is liable for the claims of the workers fide "INDEPENDENT CONTRACTOR" for the
hired by Arnold? Explain briefly. (3%) performance of any work, task, job or project is the
SUGGESTED ANSWER: indirect employer of the employees who have been
A. No. In two cases decided by the Supreme hired by the independent contractor to perform
Court, it was held that there is "job contracting" said work, task, job or project.
where (1) the contractor carries on an independent
business and undertakes the contract work in his In the event that the independent contractor fails to
own account, under his own responsibility pay the wages of his employees, an indirect
according to his own manner and method, free employer, in the same manner and extent that he
from the control and direction of his employer or is liable to employees directly employed by him, is
principal in all matters connected with the JOINTLY and SEVERALLY LIABLE with the
performance of the work except as to the results Independent contractor to the employees of the
thereof; and (2) the contractor has substantial latter to the extent of the work performed under the
capital or investment in the form of tools, contract.
equipment, machineries, work premises and other
materials which are necessary in the conduct of his As for the person who engages the services of a
business. [Lim v. NLRC, 303 SCRA 432 (1999); "labor only" contractor, the latter is considered
Baguio v. NLRC, 202 SCRA 465(1991)] merely as an agent of the former who shall be
responsible to the workers hired by the "labor only"
In the problem given, Arnold did not have sufficient contractor in the same manner and extent as if he
capital or in vestment for one. For another Arnold directly employed such workers.
was not free from the control and direction of Sta.
Monica Plywood Corp. because all work activities ALTERNATIVE ANSWERS;
and schedules were fixed by the company. a) An employer who engages the services of a
bona fide "independent contractor" is
Therefore, Arnold is not a job contractor. He is SOLIDARILY LIABLE with his contractor or
engaged in labor-only contracting. sub-contractor only for non-payment or under-
payment of wages and other labor standards
SUGGESTED ANSWER: provisions of the Labor Code, whereas an
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employer who engages a "labor-only" of Service Exporters v. Drilon, 163 SCRA 386
contractor is liable for all benefits, terms and 11988]).
conditions of employment that it normally ANOTHER SUGGESTED ANSWER:
grants to its regular or direct employees. The DOLE orders should be set aside. It is true
that the Migrant Workers and Overseas Filipinos
b) An employer who deals with a bona-fide Act, particularly its Section 5, could be the basis of
independent contractor shall be liable only the power of DOLE to effect a ban on the
subsidiarily, if the contractor or sub-contractor deployment of OFWs by XYZ. If the ban, however,
fails to pay the wages to the workers in is for the purpose of preventing XYZ from
accordance with the Labor Code. transporting extremists to terrorist training camps
abroad, this is a police and national security
Upon the other hand, an employer who deals problem better dealt with by the police or the Office
with a "labor-only" contractor shall be primarily of the National Security Adviser.
responsible to the workers in the same manner
and extent as if the latter were directly More importantly, the cancellation of the license of
employed by him. (Arts 106-107, Labor Code) XYZ requires notice and hearing. Absent such
notice and hearing, the order of cancellation of the
Recruitment & Placement; Cancellation; Secretary of Labor and Employment is null and
Certificate of Registration; Travel Ban (2004) void because of the denial of due process.
Concerned Filipino contract workers in the Middle
East reported to the Department of Foreign Affairs Recruitment & Placement; illegal recruitment
(DFA) that XYZ, a private recruitment and to economic sabotage (2005)
placement agency, is covertly transporting (1) During the open forum following your lecture to
extremists to terrorist training camps abroad. a group of managers and HRD personnel, you
Intelligence agencies of the government allegedly were asked the following questions:
confirmed the report. (a) What qualifying circumstances will convert
"illegal recruitment" to "economic sabotage," thus
Upon being alerted by the DFA, the Department of subjecting its perpetrator or perpetrators to a
Labor and Employment issued orders cancelling penalty of life imprisonment and a fine of at least
the licenses of XYZ, and imposing an immediate P500,000.00? Please explain your answer briefly.
travel ban on its recruits for the Middle East. XYZ (3%)
appealed to the Office of the President to reverse SUGGESTED ANSWER.
and set aside the DOLE orders, citing damages Under Article 38(b) of the Labor Code, as
from loss of employment of its recruits, and amended by P.D. No. 2018, it provides that illegal
violations of due process including lack of notice recruitment shall be considered an offense
and hearing by DOLE. The DOLE in its answer involving economic sabotage if any of the following
claimed the existence of an emergency in the qualifying circumstances exists:
Middle East which required prompt measures to (1) When illegal recruitment is committed by a
protect the life and limb of OFWs from a clear and SYNDICATE, requiring three or more persons
present danger posed by the ongoing war against who conspire or confederate with one another
terrorism. in carrying out any unlawful or illegal
transaction, enterprise or scheme;
Should the DOLE orders be upheld or set aside? When illegal recruitment is committed in a LARGE
(5%) SCALE, as when it is committed against three or
SUGGESTED ANSWER: more persons individually or as a group. (People v.
1. The DOLE order cancelling the licenses of XYZ Navarra, G.R. No. 119361, February 19, 2001; See
is void because a report that an agency is covertly also Sec. 6 of R.A. No. 8042)
transporting extremists is not a valid ground for
cancellation of a Certificate of Registration (Art. Recruitment & Placement; illegal
239, Labor Code) and there is failure of due recruitment; Economic Sabotage (2002)
process as no hearing was conducted prior to the When is illegal recruitment considered a crime of
cancellation (Art. 238, Labor Code). economic sabotage? Explain briefly. (3%)
SUGGESTED ANSWER:
2. The DOLE order imposing the travel ban is valid According to Art. 28 of the Labor Code, illegal
because it is a valid exercise of police power to recruitment is considered a crime of economic
protect the national interest (Sec. 3, Art. XIII, sabotage when committed by a syndicate or in
Constitution on full protection to labor safety of large scale.
workers) and on the rule making authority of the
Secretary of Labor (Art. 5, Labor Code; Phil. Assn. Illegal recruitment is deemed committed by a
syndicate if carried out by a group of three (3) or
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LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
more persons conspiring and/or confederating with Recruitment & Placement; Non-
one another in carrying out any unlawful or illegal Transferability of License (1998)
transaction, enterprise or scheme which is an act A Recruitment and Placement Agency declared
of illegal recruitment. voluntary bankruptcy. Among its assets is its
license to engage in business.
Illegal recruitment is deemed committed in large Is the license of the bankrupt agency an asset
scale if committed against three (3) or more which can be sold in public auction by the
persons individually or as a group. liquidator? [5%]
SUGGESTED ANSWER:
Recruitment & Placement; Large Scale Illegal No, because of the non-transferability of the
Recruitment (2005) license to engage in recruitment and placement.
Maryrose Ganda's application for the renewal other
license to recruit workers for overseas employment The Labor Code (in Article 29) provides that no
was still pending with the Philippine Overseas license to engage in recruitment and placement
Employment Administration (POEA). Nevertheless, shall be used directly or indirectly by any person
she recruited Alma and her three sisters, Ana, other than the one in whose favor it was issued nor
Joan, and Mavic, for employment as housemates may such license be transferred, conveyed or
in Saudi Arabia. Maryrose represented to the assigned to any other person or entity.
sisters that she had a license to recruit workers for
overseas employment. Maryrose also demanded It may be noted that the grant of a license is a
and received P30,000.00 from each of them for her governmental act by the Department of Labor and
services. However, Maryrose's application for the Employment based on personal qualifications, and
renewal of her license was denied, and citizenship and capitalization requirements. (Arts.
consequently failed to employ the four sisters in 27-28, Labor Code)
Saudi Arabia.
The sisters charged Maryrose with large scale Recruitment & Placement; Recruitment
illegal recruitment. Testifying in her defense, Agencies (2002)
Maryrose declared that she acted in good faith Is a corporation, seventy percent (70%) of the
because she believed that her application for the authorized and voting capital of which is owned
renewal of her license would be approved. and controlled by Filipino citizens, allowed to
Maryrose adduced in evidence the Affidavits of engage in the recruitment and placement of
Desistance which the four private complainants workers, locally or overseas? Explain briefly. (2%)
had executed after the prosecution rested its case. SUGGESTED ANSWER:
In the said affidavits, they acknowledge receipt of No. A corporation, seventy percent (70%) of the
the refund by Maryrose of the total amount of authorized and voting capital stock of which is
P120,000.00 and indicated that they were no owned and controlled by Filipino citizens cannot be
longer interested to pursue the case against permitted to participate in the recruitment and
Maryrose. Resolve the case with reasons. (5%) placement of workers, locally or overseas, because
ALTERNATIVE ANSWER: Art 27 of the Labor Code requires at least seventy-
Illegal recruitment is defined by law as any five percent (75%).
recruitment activities undertaken by non-licenses
or non-holders of authority. (People v. Senoron, Recruitment & Placement; Travel Agency;
G.R. No. 119160, January 30,1997) And it is large Prohibition (2006)
scale illegal recruitment when the offense is Wonder Travel and Tours Agency (WTTA) is a
committed against 3 or more persons, individually well-known travel agency and an authorized sales
or as a group. (Article 38[b], Labor Code) agent of the Philippine Air Lines. Since majority of
its passengers are overseas workers, WTTA
In view of the above, Maryrose is guilty of large applied for a license for recruitment and placement
scale illegal recruitment. Her defense of good faith activities. It stated in its application that its purpose
and the Affidavit of Desistance as well as the is not for profit but to help Filipinos find
refund given will not save her because R.A. No. employment abroad.
8042 is a special law, and illegal recruitment is Should the application be approved? (5%)
malum prohibitum. (People v. Saulo, G.R. No. ALTERNATIVE ANSWER:
125903, November 15, 2000) The application should be disapproved, as it is
ALTERNATIVE ANSWER: prohibited by Article 26 of the Labor Code, to wit:
With the execution of the affidavit of desistance by "Article 26. Travel agencies and sales agencies of
the complainants and the refund made by airline companies are prohibited from engaging in
Maryrose, the case against her for large scale the business of recruitment and placement of
illegal recruitment will surely fail. workers for overseas employment whether for
profit or not."
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arising out of an emergency, exigency or business
Rule I, Part IIPOEA Rules and Regulations losses.
Governing the Recruitment and Employment of
Land-Based Workers (2002) disqualifies any entity Wage; Wage Distortion; Definition &
having common director or owner of travel Elements (2006)
agencies and sales agencies of airlines, including When is there a wage distortion?
any business entity from the recruitment and ALTERNATIVE ANSWER:
placement of Filipino workers overseas, whether A WAGE DISTORTION arises when an increase in
they derive profit or not. prescribed wage rates results in the elimination or
ALTERNATIVE ANSWER: severe contraction of intentional quantitative
No. Section 6 of RA No. 8042 considers the differences in wage or salary rates between and
following act as illegal recruitment: "(j) For an among employee groups in an establishment as to
officer or agent of a recruitment agency to become effectively obliterate the distinctions embodied in
an officer or member of the Board of any such wage structure based on skills, length of
corporation engaged in travel agency or to engage service, or other logical bases of differentiation
directly or indirectly in the management of a travel (Article 124, Labor Code of the Philippines).
agency." The law considers the operation of travel ALTERNATIVE ANSWER:
agencies and recruitment agencies as There is wage distortion when the following four
incompatible activities. elements concur:
a. An existing hierarchy of positions with
Wage Distortion (2002) corresponding salary rates;
A. How should a wage distortion be resolved (1) b. A significant change in the salary rate of a
in case there is a collective bargaining agreement lower pay class without a concomitant
and (2) in case there is none? Explain briefly. (3%) increase in the salary rate of a higher one;
SUGGESTED ANSWER: c. The elimination of the distinction between the
A. According to Art. 124 of the Labor Code, in two levels; and
case there is a collective bargaining agreement, a d. The existence of the distortion in the same
dispute arising from wage distortions shall be region of the country.
resolved through the grievance machinery
provided in the CBA, and if remains unresolved, Wage; Wage Distortion; Means of Solving
through voluntary arbitration. In case there is no (2006)
collective bargaining agreement, the employers How should a wage distortion be settled?
and workers shall endeavor to correct such SUGGESTED ANSWER:
distortions. Any dispute arising therefrom shall be In organized establishments, the wage distortion
settled through the National Conciliation and shall be resolved through the GRIEVANCE
Mediation Board and if it remains unresolved after PROCEDURE under their collective bargaining
ten (10) calendar days of conciliations, then the agreement, and if it remains unresolved, through
dispute is referred to the appropriate branch of the VOLUNTARY ARBITRATION. On the other hand,
National Labor Relations Commission. in establishments where there are no collective
bargaining agreements or recognized labor unions,
Wage; Reduction of Minimum Pay & Wages the employers and workers shall endeavor to
(2006) correct such distortion. Any dispute arising
Can an employer and an employee enter into an therefrom shall be settled through the National
agreement reducing or increasing the minimum Conciliation and Mediation Board, and if it remains
percentage provided for night differential pay, unresolved after ten (10) calendar days of
overtime pay, and premium pay? (5%) conciliation, shall be referred to the appropriate
SUGGESTED ANSWER: branch of the National Labor Relations
Article 100 of the Labor Code prohibits the Commission for COMPULSORY ARBITRATION
elimination and the diminution of benefits being (Article 124, Labor Code of the Philippines).
enjoyed by employees at the time the law was
passed. The employer and employee cannot enter Wage; Wage Distortion; Not a ground for
into an agreement to reduce the minimum Strike/Lockout (2006)
percentage provided by law for night differential Can the issue of wage distortion be raised in a
pay, overtime pay and premium pay as that would notice of strike? Explain. (10%)
be against public policy. On the other hand, an SUGGESTED ANSWER:
agreement increasing the percentage of benefits NO. Section 16, Chapter I of Rules Implementing
would be valid for being beneficial to the RA 6727 provides that "Any dispute involving wage
employee. However, Art. 227 of the Labor Code distortions shall not be a ground for strike/lockout."
authorizes diminution or reduction of benefits in Article 124 of the Labor Code, as amended by
case of an impelling, reasonable justification Republic Act 6727 prescribes a procedure for the
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correction of a wage distortion, implicitly excluding NLRC, on 11 November 1993, Accordingly,
strikes or lockouts or other concerted activities as management may undertake to exclude sick leave,
modes of settlement of the issue. The legislative vacation leave, maternity leave, premium pay for
intent that wage distortion shall be solved by regular holiday, night differential pay and cost of
voluntary negotiation or arbitration is made clear in living allowance. Sales commissions, however,
the rules (Ilaiv at Buklod ng Manggagawa v. NLRC, should be included based on the settled rule as
G.R. No. 91980, June 27, 1991). earlier enunciated in Songco vs. NLRC, 183 SCRA
610.
Wages; 13th month pay (1994)
Concepcion Textile Co. included the overtime pay, Wages; 13th month pay (1998)
night-shift differential pay, and the like in the What would be your advice to your client, a
computation of its employees' 13th-month pay. manufacturing company, who asks for your legal
Subsequently, with the promulgation of the opinion on whether or not the 13th Month Pay Law
decision of the Supreme Court in the case of San (Presidential Decree No. 851) covers a casual
Miguel Corporation vs. Inciong (103 SCRA 139) employee who is paid a dally wage? (5%)
holding that these other monetary claims should SUGGESTED ANSWER:
not be included in the computation of the 13th- I will advise the manufacturing company to pay the
month pay, Concepcion Textile Co. sought to casual employee 13th Month Pay if such casual
recover under the principle of solutio indebiti its employee has worked for at least one (1) month
overpayment of its employees' 13th-month pay, by during a calendar year. The law on the 13th Month
debiting against future 13th-month payments Pay provides that employees are entitled to the
whatever excess amounts it had previously made. benefit of said law regardless of their designation
(1) Is the Company's action tenable? or employment status.
(2) With respect to the payment of the 13th-month
pay after the San Miguel Corporation, ruling, The Supreme Court ruled in Jackson Building-
what arrangement, if any, must the Company Condominium Corporation v. NLRC, 246 SCRA
make in order to exclude from the 13th-month 329, (1995) interpreting P.D. No. 851, as follows:
pay all earnings and remunerations other than xxx employees are entitled to the thirteenth-
the basic pay. month pay benefits regardless of their
SUGGESTED ANSWER: designation and irrespective of the method by
1) The Company's action is not tenable. The which their wages are paid.
principle of salutio indebiti which is a civil law
concept is not applicable in labor law. Thus, solutio Wages; Bonus (2002)
indebiti is not applicable to the instant case, B. The projected bonus for the employees of
(Davao Fruits Corporations vs. National Labor Suerte Co. was 50% of their monthly
Relations Commission, et at. 225 SCRA 562) compensation. Unfortunately, due to the slump in
ALTERNATIVE ANSWERS: the business, the president reduced the bonus to
a) The Company's action would be tenable if 5% of their compensation. Can the company
payment was done by mistake, In which case unilaterally reduce the amount of bonus? Explain
recovery can be done under the principle of solutio briefly. (2%)
indebiti. But if there was no mistake, the SUGGESTED ANSWER:
Company's action would be untenable because it Yes. The granting of a bonus is a management
would violate Article 100 of the Labor Code which prerogative, something given in addition to what is
prohibits elimination or diminution of benefits. ordinarily received by or strictly due the recipient.

