You are on page 1of 24

2018 BAR EXAMINATIONS IN LABOR LAW xxxxxxxxx

Unless the parties provide for broader inclusions, the


I term ‘one-half (1/2) month salary’ shall mean fifteen (15)
Narciso filed a complaint against Norte University for the days plus one-twelfth (1/12) of the 13th month pay and
payment of retirement benefits after having been a part- the cash equivalent of not more than five (5) days of
time professional lecturer in the same school since 1974. service incentive leaves x xxx (italics supplied).
Narciso taught for two semesters and a summer term for NOTE: The foregoing answer can be found in pages 924-
the school year 1975, took a leave of absence from 1975 925 of the book entitled Principles and Cases Labor
to 1977, and resumed teaching until 2003. Since then, his Relations, Second Edition 2018, by Atty. Voltaire T. Duano.
contract has been renewed at the start of every semester Questions involving the same subject matter were given
and summer, until November 2005 when he was told that during the 2011 and 2001 Bar Examinations.
he could no longer teach because he was already 75
years old. Norte University also denied Narciso’s claim for II
retirement benefits stating that only full-time permanent Nayon Federation issued a charter certificate creating a
faculty, who have served for at least five years rank-and-file Neuman Employees Union. On the same
immediately preceding the termination of their day, New Neuman Employees filed a petition for
employment, can avail themselves of post-employment certification election with the Department of Labor and
benefits. As part-time faculty member, Narciso did not Employment (DOLE) Regional Office, attaching the
acquire permanent employment status under the Manual appropriate charter certificate.
of Regulations for Private Schools, in relation to the Labor a) The employer, Neuman Corporation, filed a motion to
Code, regardless of his length service. dismiss the petition for lack of legal personality on the
(a) Is Narciso entitled to retirement benefits? (2.5%) part of the petitioner union. Should the motion be
SUGGESTED ANSWER: granted? (2.5%)

Yes, Narciso is entitled to retirement benefits. A part-time SUGGESTED ANSWER:


lecturer, with a fixed-term employment, who did not The motion should be denied. For purposes of filing a
attain permanent status, is entitled to retirement pay. petition for certification election, New Neuman
This was ruled by the Supreme Court in De La Salle Employees has legal personality from the time it was
Araneta University v. Bernardo, G. R. No. 190809, issued with a charter certificate. This clear under the
February 13, 2017 as follows: Republic Act No. 7641 Labor Code, which provides, The chapter shall acquire
states that "any employee may be retired upon reaching legal personality only for purposes of filing a petition for
the retirement age x xx;" and "[i]n case of retirement, the certification election from the date it was issued a charter
employee shall be entitled to receive such retirement certificate. (Article 241 [234-A], As inserted by Section 2,
benefits as he may have earned under existing laws and Republic Act No. 9481 which lapsed into law on May 25,
any collective bargaining agreement and other 2007 and became effective on June 14, 2007)
agreements." The Implementing Rules provide that NOTE: The foregoing answer can be found in page 218 of
Republic Act No. 7641 applies to "all employees in the the book entitled Principles and Cases Labor Relations,
private sector, regardless of their position, designation or Second Edition 2018, by Atty. Voltaire T. Duano. This was
status and irrespective of the method by which their the first time that this question was asked in the bar
wages are paid, except to those specifically exempted x examiantions.
xx." And Secretary Quisumbing' s Labor Advisory further
clarifies that the employees covered by Republic Act No. b) The employer likewise filed a petition for cancellation
7641 shall "include part-time employees, employees of of union registration against New Neuman Employees
service and other job contractors and domestic helpers Union, alleging that Nayon Federation already had a
or persons in the personal service of another." chartered local rank-and-file union, Neuman Employees
NOTE: The foregoing answer can be found in pages 921- Union, pertaining to the same bargaining unit within the
924 of the book entitled Principles and Cases Labor establishment. Should the petition for cancellation
Relations, Second Edition 2018, by Atty. Voltaire T. Duano. prosper? (2.5%)
This was the first time that this question was asked in the SUGGESTED ANSWER:
bar examinations.
Under Article 247 of the Labor Code, the following are
(b) If he is entitled to retirement benefits, how should the relevant grounds for cancellation of union
retirement pay be computed in the absence of any registration:
contract between him and Norte University providing for (a) Misrepresentation, false statement or fraud in
such benefits? (2.5%) connection with the adoption or ratification of the
SUGGESTED ANSWER: constitution and by-laws or amendments thereto, the
The retirement will be 22.5 days salary, exclusive of leave minutes of ratification, and the list of members who took
conversion benefits. According to Capitol Wireless, Inc. v. part in the ratification;
Honorable Secretary Ma. Nieves R. Confessor, G.R. No. (b) Misrepresentation, false statements or fraud in
117174, November 13,1996: connection with the election of officers, minutes of the
For purposes of computing compulsory sand optional election of officers, and the list of voters;
retirement benefits and to align the current retirement (c) Voluntary dissolution by the members.
plan with the minimum standards of Art. 287 of the Unless the employer can prove that any of the foregoing
Labor Code, as amended by R.A. 7641, and Sec. 5 (5.2) of grounds are present the petition for cancellation will not
its implementing rules, “1/2 month salary” means 22.5 prosper.
days salary, exclusive of leave conversion benefits.
NOTE: The foregoing answer can be found in page 223 of Code), but when such certainty cannot be so reasonably
the book entitled Principles and Cases Labor Relations, established at the time the demand is made, the interest
Second Edition 2018, by Atty. Voltaire T. Duano. This was shall begin to run only from the date the judgment of the
the first time that this question was asked in the bar court is made (at which time the quantification of
examiantions. damages may be deemed to have been reasonably
III ascertained). The actual base for the computation of legal
interest shall, in any case, be on the amount finally
Due to his employer’s dire financial situation, Nicanor adjudged.
was prevailed upon by his employer to voluntarily resign.
In exchange, he demanded payment of salary 3. When the judgment of the court awarding a sum of
differentials, 13th month pay, and financial assistance, as money becomes final and executory, the rate of legal
promised by his employer. Management promised to pay interest, whether the case falls under paragraph 1 or
him as soon as it is able to pay off all retrenched rank- paragraph 2, above, shall be 6% per annum from such
and-file employees. Five years later, and before finality until its satisfaction, this interim period being
management was able to pay Nicanor the amount deemed to be by then an equivalent to a forbearance of
promised to him, Nicanor died of a heart attack. His credit.
widow, Norie, filed a money claim against the company NOTE: The foregoing answer can be found in page 26 of
before the National Labor Relations Commission (NLRC), the book entitled Principles and Cases Labor Relations,
including interest on the amount of the unpaid claim. She Second Edition 2018, by Atty. Voltaire T. Duano and in
also claimed additional damages arguing that the pages 589-590 of the book entitled Principles and Cases
supposed resignation letter was obtained from her Labor Standards and Social Legislation, Second Edition