b) No. The Company's action is not tenable. The An employer, like Suerte Co., cannot be forced to
grant by Concepcion Textile Co. of a better distribute bonuses when it can no longer afford to
formula, more favorable to the employee, pay. To hold otherwise would be to penalize the
constituted a valid offer by the company as the employer for his past generosity. [Producers Bank
offerer and the employees as the offeree. There of the Phil. v NLRC, 355 SCRA 489, (2001)]
having been a meeting of the minds of the parties, ANOTHER SUGGESTED ANSWER:
the rights and obligations arising therefrom were It depends. If there is a legal obligation on the part
valid. Thus, any amount received by virtue thereof of Suerte Co. to pay a bonus of its employees
could not be recovered, much less taken away equivalent to 50% of their monthly compensation,
unilaterally. The principle does not apply to the because said obligation is included in a collective
case at bar. bargaining agreement, then Suerte Co. cannot
reduce the bonus to 5% of their monthly
SUGGESTED ANSWER: compensation. But if the payment of the bonus is
2} After the 1981 San Miguel ruling, the High Court not a legal obligation but only a voluntary act on
decided the case of Philippine Duplicators Inc. vs. the part of the employer, said employer,
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LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
unilaterally, can only reduce the bonus from 50% (2) It is entirely dependent on the employer's
to 5% of the monthly compensation of its capacity to pay.
employees; the employer can, in fact, not give any
bonus at all. Normally discretionary, it becomes part of the
regular compensation by reason of long and
Wages; Bonus (2003) regular concession or when the bonus is Included
XYZ Employees Association filed a complaint as among the benefits granted in a CBA.
against ABC Bank for wrongful diminution of
benefits. It alleged that the bank had been Wages; Computation of Basic Salary (1997)
providing for a mid-year bonus equivalents one- Robert Suarez is a salesman for Star
month basic pay and a Christmas bonus equivalent Pharmaceuticals, Star Pharmaceuticals has
to one-month basic pay since 1971. Upon the applied with the Department of Labor and
effectivity of Presidential Decree (P.D.) No. 851 in Employment for clearance to terminate (by way of
1975 which granted the 13th month pay, the bank retrenchment) the services of Suarez due to
started giving its employees a one-month basic financial losses. Robert Suarez, aside from his
pay as mid-year bonus, one-month basic pay as monthly salary, receives commissions on the sales
Christmas bonus, and one-month basic pay as he makes. He also receives allowances. The
13th month pay. In 1980, the bank was placed existing CBA between Star Pharmaceuticals and
under conservatorship and by virtue of a monetary the union, of which Robert Suarez is a member,
board resolution of the Central Bank, the bank only states that any employee separated from
gave one month basic pay mandated by P.D. 851, employment for causes not due to the fault of the
and it no longer gave its employees the traditional employee shall receive from the company a
mid-year and Christmas bonuses. Could ABC retirement gratuity in an amount equivalent to one
Bank be compelled, given the circumstances, to month's salary per year of service.
continue paying its employees the traditional mid-
year and Christmas bonuses in addition to the 13th Robert Suarez contends that in computing his
month pay? separation pay, his sales commission and his
SUGGESTED ANSWER: allowances should be included in the monthly
No. The grant of a bonus is a prerogative, not an salary. Do you agree?
obligation, of the employer. (Traders Royal Bank v. SUGGESTED ANSWER:
NLRC. 189 SCRA 274 (1990). The matter of giving I agree, with some conditions. In computing
a bonus over and above that which is required by separation pay, the monthly salary should include
law is entirely dependent on the financial capability commissions because commissions received by a
of the employer to give it. (Businessday v. NLRC. salesman is part of his salary.
221 SCRA 9 (1993).
But for allowances to be included as part of salary,
Hence, given the circumstances, ABC Bank cannot they should be for services rendered or to be
be compelled to continue paying its employees the rendered, like a cost of living allowance. But
traditional mid-year and Christmas bonuses in transportation and representation allowances are
addition to the 13th month pay. not considered as part of salary because they are
to meet expenses for transportation and
Wages; Bonus; Nature (1995) representation. Thus, cost of living allowances, but
What is a bonus? When is it demandable as a not transportation or representation allowances,
matter of right? Explain. shall be included as part of salary in the
SUGGESTED ANSWER: computation of separation pay.
A bonus is money given in addition to an Note: Re: allowances as part of salary, in Santos
employee's usual compensation. It may be given vs. NLRC 154 SCRA 166, the Supreme Court
as a gratuity, as an act of liberality. But a bonus is said: "in the computation of backwages and
demandable as a matter of right if it is made a legal separation pay, account must be taken not only
obligation by law or in a collective bargaining of basic salary but also her transportation and
agreement or in a contract of employment or by its emergency living allowances."
having been given for such a long time such that
the receipt of a bonus has ripened into a right. Wages; Computation; Holiday Pay (2002)
ALTERNATIVE ANSWER: On orders of his superior, Efren, a high-speed
A bonus is an amount granted and paid to an sewing machine technician, worked on May 1,
employee for his industry and loyalty which Labor Day. If he worked eight (6) hours on that
contributed to the employer's success and day, how much should he receive if his daily rate is
realization of profit. P400.00? (2%)
(1) Grant of bonus is a prerogative, not an SUGGESTED ANSWER:
obligation of the employer: and
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Efren should receive P800.00. Art 92 of the Labor regular holidays, but also of their regular wage,
Code provides that the employer may require an plus the premium thereof. (DOLE Explanatory
employee to work on any regular holiday but such Bulletin on Workers' Entitlement to Holiday Pay on
employee shall be paid a compensation equivalent 9 April 1993, Araw ng Kagitingan and Good Friday)
to twice his regular rate.
Wages; Money Claims (1998)
Wages; Computation; Holiday Pay; Overtime An explosion in a mine site resulted in the death of
Pay (2002) fifty (50) miners. At the time of the accident
This year, National Heroes Day (August 25) falls (1) The Mining Company has not yet paid the
on a Sunday. Sunday is the rest day of Bonifacio wages, overtime, holiday and rest day
whose daily rate is P500.00. compensation of the deceased miners;
A. If Bonifacio is required by his employer to (2) All the deceased miners owed the Miners
work on that day for eight (8) hours, how much Cooperative Union sums of money;
should he be paid for his work? Explain. (3%) (3) The Mining Company was served by a sheriff
B. If he works for ten (10) hours on that day, Writs of Garnishment of Wages of some of the
how much should he receive for his work? Explain. deceased miners by virtue of final Judgments
(2%) in several collection suits.
SUGGESTED ANSWER:
A. For working on his scheduled rest day, After the accident, the wives, paramours, brothers,
according to Art 93(a), Bonifacio should be paid sisters and parents of the deceased miners filed
P500.00 (his daily rate) plus P150.00 (30% of his their claims for unpaid wages, overtime, holiday
daily rate) = P650.00. This amount of P650.00 and rest day compensation. The Company has
should be multiplied by 2 = P1 ,300.00. This is the acknowledged its obligations. However, it is in a
amount that Bonifacio as employee working on his quandary as to how to adjudicate the conflicting
scheduled rest day which is also a regular holiday, claims; and whether it can deduct from the monies
should receive. Art. 94(c) of the Labor Code due the miners their unpaid debts with the credit
provides that an employee shall be paid a union.
compensation equivalent to twice his regular rate
for work on any regular holiday. The "regular rate" How will you advise the mining company on the
of Bonifacio on May 1, 2002 is with an additional following:
thirty percent because the day is also his 1) Can the Mining Company defer payment of
scheduled rest day. the money claims until an appropriate court
has ruled on the conflicting claims? [3%]
B. P1,300.00 which is the amount that Bonifacio 2) Can the Mining Company deduct from the
is to receive for working on May 1, 2002 should be amount due to each miner an amount
divided by 8 to determine his hourly rate of equivalent to their debt and remit the same to
P162.50. This hourly rate should be multiplied by 2 the Credit Union?'(2%]
(the number of hours he worked overtime). Thus, SUGGESTED ANSWER:
the amount that Bonifacio is entitled to receive for 1. I will advise the Mining Company to pay to the
his overtime work on May 1, 2002 is P325.00. respective heirs of the deceased miners whatever
were the unpaid wages, overtime, holiday and rest
Wages; Holiday Pay (2005) day compensation of said deceased miners without
During the open forum following your lecture the necessity of intestate proceedings. The
before members of various unions affiliated with a claimants, if they are all of age shall execute an
labor federation, you were asked the following affidavit attesting to their relationship to the
questions (State your answers and your reasons deceased and the fact that they are his heirs, to
therefor): the exclusion of all other persons. If any of the
(a) Araw ng Kagitingan and Good Friday are heirs is a minor, the affidavit shall be executed on
among the 10 paid regular holidays under Article his behalf by his natural guardian or next of kin.
94 of the Labor Code. How much will an employee The affidavit shall be presented to the employer
receive when both holidays fall on the same day? who shall make payment through the Secretary of
(4%) Labor or his representative. The representative of
SUGGESTED ANSWER: the Secretary of Labor shall act as referee in
If unworked, the covered employees are entitled to dividing the amount paid among the heirs. {See
at least 200% of their basic wage, because to do Art. 105 (b) of the Labor Code)
otherwise would reduce the number of holidays
under EO No. 203. If worked, the covered 2. I will advise the Mining Company not to deduct
employees are entitled to compensation equivalent from the amount due to each miner the amount
to at least 300% of their basic wage because they equivalent to his debt to the Credit Union. The
are entitled to the payment not only of the two debts of a deceased worker to the Credit Union is
Page 70 of 108
LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
not one of the allowable deductions under the ANOTHER SUGGESTED ANSWER:
Labor Code, or any rules and regulations of the Yes. Nemia is entitled to holiday pay. The
Department of Labor and Employment. (See Art. Supreme Court has ruled: "As to the other benefits,
113 of the Labor Code) namely, holiday pay, premium pay, 13th month
ANOTHER SUGGESTED ANSWER: pay, and service incentive leave which the labor
Yes, if pursuant to CBA provision or authorized by arbiter failed to rule on but which the petitioners
worker in writing; otherwise. No. prayed for in their complaint, we hold that
petitioners are so entitled to these benefits. Three
Wages; Money Claims; Attorney’s Fees; (3) factors lead us to conclude that petitioners,
Damages (2001) although piece rate workers, were regular
(a) Eduardo Santiago, a project worker, was being employees of private respondents.
assigned by his employer, Bagsak Builders, to FIRST as to the nature of the petitioner's tasks,
Laoag, Ilocos Norte. Santiago refused to comply their job of repacking snack food was
with the transfer claiming that it, in effect, necessary or desirable in the usual business of
constituted a constructive dismissal because it private respondents, who were engaged in the
would take him away from his family and his usual manufacture and selling of such food products;
work assignments in Metro Manila. The Labor SECOND, petitioners worked for private
Arbiter found that there was no constructive respondents throughout the year, their
dismissal but ordered the payment of separation employment not having been dependent on a
pay due to strained relations between Santiago specific project or season; and
and Bagsak Builders plus attorney's fees THIRD, the length of time that petitioners
equivalent to ten percent (10%) of the value of worked for private respondents. Thus, while
Santiago's separation pay. petitioner's mode of compensation was on a
Is the award of attorney's fees valid? State the "per piece basis" the status and nature of their
reasons for your answer. (2%). employment was that of regular employees."
SUGGESTED ANSWER: [Labor Congress of the Philippines v. NLRC,
No, the award of attorney's fees is not valid. 290 SCRA 509 (1998)
According to the Labor Code (Art. 111 (a)),
attorney's fees may be assessed in cases of Wages; Teachers; ECOLA (1997)
unlawful withholding of wages which does not exist Lita Cruz, a full time professor in San Ildefonso
in the case. The worker refused to comply with a University, is paid on a regular monthly basis. Cruz
lawful transfer order, and hence, a refusal to work. teaches for a period of ten months in a schoolyear,
Given this fact, there can be no basis for the excluding the two month's summer break.
payment of attorney's fees.
(b) Could the labor arbiter have validly awarded During the semestral break, the University did not
moral and exemplary damages to Santiago instead pay Lita Cruz her emergency Cost of Living
of attorney's fees? Why? (3%). allowance (ECOLA) although she received her
SUGGESTED ANSWER; regular salary since the semestral break was
No, moral and exemplary damages can be allegedly not an integral part of the school year
awarded only if the worker was illegally terminated and no teaching service were actually rendered by
in an arbitrary or capricious manner. (Nueva Ecija her. In short, the University invoked the principle of
Electric Cooperative Inc., Employees Assn., us. "no work, no pay".
NLRC, G.R. No. 116066, January 24, 2000; Cruz
us. NLRC, G.R. No. 116384, February 7, 2000; Lita Cruz seeks your advice on whether or not she
Phil. Aeolus etc., vs. NLRC, G.R. No. 124617, April is entitled to receive her ECOLA during semestral
28, 2000), breaks. How would you respond to the query?
SUGGESTED ANSWER:
Wages; Paid by Results; Holiday Pay (2002) There is no longer any law making it the legal
Nemia earns P7.00 for every manicure she does in obligation of an employer to grant an Emergency
the barber shop of a friend which has nineteen (19) Cost of Living Allowance (ECOLA). Effective 1981,
employees. At times she takes home P175.00 a the mandatory living allowances provided for in
day and at other times she earns nothing. She now earlier Presidential Decrees were integrated into
claims holiday pay. Is Nemia entitled to this the basic pay of all covered employees.
benefit? Explain briefly (5%)
SUGGESTED ANSWER: Thus, whether the ECOLA will be paid or not
No, Nemia is not entitled to holiday pay. Art. 82 of during the semestral break now depends on the
the Labor Code provides that workers who are paid provisions of the applicable wage order or contract
by results are, among others, not entitled to holiday which may be a CBA, that many grant said
pay. Nemia is a worker who is paid by results. She ECOLA.
earns P7.00 for every manicure she does.
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LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
ALTERNATIVE ANSWER; SUGGESTED ANSWER:
The "no work, no pay" principle does not apply. No. The preference of credits established in Art.
The teachers receive their regular salaries during 110 of the Labor Code cannot be invoked in the
the semestral break. The law granting emergency absence of any insolvency proceedings,
cost of living allowances was designed to augment declaration of bankruptcy, or judicial liquidation.
the income of the employees to enable them to (DBP v. Santos. 171 SCRA 138 (1989).
cope with the rising cost of living and inflation. It ANOTHER SUGGESTED ANSWER:
was enacted pursuant to the State's duty to protect No. What Art. 110 of the Labor Code establishes is
labor and to alleviate the plight of the workers. To not a lien but a preference of credit in favor of
uphold the school's interpretation of the law would employees. Unlike a lien, a preference of credit
run counter to the intent of the law and constitution does not create a charge upon any particular
(University of Pangasinan Faculty Union v. property of the debtor. (Development Bank of the
University of Pangasinan, 127 SCRA 691). Philippines v. Secretary of Labor. 179 SCRA 630
(1989).
Wages; Unpaid Wages; Preference of Credit ANOTHER SUGGESTED ANSWER:
in favor of Employees (1995) The Decision of the Labor Arbiter holding Premiere
1. Under the Labor Code, is the right of first Bank (as foreclosing mortgagee-creditor)
preference a lien on the property of the insolvent subsidiarily liable for a money obligation of XYZ &
debtor in favor of the workers? Explain. Co, (as mortgagor) to Caspar, its employee, has
SUGGESTED ANSWER: no legal basis.
The right of first preference in favor of workers is 1. There is no privity of relationship between the
not a lien on the property of the insolvent debtor. Bank and Caspar. The relationship, upon which
The preference could be exercised only in the the obligation to pay a sum of money is based, is
event of bankruptcy or liquidation of an employer's between XYZ (the mortgagor) and Caspar as its
business. employee arising from the Labor Code provision
ALTERNATIVE ANSWER: requiring an employer to pay separation pay, re:
A preference does not attach to specific properties. other causes of employment.
A lien creates charges on a particular property.
The right of first preference as regards unpaid 2. At both times - Labor Arbiter Decision to pay
wages recognized by the Labor Code does not separation pay and foreclosure - XYZ & Co. was
constitute a lien on the property of the insolvent an existing business entity and neither bankrupt or
debtor in favor of the workers. It is but a preference in liquidation, although its business operations
of credit in their favor, a preference in application. after the foreclosure ceased.

The Labor Code does not purport to create a lien 3. The decision of the Labor Arbiter for XYZ &
in favor of workers or employees for unpaid wages Co. to pay a sum of money to Caspar was based
either upon all of the properties or upon any on an action in personam, not in rem. enforceable
particular property owned by their employer. against any party. (Sundowner Corporation vs.
drilon. 180 SCRA 14 (1989)
Wages; Unpaid Wages; Preference of Credit
in favor of Employees (2003) 4. The reference in the Decision to "labor
Premiere Bank, a banking corporation, being the benefits due to an employee is superior to the right
creditor-mortgagee of XYZ & Co., a garment firm, of a mortgagee of property" is misplaced. The
foreclosed the hypothecated assets of the latter. preferential claim rule has no basis and runs
Despite the foreclosure, XYZ & Co. continued its contrary to law and jurisprudence.
business operations. A year later, the bank took
possession of the foreclosed property. The Wages; Unpaid Wages; Preference of Credit
garment firm's business operations ceased without in favor of Employees (1995)
a declaration of bankruptcy. Jose Caspar, an Distinguish the mortgage created under the Civil
employee of XYZ & Co., was dismissed from Code from the right of first preference created by
employment due to the cessation of business of the Labor Code as regards the unpaid wages of
the firm. He filed a complaint against XYZ & Co. workers. Explain.
and the bank. The Labor Arbiter, after hearing, so SUGGESTED ANSWER:
found the company liable, as claimed by Jose A MORTGAGE directly subjects the property upon
Caspar, for separation pay. Premiere Bank was which it is imposed, whoever the possessor may
additionally found subsidiarily liable upon the be, to the fulfillment of the obligation for which it
thesis that the satisfaction of labor benefits due to was constituted. It creates a real right which is
the employee is superior to the right of a enforceable against the whole world. It is therefore
mortgagee of property. Was the Labor Arbiter a lien on an identified real property.
correct in his decision?
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MORTGAGE CREDIT is a special preferred credit with respect to their claims as workers against
under the Civil Code in the classification of credits. LCFC.
The preference given by the Labor Code when not Panel: All claims must be filed in insolvency
attached to any specific property, is an ordinary proceedings, which are outside the jurisdiction of
preferred credit. the NLRC (Republic v. Peralta)
ALTERNATIVE ANSWER:
If the asset of an employer which has become Wages; Wage Distortion (1997)
bankrupt or has been liquidated has been (a) Define Wage Distortion.
mortgaged, the proceeds of the sale of said (b) May a wage distortion, alleged by the
mortgaged asset is first subject to the lien of the employees but rejected by the employer to be
person to whom the property is mortgaged. Said such, be a valid ground for staging a strike?
lien is superior to the first preference enjoyed by SUGGESTED ANSWER:
the workers pursuant to the Labor Code. (a) A WAGE DISTORTION is that brought about
where an increase in the prescribed wage rates
Wages; Unpaid Wages; Preference of Credit results in the elimination or severe contraction of
in favor of Employees (1999) intentional quantitative differences in wage or
FACTS: Lowland Cement & Factory Company salary rates between and among employee groups
(LCFC) borrowed P500M from the Development in an establishment as to effectively obliterate the
Bank of the Philippines and mortgaged the entire distinctions embodied in such wage rates based on
company, inclusive of its land, buildings and skills, length of service and other logical bases of
equipment, to guarantee the payment of the loan. differentiation.
However, because of the economic conditions,
LCFC incurred heavy losses and eventually failed (b) No, the existence of wage distortion is not a
to pay DBP the required monthly amortizations valid ground for a strike because Art. 124 of the
over a period of more than one (1) year. In due Labor Code provides for a specific method of
time, DBP foreclosed the mortgaged assets of procedure for correcting wage distortion. Ilaw at
LCTC resulting in the closure of the company and Buklod ng Manggagawa vs. NLRC, 198 SCRA
the displacement of all its employees for want of 586, the Court said:-
work. It goes without saying that these joint or
coordinated activities may be forbidden or
The LCFC Labor Union [Union] filed in behalf of restricted by law or contract. For the particular
the displaced workers a labor case against DBP as instance of "distortions of the wage structure
the new owner of the defunct cement factory for within an establishment" resulting from the
wage differentials, retirement pay and other money application of any prescribed wage increase by
claims. The Labor Arbiter decided in the favor of virtue of a law or wage order. Section 3 of
the Union. DBP appealed to the NLRC. Republic Act No. 6727 prescribes a specific,
detailed and comprehensive procedure for the
DBP contended in its appeal that its acquisition of correction thereof, thereby implicitly excluding
the mortgage assets of LCFC through foreclosure strikes or lockouts or other concerted activities
sale did not make it the owner of the defunct as modes of settlement of the issue.
Lowland Cement, and that the doctrine of
successor-employer is not applicable in this case, ALTERNATIVE ANSWER:
since DBP did not continue the business operation (b) A wage distortion, alleged by the employees
of LCFC. but rejected by the employer can be a valid ground
for staging a strike if it happens that in rejecting the
The NLRC while finding merit in DBP's contention, allegation of wage distortion, the employer refuses
nonetheless held DBP liable to the extent of the to consider the issue under the grievance
proceeds of the foreclosure sale since the Union's procedure provided for in the applicable CBA, and
claims in behalf of the workers constitute a first later on through Voluntary Arbitration. These acts
preference with respect thereto pursuant to article of the employer could be considered as a violation
110 of the Labor Code. of its duty to bargain collectively which is unfair
labor practice (ULP). A ULP strike is legal.
Is the NLRC correct in holding DBP liable to the
extent of the proceeds of the foreclosure sale? Wages; Wages vs. Salary; Subject to
Explain briefly (5%) Attachment (1994)
SUGGESTED ANSWER: 1) Distinguish "salary" from "wages."
No. DBP is not liable. DBP has a lien over the 2) Are these subject to attachment and execution?
properties of LCFC which were mortgaged to DBP SUGGESTED ANSWER:
and said lien is superior to the preference that the 1) The term "WAGES" applies to compensation
workers have under the Labor Code (in Article 110) for manual labor, skilled or unskilled, while salary
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denotes a compensation for a higher degree of "Rights may be waived, unless the waiver is
employment. (Gaa vs. Court of Appeals, 140 contrary to law, public order, public policy,
SCRA 304), morals or good customs."
ALTERNATIVE ANSWER:
"WAGES" are those paid to any employee as his Working Hours; Charitable Institution;
remuneration or earnings payable by an employer Overtime Pay (2002)
for work done or to be done, or for services Socorro is a clerk-typist in the Hospicio de San
rendered or to be rendered. Jose, a charitable institution dependent for its
existence on contributions and donations from well
On the other hand, "SALARY" is used in the law wishers. She renders work eleven (11) hours a day
that provides for a 13th-month pay. In this law, but has not been given overtime pay since her
basic salary includes all remuneration or earnings place of work is a charitable institution. Is Socorro
paid by an employer to his employees for services entitled to overtime pay? Explain briefly. (5%)
rendered, but does not include allowances or SUGGESTED ANSWER:
monetary benefits which are not considered or Yes. Socorro is entitled to overtime compensation.
integrated as part of the regular or basic salary. She does not fall under any of the exceptions to
(Art. 97(f), Labor Code; Sec, 2(b), P.D. No. 851) the coverage of Art. 82, under the provisions of
Hours of Work. The Labor Code is equally
2) Under Article 1708 of the Civil Code, only applicable to non-profit institutions. A covered
"wages" are exempt from attachment or execution. employee who works beyond eight (8) hours is
Salaries are not exempt from attachment or entitled to overtime compensation.
execution. (Gaa vs. Court of Appeals, 140 SCRA
304). Working Hours; Charitable Institution;
Weekly Rest Period; (1998)
Wages; Waiver of Compensation (1996) A Ladies Dormitory run or managed by a charitable
2) Jose applied with Mercure Drug Company for non-profit organization claims that it is exempt from
the position of Sales Clerk. Mercure Drug the coverage of the Weekly Rest Period provision
Company maintains a chain of drug stores that are of the Labor Code.
open everyday till late at night. Jose was informed Is the claim valid? [5%]
that he had to work on Sundays and holidays at SUGGESTED ANSWER:
night as part of the regular course of employment. No. The claim is not valid. The provisions on
He was presented with a contract of employment weekly rest periods in the Labor Code cover every
setting forth his compensation on an annual basis employer, whether operating for profit or not. (See
with an express waiver of extra compensation for Article 91 of the Labor Code)
work on Sundays and holidays, which Jose signed.
Is such a waiver binding on Jose? Explain. Working Hours; Compressed Work Week
SUGGESTED ANSWER: (2005)
As long as the annual compensation is an amount (d) Under what conditions may a "compressed
that is not less than what Jose should receive for work week" schedule be legally authorized as an
all the days that he works, plus the extra exception to the "eight-hour a day" requirement
compensation that he should receive for work on under the Labor Code? (4%)
his weekly rest days and on special and regular ALTERNATIVE ANSWER:
holidays and for night differential pay for late night The conditions for an allowable "compressed work
work, considering the laws and wage orders week" are the following: the workers agree to the
providing for minimum wages, and the pertinent temporary change of work schedule and they do
provisions of the Labor Code, then the waiver that not suffer any loss of overtime pay, fringe benefits
Jose signed is binding on him for he is not really or their weekly or monthly take-home pay. (DOLE
waiving any right under Labor Law. It is not Explanatory Bulletin on the Reduction of Workdays
contrary to law, morals, good customs, public order on Wages issued on July 23, 1985)
or public policy for an employer and employee to ALTERNATIVE ANSWER:
enter into a contract where the employees' "Compressed work week" is resorted to by the
compensation that is agreed upon already includes employer to prevent serious losses due to causes
all the amounts he is to receive for overtime work beyond his control, such as when there is a
and for work on weekly rest days and holidays and substantial slump in the demand for his goods or
for night differential pay for late night work. services or when there is lack of raw materials.
ALTERNATIVE ANSWER: (Explanatory Bulletin on the Reduction of
The waiver of benefits provided for by law is void. Workdays on Wages Issued by DOLE, July
Art. 6 of the New Civil Code provides: 23,1985)

Working Hours; Night Shift Differential (2002)


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As a tireman in a gasoline station, open twenty four Monday through Friday to offset the overtime on
(24) hours a day with only five (5) employees, Saturday. Hence, the employees are entitled to
Goma worked from 10:00 P.M. until 7:00 A.M. of overtime compensation, i.e. premium rates of pay
the following day. He claims he is entitled to night on Saturday.
shift differential. Is he correct? Explain briefly.
(3%) Working Hours; Sick Leave; Overtime Pay
SUGGESTED ANSWER: (1997)
Yes. Under Art 86 of the Labor Code, night shift Danilo Flores applied for the position of driver in
differential shall be paid to every employee for the motor-pool of Gold Company, a multinational
work performed between 10:00 o'clock in the corporation. Danilo was informed that he would
evening to six o'clock in the morning. frequently be working overtime as he would have
to drive for the company's executives even beyond
Therefore, Goma is entitled to nightshift differential the ordinary eight-hour work day. He was provided
for work performed from 10:00 pm until 6:00 am of with a contract of employment wherein he would
the day following, but not from 6:00 am to 7:00 am be paid a monthly rate equivalent to 35 times his
of the same day. daily wage, regular sick and vacation leaves, 5
ANOTHER SUGGESTED ANSWER: day-leave with pay every month and time off with
The Omnibus Rules Implementing the Labor Code pay when the company's executives using the cars
(In Book III, Rule II dealing with night shift do not need Danilo's service for more than eight
differential) provides that its provisions on night hours a day, in lieu of overtime.
shift differential shall NOT apply to employees of
"retail and service establishments regularly Are the above provisions of the contract of
employing not more than five (5) workers". employment in conformity with, or violative of, the
Because of this provision, Goma is not entitled to law?
night shift differential because the gasoline station SUGGESTED ANSWER:
where he works has only five employees. Except for the provision that Danilo shall have time
off with pay when the company's executives using
Working Hours; Saturday Work (2003) the cars do not need Danilo's service for more than
A case against an employer company was filed eight hours a day, in lieu of overtime, the
charging it with having violated the prohibition provisions of the contract of employment of Danilo
against offsetting undertime for overtime work on are not violative of any labor law because they
another day. The complainants were able to show instead improve upon the present provisions of
that, pursuant to the Collective Bargaining pertinent labor laws.
Agreement (CBA), employees of the union had
been required to work "overtime" on Saturday but Thus, the monthly rate equivalent to 35 times the
were paid only at regular rates of pay on the thesis daily wage may be sufficient to include overtime
that they were not required to complete, and they pay. There is no labor law requiring the payment of
did not in fact complete, the eight-hour work period sick and vacation leaves except the provision for a
daily from Monday through Friday. Given the five-day service incentive leave in the Labor Code.
circumstances, the employer contended that the
employees were not entitled to overtime The 5-day-leave with pay every month has no
compensation, i.e., with premium rates of pay. counterpart in Labor Law and is very generous.
Decide the controversy.
SUGGESTED ANSWER: As for the provision in Danilo's contract of
The employer is correct. While Art. 88 of the Labor employment that he shall receive time off with pay
Code clearly provides that undertime work on any in lieu of overtime, this violates the provision of the
other particular day shall not be offset by overtime Labor Code which states that undertime work on
work on any other day, this rule is inapplicable in any particular day shall not be offset by overtime
this case pertaining to Saturday work which in work on any other day. Permission given to the
reality does not constitute overtime work as employer to go on leave on some other day of the
Saturday is still a working day under the law and week shall not exempt the employer from paying
there is no CBA stipulation against it. the additional compensation required by the Labor
ANOTHER SUGGESTED ANSWER: Code.
Art, 88 of the Labor Code provides that undertime
work on any particular day shall not be offset by Working Hours; When Compensable; “While
overtime work on any other day. The CBA being on Call” (2004)
the law between the parties and the Union having Gil Bates, a computer analyst and programmer of
shown that the employees rendered overtime work Hard Drive Company, works eight hours a day for
on Saturday, the contention of the employer is not five days a week at the main office providing
tenable. The employer cannot use the undertime of customers information technology assistance.
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required to keep his cellular phone on so that he
On Saturdays, however, the company requires him could be contacted whenever his services as driver
to keep his cellular phone open from 8:00 A.M. to becomes necessary.
5:00 P.M. so that the Management could contact
him in case of heavy work load or emergency Would the hours that Lito and Bong are on call be
problems needing his expertise. considered compensable working hours?
SUGGESTED ANSWER:
May said hours on Saturdays be considered The hours of Lito and Bong while on call can be
compensable working hours “while on call”? If so, considered compensable hours. The applicable
should said compensation be reported to the rule is: "An employee who is required to remain on
Social Security System? (5%) call in the employer's premises or so close thereto
SUGGESTED ANSWER: that he cannot use the time effectively and
Said hours on Saturdays should be considered as gainfully for his own purpose shall be considered
compensable working hours "while on call". In as working while on can. An employee who is not
accordance with the Rules and Regulations required to leave word at his home or with
Implementing the Labor Code, an employee who is company officials where be may be reached is not
not required to leave word at his home or with working while on call." Here, Bong is required to
company officials as to where he may be reached stay at the office after office hours so he could be
is not working while on call. But in the question, Gil called to drive the trucks of the Company. As for
Bates was required to keep his cell phone open Bong, he is required to keep his cellular phone so
from 8:00 A.M. to 5:00 P.M. Therefore, Bates that he could be contacted whenever his services
should be considered as working while on call, if as driver as needed. Thus, the waiting time of Lito
he cannot use effectively and gainfully for his own and Bong should be considered are compensable
purpose the time from 8:00 A.M. to 5:00 P.M. on hours.
Saturdays when he is required to keep his cell- Note: It could be argued that in the case of Bong
phone open. who is not required to stay in the office but is
allowed to go home, if he is not actually asked by
The compensation actually received by Bates for cellular phone to report to the office to drive a
working while on call on Saturdays should be car, he can use his time effectively and gainfully
reported to the Social Security System because to his own purpose, thus, the time that he is at
under the Social Security Law, compensation home may mean that there are not compensable
means "all actual remuneration for employment." hours.
ANOTHER SUGGESTED ANSWER:
If Gil Bates can effectively utilize the Saturdays in TERMINATION OF EMPLOYMENT
his own interest even "while on call", said hours on
Saturdays are not compensable. However, if Backwages (2002)
during said hours on Saturdays, Bates is actually A. An employee was ordered reinstated with
required to attend to urgent work to the extent of backwages. Is he entitled to the benefits and
leaving what he is doing, then the same are increases granted during the period of his lay-off?
compensable working hours to the extent of the Explain briefly. (3%)
actual hours of work rendered by him.
B. Aside from the just causes enumerated in
The compensation paid by the company to Bates Article 282 of the Labor Code for the termination of
for said hours worked on Saturdays should be employment, state three {3} lawful or authorized
reported to the SSS. This is so because the basis causes for the dismissal of an employee. (2%)
of computing the SSS contribution includes all SUGGESTED ANSWER:
actual remuneration, including allowances and A. Yes. An employee who is ordered reinstated
cash value of any compensation paid in any with backwages is entitled to the benefits and
medium other than cash. increases granted during the period of his lay-off.
The Supreme Court has ruled: "Backwages are
Working Hours; When Compensable; “While granted for earnings a worker lost due to his illegal
on Call”; Waiting Time (1997) dismissal and an employer is obliged to pay an
Lito Kulangkulang and Bong Urongsulong are illegally dismissed employee the whole amount of
employed as truck drivers of Line Movers, Inc. salaries plus all other benefits and bonuses and
Usually. Lito is required by the personnel manager general increases to which the latter should have
to just stay at the head office after office hours been normally entitled had he not been dismissed."
because he could be called to drive the trucks. [Sigma Personnel Services v. NLRC, 224 SCRA
While at the head office. Lito merely waits in the 181 (1993)]
manager's reception room. On the other hand.
Bong is allowed to go home after office hours but is Backwages vs. Unpaid Wages (1994)
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Distinguish between an award for back wages and backwages was excessive in that it went beyond
an award for unpaid wages. three-year rule set forth in Mercury Drug v. CIR (56
SUGGESTED ANSWER: SCRA 696). Is B's contention tenable? Why? (5%)
An award for BACKWAGES is to compensate an SUGGESTED ANSWER:
employee who has been illegally dismissed, for the No, the contention of "B" is not tenable. Rep. Act
wages, allowances and other benefits or their No. 6715, which was enacted in 1989, in effect set
monetary equivalent, which said employee did not aside the three-year rule set forth in Mercury Drug
receive from the time he was illegally dismissed up vs. CIR (56 SCRA 696) when it provided that the
to the time of his actual reinstatement. full backwages that an unjustly dismissed
employee shall receive shall be computed from the
On the other hand, an award for UNPAID WAGES time his compensation was withheld from him up to
is for an employee who has actually worked but the time of his actual reinstatement.
has not been paid the wages he is entitled to
receive for such work done. (Arts. 279 and 97(1), The word "actual" was inserted in the law by Rep.
Labor Code) Act No. 6715. Thus, in accordance with the
ALTERNATIVE ANSWER: aforesaid law, an unjustly dismissed employee
An award of BACKWAGES is given to an shall receive his full backwages computed from the
employee who is unjustly dismissed. The cause of time his compensation was withheld from him up to
action here is the unjust dismissal. On the other the time of his actual reinstatement even if this
hand, an award of UNPAID WAGES is given to an period is more than three years.
employee who has not been paid his salaries or ANOTHER SUGGESTED ANSWER:
wages for services actually rendered. The cause of No, the contention of "B" is not tenable. The
action here is non-payment of wages or salaries. Supreme Court (In Ferrer vs. NLRC, July 5, 1993)
(General Baptist Bible College vs. NLRC 219 abandoned the Mercury Drug Rule and in 1996
SCRA 549). Bustamante vs. NLRC, 265 SCRA 61 the Supreme
Court said:
Backwages; Basis (2001) [Quoting Article 279 of the Labor Code] Under
What economic components constitute backwages the above quoted provision, it became
for a rank and file employee? Are these mandatory to award backwages to illegally
components equally applicable to a managerial dismissed regular employees. The law
employee? (5%) specifically declared that the award of
SUGGESTED ANSWER: backwages was to be computed from the time
The Labor Code (Art. 279) provides that an compensation was withheld from the employee
employee who is unjustly dismissed from work is up to the time of his reinstatement.
entitled to reinstatement and also to his full xxx
backwages, inclusive of allowances, and to his The clear legislative intent of the amendment in
other benefits or their monetary equivalent RA No. 6715 is to give more benefits to the
computed from the time his compensation was workers than was previously given them under
withheld from him up to his actual reinstatement. the Mercury Drug rule. In other words, the
provision calling for "full backwages" to illegally
An employee is entitled to all the above benefit dismissed employees is clear, plain and free
regardless of whether he is a rank-and-file from ambiguity, and, therefore, must be applied
employee or a managerial employee. without attempted or strained interpretation.

However, backwages may also include the 13th Backwages; Basis (2001)
month pay which are paid to rank-and-file (a) "A", an employee of Company "B", was found
employees, as well as benefits arising from a CBA to have been illegally dismissed and was ordered
given only to employees in the bargaining unit. to be reinstated and paid backwages from the time
Managerial employees cannot be given the same of dismissal until actual reinstatement. The case
since they are ineligible to join a labor was elevated all the way to the Supreme Court. By
organization. the time the Supreme Court's decision became
final and executory, B had closed down and was in
Backwages; Basis (2001) the process of winding up. Nonetheless, B paid A
"A" was hired by company "B" in January 1980 his backwages and separation pay. A complained
until A was illegally dismissed on April 30, 1990 as that B’s computation was erroneous in that A's
found by a Labor Arbiter who ordered allowances was not included. Is A correct in his
reinstatement and full backwages from April 30, claim? For what reason(s)? (2%).
1990 until As reinstatement. The Arbiter's decision SUGGESTED ANSWER:
was promulgated on April 29, 1995. B appealed A is correct. After its amendment by Rep. Act No.
claiming, among others, that the award for 6715, the backwages that an employee who has
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LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
been unjustly dismissed is entitled to receive is not of closure or cessation of operation due to serious
limited to his full backwages but also includes his business losses or financial reverses.
allowances and the other benefits or their
monetary equivalent. Dismissal; Authorized Causes; Closure &
ANOTHER SUGGESTED ANSWER: Cessation (2001)
In the case of Consolidated .Rural Bank us. NLRC, Company "A" was engaged in the manufacture of
G.R. No. 123810, January 20,1999, the Supreme goods using the by-products of coconut trees and
Court ruled that allowances of the employee employed some fifty workers who lived in the
should be included in the computation of coconut plantation in Quezon Province. The land
backwages. upon which A conducted its operation was
subjected to land reform under R.A. 6657 for
Dismissal; Authorized Causes (2002) distribution to the tenants and residents of the
B. According to Art 283 of the Labor Code, the land. Consequently, A had to close its operations
lawful or authorized causes for the termination of and dismiss its workers. The union representing
an employee are: the employees demanded that A pay the
1. installation of labor saving devices dismissed workers separation pay under Art. 283
2. redundancy of the Labor Code that requires, among others, the
3. retrenchment to prevent losses or; payment of separation pay to employees in cases
4. closing or cessation of operation of the of "closing or cessation of operations of the
establishment or undertaking, unless the closing is establishment or undertaking". Is the union's claim
for the purpose of circumventing the provisions of correct or not? Why? (5%)
the Labor Code. Art 284 also provides that an SUGGESTED ANSWER:
employer may terminate the services of an The union's claim is not correct. In the case of
employee who has been found to be suffering from National Federation of Labor vs. NLRC, G.R. No.
any disease and whose continued employment is 127718, March 2. 2000, the Supreme Court ruled
prohibited by law or is prejudicial to his health as that there is no obligation to pay separation pay if
well as to the health of his co-employees. the closure is not a unilateral and voluntary act of
the employer.
Dismissal; Authorized Causes vs. Just
Cause (2004) In the question, the closure was brought about not
What are the authorized causes for a valid by a unilateral and voluntary act of the employer
dismissal by the employer of an employee? Why but due to the act of government in the
are they distinct from the just causes? (5%) implementation of the Comprehensive Agrarian
SUGGESTED ANSWERS: Reform Law.
The AUTHORIZED CAUSES for a valid dismissal
are the following: Dismissal; Authorized Causes; Closure &
1. installation of labor-saving devices Cessation of Business; Old Age (2006)
2. redundancy If the reason for the closure is due to old age of the
3. retrenchment to prevent losses brothers and sisters:
4. the closing or cessation of operation of the 1. Is the closure allowed by law? (2.5%)
establishment or undertaking 2. Are the employees entitled to separation
benefits? (2.5 %)
SUGGESTED ANSWERS: SUGGESTED ANSWER:
The authorized causes for a valid dismissal are If closure is due to old age —
distinct from just causes because where the 1. YES, it is allowed by law. The employer may
dismissal of an employee is based on just causes, go out of business by closing the same regardless
these just causes are acts committed by the of his reasons, if done in good faith and due to
employee which provide the basis for his dismissal. causes beyond his control. (LVN Pictures
On the other hand, where the dismissal is based Employees and Workers Association v. LVN
on authorized causes, these authorized causes are Pictures, No. L-23495, September 30,1970;J.A,T.
the results of the proper exercise by the employer General Services v. NLRC, No. L-26432,
of his management prerogatives. September 30, 1970; Alabang Country Club, Inc. v.
NLRC, G.R. No. 157611, August 9, 2005)
If a valid dismissal is based on just causes, there is SUGGESTED ANSWER:
no liability on the part of the employer, although 2. YES. One month pay, or one-half month pay
sometimes, financial assistance to be given to the for every year of service, a fraction of at least 6
dismissed employee is asked of the employer. If a months or more equivalent to one year, whichever
valid dismissal is based on authorized causes, the is higher. (Catatista v. NLRC, GR. No. 102422,
employer has to pay separation pay except in case August 3,1995).

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Dismissal; Authorized Causes; Closure & RETRENCHMENT on the other hand, ... is
Cessation of Business; Separation Pay resorted to primarily to avoid or minimize
(2006) business losses."
ABC Tomato Corporation, owned and managed by
three (3) elderly brothers and two (2) sisters, has In Escareal vs. NLRC, 213 SCRA 472 (1992), the
been in business for 40 years. Due to serious Supreme Court ruled that the law does not require
business losses and financial reverses during the financial loss as a basis for redundancy.
last five (5) years, they decided to close the
business. Dismissal; Authorized Causes; Redundancy
1. As counsel for the corporation, what steps will (1999)
you take prior to its closure? (2.5%) FACTS: Harvester Independent Ventures (HIV)
2. Are the employees entitled to separation pay? adopted a redundancy program to streamline
(2.5%) operations. Positions which overlapped each other,
SUGGESTED ANSWER: or which are in excess of the requirements of the
1. Steps to take prior to closure: service, were declared redundant. This program
a) Written Notice to DOLE 30 days prior to resulted in the reduction of manpower complement
the intended date of termination, showing and consequent termination of fifteen (15)
a bona fide reason for closure; employees, which included the secretary of the
b) Written Notice to employees 30 days prior local union and the company's Pollution control
to the intended date of termination Officer.
(Catatista v. NLRC, GR. No. 102422, Aug.
3 1995). Ilaw at Buklod ng Manggagawa (IBM), questioned
the termination of the 15 employees, contending
SUGGESTED ANSWER: that the same constituted union busting and
2. NO, Art. 283 of the Labor Code does not therefore, illegal, if the same is undertaken without
obligate an employer to pay separation benefits prior union approval.
when the closure is due to serious business losses 1. Is IBM correct in its contention that redundancy
or financial reverses (North Davao Mining and can be implemented by HIV only upon prior union
Development Corp. v. NLRC, G.R. No. 112546, approval? Why? (3%)
March 13,1996), except if the CBA provides SUGGESTED ANSWER:
otherwise (JAKA Foods v. Pacot, G.R. No. 151378, The Labor Code (in Article 283) very clearly gives
Mar. 28, 2005). the employer the right to terminate any of its
employees for redundancy.
Dismissal; Authorized Causes; Downsizing 2. Can the position of Pollution Control Officer be
Employees (2001) declared redundant? Why? (2%)
Soon after the Asian meltdown began in October SUGGESTED ANSWER:
1997, ABC Realty and Management Corporation If there is a law requiring companies to have a
undertook a downsizing program and terminated Pollution Officer, then HIV cannot declare such
nearly a third of its regular workforce. The affected office redundant.
employees questioned their termination arguing
that the action was precipitate in that ABC had not If there is no such law, then the Pollution Officer
proved that it sustained any losses. Is the claim of could be considered redundant.
the employees correct? Explain your answer, (3%). Panel: Consider case of Escareal. A position
SUGGESTED ANSWER: created by law cannot be declared redundant.
The claim of the employees may or may not be
correct. When the Corporation undertook its Dismissal; Authorized Causes; Redundancy
"downsizing" program, it may have terminated its (2000)
employees on either one of two grounds, namely, a) Can redundancy exist where the same is due
redundancy or retrenchment. to the company's failure to properly forecast its
manpower requirements? (3%)
For REDUNDANCY, there is no requirement of b) Can redundancy exist where the work
losses, whereas in retrenchment, substantial performed by twelve (12) workers can be
losses, actual or anticipated, is a requirement. performed as efficiently by ten (10) workers by
(Article 283, Labor Code). In Atlantic Gulf and increasing the speed of a machine without
Pacific Company vs. NLRC, G.R. No. 127516. May detriment to the health and safety of the workers?
28, 1999, the Supreme Court ruled: (3%)
"... it is necessary to distinguish redundancy SUGGESTED ANSWER:
from retrenchment... Redundancy exists when a) Yes, REDUNDANCY exists when a position
the services of an employee are in excess of has become an excess or superfluous which, in
what is required by an enterprise. turn, may be caused by reorganization, closure of
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a section or department, or adoption of labor- when the service capability of the work is in excess
saving arrangements. Poor forecasting does not of what is reasonably needed to meet the
invalidate redundancy. Forecasting after all is not demands on the enterprise. A REDUNDANT
fail-free. [Wiltshire File Co..Inc. v. NLRC. 193 POSITION is one rendered superfluous by any
SCRA 665 (1991)]. number of factors, such as overhiring of workers,
decreased volume of business dropping of a
b) Yes, redundancy can exist where work particular line previously manufactured by the
efficiency has been improved mechanically thus company or phasing out of a service activity
resulting in excessive or superfluous manpower. previously undertaken by the business. Under
[Wiltshire File Co., Inc. v. NLRC, 193 SCRA these conditions, the employer has no legal
665(1991)]. obligation to keep in its payroll more employees
than are necessary for the operation of its
Dismissal; Authorized Causes; business.
Retrenchment & Redundancy (2001)
(a) What conditions must prevail and what For the implementation of a redundancy program
requirements, if any, must an employer comply to be valid, the employer must comply with the
with to justify/effect a valid retrenchment program? following REQUISITES:
(2%). (1) written notice served on both the employees
SUGGESTED ANSWER; and the Department of Labor and Employment at
In the case of Asian Alcohol Corp. vs. NLRC, G.R. least one month prior to the intended date of
No. 131108, March 25,1999, the Supreme Court retrenchment;
stated that the requirements for a valid (2) payment of separation pay equivalent to at
retrenchment must be proved by clear and least one month pay or at least one month pay for
convincing evidence: every year of service whichever is higher;
(1) that the retrenchment is reasonably necessary (3) good faith in abolishing the redundant
and likely to prevent business losses which, if positions; and
already incurred, are not merely de minimis, (4) fair and reasonable criteria in ascertaining what
but SUBSTANTIAL, SERIOUS, ACTUAL and positions are to be declared redundant and
REAL or if only expected, are reasonably accordingly abolished.
imminent as perceived objectively and in good
faith by the employer; Dismissal; Authorized Causes;
(2) that the employer served WRITTEN NOTICE Retrenchment (1998)
both to the employees and to the Department The Company Legal Counsel advised the Board of
of Labor and Employment at least one month Directors as follows: "A company cannot retrench
prior to the intended date of retrenchment; to prevent losses until actual losses occur. The
(3) that the employer pays the retrenched Company must wait until the end of the Business
employees SEPARATION PAY equivalent to Year when its Books of Accounts, Profit and Loss
one month pay or at least one month pay for Statement showing the actual loss and Balance
every year of service, whichever is higher; Sheet have been audited by an Independent
(4) that the employer exercises its prerogative to auditing firm."
retrench employees in GOOD FAITH for the Is the legal advice of counsel correct?[5%]
advancement of its interest and not to defeat SUGGESTED ANSWER:
or circumvent the employees' right to security The legal advice is not correct. The Labor Code (in
of tenure; and Article 283) provides that retrenchment may be
(5) that the employer used FAIR and resorted to "TO PREVENT LOSSES" Thus, there
REASONABLE CRITERIA in ascertaining who could be legal basis for retrenchment even before
would be dismissed and who would be actual losses as long as the losses are imminent
retained among the employees, such as status and serious.
(i.e., whether they are temporary, casual, ANOTHER SUGGESTED ANSWER:
regular or managerial employees), efficiency, The advise of the Company Legal Counsel that an
seniority, physical fitness, age, and financial employer cannot retrench to prevent losses until
hardship for certain workers. actual losses occur is not correct. The Labor Code
provides:
(b) What conditions must prevail and what Art. 283. Closure of establishment and reduction
requirements, if any, must an employer comply of personnel. - The employer may also
with to justify/effect a valid redundancy program? terminate the employment of any employee xxx
(2%). retrenchment to prevent losses.
SUGGESTED ANSWER:
In the case of Asian Alcohol Corp. (supra), the The law does not require that retrenchment can be
Supreme Court stated that REDUNDANCY exists undertaken by an employer only after an actual
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business loss occurs. The Supreme Court in Lopez employees concerned 30 days prior to the
Sugar Corporation v, Federation of Free Workers, intended date of termination, as well as the
189 SCRA 179 (1990). said: requisite separation pay, were not complied with.
In its ordinary connotation, the phrase "to
prevent losses" means that the retrenchment or ANOTHER SUGGESTED ANSWER:
termination of some employees is authorized to Yes. The authorized cause to dismiss due to
be undertaken by the employer sometime redundancy or retrenchment under Art. 283 of the
before the losses anticipated are actually Labor Code has been disproved by Daisy's
sustained or realized. It is not, in other words, engaging the services of a substitute checker at a
the intention of the lawmaker to compel the salary much lower than that which Leo used to
employer to stay his hand and keep all his receive. Also, it appears that the one (1) month
employees until sometime after losses shall notice rule required in said law was not complied
have in fact materialized; if such an intent were with. Such being the case, the twin requirements
expressly written into law, the law may well be for a valid dismissal under Arts. 277 (b) and 283 of
vulnerable to constitutional attack as taking the Code have clearly not been complied with.
property from one man to another, That no separation pay was paid Leo, in violation
(underscoring supplied] of Art. 283 of the Code, his dismissal can all the
more be successfully assailed.
Dismissal; Authorized Causes;
Retrenchment (2003) Dismissal; Authorized Causes; Seniority
Daisy's Department Store hired Leo as a checker Rule (2001)
to apprehend shoplifters. Leo later became Chief (c) Is the SENIORITY RULE or "last in first out"
of the Checkers Section and acquired the status of policy to be strictly followed in effecting a
a regular employee. By way of a cost-cutting retrenchment or redundancy program? (1%).
measure, Daisy's decided to abolish the entire SUGGESTED ANSWER:
Checkers Section. The services of Leo, along with Again, in Asian Alcohol Corp., the Supreme Court
those of his co-employees working in the same stated that with regard the policy of "first in, last
section, were terminated on the same day. A out" in choosing which positions to declare as
month after the dismissal of Leo, Daisy's engaged redundant or whom to retrench to prevent further
the services of another person as an ordinary business losses, there is no law that mandates
checker and with a salary much lower than that such a policy. The reason is simple enough. A host
which Leo used to receive. Given the above factual of relevant factors come into play in determining
settings (nothing more having been established), cost efficient measures and in choosing the
could the dismissal of Leo be successfully assailed employees who will be retained or separated to
by him? save the company from closing shop. In
SUGGESTED ANSWER: determining these issues, management plays a
Yes. Given the factual setting in the problem, and pre-eminent role. The characterization of positions
since "nothing more (have) been established", the as redundant is an exercise of business judgment
dismissal of Leo can be successfully assailed by on the part of the employer. It will be upheld as
him. This is so because the burden of proof is upon long as it passes the test of arbitrariness.
the employer to show compliance with the
following requisites for reduction of personnel: Dismissal; Authorized Causes; Sickness
1. Losses or expected losses should be substantial (2004)
and not merely de minimis; A. Gabriela Liwanag has been working as
2. The expected losses must be reasonably bookkeeper at Great Foods, Inc., which operates a
imminent, and such imminence can be chain of high-end restaurants throughout the
perceived objectively and in good faith by the country, since 1970 when it was still a small eatery
employer. at Binondo. In the early part of the year 2003,
3. It must be necessary and likely to prevent the Gabriela, who was already 50 years old, reported
expected losses. The employer must have for work after a week-long vacation in her province.
taken other measures to cut costs other than It was the height of the SARS (Severe Acute
labor costs; and Respiratory Syndrome) scare, and management
4. Losses if already realized, or the expected learned that the first confirmed SARS death case
losses must be proved by sufficient and in the Philippines, a “balikbayan” nurse from
convincing evidence. (Lopez Sugar Corp. v. Canada, is a townmate of Gabriela. Immediately,
Federation of Sugar Workers. 189 SCRA a memorandum was issued by management
179(1990). terminating the services of Gabriela on the ground
that she is a probable carrier of SARS virus and
Moreover, the notice requirements to be given by that her continued employment is prejudicial to the
Daisy's Department Store to DOLE and the health of her co-employees.
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Is the action taken by the employer justified? (5%) evaluation test by the Mahusay Medical Center is
SUGGESTED ANSWER: not the certification required for disease to be a
The employer's act of terminating the employment ground for termination. The Rules and Regulations
of Gabriela is not justified. There is no showing that implementing the Labor Code require a certification
said employee is sick with SARS, or that she by a public health authority that the disease is of
associated or had contact with the deceased such nature or at such a stage that it cannot be
nurse. They are merely townmates. Furthermore, cured within a period of six (6) months even with
there is no certification by a competent public proper medical treatment.
health authority that the disease is of such a nature ANOTHER SUGGESTED ANSWER:
or such a stage that it cannot be cured within a The issues involved are as follows:
period of six (6) months even with proper medical 1. Is there constructive dismissal?
treatment. (Implementing Rules, Book VI, Rule 1, 2. Is there a valid exercise of management
Sec. 8, Labor Code). prerogative?
On the first issue, there is constructive dismissal.
Dismissal; Constructive Dismissal; Floating RS cannot be placed on "off-detail" and "floating
Status (2004) status" indefinitely. If it lasts for more than six (6)
RS, a security guard, filed a complaint for illegal months, RS shall be deemed to have been
dismissal against Star Security Agency. He constructively dismissed thus entitling him to
alleged he was constructively dismissed after ten separation benefits. (Superstar Security Agency v.
years of service to the Agency. Having been NLRC, 184 SCRA 74, [1990]).
placed on “off-detail” and “floating status” for 6
months already, he claimed the Agency just really On the second issue, there is no valid exercise of
wanted to get rid of him because it required him to management prerogative. Star's claim of
take a neuro-psychiatric evaluation test by management prerogative in assigning its guards
Mahusay Medical Center. RS said he already cannot be exercised to defeat or circumvent RS'
submitted the result of his evaluation test by Brent right to security of tenure.
Medical Clinic as precondition to a new
assignment, but the report was rejected by the Dismissal; Constructive Dismissal; Transfer
Agency. RS added that Mahusay Medical Center (1996)
had close ties with Star’s president. It could Mansueto was hired by the Philippine Packing
manipulate tests to favor only those guards whom Company (PPC) sometime in 1960 as an hourly
the Agency wanted to retain. Star defended its paid research field worker at its pineapple
policy of reliance on Mahusay Medical Center plantation in Bukidnon. In 1970, he was transferred
because it has been duly accredited by the to the general crops plantation in Misamis Oriental.
Philippine National Police. It is not one of those Mansueto was promoted to the position of a
dubious testing centers issuing ready-made monthly paid regular supervisor four years after.
reports. Star cited its sad experience last year
when a guard ran amuck and shot an employee of Subsequently, research activity in Misamis Oriental
a client-bank. Star claimed management was phased out to March of 1982 for having
prerogative in assigning its guards, and prayed become unnecessary. Mansueto thereafter
that RS’ complaint be dismissed. received a written memorandum from the PPC,
reassigning him to the Bukidnon plantation
What are the issues? Identify and resolve them. effective April 1, 1982, with assurance that his
(5%) position of supervisor was still there for him to hold.
SUGGESTED ANSWER: Mansueto tried to persuade the PPC management
The facts in the question raise these issues: to reconsider his transfer and if this was not
1. When RS was placed on "off-detail" or "floating possible, to at least consider his position as
status" for more than six months, can RS claim redundant so that he could be entitled to
that he was terminated? severance pay. PPC did not accept Mansueto's
2. Is there a valid reason for the termination of proposal.
RS?
When Mansueto continuously failed to report for
On the first issue, based on prevailing work at the Bukidnon plantation, PPC terminated
jurisprudence, RS can be considered as his employment by reason of his refusal to accept
terminated because he has been placed on "off his new assignment.
detail" or "floating status" for a period which is
more than six (6) months. Mansueto claims that his reassignment is
tantamount to an Illegal constructive dismissal. Do
On the second issue, it is true that disease is a you agree with Mansueto? Explain.
ground for termination. But the neuro-psychiatric SUGGESTED ANSWER:
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There is no constructive dismissal by the mere act complainant only if the claimant claimed and
of transferring an employee. The employee's proved that he is entitled to attorney's fees.
contention cannot be sustained simply because a ANOTHER SUGGESTED ANSWER:
transfer causes inconvenience. There is no Article 2208 of the New Civil Code allows the
constructive dismissal where, as in Philippine award of attorney's fees when the defendant's act
Japan Active Carbon Corp., vs. NLRC, 171 SCRA or omission has compelled the plaintiff to litigate or
164 (1989), the Court ruled that constructive incur expenses to protect his interest. Attorney's
dismissal means: fees may be considered as a part of an equitable
relief awarded in the concept of damages.
A quitting because continued employment is
rendered impossible, unreasonable or unlikeable; Dismissal; Due Process; Requirements
as an offer involving a demotion in rank and a (1994)
diminution in pay. 1) Distinguish between the substantive and the
procedural requirements for the dismissal of an
The transfer will not substantially alter the terms employee.
and conditions of employment of the Supervisor. SUGGESTED ANSWER:
The right to transfer an employee is part of the 1) This is the SUBSTANTIVE REQUIREMENT for
employer's managerial function. the valid dismissal of an employee: There should
be a just cause for the termination of an employee
Furthermore, the Court ruled that an employee has or that the termination is authorized by law.
no vested right to a position, and in justifiable
cases employment may be terminated. This is the PROCEDURAL REQUIREMENT: The
employer should furnish the employee whose
An employer's right to security of tenure does not employment is sought to be terminated a written
give him such a vested right to his position as notice containing a statement of the causes for
would deprive the Company of its prerogative to termination and the employer should afford the
change his assignment or transfer him where he employee to be terminated ample opportunity to be
will be most useful. When his transfer is not heard and to defend himself with the assistance of
unreasonable, not inconvenient, nor prejudicial to his representative if he so desires. (Arts. 279 and
him, and it does not involve a demotion in rank or a 277 (b), Labor Code)
diminution of his salaries, benefits, and other
privileges, the employee may not complain that it Dismissal; Due Process; Requirements
amounts to a constructive dismissal. (2006)
Inday was employed by Herrera Home
Dismissal; Damages Recoverable (2001) Improvements, Inc. (Herrera Home) as interior
What damages can an illegally dismissed decorator. During the first year of her employment,
employee collect from his employer? (2%). she did not report for work for one month. Hence,
SUGGESTED ANSWER: her employer dismissed her from the service. She
An illegally dismissed employee may collect from filed with the Labor Arbiter a complaint for illegal
his employer ACTUAL or COMPENSATORY dismissal alleging she did not abandon her work
damages, MORAL damages and EXEMPLARY and that in terminating her employment, Herrera
damages, as well as attorney's fees as damages. Home deprived her of her right to due process.
ANOTHER SUGGESTED ANSWER: She thus prayed that she be reinstated to her
Moral and exemplary damages are only proper position.
where the employee has been harassed and
arbitrarily terminated by the employer, Nueva Ecija Inday hired you as her counsel. In preparing the
vs. Electric Cooperative Employees Association position paper to be submitted to the Labor Arbiter,
(G.R. No. 116066, January 24, 2000; Cruz vs. explain the standards of due process which should
NLRC, G.R. No. 16384. February 7, 2000; have been observed by Herrera Home in
Philippine Aeolus etc., vs. Chua (G.R. No. 124617, terminating your client's employment. (5%)
April 28, 2000; and Lucas vs. Royo, G.R. No. SUGGESTED ANSWER:
136185, October 30, 2000). The Labor Code provides the following procedure
to be observed in terminating the services of an
(b) May the Labor Arbiter, NLRC or Court of employee based on just causes as defined in Art.
Appeals validly award attorney's fees in favor 283 of the Code:
of a complainant even if not claimed or proven a. A written notice must be served on the
in the proceedings? Why? (3%). employee specifying grounds for termination
SUGGESTED ANSWER: and giving him opportunity to answer;
A Labor Arbiter, NLRC and Court of Appeals may The employee shall be given ample opportunity to
validly award attorney's fees in favor of a defend himself, with or without the assistance of
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counsel; and c) A written notice of termination and could be just cause for the termination of her
indicating the grounds to justify his termination employment.
(Agabon v. NLRC, G.R. No. 158693, 17 November ALTERNATIVE ANSWER:
2004). The case should be decided in favor of Marimar,
the school teacher. The school failed to adduce
Dismissal; Just Cause; Immoral Conduct evidence in support of its claim of immoral conduct
(1996) on the part of Marimar; hence, its claim "that the
Marimar is a teacher in Santibanez High School, marriage between the two (teacher and student) is
She is the class adviser of the senior batch where best proof which confirm the suspicion that
Sergio is enrolled. Since it is the policy of the Marimar and Sergio indulged in amorous relations
school to extend remedial instructions to its inside the classroom after office hours" is a
students, Sergio is imparted such instructions in gratuitous statement. Furthermore, marriage
school by Marimar after regular class hours. In the between two parties of disparate ages, even as
course thereof, Marimar and Sergio fell in love with between an older teacher and a younger student is
each other and shortly after got married. Marimar not an immoral act.
is 31 years old while Sergio is only 16.
In Chua Qua v Clave, 189 SCRA 117 (1990) a
Santibanez High School thereafter seeks to case which is exactly similar to the problem, the
terminate the employment of Marimar for abusive Supreme Court ruled:
and unethical conduct unbecoming of a dignified Where there is no substantial evidence of the
school teacher and that her continued employment imputed immoral acts, it follows that the alleged
is inimical to the best interest and would violation of the Code of Ethics would have no
downgrade the high moral values of the school. basis. If the two eventually fell in love, despite
Marimar, according to the school, recklessly took the disparity on their ages and academic levels,
advantage of her position as a teacher by luring a this only lends substance, to the truism that the
graduating student under her advisory section and heart has reasons of its own which reason does
15 years her junior into an amorous relationship, in not know. But, definitely, yielding to this gentle
violation of the Code of Ethics for teachers which and universal emotion is not to be casually
states, among others, that a "school official or equated with immorality. The deviation of the
teacher should never take advantage of his/her circumstances of their marriage from the usual
position to court a pupil or student." While no one societal pattern cannot be considered as a
directly saw Marimar and Sergio doing any intimate defiance of contemporary social norms.
acts inside the classroom, the school nonetheless
maintains that the marriage between the two is the Dismissal; Just Cause; Independent
best proof which confirms the suspicion that Contractor (2005)
Marimar and Sergio indulged in amorous relations Antonio Antuquin, a security guard, was caught
inside the classroom after class hours. sleeping on the job while on duty at the Yosi
Cigarette Factory. As a result, he was dismissed
Marimar, on the other hand, contends that there is from employment by the Wagan Security Agency,
nothing wrong with a teacher falling in love with her an independent contractor. At the time of his
pupil and consequently, contracting marriage with dismissal, Antonio had been serving as a
him. How would you decide the case. Explain. watchman in the factory for many years, often at
SUGGESTED ANSWER: stretches of up to 12 hours, even on Sundays and
The fact that Marimar and Sergio got married is not holidays, without overtime, nighttime and rest day
by itself sufficient proof that Marimar as a 31 year benefits. He thereafter filed a complaint for illegal
old teacher, took advantage of her position to court dismissal and non-payment of benefits against
Sergio, a 16-year old student, whom she was Yosi Cigarette Factory, which he claimed was his
tutoring after regular class hours. Thus, Marimar actual and direct employer.
could not be considered as violating the school's As the Labor Arbiter assigned to hear the case,
Code of Ethics which could have been a valid how would you correctly resolve the following: (6%)
cause for her termination. Marimar's falling in love (a) Antonio's charge of illegal dismissal;
with her student cannot be considered serious SUGGESTED ANSWER:
misconduct which is a Just cause for termination of This is a case involving permissible job contracting.
employment. Antonio's charge of illegal dismissal against Yosi
Cigarette Factory will not prosper. Wagan Security
Of course, if it is proven that Marimar and Sergio Agency, an independent contractor, is Antonio's
indulged in amorous relations inside the classroom direct employer. Yosi is only Antonio's indirect
after class hours, this would constitute serious employer. By force of law, there is in reality no
misconduct on the part of Marimar as a teacher employer-employee relationship between Yosi and

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Antonio. (Baguio v. NLRC, G.R. Nos. 79004-08, Code was interpreted by the Supreme Court in Aris
October 4, 1991) Philippines, Inc. v. NLRC, as follows:
(b) Antonio's claim for overtime and other "It is not disputed that private respondent has
benefits. done, indeed he admitted to have committed, a
SUGGESTED ANSWER: serious misconduct. In order to constitute a "just
I will dismiss Antonio's claim for overtime and other cause" for dismissal, however, the act
benefits for lack of merit as against Yosi. In complained of must be related to the
legitimate job contracting, the principal employer performance of the duties of the employee such
(Yosi) becomes jointly and severally liable with the as would show him to be thereby unfit to
job contractor (Wagan) only for the payment of the continue working for the employer."
employee's (Antonio) wages whenever the
contractor fails to pay the same. Other than that, Dismissal; Just Cause; Probationary
the principal employer (Yosi) is not responsible for Employees; Rights (2006)
any other claim made by the employee (Antonio). During their probationary employment, eight (8)
(San Miguel Corp. v. MAERC Integrated Services, employees were berated and insulted by their
Inc., G.R. No. 144672, July 10, 2003) supervisor. In protest, they walked out. The
supervisor shouted at them to go home and never
Dismissal; Just Cause; Misconduct (1996) to report back to work. Later, the personnel man-
Sergio, an employee of Encantado Philippines, Inc. ager required them to explain why they should not
(EPI), was at the company canteen when Corazon, be dismissed from employment for abandonment
a canteen helper, questioned him for his use of and failure to qualify for the positions applied for.
somebody else's identification card (ID). Sergio They filed a complaint for illegal dismissal against
flared up and shouted at Corazon "Wala kang their employer.
pakialam! Kung gusto mo, itapon ko itong mga As a Labor Arbiter, how will you resolve the case?
pagkain ninyo!". When Sergio noticed that some (10%)
people where staring at him rather menacingly, he SUGGESTED ANSWER:
left the canteen but returned a few minutes later to As a Labor Arbiter I will resolve the case in favor of
remark challengingly "Sino ba ang nagagalit" the eight (8) probationary employees due to the
Sergio then began smashing some food items that following considerations:
were on display for sale in the canteen, after which 1. Probationary employees also enjoy security of
he slapped Corazon which caused her to fall and tenure (Biboso v. Victoria Milling, G.R. No. L-
suffer contusions. The incident prompted Corazon 44360, March 31, 1977).
to file a written complaint with Gustavo, the 2. In all cases involving employees on
personnel manager of EPI, against Sergio. probationary status, the employer shall make
known to the employee at the time he is hired,
Gustavo required Sergio to explain in writing why the standards by which he will qualify for the
no disciplinary action should be taken against him. positions applied for.
In his written explanation. Sergio admitted his 3. The filing of the complaint for illegal dismissal
misconduct but tried to explain it away by saying effectively negates the employer's theory of
that he was under the influence of liquor at the abandonment (Rizada v. NLRC, G.R. No.
time of the incident. Gustavo thereafter issued a 96982, September 21, 1999).
letter of termination from the employment of Sergio 4. The order to go home and not to return to work
for serious misconduct. constitutes dismissal from employment.
5. The eight (8) probationary employees were
Sergio now flies a complaint for illegal dismissal, terminated without just cause and without due
arguing that his acts did not constitute serious process
misconduct that would justify his dismissal. Decide.
SUGGESTED ANSWER: In view of the foregoing, I will order reinstatement
The acts of Sergio constituted serious misconduct. to their former positions without loss of seniority
Thus, there was just cause for his termination. The rights with full backwages, plus damages and
fact that he was under the influence of liquor at the attorney fees.
time that he did what he did does not mitigate,
instead it aggravates, his misconduct. Being under Dismissal; Just Cause; Requirements (1999)
the influence of liquor while at work is by itself FACTS: Joseph Vitriolo (JV), a cashier of Seaside
serious misconduct. Sunshine Supermart (SSS), was found after an
ALTERNATIVE ANSWER: audit, to have cash shortages on his monetary
The dismissal is not justified because the serious accountability covering a period of about five
misconduct committed by the employee is not in months in the total amount of P48,000.00. SSS
connection with his work. Art. 282(g) of the Labor 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 Was the award of the separation pay proper?
soon as JV submitted his written explanation within Explain.
the given period, the same was deemed SUGGESTED ANSWER:
unsatisfactory by the company and JV was No, the award of separation pay is not proper
peremptorily dismissed without any hearing. because the employee was terminated for serious
misconduct and payment of separation pay will be
The day following his termination from to reward an employee for a wrong doing. In
employment. JV filed a case of illegal dismissal Philippine Long Distance Telephone Co., vs NLRC,
against SSS. During the hearing before the Labor 164 SCRA 671 (1988).
Arbiter. SSS proved by substantial evidence JV's
misappropriation of company funds and various We hold that henceforth separation pay shall be
infractions detrimental to the business of the allowed as a measure of social justice only in those
company. JV, however, contended that his instances where the employee is validly dismissed
dismissal was illegal because the company did not for causes other than serious misconduct or those
comply with the requirements of due process. reflecting his moral character.

I. Did SSS comply with the requirements of The policy of social justice is not intended to
procedural due process in the dismissal from countenance wrongdoing. Compassion for the
employment of JV? Explain briefly (2%) poor is an imperative of every human society but
SUGGESTED ANSWER: only when the recipient is not a rascal claiming an
In connection with the right to due process in the undeserve privilege. Those who invoke social
termination of an employee, the Labor Code (in justice may do so only if their hands are clean and
Article 277[b]) requires that the employer furnish their motives blameless.
the worker whose employment is sought to be
terminated a written notice containing a statement A contrary rule would have the effect of rewarding
of the causes for termination and shall afford rather than punishing the erring employee for his
ample opportunity to be heard and to defend offense.
himself with the assistance of his representative if ALTERNATIVE ANSWER;
he so desires. The award of the separation pay was not proper.
According to the Labor Code, SEPARATION PAY
SSS did not comply with the above described is to be paid to an employee whose employment is
requirements for due process. The memorandum terminated due to the installation of labor saving
order was for the preventive suspension of JV, not devices, redundancy, retrenchment to prevent
a notice for his termination and the causes of his losses or the closing or cessation of operation of
termination. the establishment or undertaking. When an
2. If you were the Labor Arbiter, how would you employer terminates the services of an employee
decide the case? Explain briefly (3%) who has been found to be suffering from any
SUGGESTED ANSWER: disease, the employee is also to be paid
I will decide that the termination of JV was legal. It separation pay.
was for just cause. JV's misappropriation of
company funds and various infractions detrimental But on the basis of equity, the Supreme Court has
to the business of the company duly proven by ruled that an employee whose employment has
substantial evidence constitute a willful breach by been terminated for just cause may nevertheless,
JV of the trust reposed in him by his employer for humanitarian reasons, be granted financial
which is a just cause for termination. (See Article assistance in the form of separation pay. But also
282) according to the Supreme Court, a terminated
employee is not deserving of said financial
But I will award him indemnity of, say Pl,000, for assistance if her termination is due to serious
the failure of the employer to give him due process. misconduct.

Dismissal; Just Cause; Separation Pay In the case, Daisy was dismissed because of
(1996) serious misconduct. Thus, she should not be paid
1) Daisy, the branch manager of Tropical Footwear separation pay.
Inc.. was dismissed for serious misconduct. She
filed a complaint for illegal dismissal and damages. Dismissal; Just Causes (2001)
The Labor Arbiter sustained Daisy's dismissal but "A" worked for company "B" as a rank and file
awarded her separation pay based on social employee until April 1990 when A's services were
justice and as an act of compassion considering terminated due to loss of confidence in A.
her 10-year service with the company. 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 his seventh year, he became a steward of his labor
the investigation. Was B justified in dismissing A union. Since then he became disputatious and
after the investigation? Why? (5%) obstinate and his performance fell below par. One
SUGGESTED ANSWER: day his manager told him to pick up some
In the case of PLDT vs. NLRC (G.R. No. 106947, documents from a certain bank which were needed
February 11, 1999), the Supreme Court ruled that to close a business transaction. Roman did not
the basic requisite for dismissal on the ground of obey. He said he had an important personal
loss of confidence is that the employee concerned engagement. Moreover, he did not want to drive a
must be one holding a position of trust and vehicle that was not air-conditioned. When his
confidence. immediate supervisor asked him in the afternoon to
drive an air-conditioned car, Roman again refused.
Rank-and-file employees may only be dismissed He said he did not want to drive as he wanted to
for loss of confidence if the same is because of a leave the office early.
willful breach of trust by a rank and file employee
of the trust reposed in him by his employer or duly Roman was asked to explain. After hearing his
authorized representative (Art. 282(c), Labor explanation, Roman was dismissed for willful
Code). disobedience. Roman filed a case for illegal
ANOTHER SUGGESTED ANSWER: dismissal against the Double-Ten Corporation with
"B" is justified in dismissing "A" for loss of prayer for reinstatement and full back wages
confidence after according him the right to without loss of seniority rights, plus moral and
procedural due process. However, the following exemplary damages and attorney's fees. Roman
guidelines must be observed, as ruled in Nokom contended that since there was no emergency
vs. NLRC, G.R. No. 140034. July 18, 2000: situation and there were other drivers available, his
1. loss of confidence should not be simulated; refusal to drive for the manager, and later for his
2. it should not be used as subterfuge for causes supervisor, was not serious enough to warrant his
which are improper, illegal or unjustified; dismissal. On the other hand, he claimed that he
3. it may not be arbitrarily asserted in the face of was being punished because of his activities as a
overwhelming evidence to the contrary; and steward of his union. If you were the Labor Arbiter,
4. it must be genuine, not a mere after thought to would you sustain Roman? Discuss fully.
justify their action SUGGESTED ANSWER:
If I were the Labor Arbiter, I will not sustain Roman.
Dismissal; Just Causes vs. Authorized It is true that it would be an unfair labor practice for
Causes (2000) an employer to discriminate against his employee
Distinguish between dismissal of an employee for for the latter's union activities.
just cause and termination of employment for
authorized cause. Enumerate examples of just But in the case, the Corporation is not
cause and authorized cause. (5%) discriminating against Roman because he is a
SUGGESTED ANSWER: union official. When the Manager of Roman told
Dismissal for a JUST CAUSE is founded on faults him to pick up some documents from a certain
or misdeeds of the employee. Separation pay, as a bank, this was a lawful order and when Roman did
rule, will not be paid. Examples: serious not obey the order, he was disobedient; and when
misconduct, willful disobedience, commission of he disobeyed a similar request made later in the
crime, gross and habitual neglect, fraud and other afternoon of same day, he was guilty of willful
causes analogous to the foregoing. (Art 282, Labor disobedience to do what management asked him
Code). to do. This is just cause for his termination.
ALTERNATIVE ANSWER:
Termination for AUTHORIZED CAUSES are based a) No. The existence of an emergency situation is
on business exigencies or measures adopted by irrelevant to the charge of willful disobedience; an
the employer, not constituting faults of the opposite principle would allow a worker to shield
employee. Payment of separation pay at varying himself under his self-designed concept of "non-
amounts is required. Examples: redundancy, emergency situation" to deliberately defy the
closure, retrenchment, installation of labor saving directive of the employer.
device and authorized cause. (Art. 283-284, Labor
Code). Roman was given adequate opportunity under the
circumstances to answer the charge. His
Dismissal; Just Causes; Disobedience (1995) explanation was taken into consideration in arriving
Roman had been a driver of Double-Ten at the decision to dismiss him.
Corporation for ten (10) years. As early as his fifth
year in the service he was already commended as b) If it can be established that the true and basic
a Model Employee and given a salary increase. On motive for the employer's act is derived from the
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employee's union affiliation or activities, the of jurisdiction considering the existence of an
allegation by the employer of another reason employer-employee relationship and therefore, it is
whatever its substance of validity, is unavailing. claimed that the case should have been filed
Thus, the dismissal could be considered illegal. before the Labor Arbiter.
1. Will Mariet Demetrio's refusal to transfer
Dismissal; Just Causes; Disobedience (2003) constitute the offense of insubordination? Explain
Oscar Pimentel was an agent supervisor, rising briefly. (2%}
from the ranks, in a corporation engaged in real SUGGESTED ANSWER:
estate. In order to promote the business, the Mariet Demetrio's transfer constitutes the offense
company issued a memorandum to all agent of insubordination. The transfer is a lawful order of
supervisors requiring them to submit a feasibility the employer.
study within their respective areas of operation. All
agent supervisors complied except Oscar. It is the employer's prerogative, based on its
Reminded by the company to comply with the assessment and perception of its employees'
memorandum, Oscar explained that being a drop- qualifications, aptitudes, and competence, to move
out in school and uneducated, he would be unable its employees around in the various areas of its
to submit the required study. The company found business operations in order to ascertain where
the explanation unacceptable and terminated his they will function with maximum benefit to the
employment. Aggrieved, Oscar filed a complaint for company. An employee's right to security of tenure
illegal dismissal against the company. Decide the does not give him such a vested right in his
case. position as would deprive the company of its
SUGGESTED ANSWER: prerogative to change his assignment or transfer
For failure to comply with the memorandum to him where he will be most useful. When his
submit a feasibility study on his area of operation, transfer is not unreasonable, nor inconvenient, nor
Oscar can not be terminated (presumably for prejudicial to him, and it does not involve a
insubordination or willful disobedience) because demotion in rank or a diminution of his salaries,
the same envisages the concurrence of at least benefits, and other privileges, the employee may
two requisites: (1) the employee's assailed conduct not refuse to obey the order of transfer. (Philippine
must have been willful or intentional, the willfulness Japan Active Carbon Corp. V. NLRC, 171 SCRA
being characterized by a wrongful and perverse 164)
attitude; and (2) the order violated must have been
reasonable, or lawful, made known to the Dismissal; Just Causes; Misconduct (1995)
employee and must pertain to the duties which he Universal Milling Company (UNIVERSAL) and
had been engaged to discharge. Mara's Canteen (MARA'S) executed an agreement
that UNIVERSAL employees patronizing MARA'S
In the case at bar, at least two requisites are could buy food on credit and enjoy a 25% discount
absent, namely: (1) Oscar did not willfully disobey provided that they present their Identification Card
the memorandum with a perverse attitude; and (2) (ID) and wear their company uniform. Nikko, an
the directive to make a feasibility study did not employee of UNIVERSAL, used the ID of Galo, a
pertain to his duties. Hence, the termination from co-employee in buying food at MARA'S. An alert
employment of Oscar Pimentel is not lawful. employee of MARA'S discovered the
misrepresentation of Nikko but not without
Dismissal; Just Causes; Insubordination engaging him in a heated argument. Nikko boxed
(1999) MARA'S employee resulting in serious physical
FACTS: Mariet Demetrio was a clerk-typist in the injuries to the latter. UNIVERSAL dismissed Nikko
Office of the President of a multi-national from the company. Nikko sued UNIVERSAL for
corporation. One day she was berated by the illegal dismissal.
President of the company, the latter shouting
invectives at her in the presence of employees and As Labor Arbiter, how would you decide the case?
visitors for a minor infraction she committed. Mariet Discuss fully.
was reduced to tears out of shame and felt so SUGGESTED ANSWER:
bitter about the incident that she filed a civil case There is ground for disciplining Nikko. In
for damages against the company president before presenting the ID of a co-employee to buy food at
the regular courts. Soon thereafter, Mariet received Mara's at a discount and engaging in a fist fight,
a memorandum transferring her to the Office of the these acts of Nikko constitute misconduct. But it is
General Manager without demotion in rank or not the kind of serious misconduct that could be
diminution in pay. Mariet refused to transfer. the basis of dismissal. It will be noted that the fight
did not take place at the workplace.
With respect to the civil suit for damages, the ALTERNATIVE ANSWER:
company lawyer filed a Motion to Dismiss for lack
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The facts are not clear whether the canteen is authorized representative, and said willful breach is
within the company premises. If it is, then the act of proven by substantial evidence.
Nikko in boxing Mara's employee may be
considered as a valid ground for disciplinary action. When adequately proven, the dual grounds of
However, in this case, the penalty of dismissal is breach of trust and loss of confidence constitute
not commensurate to the misconduct allegedly valid and ample bases to warrant termination of an
committed. errant employee. As a general rule, however,
employers are allowed a wider altitude of discretion
Dismissal; Just Causes; Quitclaims (1999) in terminating the employment of managerial
Can a final and executory judgment be personnel or those of similar rank performing
compromised under a "Release and Quitclaim" for functions which by their nature requires the
a lesser amount? (3%) employer's full trust and confidence, than in the
SUGGESTED ANSWER: case of an ordinary rank-and-file employee, whose
Yes, as long as the "Release and Quitclaim" is termination on the basis of these same grounds
signed by the very same person entitled to receive requires proof of involvement in the events in
whatever is to be paid under the final and question; mere uncorroborated assertions and
executory judgment that was the subject of the accusations by the employer will not suffice.
compromise agreement and that the "Release and (Manila Midtown Commercial Corporation v.
Quitclaim" was signed voluntarily. Nuwhrain. 159 SCRA 212).

In Alba Patio de Makati v. NLRC: A final and Dismissal; Liability; Corporate Officers
executory judgment can no longer be altered, even (1997)
if the modification is meant to correct what is Are the principal officers of a corporation liable in
perceived to be an erroneous conclusion of fact or their personal capacity for non-payment of unpaid
law, and regardless of whether the modification is wages and other monetary benefits due its
attempted to be made by the court rendering it or employees?
by the highest court of the land. Moreover, a final SUGGESTED ANSWER:
and executory judgment cannot be negotiated, As a general rule, the obligations incurred by the
hence, any act to subvert it is contemptuous. principal officers and employees of a corporation
are not theirs but the direct accountabilities of the
It was incumbent upon the counsel for the corporation they represent.
complainant to have seen to it that the interest of
all complainants was protected. The quitclaim and However, SOLIDARY LIABILITIES may at times be
the release in the preparation of which he assisted incurred but only when exceptional circumstances
clearly worked to the grave disadvantage of the warrant such as, generally, in the following cases:
complainants. To render the decision of this Court when directors and trustees or, in appropriate
meaningless by paying the back-wages of the cases, the officers of a corporation:
affected employees in a much lesser amount (1) vote for or assent to patently unlawful acts of
clearly manifested a willful disrespect of the the corporation;
authority of this Court as the final arbiter of cases (2) act in bad faith or with gross negligence in
brought to it. directing the corporate affairs;
(3) are guilty of conflict of Interest to the prejudice
A final and executory judgment cannot be of the corporation, its stockholders or
compromised under a "Release and Quitclaim" members, and other persons.
if said "Release and Quitclaim is clearly to the
grave disadvantage of the affected employees by In labor cases, the Supreme Court has held
paying them much lesser amounts than what they corporate directors and officers solidarity liable with
were entitled to receive under the judgment. (See the corporation for the termination of employment
Alba Patio de Makati vs. NLRC, 201 SCRA 355). of employees done with malice or bad faith. (Sunio
v. NLRC. 127 SCRA 390; General Bank and Trust
2. May an ordinary rank-and-file employee be Co. v. Court of Appeals, 135 SCRA 659).
terminated for loss of trust and confidence? If ALTERNATIVE ANSWER:
so, what proof is required? If not, why not? No. Unless they are guilty of malice or bad faith in
(2%) connection with the non-payment of unpaid wages
SUGGESTED ANSWER: and other monetary benefits due to employees.
An ordinary rank and file employee may be
terminated for loss of trust and confidence as long Dismissal; Payroll Reinstatement (2005)
as loss of trust and confidence is brought about (c) What is meant by "payroll reinstatement" and
objectively due to a willful breach by the employee when does it apply? (4%)
of the trust reposed in him by his employer or duly SUGGESTED ANSWER:
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"PAYROLL REINSTATEMENT" is one where an In a case (Maranaw Hotel Corp. v. NLRC, 238
employee is paid his monthly salary without SCRA 191), the Supreme Court said that although
making him perform actual work. It applies in the reinstatement aspect of a Labor Arbiter's
termination cases where the labor court declares decision was immediately executory, it does not
the dismissal illegal and orders reinstatement of follow that it is self-executory. There must still be a
the employee, but the employer does not want to writ of execution issued motu proprio or upon
actually or physically reinstate him and instead, at motion of the interested party. (See Article 224)
the employer's option, merely reinstates the
employee in the payroll pending appeal. 2. May the NLRC order the payroll
reinstatement of Sharon Cometa? Why? (2%)
Dismissal; Payroll Reinstatement; SUGGESTED ANSWER;
Reinstatement Order (1999) The NLRC may NOT order the payroll
FACTS: In the illegal dismissal case filed by reinstatement of Sharon Cometa. The Labor Code
Sharon Cometa against Up & Down Company, the (Article 223) provides that in the immediate
labor Arbiter rendered a decision directing her reinstatement of a dismissed employee, the
immediate reinstatement and payment of full employee shall be admitted back to work under the
backwages. The Company appealed to the NLRC. same terms and conditions prevailing prior to the
Following her lawyer's advise that the employee's dismissal or, at the option of the
reinstatement aspect of the decision is immediately employer, merely reinstated in the payroll. Thus,
executory, Sharon went to the HRD Office of the the reinstatement of the employee in the payroll is
Company and demanded immediate at the option of the employer and not of the NLRC
reinstatement. When the Company refused, her or the Labor Arbiter who have the power only to
lawyer, Atty. Maximiano Anunciacion, filed a direct reinstatement.
motion to cite the employer in contempt. Acting on
the motion, the NLRC ordered the payroll Dismissal; Reinstatement (1994)
reinstatement of Sharon Cometa. May a court order the reinstatement of a dismissed
1. Can the company or any of its officials be employee even if the prayer of the complaint did
cited for contempt for refusing to reinstate not include such relief?
Sharon Cometa? Why? (3%) SUGGESTED ANSWER:
SUGGESTED ANSWER: So long as there is a finding that the employee was
Yes. The company or any of its officials can be illegally dismissed, the court can order the
cited for contempt. It is noted that in his decision, reinstatement of an employee even if the complaint
the Labor Arbiter specifically directed the does not include a prayer for reinstatement,
immediate reinstatement of Sharon Cometa. This unless, of course, the employee has waived his
directive under the Labor Code (Article 223) is right to reinstatement. By law an employee who is
immediately executory, even pending appeal. unjustly dismissed is entitled to reinstatement,
(Pioneer Texturizing Corporation v. NLRC, 280 among others.
SCRA 806)
ALTERNATIVE ANSWER: The mere fact that the complaint did not pray for
Yes. Under Art. 223 of the Labor Code, an reinstatement will not prejudice the employee,
employer has two options in order for him to because technicalities of law and procedure are
comply with an order of reinstatement, which is frowned upon in labor proceedings. (General
immediately executory, even pending appeal. Baptist Bible College vs. NLRC. 219 SCRA 549).
FIRSTLY, he can admit the dismissed
employee back to work under the same terms Dismissal; Reinstatement (1995)
and conditions prevailing prior to his dismissal Give at least five (5) instances when an illegally
or separation or to a substantially equivalent dismissed employee may not be reinstated.
position if the former position is already filled SUGGESTED ANSWER:
up. Five [5] instances when an illegally dismissed
SECONDLY, the employer can be reinstated in employee may not be reinstated:
the payroll. Failing to exercise any of the above (1) When the position held by the illegally
options, the employer can be compelled under dismissed employee has been abolished and
PAIN OF CONTEMPT, to pay instead the there is no substantially equivalent position for
salary of the employee effective from the date said employee;
the employer failed to reinstate despite an (2) When the employer has ceased to operate;
executory writ of execution served upon him. (3) When the employee no longer wishes to be
Under Art. 218 of the Labor Code, the NLRC reinstated;
has the power to cite persons for direct and (4) When strained relations between the employer
indirect contempt. and the employee have developed and
ANOTHER ALTERNATIVE ANSWER:
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(5) When the employer has lost his trust and cause for termination; Hearing; and Notice of
confidence in the employee who is holding a Termination.
position of trust and confidence.
The Labor Code reads: A. Notice and Hearing
In addition to the above, an illegally dismissed Art, 277. Miscellaneous provisions. - xxx
employee may not be reinstated: (b) xxx The employer shall furnish the worker
(1) When he is already entitled to retire at the time whose employment is sought to be terminated a
he is to be reinstated; written notice containing a statement of the causes
(2) When he is already dead; for termination and shall afford the latter ample
(3) When reinstatement will not serve the interest opportunity to be heard and to defend himself with
of the parties; and the assistance of his representative if he so desires
(4) When he has obtained regular and ...
substantially equivalent employment The Supreme Court ruled in Salaw v, NLRC, 202
elsewhere. SCRA 7 (1991)
xxx Not only must the dismissal be for a valid or
Dismissal; Requirements (1998) unauthorized cause as provided by law xxx but
Assuming the existence of valid grounds for the rudimentary requirements of due process -
dismissal, what are the requirements before an notice and hearing - most also be observed
employer can terminate the services of an before an employee must be dismissed.
employee? [5%]
SUGGESTED ANSWER: B. Two (2) Notice Requirements -
The employee being terminated should be given The Supreme Court in Tanala v. NLRC 252 SCRA
DUE PROCESS by the employer. 314 (1996), and in a long line of earlier cases,
ruled:
For termination of employment based on any of the xxx This Court has repeatedly held that to meet
JUST CAUSES for termination, the requirements the requirements of due process, the law
of due process that the employer must comply with requires that an employer must furnish the
are: workers sought to be dismissed with two written
1. A WRITTEN NOTICE should be served on the notices before termination of employment can
employee specifying the ground or grounds for be legally effected, that is, (1) a notice which
termination and giving to said employee apprises the employee of the particular acts or
reasonable opportunity within which to explain omissions for which his dismissal is sought; and
his side. (2) subsequent notice, after due hearing, which
2. A HEARING or CONFERENCE should be held informs the employee of the employers decision
during which the employee concerned, with the to dismiss him.
assistance of counsel if the employee so
desires, is given the opportunity to respond to Dismissal; Requirements (1999)
the charge, present his evidence and present FACTS: On September 3, 1998, the National
the evidence presented against him. Bureau of Investigation (NBI) extracted from Joko
3. A WRITTEN NOTICE OF TERMINATION, if Diaz — without the assistance of counsel — a
termination is the decision of the employer, sworn statement which made it appear that Joko,
should be served on the employee indicating in cahoots with another employee, Reuben Padilla,
that upon due consideration of all the sold ten (10) cash registers which had been
circumstances, grounds have been established foreclosed by North-South Bank for P50,000.00
to justify his termination. and divided the proceeds therefrom in equal
shares between the two of them.
For termination of employment based on
AUTHORIZED CAUSES, the requirements of due On September 10, 1998. Joko was requested by
process shall be deemed complied with upon Rolando Bato, the bank manager, to appear before
service of a WRITTEN NOTICE to the employee the Disciplinary Board for an investigation in the
and the appropriate Regional Office of the following tenor: "You are requested to come on
Department of Labor & Employment at least thirty Thursday. September 14, 1998, at 11:00 a.m. the
(30) days before the effectivity of the termination Board Room, without counsel or representative, in
specifying the ground or grounds for termination. connection with the investigation of the foreclosed
ANOTHER SUGGESTED ANSWER: cash registers which you sold without authority."
Assuming that there is a valid ground to terminate
employment, the employer must comply with the Mr. Bato himself conducted the investigation, and
requirement of PROCEDURAL DUE PROCESS - two (2) days thereafter, he dismissed Joko. The
written notice of intent to terminate stating 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, very least, what the Bank should do should be to
1998. Aside from this sworn statement, no other confront Reuben Padilla with the declaration of
evidence was presented by the bank to establish Joko (Century Textile Mills, Inc. vs. NLRC, 161
the culpability of Joko in the fraudulent sale of the SCRA628).
bank's foreclosed properties.
1. Is the dismissal of Joko Diaz by North-South Dismissal; Requirements; Suspension of
Bank legally justified? Explain briefly. (3%) Termination (1994)
SUGGESTED ANSWER: Atty. Oliza heads the legal department of Company
The dismissal of Joko Diaz by North-South Bank is X with the rank and title of Vice-President. During
not legally justified, Diaz was not given the his leave of absence, his assistant took over as
required due process by the Bank. He should have acting head of the legal department. Upon his
been given a written notice that he was being return, Atty. Oliza was informed in writing that his
terminated and a statement of the causes for his services were no longer needed, it appearing that
termination. the Company had lost so many cases by default
due to his incompetence. Atty. Oliza filed a case
He was instead given a just notice about an for illegal dismissal.
investigation relative to an incident. 1) Will his case prosper?
2) Pending hearing, may Atty. Oliza ask the
It was also contrary to law for the Bank to tell Diaz Secretary of Labor to suspend the effects of the
that he should attend the investigation "without termination of the services of an employee and to
counsel or representative." Instead, he should order his temporary reinstatement?
have been afforded as provided in the Labor Code SUGGESTED ANSWER:
(in Article 277 [b]) ample opportunity to be heard 1) His case will prosper. He was not given
and to defend himself with the assistance of his procedural due process. He was not given the
representative if he so desires. required notice, namely, a written notice containing
a statement of the causes for termination, and he
If the evidence that was the basis for the was not afforded ample opportunity to be heard
termination of Joko Diaz was only his own and to defend himself.
statement "extracted" from him by the NBI when
Joko was without the assistance of counsel, then But if, before the Labor Arbiter, in a hearing of the
the statement cannot be substantial evidence for case of illegal dismissal that Atty. Oliza may have
Joko's termination. filed, he is found to be grossly incompetent, this is
ALTERNATIVE ANSWER: just cause for his dismissal. (Art. 277(b), Labor
No. Under Sec. 12 of Art. in of the 1987 Code)
Constitution any "confession or admission obtained ALTERNATIVE ANSWER:
in violation of Sec. 12 and 17 shall be inadmissible Yes. The examinee submits that Atty. Oliza's case
in evidence against him". Since the sole basis for will prosper. Well-settled is the rule that even
his dismissal was the confession procured by the managerial employees are entitled to the
NBI in violation of his right to counsel which is constitutional guarantee of security of tenure. In
inadmissible for any purpose and any proceeding the case at bar, there was a clear deprivation of
including an administrative case, his dismissal is Atty. Oliza's right to due process. The blanket
illegal. Diaz's termination is likewise- illegal accusation of "incompetence" hardly qualifies as
because he was deprived of his right to due compliance with the substantive requirements for
process since during the investigation he was an employee's dismissal. The written notice that
required to attend without counsel or his services were no longer needed also fall short
representative. of the procedural requirements of notice and
opportunity to be heard, the twin ingredients of due
2. Can Reuben Padilla's participation in the process.
fraudulent sale of the bank's foreclosed properties
be made to rest solely on the unilateral declaration 2) The Labor Code gives the Secretary of Labor
of Joko Diaz? Why? (2%) and Employment the power to suspend the effects
SUGGESTED ANSWER: of a termination made by an employer pending
No. The unilateral declaration of Joko, where Joko resolution of a labor dispute in the event of a prima
has not been subjected to cross-examinations facie finding by the Department of Labor and
cannot be considered as substantial evidence; it is Employment before whom such dispute is pending
just hearsay. that the termination may cause serious labor
ALTERNATIVE ANSWER: dispute or is in implementation of a mass lay-off.
No. The unilateral declaration of Joko is not
enough. Such declaration must be corroborated by The termination of Atty. Oliza does not cause a
other competent and convincing evidence. At the serious labor dispute considering that he is a
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managerial employee. It is not in implementation of Pending appeal, what rights are available to Juan
a mass lay-off. Thus, pending hearing, the relative to the favorable decision of the Labor
Secretary of Labor and Employment may not Arbiter? Explain.
suspend the effects of the termination and order SUGGESTED ANSWER:
his temporary reinstatement. (Art. 277[b]) Juan can ask for immediate reinstatement pending
resolution of the appeal filed by the company with
Dismissal; Requisites; Reinstatement the NLRC. At the option of his employer, he may
Juan Dukha, a bill collector of Ladies Garments be admitted back to work or merely reinstated in
Company, was dismissed because he did not remit the payroll.
his collections. He filed a case against his
company for illegal dismissal. During the hearing, Dismissal; Separation Pay; Backwages
the President of the Company admitted that Juan (2002)
was never formally investigated for his dishonesty; Lyric Theater Corp. issued a memorandum
neither was he informed of the nature of the prohibiting all ticket sellers from encashing any
charge against him. He was simply barred from check from their cash collections and requiring
entering company premises by the security guards them instead to turn over all cash collections to the
upon instruction of management. management at the end of the day. In violation of
this memorandum, Melody, a ticket seller,
Juan Dukha asks for immediate reinstatement with encashed five (5) checks from her cash collection.
full back wages and without loss of seniority rights. Subsequently the checks were dishonored when
Will the complaint of Juan Dukha for illegal deposited in the account of Lyric Theater. For this
dismissal prosper? Explain. action, Melody was placed under a 20-day
SUGGESTED ANSWER: suspension and directed to explain why she should
Yes, there may be just cause for terminating Juan not be dismissed for violation of the company's
Dukha. But he was not accorded the required due memorandum. In her explanation, she admitted
process of law. having encashed the checks without the
ALTERNATIVE ANSWER: company's permission. While the investigation was
The complaint of Juan Dukha for illegal dismissal pending, Melody filed a complaint against Lyric
will prosper in the sense that the complaint will be Theater for backwages and separation pay. The
heard by a Labor Arbiter. His being barred from Labor Arbiter ordered Lyric Theater to pay Melody
entering company premises is tantamount to P115,420.79 representing separation pay and
dismissal. In the hearings, the employer will have backwages. The NLRC affirmed the ruling of the
the burden of proving that there is just cause for Labor Arbiter. Is the ruling of the NLRC correct?
terminating Juan, possibly on the basis of willful Explain briefly. (5%)
breach of trust. On the other hand, Juan will be SUGGESTED ANSWER:
given the opportunity to prove that his failure to The ruling of the NLRC affirming the Labor
remit his collection is not because of dishonesty, Arbiter's decision ordering Lyric Theater to pay
P115,420.79 representing separation pay and
2. Assuming that he cannot be reinstated, what backwages is wrong.
right can he immediately assert against his
employer? Explain. The Labor Arbiter's decision is wrong because:
SUGGESTED ANSWER: a) It is premature. There was still no termination.
Assuming that Juan cannot be reinstated because All that was done by the employer (Lyric
there is just cause for his dismissal, he would Theater) was to place the employee (Melody)
nevertheless be entitled to an indemnity from his under a 20-day suspension, meanwhile
employer, because he was denied due process of directing her to explain why she should not be
law by said employer. dismissed for violation of company's
ALTERNATIVE ANSWER: memoranda.
Juan can pursue the case of illegal dismissal b) The order for Lyric Theater to pay separation
before a Labor Arbiter where he will assert the right pay has no factual basis. Separation pay is to
to defend himself, ie., to explain his failure to remit be paid to an employee who is terminated due
his collections. to the Installation of labor saving devices,
redundancy, retrenchment to prevent losses or
3. Suppose Juan Dukha proved during the hearing the closing or cessation of operation of the
that he was robbed of his collections and, establishment undertaking. None of these
consequently, the Labor Arbiter decided in his events has taken place. Neither is separation
favor. In the meantime, the Ladies Garments pay here in lieu of reinstatement. Melody is not
Company appealed to the National Labor entitled to reinstatement because there Is a
Relations Commission (NLRC). just cause for her termination.

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c) The order for Lyric Theater to pay backwages governed by the rules and regulations governing
has no factual basis. If after investigation, Lyric overseas employment and the said rules do not
Theater dismisses Melody, there is just cause provide for separation or termination pay.
for such termination. There is willful
disobedience by the employee of the lawful From the foregoing cases, it is clear that seafarers
orders of her employer in connection with her are considered contractual employees. They
work. She did not just violate the lawful order cannot be considered as regular employees under
of the employer. She violated it five times. Art 280 of the Labor Code. Their employment is
Melody did not give any justifiable reason for governed by the contracts they sign every time
violating the company's memorandum they are rehired and their employment is
prohibiting the encashment of checks. [Jo terminated when the contract expires. Their
Cinema Corp. v. Avellana, GR No. 132837, employment is contractually fixed for a certain
June 28, 2001] period of time. They fall under the exception of Art
280 whose employment has been fixed for a
Employee; Contractual Employees; specific project or undertaking the completion or
Seafarers (2002) termination of which has been determined at the
Tomas and Cruz have been employed for the last time of engagement of the employee or where the
22 years in various capacities on board the ships work or services to be performed is seasonal in
of BARKO Shipping Company. Their employment nature and the employment is for the duration of
was made through a local manning company. They the season. We need not depart from the rulings of
have signed several ten (10) month employment this court in the two aforementioned cases which
contracts with BARKO Shipping. The NLRC ruled indeed constitute stare decisis with respect to the
that they were contractual employees and that their employment status of seafarers. [Douglas Millares
employment was terminated each time their v. NLRC, et. al. 328 SCRA 79, (2000)]
contracts expired is the ruling of the NLRC correct? Therefore, Tomas and Cruz are contractual
Explain your answer fully. (5%) employees. The ruling of the NLRC is correct.
SUGGESTED ANSWER:
Yes. A contract of employment for a definite period ANOTHER SUGGESTED ANSWER:
terminates by its own terms at the end of such No. The ruling of the NLRC is not correct. Such
period. Since Tomas and Cruz signed ten (10)- repeated re-hiring, which continued for twenty
month contracts, their employment terminates by years cannot but be appreciated as sufficient
its own terms at the end of each ten (10)-month evidence of the necessity and indispensability of
period. petitioner's service to the [employer's] trade. Verily,
as petitioners had rendered 20 years of service,
The decisive determinant in term employment performing activities that were necessary and
should not be the activities that the employee is desirable in the trade (of the employer), they are,
called upon to perform but the day certain agreed by express provision of Art. 280 of the Labor Code,
upon by the parties for the commencement and considered regular employees. [Millares v. NLRC,
termination of their employment relation (not the 328 SCRA 79 (2000)]
character of his duties as being "usually necessary
or desirable in the usual business of the Employee; Contractual Worker vs. Casual
employer"). Worker (2005)
How is the project worker different from a casual or
Stipulation in the employment contracts providing contractual worker? Briefly explain your answers.
for "term employment" or "fixed period ALTERNATIVE ANSWER:
employment" are valid when the period are agreed A "CONTRACTUAL WORKER" is a generic term
upon knowingly and voluntarily by the parties used to designate any worker covered by a written
without force, duress or improper pressure exerted contract to perform a specific undertaking for a
on the employee; and when such stipulations were fixed period. On the other hand, a "PROJECT
not designed to circumvent the laws on security of WORKER" is used to designate workers in the
tenure. [Brent School v. Zamora, 181 SCRA 702 construction industry, hired to perform a specific
(1990)] undertaking for a fixed period, co-terminus with a
project or phase thereof determined at the time of
Moreover, in Brent School v. Zamora, supra, the the engagement of the employee. (Policy
Supreme Court stated that Art. 280 of the Labor Instruction No. 19, DOLE) In addition, to be
Code does not apply to overseas employment. considered a true project worker, it is required that
a termination report be submitted to the nearest
In Pablo Coyoca v. NLRC, 243 SCRA 190, (1995), public employment office upon the completion of
the Supreme Court also held that a seafarer is not the construction project. (Aurora Land Projects
a regular employee and Filipino seamen are Corp. v. NLRC, G.R. No. 114733, January 2, 1997)
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In contrast, there is no such requirement for an of the latter's engagement. In the question, the
ordinary contractual worker. probationary employee was not informed of such
ALTERNATIVE ANSWER: reasonable standards at the time he was
A PROJECT WORKER performs job that is employed. Thus, if he is to be legally terminated, it
necessary and desirable to the nature of the should be because of gross and habitual neglect of
business of the employer. On the other hand, a duties.
CASUAL WORKER performs job that is not
necessary or desirable to the nature of the Employee; Probationary Employees (2001)
business of the employer. (Art. 280, Labor Code) What limitations, if any, do the law and
jurisprudence impose on an employer's right to
A project worker becomes a regular employee if terminate the services of a probationary
the employer fails to submit as many reports to the employee? (2%)
DOLE on terminations as there were projects SUGGESTED ANSWER:
actually finished. (Audion Electric Co. v. NLRC, The Labor Code [in Art. 281) provides that the
G.R. No. 106648, June 17, 1999) On the other services of an employee who has been engaged
hand, a casual worker becomes a regular on a probationary basis may be terminated for a
employee if he has rendered service for at least just cause or when he fails to qualify as a regular
one (1) year whether the same is continuous or employee in accordance with reasonable
broken. (Art. 280, Labor Code) standards made known by the employer to the
employee at the time of his engagement. If the
Employee; Probationary Employees (1998) probationary employee is being terminated for just
The services of an employee were terminated cause, he must, of course, be given due process
upon the completion of the probationary period of before his termination,
employment for failure to qualify, for the position.
The employee filed a complaint for Illegal Employee; Project Employee vs. Regular
Dismissal on the ground that the employer failed to Employee (1996)
inform him in writing the reasonable standards for Distinguish the project employees from regular
regular employment. employees.
Will the complaint for Illegal Dismissal prosper? SUGGESTED ANSWER:
[5%] A REGULAR EMPLOYEE is one engaged to
SUGGESTED ANSWER: perform activities which are usually necessary or
Yes, the Complaint for Illegal Dismissal will desirable in the usual business or trade of the
prosper. The Labor Code provides: employer. On the other hand, a PROJECT
Art. 281. PROBATIONARY EMPLOYMENT, - EMPLOYEE is one whose employment is fixed for
xxr The services of an employee who has been a specific project or undertaking; the completion or
engaged on a probationary basis may be termination of which has been determined at the
terminated xxx when he fails to qualify as a time of the engagement of the employee. (See Art.
regular employee in accordance with 280 of the Labor Code)
reasonable standards made known to the
employee at the time of his engagement. Employee; Project Employees vs. Casual
Employees (2005)
The Supreme Court in A.M. Oreta and Co., Inc. v. Mariano Martillo was a mason employed by the
NLRC, 176 SCRA 218 (1989), ruled: ABC Construction Company. Every time that ABC
The law is clear to the effect that in all cases had a project, it would enter into an employment
involving employees engaged on probationary contract with Martillo for a fixed period that
basis, the employer shall make known to the coincided with the need for his services, usually for
employee at the time he is hired, the standards a duration of three to six months.
by which he will qualify as a regular employee.
Since the last project involved the construction of a
The failure of the employer to inform the employee 40-storey building, Martillo was contracted for 14
of the qualification for regularization is fatal. The months. During this period, ABC granted wage
failure violates the rules of fair play which is a increases to its regular employees, composed
cherished concept in labor law. mostly of engineers and rank-and-file construction
ANOTHER SUGGESTED ANSWER: workers as a result of the just concluded CBA
The complaint for illegal dismissal will prosper. The negotiations, feeling aggrieved and discriminated
Labor Code (in Article 281) provides that a against, Martillo and other similarly-situated project
probationary employee may be terminated when workers demanded that increases be extended to
he fails to qualify as a regular employee in them, inasmuch as they should now be considered
accordance with reasonable standards made regular employees and members of the bargaining
known by the employer to the employee at the time unit. Briefly explain your answers. (6%)
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(a) If you were ABC's legal counsel, how would performance during her last stint was "below
you respond to this demand? average."
ALTERNATIVE ANSWER:
The demand is without legal basis. The simple fact Since there was no union to represent her, Kitchie
that the employment of petitioners as project seeks your advice as a labor lawyer about her
employees had gone beyond one (1) year does not chances of getting her job back. What will your
detract from, or legally dissolve, their status as advice be? (5%)
project employees. The second paragraph of ALTERNATIVE ANSWER:
Article 280 of the Labor Code, providing that an The repeated rehiring and the continuing need of
employee who has served for at least one (1) year Kitchie's services for 4 years are sufficient
shall be considered a regular employee, relates to evidence of the necessity and indispensability of
casual employees, not to project employees. (ALU- her services to HITEC's business or trade.
TUCP v. NLRC, G.R. No. 109902, August 2, 1994) (Magsalin v. National Organization for Working
Men, et al., G.R. No. 148492, May 9, 2003) Where
In the case of Mercado, Sr. v. NLRC, G.R. No. a person thus engaged has been performing the
79869, September 5, 1991, the Supreme Court job for at least one year, even if the performance is
ruled that the proviso in the second paragraph of not continuous or is merely intermittent, the law
Article 280 of the Labor Code relates only to deems the employment as regular with respect to
casual employees and is not applicable to those such activity and while such activity exists. (Paguio
who fall within the definition of said Article's first v. NLRC, G.R. No. 147816, May 9, 2003)
paragraph, i.e., project employees. The familiar
rule is that a proviso is to be construed with Hence, Ritchie is considered a regular employee of
reference to the immediately preceding part of the HITEC and as such, she cannot be terminated
provision to which it is attached, unless there is except for cause and only after due process.
clear legislative intent to the contrary. No such ALTERNATIVE ANSWER:
intent is observable in Article 280 of the Labor I will advice Kitchie to file a case of constructive
Code. dismissal with the Regional Arbitration branch of
ALTERNATIVE ANSWER: the NLRC having territorial jurisdiction over the
If I were ABC's legal counsel, I will argue that the workplace of the complainant because the
project workers are not regular employees but constant re-hiring of Kitchie makes her a regular
fixed-term employees. Stipulation in employment employee.
contracts providing for term employment or fixed
period were agreed upon knowingly and voluntarily Employee; Regular Employees (1994)
by the parties without force, duress or improper Aldrich Zamora, a welder, was hired on February
pressure, being brought to bear upon the 1972 by Asian Contractors Corporation (ACC) for a
employee and absent any other circumstances project. He was made to sign a contract stipulating
vitiating his consent, or where it satisfactorily that his services were being hired for the
appears that the employer and employee dealt completion of the project, but not later than
with each other on more or less equal terms with December 30, 1972, whichever comes first.
no moral dominance whatever being exercised by
the former over the latter. (Pangilinan v. General After December 1972, Zamora, being a man of
Milling Corp., G.R. No. 149329, July 12, 2004) many talents, was hired for different projects of
ACC in various capacities, such as carpenter,
Employee; Regular Employee; Constructive electrician and plumber. In all of these
Dismissal (2005) engagements, Zamora signed a contract similar to
Kitchie Tempo was one of approximately 500 his first contract except for the estimated
production operators at HITEC Semiconductors, completion dates of the project for which he was
Inc., and export-oriented enterprise whose hired.
business depended on orders for computer chips
from overseas. She was hired as a contractual What is Zamora's status with ACC? Is he a
employee four years ago. Her contracts would be contract worker, a project employee, a temporary
for a duration of five (5) months at a time, usually or a regular employee? State your reason.
after a one-month interval. Her re-hiring was SUGGESTED ANSWER:
contingent on her performance for the immediately Zamora could be a project employee if his work is
preceding contract. coterminous with the project for which he was
hired.
Six months after the expiration of her last contract,
Kitchie went to HITEC's personnel department to But in the case, Zamora was rehired after the
inquire why she was not yet being recalled for completion of every project throughout the period
another temporary contract. She was told that her of his employment with the company which ranged
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for quite a long time. Thus, he should be when the line man trainees were given an
considered a regular employee, (Philippine additional probationary period of another ten (10)
National Construction Corporation vs. National months, may be considered as a circumvention of
Labor Relations Commission, et al, G.R No. the rule on probationary employment.
95816, 27 October 1972. J. Grino-Aquino)
ALTERNATIVE ANSWER: Thus, because they were already regular
a) Zamora is a regular employee because he was employees after the first six (6) month period, from
engaged to work in various projects of ACC for a said date, they are entitled to the CBA increases
considerable length of time, on an activity that is provided for regular employee.
usually necessary desirable in the usual business ALTERNATIVE ANSWER:
or trade of ACC. (Mehitabel Furniture vs. NLRC, They are not entitled to the wage adjustments
220 SCRA 602) under the CBA that were given when they were not
yet regular employees.
b) Zamora is a regular employee. Article 280 of
the Labor Code declares with unmistakable clarity: But if by virtue of their becoming regular
THE PROVISIONS OF WRITTEN AGREEMENT employees, they are now part of the appropriate
TO THE CONTRARY NOTWITHSTANDING, xxx collective bargaining unit defined by the CBA, their
an employment shall be deemed to be regular not being union members is not a bar to their
where the employee has been engaged to perform receipt of any wage adjustments given under the
activities which are usually necessary or desirable CBA, after they become regular employees.
in the usual business or trade of the employer."
Employee; Regular Employees vs. Project
He is not a CONTRACT or TEMPORARY Employee (1998)
WORKER because even the provisions of the A Construction Group hired Engineer "A" as a
simulated contracts were not followed when his job Project Engineer in 1987. He was assigned to five
was used continuously. He is not a project (5) successive separate projects. All five (5)
employee, as the term is understood in Art. 280 or Contracts of Employment he signed, specified the
under Policy Instruction No. 20. name of the project, its duration, and the
temporary-project nature of the engagement of his
Employee; Regular Employees (1995) services. Upon completion of the fifth [5th) project
ILECO is an electric cooperative which accepted in August 1998, his services were terminated. He
fresh graduates from a vocational school as worked for a total of ten (10) years (1987-1998) in
lineman trainees for six (6) months after which they the five (5) separate projects.
were hired as probationary employees for another Six months after his separation, the Group won a
ten (10) months. Thereafter, they were made bid for a large construction project. The Group did
regular employees. These employees then sought not engage the services of Engineer "A" as a
entitlement to salary increases under the existing Project Engineer for this new project; instead, it
Collective Bargaining Agreement (CBA) which engaged the services of Engineer "B".
were given at the time when they were not yet
regular employees, hence, not yet members of the Engineer "A" claims that by virtue of the nature of
employees' union. ILECO denied their claims his functions, i.e., Engineer in a Construction
because they were not yet regular members when Group, and his long years of service he had
the CBA took effect and therefore not entitled to rendered to the Group, he is a regular employee
wage adjustments thereunder. and not a project engineer at the time he was first
hired. Furthermore, the hiring of Engineer "B"
Resolve the Issue. Discuss fully. showed that there is a continuing need for his
SUGGESTED ANSWER: services.
In implementing a CBA that provides for salary Is the claim of Engineer "A" correct? [5%]
increases to regular employees, it is but logical that SUGGESTED ANSWER:
said salary increases should be given to The claim of Engineer "A" that he is a regular
employees only from the time they are regular employee and not a protect employee is not
employees. correct. The Labor Code provides:
Art. 280. Regular and Casual Employment. -
Given the facts mentioned in the question, the An employment shall be deemed to be regular
lineman trainees that ILECO hired became regular where the employee has been engaged to
employees six (6) months after they were hired. perform activities which are usually necessary
The Labor Code provides that probationary or desirable in the usual business or trade of the
employment shall not exceed six (6) months from employer, except, where the employment has
the date the employee started working. Double been fixed for a specific project or undertaking
probation, which happened in the case in question the completion of which has been determined at
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the time of the engagement of the employee. SUGGESTED ANSWER:
(underscoring supplied) Yes. The principal test for determining whether a
particular employee is a "project employee" as
In all the five (5) successive contracts of distinguished from a "regular employee" is whether
employment of Engineer "A" the name of the or not the "PROJECT EMPLOYEE" was assigned
project, its duration, and the temporary project to carry out a "specific project or undertaking," the
nature of the engagement of his services are duration and scope of which were specified at the
clearly stated: hence, Engineer "A" falls within the time the employee was engaged for the projects.
exemption of Art. 280. The Supreme Court has
ruled as follows: Manansag v. NLRC, 218 SCRA In the problem given, there is no showing that
722 (1993) Omar was informed that he was to be assigned to
The fact that the petitioners worked for several a "specific project or undertaking." Neither has it
projects of private respondent company is no been established that he was informed of the
basis to consider them as regular employees. duration and scope of such project or undertaking
By the very nature of their employer's business, at the time of his engagement. [Philex Mining Corp.
they will always remain project employees v. NLRC, 312 SCRA 119 (1999)]
regardless of the number of projects in which
they have worked. Moreover, the re-hiring of Omar is sufficient
evidence of the necessity or the indispensability of
De Ocampo v NLRC, 186 SCRA 361 (1990] his services to the company's business. [Aurora
[Project employees] are not considered regular Land Projects Corp v. NLRC, 266 SCRA 48(1997}]
employees, their services, being needed only Hence, Omar is correct in claiming that he is a
when there are projects to be undertaken. The regular employee of Design Consultants, Inc.
rationale for this rule, is that if a project has ANOTHER SUGGESTED ANSWER:
already been completed, it would be unjust to Omar is not correct Omar is a project employee as
require the employer to maintain them in the defined by Art. 280 of Labor Code. He was hired
payroll while they are doing absolutely nothing for a specific project with fixed periods of
except waiting for another project. employment, specifically: two (2) years for the first
contract, and nine (9) months for the second
ANOTHER SUGGESTED ANSWER: contract. A project employee who is hired for a
The claim of Engineer "A" is not correct. The fact specific project only is not a regular employee
that he has been working for Construction Group notwithstanding an extension of the project
for a total of ten (1O) years does not make him a provided that the contract of project employment
regular employee when it is very clear from the clearly specifies the project and the duration
Contracts of Employment he signed that he was thereof. [Palomares v. NLRC, 277 SCRA 439
always being engaged as a project employee. (1997}]

The tenure of a project employee is co-terminous Prescriptive period; illegal dismissal (1994)
with the project in connection with which his On October 30, 1980, A, an employee, was served
services were engaged. Thus, after the end of the notice of dismissal allegedly for gross dishonesty.
project, the employer-employee relationship Forthwith, the Union to which A was a member
ceases to exist. Such project employee has no raised A's dismissal with the grievance machinery
legal right to insist that he should be employed by as provided for in its Collective Bargaining
the Construction Group for a subsequent project of Agreement (CBA). At that point, negotiations for a
said Group. new CBA was in progress. Hence, both the Union
and the Company had very little time to address
Employee; Regular vs. Project Employees A's grievance. In fact, said grievance, as it were,
(2002) slept the sleep of the dead, being resolved only
Design Consultants, Inc. was engaged by the with finality on November 23, 1983 when the
PNCC to supervise the construction of the South General Manager of the Company affirmed A's
Expressway Extension. Design Consultants, Inc. dismissal on the fifth and the last step of the
hired Omar as a driver for two (2) years. After his grievance machinery.
two-year contract expired, he was extended
another contract for nine (9) months. These A filed an action for illegal dismissal with the
contracts were entered into during the various Arbitration Branch of the NLRC on November 25,
stages and before the completion of the extension 1983. The Company immediately filed a Motion to
project. Omar claims that because of these Dismiss on the ground of prescription, invoking
repeated contracts, he is now a regular employee Article 290 of the Labor Code.
of Design Consultants. Inc. Is he correct? Explain
briefly. (5%)
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If you were the Labor Arbiter, how would you distinct from a criminal action. Each may proceed
resolve the Company's Motion to Dismiss? independently of each other.
SUGGESTED ANSWER:
As the Labor Arbiter, I will deny the Motion to The right to file an action for illegal dismissal is not
Dismiss. Where an employee was dismissed and dependent upon the outcome of the criminal case.
the matter of his dismissal was then referred to the Guilt or innocence in the criminal case is not
grievance machinery pursuant to the provision in determinative of the existence of a just or
the existing collective bargaining agreement, and authorized cause for a dismissal. [Pepsi-Cola
the grievance machinery had a final meeting after Bottling Co. v. Guanzon 172 SCRA 571(1989)}
quite a long while thereafter, the complaint for
Illegal dismissal was then filed, the action was not SUGGESTED ANSWER:
barred by laches, as the pendency of the matter B. I agree with the statement. A case of illegal
before the grievance machinery affected the dismissal filed by an employee who has been
ripeness of the cause of action for illegal dismissal. terminated without a just or authorized cause is not
(Radio Communications of the Philippines, Inc. a money claim covered by Art. 291 of the Labor
(RCPI), vs. National Labor Relations Commission, Code. An employee who is unjustly dismissed from
et al G.R No. 102958, 25 June 1993, J. Davide, Jr. work is entitled to reinstatement and to his
223 SCRA 656. backwages. A case of illegal dismissal is based
ALTERNATIVE ANSWER: upon an injury to the right to security of tenure of
If I were the Labor Arbiter, I will deny the motion to an employee. Thus, in accordance with Art 1146, it
dismiss because the action for Illegal dismissal has must be instituted within four years. [Callanta v.
not yet prescribed. The prescriptive period for an Carnation Phil. 145 SCRA 268(1986); Baliwag
action for illegal dismissal is four {4} years. Transit v. Ople 171 SCRA 250(1989); International
(Callanta vs. Carnation ,145 SCRA 268) Harvester Macleod, Inc. v. NLRC, 200 SCRA
817(1991)]
Prescriptive period; illegal dismissal (2002)
A. State your agreement or disagreement with Prescriptive period; illegal dismissal (1997)
the following statement and explain your answer The general manager of Junk Food Manufacturing
briefly: A criminal case filed against an employee Corporation dismissed Andrew Tan, a rank-and-file
does not have the effect of suspending or employee, on the ground of insubordination. The
interrupting the running of the prescriptive period general manager served on Andrew Tan the letter
for the filing of an action for illegal dismissal (2%) of termination effective upon receipt which was on
08 March 1992. Shocked by his unexpected
B. State your agreement or disagreement with dismissal, Andrew Tan confronted the general
the following statement and explain your answer manager and hit the latter on the head with a leap
briefly: The period of prescription in Article 291 of pipe.
the Labor Code applies only to money claims so
that the period of prescription for other cases of Junk Food Manufacturing filed a complaint in court
injury to the rights of employees is governed by the against Andrew Tan for less serious physical
Civil Code. Thus, an action for reinstatement for injuries. Somehow, Andrew Tan was acquitted by
injury to an employee's rights prescribes in four (4) the court assigned to hear the criminal case. A few
years as provided in Article 1146 of the Civil Code. days following his acquittal, or on 01 March 1996,
(3%) Andrew Tan filed complaint against the company
SUGGESTED ANSWER: for illegal dismissal, reinstatement and the
A. I agree. The two (2) cases, namely: the criminal payment of backwages and damages.
case where the employee is the accused; and the a) Was the complaint filed by Andrew Tan for
case for illegal dismissal, where the employee illegal dismissal within the reglementary period
would be the complainant, are two (2) separate granted by law?
and independent actions governed by different b) What reliefs may Andrew Tan be entitled to if
rules, venues, and procedures. The criminal case the Labor Arbiter finds just cause for
is within the jurisdiction of the regular courts of law termination but that the requirements of notice
and governed by the rules of procedure in criminal and hearing are not complied with?
cases. The action for the administrative aspect of SUGGESTED ANSWER:
illegal dismissal would be filed with the NLRC and (a) Yes. The complaint was filed within four (4)
governed by the procedural rules of the Labor years from the date Andrew Tan was dismissed by
Code. his employer. Illegal dismissal, as a cause of
ANOTHER SUGGESTED ANSWER: action, prescribes after four (4) years from the time
I agree. An action for illegal dismissal is an the cause of action, namely, illegal dismissal took
administrative case which is entirely separate and 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 was merely a merger, but it really was a projected
the time the right of the action accrues. (Art. 1146 buy-out. While dire necessity as a reason for
of the Civil Code) signing a quitclaim is not acceptable reason to set
aside a quitclaim in the absence of showing that
(b) Andrew Tan would be entitled to an indemnity the employee has been forced to execute it, such
of P1,000 to P10,000 from his employer for the reason gains importance if the consideration is
latter's non-compliance of the requirements of unconscionable, low and the employee has been
notice and hearing in cases of termination of tricked Into accepting it. (Wyeth-Suaco v. NLRC,
employment. (Wenphil Philippines v. NLRC, 176 219 SCRA 356)
SCRA 66)
Resignation; Voluntary; Quitclaims (1999)
Resignation; Voluntary; Quitclaim (1994) FACTS: International Motors Corporation (IMC)
Nonoy Santos was employed as a middle undertook a reorganization of the company and
management employee in Company A. In the right-sizing of its personnel complement due to the
course of his employment he was told by his current financial crisis. The affected employees
superiors of the possible merger between were given the option to resign with corresponding
Company A and Company B. Fearing that he might generous benefits attending such option. The said
lose his Job upon the merger of the two employees opted to resignation on account of
companies, he looked for and found another job. these negotiated benefits; and after receipt of
Upon resignation he was given separation pay which, they executed quitclaims in favor of IMC.
equivalent to one month's pay per year of service, Immediately thereafter, the employees voluntarily
although technically speaking, he is not entitled resigned for valuable consideration and that, in any
thereto being a resigned employee. Mr. Santos case, they have executed quitclaims in favor of the
executed a quitclaim and Waiver upon receipt of company. The employees, however, claimed that
his separation pay benefits. they were forced to resign, and that they executed
the quitclaims only because of dire necessity.
The merger between the two companies turned out Is the company guilty of Illegal dismissal? Why?
to be a buy-out by the latter of the former. At this (3%)
point, Company A's employees, save for a handful, SUGGESTED ANSWER:
were dismissed upon payment of separation pays NO. The company is not guilty of illegal dismissal
equivalent to three (3) months for every year of since the facts clearly indicate that the "employees
service because of the Union's efforts on the were given the option to resign with corresponding
workers' behalf. Feeling aggrieved, Santos generous benefits attending such option" and that
subsequently charged Company A with these employees "opted for resignation on account
discrimination, constructive dismissal, of these negotiated benefits". Nothing in the facts
underpayment, resignation, separation benefits indicate that their consent to the waiver of benefits
and reinstatement. under the Labor Code was vitiated by fraud,
violence, undue influence or any other vice or
The Labor Arbiter and NLRC sustained Company defect.
A's position that Santos' quitclaim is valid, and that ALTERNATIVE ANSWER:
as a manager he knew the import of what he was The company is not guilty of Illegal dismissal.
signing and, therefore, estopped from claiming According to the facts of the case, the employees
otherwise. opted to resign voluntarily, considering the
Are the Labor Arbiter and the NLRC correct? generous benefits given to them in connection with
SUGGESTED ANSWER: such resignation.
The Labor Arbiter and the NLRC are correct. VOLUNTARY RESIGNATION cannot be
Santos was not coerced into resigning. He considered as illegal dismissal. (SamanIego v.
voluntarily resigned. Then, upon receipt of the NLRC, 198 SCRA 111)
separation pay that technically he was not entitled
to receive, he voluntarily executed a quitclaim and Can the quitclaim be annulled on the ground of
waiver. These facts show beyond doubt that he is "dire necessity"? Why? [2%]
estopped from claiming he was a victim of SUGGESTED ANSWER:
discrimination. (Enieda MonttUa vs. National Labor A quitclaim case can be annulled on the ground of
Relations Commission, et al, G.R No, 71504, 17 its being entered into involuntarily by employees
Decernber 1993, J. Nocon, 228 SCRA 538) because of "dire necessity". Thus, if it was dire
ALTERNATIVE ANSWER; necessity that forced a worker to sign a quitclaim
Both the Labor Arbiter and NLRC are not correct. even if the amount of money given to him by the
Santos resigned because of the uncertainty as to employer was very much less than what the
the future of Company A, he was made to believe workers was entitled to receive, then the quitclaim
that the deal between Company A and Company B was not voluntary, and thus, the said quitclaim is
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null and void. In a case (Veloso v. DOLE, 200 whichever is higher." The Company, due to poor
SCRA 201) the Supreme Court held that "dire business conditions, decided to cease operations
necessity" is not an acceptable ground for and gave its employees the required one month's
annulling the releases, especially since it has not advance notice as well as notice to DOLE, with the
been shown that the employees had been forced further advice that each employee may claim his
to execute them. It has not been proven that the corresponding separation or retirement benefits
considerations for the quitclaims were whichever is higher after executing the required
unconscionably low and that the petitioners had waiver and quitclaim.
been tricked into accepting them.
Dino Ramos and his co-employees who have all
Retirement; Optional Retirement (2005) rendered more than 25 years of service, received
(1) Ricky Marvin had worked for more than ten their retirement benefits. Soon after, Ramos and
(10) years in IGB Corporation. Under the terms of others similarly situated demanded for their
the personnel policy on retirement, any employee separation pay. The Company refused, claiming
who had reached the age of 65 and completed at that under the CBA they cannot receive both
least ten (10) years of service would be benefits.
compulsorily retired and paid 30 days' pay for Who is correct, the employees or the Company?
every year of service. SUGGESTED ANSWER:
The employees are correct. In the absence of a
Ricky Marvin, whose immigrant visa to the USA categorical provision in the Retirement Plan and
had just been approved, celebrated his 60th the CBA that an employee who receives
birthday recently. He decided to retire and move to separation pay is no longer entitled to retirement
California where the son who petitioned him had benefits, the employee is entitled to the payment of
settled. The company refused to grant him any both benefits pursuant to the social justice policy.
retirement benefits on the ground that he had not (Conrado M. Aquino, et al v. National Labor
yet attained the compulsory retirement age of 65 Relations Commission, et al, G.R No. 87653, 11
years as required by its personnel policy; February 1992)
moreover, it did not have a policy on optional or ALTERNATIVE ANSWER:
early retirement. a) The Company is correct. The CBA clearly
provides that employees who are terminated are
Taking up the cudgels for Ricky Marvin, the union entitled to retirement benefits or separation pay,
raised the issue in the grievance machinery as whichever is higher. The CBA, therefore, does not
stipulated in the CBA. No settlement was arrived give the employees a right to both retirement pay
at, and the matter was referred to voluntary and separation pay. Hence, they cannot be entitled
arbitration. to both. The exclusion of one by the other is
If you were the Voluntary Arbitrator, how would you deductible not only from the term "or" but also by
decide? Briefly explain the reasons for your award. the qualifying phrase "whichever is higher". This
(5%) phrase would be immaterial if the employees were
SUGGESTED ANSWER: entitled to both.
I will decide the case in accordance with the
Retirement Law. (R.A. No. 7641) Under the law, b) Dino and his co-employees were correct. In the
Ricky Marvin is entitled to Optional Retirement at case of University of the East vs. NLRC, it was
age 60 since he has served the Company for at clarified that the retirement benefits arising from
least 5 years, in fact 10 years already. He will also the CBA is an Obligation Ex Contractu while
receive 22.5 days for every year of service. separation pay under Art. 284 is an Obligation Ex-
(Capitol Wireless v. Confesor, G.R. No. 117174, Lege.
November 13, 1996)
Thus, the Company should grant both benefits to
Retirement; Retirement Benefits (1994) those who were separated due to CLOSURE and
A Collective Bargaining Agreement (CBA) between at the same time were qualified to retire. (Cipriano
Company A and its employees provides for optimal v. San Miguel, 24 SCRA 703)
retirement benefits for employees who have served
the company for over 25 years regardless of age, Retirement; Retirement Pay (2001)
equivalent to one-and-one-half months pay per B. Ukol was compulsorily retired by his employer,
year of service based on the employee's last pay. Kurot Bottling Corporation, upon the former's
The CBA further provides that "employees whose reaching 65 years of age, having rendered 30
services are terminated, except for cause, shall years of service. Since there was no CBA, B. Ukol
receive said retirement benefits regardless of age was paid his retirement benefits computed 15
or service record with the company or to the days' pay for every year of service, based on B.
applicable separation pay provided by law, Ukol's highest salary during each year of his
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employment. Not satisfied, B. Ukol filed action with No. 626, as amended. The GSIS granted the claim
the Arbitration Branch of the NLRC claiming that and awarded Efrenia permanent partial disability
his retirement benefits were not computed benefits.
properly. Is B. Ukol's claim meritorious? What are
the components of his retirement benefits? (2%), After she underwent a surgical operation on her
SUGGESTED ANSWER: spine in November, 1985, her condition worsened.
Ukol's claim is meritorious. His retirement benefit is
to be computed in accordance with Article 287, In 1990, Efrenia filed with the GSIS a petition for
which reads: "In the absence of a retirement plan conversion of her disability status to permanent
or agreement providing for retirement benefits of total disabilities with corresponding adjustment of
employees in the establishment, an employee may benefits. GSIS denied the claim stating that after
retire ... and shall be entitled to retirement pay Efrenia's retirement, any progression of her ailment
equivalent to at least one-half (1/2) month salary is no longer compensable.
for every year of service, a fraction of at least six
months being considered as one whole year. The Is the GSIS correct in denying the claim. Explain.
same Article then explains that the term one-half SUGGESTED ANSWER:
(1/2) month salary means fifteen days plus one- Considering that the disability of Reyes is work
twelfth (1/12) of the 13th month pay and the cash connected, the provisions of the Labor Code
equivalent of not more than five (5) days of service dealing with employees compensation should
incentive leaves. determine her right to benefits.
The components of retirement pay are:
(1) 15 days pay According to said provisions, if any employee
(2) 1/12 of the 13th month pay. and under permanent partial disability suffers another
(3) cash equivalent of not more than five (5) days injury which results in a compensable disability
of service incentive leave. greater than the previous injury, the State
Insurance Fund shall be liable for the income
(b) What exception(s) do(es) the law on benefit of the new disability even after her
retirement benefits provide(s) if any? (3%). retirement.
SUGGESTED ANSWER:
Retail, service and agricultural establishments or Was Reyes still an "employee" for the purpose of
operations employing not more than ten (10) applying the above provision of the Labor Code?
employees or workers are exempted from the Liberally construing said provision. Reyes may be
coverage of the provision on retirement benefits in considered still as an employee so that she could
the Labor Code. receive additional benefits for the progression of
her ailment.
Also, where there is a retirement plan of the ALTERNATIVE ANSWERS:
employer that grants more than what the Labor a) No. When an employee is constrained to retire
Code grants. at an early age due to his illness and the illness
persists even after retirement, resulting in his
SOCIAL LEGISLATIONS continued unemployment, such condition amounts
to total disability which should entitle him to the
maximum benefits allowed by law. Her disability
Employees Compensation Act; Work-
which should entitle her to the maximum falls
Connected Disability (1996)
within the definition of permanent total disability.
Efrenia Reyes was a classroom teacher assigned
by the Department of Education, Culture and
b) No, the GSIS erred in denying the claim. Note,
Sports (DECS) in Panitan, Capiz. She has been in
that the original claim and grant of benefits was
the government service since 1951 up to
based on Presidential Decree No, 626, or Book IV,
November, 1985 when she retired at 55 due to
Title II of the Labor Code: Employees
poor health.
Compensation and State Insurance Fund. The
same law does not provide for separation fee from
In March, 1982, while she was teaching her Grade
employment as a basis for denial of benefits.
1 pupils the proper way of scrubbing and sweeping
the floor, she accidentally slipped. Her back hit the
The worsening of the school teacher's condition is
edge of a desk. She later complained of weak
a direct result, or a continuing result of the first
lower extremities and difficulty in walking. After an
injury which was deemed work-connected by the
X-ray examination, she was found to be suffering
GSIS and hence compensable.
from Pott's disease and was advised to undergo an
operation. In 1985, she filed with the GSIS a claim
In Diopenes vs. GSIS, 205 SCRA 331 (1992), the
for disability benefits under Presidential Decree
Supreme Court cautioned against a too strict
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interpretation of the law which may be detrimental DAM on or before the scheduled date of the
to claimants and advised the GSIS of the contest."
constitutional mandate on protection to labor and
the promotion of social Justice. Said the Court: Mordero complied with his superior's instruction
The GSIS and the ECC should be commended and constructed an improvised electric microdam,
for their vigilance against unjustified claims that which he took home to enable him to finish it
will only deplete the funds intended to be before the deadline. On May 27, 1997, while
disbursed for the benefit only of deserving working on the MODEL DAM Project in his house,
disabled employees. Nevertheless, we should he came to contact with a live wire and was
caution against a too strict interpretation of the electrocuted. He was immediately brought to a
rules that will result in the withholding of full clinic for emergency treatment but was pronounced
assistance from those whose capabilities have dead on arrival. The death certificate showed that
been diminished if not completely impaired as a he died of cardiac arrest due to accidental
compensation of their service in the electrocution.
government. A humanitarian impulse dictated by
no less than the Constitution itself under the Pepay Palaypay (Pitoy Mondero's common-law
social justice policy, calls for a liberal and wife for more than twenty years) and a Pitoy
symphathetic approach to the legitimate appeals Mordero Jr. (his only son) filed a claim for death
of disabled public servants. Compassion for benefits with the Government Service Insurance
them is not a dole but a right. System (GSIS), which was denied on the ground
that Pitoy Mordeno's death did not arise out of and
GSIS; Benefits (2004) in the course of employment and therefore not
B. Atty. CLM, a dedicated and efficient public compensable because the accident occurred in his
official, was the top executive of a government house and not in the school premises.
owned and controlled corporation (GOCC). While
inspecting an ongoing project in a remote village in Is Pepay Palaypay entitled to file a claim for
Mindanao, she suffered a stroke and since then death benefits with the GSIS? Why? (2%)
had been confined to a wheelchair. At the time SUGGESTED ANSWER:
she stopped working because of her illness in line The beneficiaries of a member of the GSIS are
of duty, Atty. CLM was only sixty years old but she entitled to the benefits arising from the death of
had been an active member of the GSIS for thirty said member. Death benefits are called
years without any break in her service record. survivorship benefits under the GSIS Law.

What benefits could she claim from the GSIS? Not being a beneficiary, Pepay Palaypay to not
Cite at least five benefits. (5%) entitled to receive survivorship benefits. She is not
SUGGESTED ANSWER: a beneficiary because she to a common-law wife
The benefits Atty. CLM could claim from the GSIS and not a legal dependent spouse.
are:
(1) Employees compensation which shall include Is the cause of death of Pitoy Mordeno (cardiac
both income and medical and related benefits, arrest due to accidental electrocution in his
including rehabilitation; house) compensable? Why? (3%).
(2) Temporary total disability benefit; SUGGESTED ANSWER:
(3) Permanent total disability benefit; Yes. To be compensable under the GSIS Law, the
(4) Separation benefit; and death need not be work connected.
(5) Retirement benefit.
GSIS; Death Benefits; Dependent; 24-hour
GSIS; Death Benefit (1999) Duty Rule (2005)
FACTS: Pitoy Mondero was employed as a public Odeck, a policeman, was on leave for a month.
school teacher at the Marinduque High School While resting in their house, he heard two of his
from July 1, 1983 until his untimely demise on May neighbors fighting with each other. Odeck rushed
27, 1997. to the scene intending to pacify the protagonists.
However, he was shot to death by one of the
On April 27, 1997, a memorandum was issued by protagonists. Zhop, a housemaid, was Odeck's
the school principal, which reads: "You are hereby surviving spouse whom he had abandoned for
designated to prepare the MODEL DAM project, another woman years back. When she learned of
which will be the official entry of or school the Odeck's death, Zhop filed a claim with the GSIS for
forthcoming Division Search for Outstanding death benefits. However, her claim was denied
Improvised Secondary Science Equipment for because: (a) when Odeck was killed, he was on
Teachers to be held in Manila on June 4, 1997. leave; and (b) she was not the dependent spouse
You are hereby instructed to complete this MODEL of Odeck when he died.
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Resolve with reasons whether GSIS is correct in How many times may a male employee go on
denying the claim. (5%) Paternity Leave? Can he avail himself of this
ALTERNATIVE ANSWER: benefit for example, 50 days after the first delivery
Yes, because under the law, a dependent is one by his wife? (3%)
who is a legitimate spouse living with the SUGGESTED ANSWER:
employee. (Article 167[i], Labor Code) In the A male employee may go on Paternity Leave up to
problem given, Zhop had been abandoned by four (4) children. (Sec. 2, RA 8187) On the
Odeck who was then living already with another question of whether or not he can avail himself of
woman at the time of his death. this benefit 50 days after the delivery of his wife,
the answer is: Yes, he can because the Rules
Moreover, Odeck was on leave when he was Implementing Paternity Leave Act says that the
killed. The 24-hour duty rule does not apply when availment should not be later than 60 days after
the policeman is on vacation leave. (Employees' the date of delivery.
Compensation Commission v. Court of Appeals,
G.R. No. 121545, November 14, 1996) Taking Paternity Leave; Maternity Leave (2005)
together jurisprudence and the pertinent guidelines Mans Weto had been an employee of Nopolt
of the ECC with respect to claims for death Assurance Company for the last ten (10) years. His
benefits, namely: wife of six (6) years died last year. They had four
(a) that the employee must be at the place where (4) children. He then fell in love with Jovy, his co-
his work requires him to be; employee, and they got married.
(b) that the employee must have been performing
his official functions; and In October this year, Weto's new wife is expected
(c) that if the injury is sustained elsewhere, the to give birth to her first child. He has accordingly
employee must have been executing an order filed his application for paternity leave, conformably
for the employer, it is not difficult to understand with the provisions of the Paternity Leave Law
then why Zhop's claim was denied by the which took effect in 1996. The HRD manager of
GSIS. (Tancinco v. Government Service the assurance firm denied his application, on the
Insurance System, G.R. No. 132916, ground that Weto had already used up his
November 16, 2001) entitlement under the law. Weto argued that he
has a new wife who will be giving birth for the first
In the present case, Odeck was resting at his time, therefore, his entitlement to paternity leave
house when the incident happened; thus, he was benefits would begin to run anew. (6%)
not at the place where his work required him to be. (a) Whose contention is correct, Weto or the
Although at the time of his death Odeck was HRD manager?
performing a police function, it cannot be said that ALTERNATIVE ANSWER:
his death occurred elsewhere other than the place The contention of Weto is correct. The law
where he was supposed to be because he was provides that every married male is entitled to a
executing an order for his employer. paternity leave of seven (7) days for the first four
ALTERNATIVE ANSWER: (4) deliveries of the legitimate spouse with whom
GSIS is correct in denying the claim not on the he is cohabiting. Jovy is Weto's legitimate spouse
grounds provided in the problem but for the reason with whom he is cohabiting. The fact that Jovy is
that uniformed members of the PNP are not his second wife and that Weto had 4 children with
covered by R.A. No. 8291 or the GSIS Law of his first wife is beside the point. The important fact
1997. is that this is the first child of Jovy with Weto. The
law did not distinguish and we should therefore not
Maternity Benefits (2000) distinguish.
Ms. Sara Mira is an unwed mother with three
children from three different fathers. In 1999, she The paternity leave was intended to enable the
became a member of the Social Security System. husband to effectively lend support to his wife in
In August 2000, she suffered a miscarriage, also her period of recovery and/or in the nursing of the
out of wedlock, and again by a different father. Can newly born child. (Sec. 3, RA. No. 8187) To deny
Ms. Mira claim maternity benefits under the Social Weto this benefit would be to defeat the rationale
Security Act of 1997? Reason. (5%) for the law. Moreover, the case of Weto is a gray
SUGGESTED ANSWER: area and the doubt should be resolved in his favor.
Yes, she can claim maternity benefit. Entitlement ALTERNATIVE ANSWER:
thereto is not dependent on the claimant's being Weto's contention is correct. R.A. No. 8187
legally married. (Sec. 14-A, Social Security Act of provides that paternity leave of (7) days with full
1997). pay shall be granted to all married employees in
the private and public sectors for the first four (4)
Paternity Leave (2002) 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 observance of club rules, he can be disciplined by
first (4) deliveries provided by law, shall apply to being barred from the premises of Barili Golf.
the new legitimate spouse of Weto with whom he is
cohabiting. Is Marvin within the compulsory coverage of the
ALTERNATIVE ANSWER: Social Security System? Why? (5%)
Since R.A. No. 8282 is silent on the matter, the SUGGESTED ANSWER:
doubt should be resolved in favor of the second Because he is not an employee of the Barili Golf &
wife. Country Club, Marvin is not within the compulsory
coverage of the Social Security System. Marvin is
(b) Is Jovy entitled to maternity leave not an employee of the club because under the
benefits? specific circumstances of his relations with the
Yes, Jovy's maternity benefit is personal to her and club, he is not under the orders of the club as
she is entitled under the law to avail herself of the regards employment which would have made him
same for the first four times of her deliver. (R.A. an employee of the club. (See Manila Golf &
No. 8282) Country Club, Inc. v. IAC, 237 SCRA 207)

SSS; Compulsory Coverage (1995) But Marvin is within the compulsory coverage of
Big Foot Company of Paete, Laguna, has been in the SSS as a self-employed person. (See Section
the business of manufacturing wooden sandals for 9-A, Social Security Law of 1957)
export since 5 November 1980. On 5 January
1994 it employed an additional labor complement SSS; Compulsory Coverage (2000)
of thirty workers, two supervisors and two The Collective Bargaining Agreement of the
department managers. On 5 February 1994 it hired Golden Corporation Inc. and the Golden
five carpenters to fix the roof and walls of its Corporation Workers Union provides a package of
factory which were destroyed by typhoon welfare benefits far superior in comparison with
"Huaning." those provided for in the Social Security Act of
1997. The welfare plan of the company is funded
Who among the aforementioned persons are solely by the employer with no contributions from
compulsorily covered by the Social Security Law the employees. Admittedly, it is the best welfare
and when should they be considered effectively plan in the Philippines. The company and the
covered? Discuss fully. union jointly filed a petition with the Social Security
SUGGESTED ANSWER: System for exemption from coverage. Will the
Assuming that all of them were not yet over sixty petition for exemption from coverage prosper?
years of age, the additional labor complement of Reason. (5%)
thirty workers, two supervisors and two department SUGGESTED ANSWER:
managers were compulsorily covered by the Social No, because coverage under the SSS is
Security Law on 5 January 1994, when they were compulsory where employer-employee relations
employed. According to said law, workers are exist. However, if the private plan is superior to that
covered on the day of their employment. of the SSS, the plan may be integrated with the
SSS plan. Still, it is integration and not exemption
But the five carpenters which the company hired to from SSS law. (Philippine Blooming Mills Co., Inc.
fix the roof and walls of its factory were not under v. Social Security System, 17 SCRA 107(1966);
the compulsory coverage of the Social Security RA. No. 1161 as amended by RA No. 8282}.
Law because said carpenters are casual
employees. The Social Security Law provides that SSS; Compulsory Coverage (2002)
employment purely casual and not for the purpose The owners of FALCON Factory, a company
of occupation or the business of the employer are engaged in the assembling of automotive
not under its compulsory coverage. components, decided to have their building
renovated. Fifty (50) persons, composed of
SSS; Compulsory Coverage (1999) engineers, architects and other construction
Marvin Patrimonio is a caddy rendering caddying workers, were hired by the company for this
services for the members and guests of the Barili purpose. The work was estimated to be completed
Golf & Country Club. As such caddy, he is subject in three (3) years. The employees contended that
to Barili golfs rules and regulations governing since the work would be completed after more than
Caddies regarding conduct, dress, language, etc. one (1) year, they should be subject to compulsory
However, he does not have to observe any coverage under the Social Security Law. Do you
working hours, he is free to leave anytime he agree with their contention? Explain your answer
pleases; and he can stay away for as long as he fully. (5%)
likes. Nonetheless, if he is found remiss in the 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, sectors, whose creditable services or contributions
employment of purely casual and not for the in both systems credited to his service or
purpose of the occupation or business of the contribution record in each of the system and shall
employer are excepted from compulsory coverage. be totalized for purposes of old-age, disability,
An employment is purely casual if it is not for the survivorship and other benefits. (Sec. 3, R.A. No.
purpose of occupation or business of the 7699)
employer.
The "portability" provisions of R.A. No. 7699 allow
In the problem given, Falcon Factory is a company the transfer of funds for the account and benefit of
engaged in the assembling of automotive the worker who transfers from one system to
components. another.

The fifty (50) persons (engineers, architects and This is advantageous to the SSS and GSIS
construction workers) were hired by Falcon Factory members for purposes of death, disability or
to renovate its building. The work to be performed retirement benefits. In the event the employees
by these fifty (60) people is not in connection with transfer from the private sector to the public sector,
the purpose of the business of the factory. Hence, or vice-versa, their creditable employment services
the employ of these fifty (50) persons is purely and contributions are carried over and transferred
casual. They are, therefore, excepted from the as well.
compulsory coverage of the SSS law.
ANOTHER SUGGESTED ANSWER: SSS; GSIS; Jurisdiction; Benefit Claims
I agree with the contention that the employees (1995)
hired by the owners of FALCON factory as Is it necessary for an employee to litigate in order
construction workers in the renovation of its to establish and enforce his right to compensation?
building should be under the compulsory coverage Explain.
of the Social Security Law. SUGGESTED ANSWER:
No. All that an employee does to claim employee's
It is true that in connection with FALCON Factory, compensation is to file a claim for said benefits
which is engaged in the assembling of automotive with the SSS (for those in the private sector) or
components, the construction workers may be GSIS (for those in the public sector).
considered casual employees because their
employment is not for the purpose of occupation of In the event that the claim is denied on the
business of FALCON Factory. As such, in SSS/GSIS level, claimant may appeal to the
accordance with Section 8{j) of the Social Security Employees Compensation Commission where he
Law, they are excepted form the compulsory may prove the causal connection between injury
coverage of the Social Security System. and nature of work.

But they could also be considered project SSS; Prescriptive Period; Benefit Claims
employees of FALCON Factory and as such could (2001)
be under the compulsory coverage of the SSS, (b) In 1960, Juan hired Pablo to drive for the
applying Art 4 of the Labor Code that provides that former's lumber company. In 1970, Pablo got sick
all doubts in the Implementation and interpretation and was temporarily laid-off. In 1972, Pablo
of the provisions of Labor Law shall be resolved in recovered and resumed working for the same
favor of labor. The employees here therefore, lumber company, now run by Juan's wife since
should be considered as under the compulsory Juan had already passed away. In 1996, Pablo
coverage of the SSS. retired. When Pablo applied for retirement benefits
with the SSS that same year, he discovered that
SSS; GSIS; Beneficiality; Portability the lumber company never enrolled him as an
Provisions of RA 7699 (2005) employee, much less remitted his contributions
How are the "portability" provisions of Republic Act that were deducted from his salary. The lumber
No. 7699 beneficial or advantageous to SSS and company agreed to pay for Pablo's contributions
GSIS members in terms of their creditable plus penalties but maintained that most of Pablo's
employment services in the private sector or the claims had already prescribed under Art, 1150 of
government, as the case may be, for purposes of the Civil Code. (Art. 1150 provides "The time for
death, disability or retirement? Please explain your prescription of all kinds of actions, when there is no
answer briefly. (3%) special provision which ordains otherwise, shall be
SUGGESTED ANSWER: counted from the day they may be brought."). Is
Portability provisions of R.A. No. 7699 shall benefit the Lumber company's contention correct? Why?
a covered worker who transfers employment from (3%),
one sector to another or is employed in both SUGGESTED ANSWER:
Page 106 of 108
LABOR LAW – Bar Q & A (as arranged by Topics) 1994-2006
The lumber company's contention is not correct. Samson Security Agency [SAMSON) undertook to
The Social Security Law (in Sec. 22(b) provides provide 24 hours security service to Jarillo Realty
that the right to institute the necessary action (JARILLO) in the latter's construction operations.
against an employer may be commenced within The contract between SAMSON and JARILLO
twenty (20) years from the time the delinquency is expressly stipulated that Samson's security guards
known or the assessment is made by the SSS, or are its employees and not that of JARILLO.
from the time the benefit accrues, as the case may SAMSON undertook to hold JARILLO free from
be. any liability whatsoever resulting from injuries
which its (SAMSON's) guards may suffer or be
SSS;GSIS; Employees Compensation Act exposed to suffer as guards of JARILLO's
(1997) construction operations.
State the respective coverages of {a} the Social
Security Law: (b) the Revised government Service To facilitate payment. JARILLO undertook to pay
Insurance Act and (c) the Employees directly to the guards the agreed wages, which are
Compensation Act. subsequently deducted from the monthly payments
SUGGESTED ANSWER: to SAMSON under its contract with JARILLO.
(a) Coverage of SSS (Sec. 9. RA 8282) shall be JARILLO, in turn, charges SAMSON for the
compulsory upon all employees not over sixty equipment supplied to the guards such as
years of age and their employers. uniforms, pistols and ammunition and cost of
Filipinos recruited in the Philippines by foreign- training of guards JARILLO wants replaced.
based employers for employment abroad may
be covered by the SSS on a voluntary basis. During a storm, several scaffoldings of JARILLO
Coverage in the SSS shall also be compulsory fell and killed two (2) guards whose families later
upon all self-employed persons earning sued JARILLO. JARILLO, in turn, impleaded
P1,800 or more per annum. SAMSON as third-party defendant before the
Arbiter.
(b) Membership in the Government Service Decide who should be held liable.
Insurance System (Art. 3, RA8291) shall be SUGGESTED ANSWER:
compulsory for all permanent employees below 60 Liability lies against the State Insurance Fund
years of age upon appointment to permanent administered by the SSS. This is a case of death in
status, and for all elective officials for the duration connection with the employees' work.
of their tenure.
Any person, whether elected or appointed, in Jarillo is deemed to be the employer of the guards
the service of an employer is a covered in view of the direct payment of wages to the
employee if he receives compensation for such guards. Thus, if there are benefits arising from
service. employer-employee relationship, Jarillo should be
held answerable.
(c) Coverage in the State Insurance Fund (Art, NOTE: The law involved, namely the law on
168, Labor Code) shall be compulsory upon all employees compensation and State Insurance
employers and their employees not over sixty (60) Fund was expressly excluded from this years bar
years of age; Provided, that an employee who is examination in Labor and Social Legislation.
over (60) years of age and paying contributions to
qualify for the retirement or life insurance benefit State Insurance Fund (1995)
administered by the System shall be subject to What is the extent of an employer's intervention in
compulsory coverage. the compensation process and the payment of
benefits to employees under the State Insurance
The Employees Compensation Commission shall Fund? Explain.
ensure adequate coverage of Filipino employees SUGGESTED ANSWER:
employed abroad, subject to regulations as it may The new law establishes a State Insurance Fund
prescribe. (Art, 170} built up by the contributions of employers based on
Any person compulsorily covered by the GSIS the salaries of their employees. The employer does
including the members of the Armed Forces of not intervene in the compensation process and it
the Philippines, and any person employed as has no control over the payment of benefits.
casual, emergency, temporary, substitute or
contractual, or any person compulsorily covered Unlike under the Workmen's Compensation Act,
by the SSS are covered by the Employees employers are no longer directly liable for the
Compensation Program. income and medical and related benefits that are
to be paid to covered employees if they should
State Insurance Fund (1994) 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 (FTAA) with Mr. Reyes to explore, develop, and
constituted from the contributions collected from utilize the land? Explain. (5%)
employers. SUGGESTED ANSWER:
NO. Only the President may enter into financial
and technical assistance agreements for large-
Stray Questions scale exploration development and utilization of
natural resources (Art. XII, Sec. 2, 1987 Consti-
Stray Problem; Political Law; Power of the tution). Moreover, forest lands are inalienable
President; FTAA (2006) lands of the state (La Bugal — B'laran Tribal
Armstrong Corporation, a foreign corporation, Association, Inc. v. Ramos, G.R. No. 127882,
intends to engage in the exploration of Philippine December 1, 2004).
natural resources. Mr. Antonio Reyes offered the N.B. This appears to be a proper question for Political
forest land he owns to the president of the Law.
corporation. May Armstrong Corporation enter into
a financial and technical assistance agreement

Page 108 of 108


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
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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.

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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

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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

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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

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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

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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

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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

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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

“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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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

“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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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

“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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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:
Labor Arbiter; Execution Order; Appeal
Yes, although Article 221 of the Labor (2007)
Code requires the Labor Arbiter to exert
all efforts to amicably settle the case 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 contract in Qatar. Aggrieved, Richie filed
finally, the conciliation of the issues with the NLRC a complaint against SR and
before the Barangay Lupong MRA for damages corresponding to his two
Tagapamayapa would only duplicate the years’ salary under the POEA-approved
conciliation proceedings and would contract.
unduly delay the disposition of labor
cases (Montoya v. Escayo, 171 SCRA 446 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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found Baker Company liable for illegal to fully settle the issues surrounding the
dismissal and ordered the payment of case [See: Art. 218(e), now Art. 224(e)].
separation pay and full backwages.

Through a petition for certiorari under Rule


Sec. of Labor; Assumption over Labor
65 of the Rules of Court, Baker Company
Dispute (2013)
challenged the validity of the NLRC ruling.
It argued that the NLRC acted with grave No. VII. Philippine Electric Company is
abuse of discretion when it ruled on the engaged in electric power generation and
illegal dismissal issue, when the only issue distribution. It is a unionized company with
brought on appeal was the legal propriety of Kilusang Makatao as the union
the financial assistance award. representing its rank-and-file employees.
During the negotiations for their expired
Cris countered that under Article 218(c) of collective bargaining agreement (CBA), the
the Labor Code, the NLRC has the authority parties duly served their proposals and
to "correct, amend, or waive any error, counter-proposals on one another. The
defect or irregularity whether in substance parties, however, failed to discuss the
or in form" in the exercise of its appellate merits of their proposals and counter-
jurisdiction. proposals in any formal negotiation meeting
because their talks already bogged down on
Decide the case. (8%)
the negotiation ground rules, i.e., on the
question of how they would conduct their
SUGGESTED ANSWER:
negotiations, particularly on whether to
The review power of the NLRC in consider retirement as a negotiable issue.
perfected appeals is limited only to
those issues raised on appeal. Hence, it Because of the continued impasse, the

is grave abuse of discretion for the NLRC union went on strike. The Secretary of

to resolve issues not raised on appeal Labor and Employment immediately

(United Placement International v. assumed jurisdiction over the dispute to

NLRC, 221 SCRA 445 [1993]). avert widespread electric power interruption
in the country. After extensive discussions
ALTERNATIVE ANSWER: and the filing of position papers (before the
National Conciliation and Mediation Board
In the exercise of its jurisdiction, the
and before the Secretary himself) on the
NLRC is empowered to determine even
validity of the union's strike and on the
the issues not raised on appeal in order

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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- personally remit his dues to the union.
off election, all the contending unions (3
Would the NTC management commit unfair
or more choices required) must have
labor practice if it desists from checking off
garnered 50% of the number of votes
Pablo's union dues for lack of individual
cast. In the present case, there are four
authorization from Pablo? (4%)
(4) contending unions and they garnered
216 votes. There were 400 vote cast. The
SUGGESTED ANSWER:
votes garnered by the contending unions
is even more than 50% of the number of No, under R.A. No. 9481, violation of the
vote cast. Hence, a run-off election is in Collective Bargaining Agreement, to be
order. an unfair labor practice, must be gross in
character. It must be a flagrant and
malicious refusal o comply with the
CBA; Check-Off Clause (2013) 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 For the 4th and 5th years of the CBA, the
the Union had not been submitted to significant improvements in wages and
conciliation or arbitration or had become other benefits obtained by the Union were:
the subject of a valid notice of strike or
lockout. Any of these 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]).
No. I. b. All confidential employees are
BLUE-SKY BARGAINING IS DEFINED as disqualified to unionize for the purpose of
―unrealistic and unreasonable demands collective bargaining. (5%)
in negotiations by either or both labor
and management, where neither SUGGESTED ANSWER:
concedes anything and demands the
impossible‖ (Standard Chartered Bank 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 bargain, absent any showing that such
ground rules on the second day, the union tend to show that the company did not
representatives reiterated their proposal for want to reach an agreement with the
a wage increase. When company Union. In fact, there is no deadlock to
representatives suggested a discussion of speak of in this case.
political provisions in the Collective
The duty to bargain does not compel
Bargaining Agreement as stipulated in the
either party to agree to a proposal or
ground rules, union members went on
require the making of a concession. The
mass leave the next day to participate in a
parties‘ failure to agree which to discuss
whole-day prayer rally in front of the
first on the bargaining table did not
company building.
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 least 15 days before the intended ULP
decision to conduct a strike vote, and grounded strike or at least 30 days prior
the date, place, and time thereof; to the deadlock in bargaining grounded
(5) Strike vote where majority of union strike; (2) Must comply with the strike
members approve the strike; vote requirement, meaning, a majority of
(6) Strike vote report should be the union membership in the bargaining
submitted to the NCMB at least 7 days unit must have voted for the staging of
before the intended date of strike; the strike, and notice hereon shall be
(7) Except in cases of union busting, the furnished to the NCMB at least 24 hours
cooling-off period prescribed (15 days, before the strike vote is taken; and (3)
unfair labor practice; 30 days, collective the strike vote results must be furnished
bargaining deadlock) should be fully to the NCMB at least 7 days before the
observed; intended strike. The dismissal of a duly
(8) 7-day waiting period or strike bans elected officer excuses, however, the
after submission of the strike vote report union from the 15/30 days cooling-off
to NCMB should be fully observed; requirement in Art. 263(c) of the Labor
(9) Not on grounds of ULP in violation of Code.
no-strike clause in CBA;
(10) Not visited with widespread
violence; Right to Strike; National Interest; DOLE
(11) Not in defiance of the Secretary‘s Sec. Intervention (2012)
assumption of jurisdiction order;
(12) Not prohibited by law (such as No. I. b1. A deadlock in the negotiations for
unions in the banking industry). the collective bargaining agreement between
College X and the Union prompted the
SECOND ALTERNATIVE ANSWER:
latter, after duly notifying the DOLE, to

A valid strike requires compliance of declare a strike on November 5. The strike

both substantial and procedural grounds. totally paralyzed the operations of the

Substantially, a valid strike has to be school. The Labor Secretary immediately

grounded on either unfair labor practice assumed jurisdiction over the dispute and

or deadlock in collective bargaining. issued on the same day (November 5) a

Procedurally, the same must comply return to work order. Upon receipt of the

with the requirements of: (1) notice of order, the striking union officers and

strike to be filed at least 15 days before members, on November 1, filed a Motion for

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

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Right to Strike; DOLE Sec. Intervention; This position of the union is flawed.
Return to Work (2012) Article 263(g) Labor Code provides that
―such assumption xxx shall have the
No. I. b 2. A deadlock in the negotiations for effect of automatically enjoining the
the collective bargaining agreement between intended or impending strike xxx. If one
College X and the Union prompted the has already taken place at the time of
latter, after duly notifying the DOLE, to assumption, xxx ‗all striking . .
declare a strike on November 5. The strike .employees shall immediately effective
totally paralyzed the operations of the and executor notwithstanding the filing
school. The Labor Secretary immediately of a motion for reconsideration (Ibid.,
assumed jurisdiction over the dispute and citing University of Sto. Tomas v. NLRC,
issued on the same day (November 5) a G.R. No. 89920, October 18, 1990, 190
return to work order. Upon receipt of the SCRA 759).
order, the striking union officers and
members, on November 1, filed a Motion for
Reconsideration thereof questioning the
Labor Secretary's assumption of Right to Strike; Stoppage of Work (2008)

jurisdiction, and continued with the strike


No. VI. a. On the day that the Union could
during the pendency of their motion. On
validly declare a strike, the Secretary of
November 30, the Labor Secretary denied
Labor issued an order assuming
the reconsideration of his return to work
jurisdiction over the dispute and enjoining
order and further noting the strikers' failure
the strike, or if one has commenced,
to immediately return to work, terminated
ordering the striking workers to
their employment. In assailing the Labor
immediately return to work. The return-to-
Secretary's decision, the Union contends
work order required the employees to
that:
return to work within twenty-four hours

The strikers were under no obligation to and was served at 8 a.m. of the day the

immediately comply with the November 5 strike was to start. The order at the same

return to work order because of their then time directed the Company to accept all

pending Motion for Reconsideration of such employees under the same terms and

order; conditions of employment prior to the work


stoppage. The Union members did not
SUGGESTED ANSWER: 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 No. XVI. a. On the first day of collective
unfair labor practices. Because of the bargaining negotiations between rank-and-
accompanying picket, some of the file Union A and B Bus Company, the
employees who wanted to return to work former proposed a P45/day increase. The
failed to do so. On the 3rd day, the workers company insisted that ground rules for
reported for work, claiming that they do so negotiations should first be established, to
in compliance with the Secretary's return- which the union agreed. After agreeing on
to-work order that binds them as well as ground rules on the second day, the union
the Company. The Company, however, representatives reiterated their proposal for
refused to admit them back since they had a wage increase. When company
violated the Secretary's return-to-work representatives suggested a discussion of
order and are now considered to have lost political provisions in the Collective
their employment status. Bargaining Agreement as stipulated in the
ground rules, union members went on
The Union officers and members filed a mass leave the next day to participate in a
complaint for illegal dismissal arguing that whole-day prayer rally in front of the
there was no strike but a protest rally company building.
which is a valid exercise of the workers
constitutional right to peaceable assembly The company filed a petition for assumption
and freedom of expression. Hence, there of jurisdiction with the Secretary of Labor
was no basis for the termination of their and Employment. The Union opposed the
employment. petition, arguing that it did not intend to
stage a strike. Should the petition be
You are the Labor Arbiter to whom the case granted? Explain. (2%)
was raffled. Decide, ruling on the following
issues: SUGGESTED ANSWER:

Yes, there was a strike. What the union


Was there a strike? (4%)
engaged in was actually a ―work

SUGGESTED ANSWER: stoppage‖ in the guise of a protest rally.

Article 212(o) of the Labor Code defines


Yes, there was a strike because of the
a strike as a temporary stoppage of work
concerted stoppage of work by the union
by the concerted action of employees as
members (Art. 212[o], Labor Code).
a result of an industrial or labor dispute.

Right to Strike; Strike Define (2010) 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 Workers Union v. Liberty Mills, Inc., G.R.
union as they had dissolved it. "Puwersa" No. L-33987, September 4, 1975; cited in
argued that since it won in a certification Filipino Pipe and Foundry Corp. v. NLRC,
election, it can validly perform its function G.R. No. 115180, November 16, 1999).
as a bargaining agent and represent the
rank-and-file employees despite the union's
dissolution. 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


activities. On the same day Johnny received
―Art. 239-A. Voluntary Cancellation of the notice of termination, the labor union
Registration. – the registration of a went on strike.
legitimate labor organization may be
cancelled by the organization itself: Management filed an action to declare the
Provided, That at least two-thirds of its strike illegal, contending that:
general membership votes, in a meeting
duly called for that purpose to dissolve 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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and drinks, and tips from generous No, while the GROs are considered
customers. In time, the GROs formed the employees of Juicy Bar and Nite Club by
Solar Ugnayan ng mga Kababaihang lnaapi fiction of law for purposes of labor and
(SUKI), a labor union duly registered with social legislation (Art. 138, Labor Code),
DOLE. Subsequently, SUKI filed a petition Art. 243 of the Labor Code however
for Certification Election in order to be excludes ―ambulant, intermittent and
recognized as the exclusive bargaining itinerant workers xxx and those without
agent of its members. Juicy Bar and Night any definite employers‖ such as the
Club opposed the petition for Certification GROs here, from