spouse through undue pressure and influence. The 2018, by Atty. Voltaire T. Duano. Questions involving the
employer filed a motion to dismiss on the ground that (A) same subject matter were given during the 2011 and
the NLRC did not have jurisdiction over money claims, 2016 (on award of interest in money claim) Bar
and (B) the action has prescribed. Examinations.
(a) Does the NLRC have jurisdiction to award money (b) Assuming that the NLRC has jurisdiction, has the
claims including interest on the amount unpaid? (2.5%) action prescribed? (2.5%)
SUGGESTED ANSWER: SUGGESTED ANSWER:
Jurisdiction will depend on the amount being claimed by The action has not prescribed. This is because Nicanor’s
Nicanor’s surviving spouse. If the amount exceeds Five surviving spouse’s cause of action will accrue upon the
Thousand Pesos (PhP5,000.00) as provided in Article 224 categorical denial of the claim. In this case, there was
(a [6]) of the Labor Code then jurisdiction belongs to the demand for its payment, however, the management had
Arbitration Branch of the NLRC. However, if the amount promsied to pay as soon as it is able to pay off all
did not exceed Five Thousand Pesos (PhP5,000.00) and retrenched rank-and-file employees. However, it is was
then jurisdiction belongs to the Regional Director under only after five (5) years that the management was able to
Article 129 of the Labor Code involving recovery of pay. Moreover, there was no denial of the claim.
wages, simple money claims and other benefits. Either of Therefore, prescription did not set in. In the Degamo v.
the said quasi-judicial body can award interest in the Avantgarde Shipping Corp., G.R. No. 154460, November
concept of actual and compensatory damages in 22, 2005 and Serrano v. Court of Appeals, G.R. No.
accordance. The award of interest in money claim was 139420, August 15, 2001, following cases, the Supreme
explained in Limlingan v. Asian Institute Management, Court explained the accrual of a cause of action under
Inc., G.R. No. 220481, February 17, 2016, that the rate of Article 306 [291].
interest in the concept of actual and compensatory NOTE: The foregoing answer can be found in pages 943-
damages as well as its accrual are as follows: 946 of the book entitled Principles and Cases Labor
1. When the obligation is breached, and it consists in the Relations, Second Edition 2018, by Atty. Voltaire T. Duano.
payment of a sum of money, i.e., a loan or forbearance of Questions involving the same subject matter was given
money, the interest due should be that which may have during the 2010 Bar Examination.
been stipulated in writing. Furthermore, the interest due (c) May Nicanor’s spouse successfully claim additional
shall itself earn legal interest from the time it is judicially damages as a result of the alleged undue pressure and
demanded. In the absence of stipulation, the rate of influence? (2.5%)
interest shall be 6% per annum to be computed from
default, i.e., from judicial or extrajudicial demand under SUGGESTED ANSWER:
and subject to the provisions of Article 1169 of the Civil Yes, Nicanor’s spouse can successfully claim additional
Code. damages as a result of the alleged undue pressure and
2. When an obligation, not constituting a loan or influence. This is provided under Article 224 (a [4] of the
forbearance of money, is breached, an interest on the Labor Code which provides for claims for actual, moral,
amount of damages awarded may be imposed at the exemplary and other forms of damages arising from
discretion of the court at the rate of 6% per annum. No employer-employee relationship within the jurisdictional
interest, however, shall be adjudged on unliquidated authority of the Arbitration Branch of the NLRC.
claims or damages, except when or until the demand can In the alternative, it can be argued that Nicanor’s spouse
be established with reasonable certainty. Accordingly, cannot successfully claim additional damages because it
where the demand is established with reasonable is the jurisdictional authority of the Arbitration Branch of
certainty, the interest shall begin to run from the time the the NLRC. The employer-employee relationship is only
claim is made judicially or extrajudicially (Art. 1169, Civil incidental and the cause of action arises from other
sources like torts and damages. Therefore, jurisdiction Friday. She sued for underpayment of wages and non-
belongs to the regular courts. payment of holiday pay and night shit differential for
NOTE: The foregoing answer can be found in pages 26, working on a Good Friday. Hotel Neverland denied the
32-38 of the book entitled Principles and Cases Labor alleged underpayment, arguing that based on long-
Relations, Second Edition 2018, by Atty. Voltaire T. Duano. standing unwritten tradition, food and lodging costs were
Questions involving the same subject matter were given partially shouldered by the employer and partially paid
during the 2016, 199 and 1995 Bar Examinations. for by the employee through salary deduction. According
to the employer, such valid deduction caused the
IV payment of Nelda’s wage to be below the prescribed
Natasha Shoe Company adopted an organizational minim m. The hotel also claimed that she was not
streamlining program that resulted in the retrenchment entitled to holiday pay and night shift differential pay
of 550 employees in its main plant. After having been hotel workers have to work on holidays and may be be
paid their separation benefits, the retrenched workers assigned to work at night.
demanded payment of retirement benefits under a CBA (a) Does the hotel have valid legal grounds to deduct food
between their union and management Natasha Shoe and lodging costs from Nelda's basis salary? (2.5%)
Company denied the workers’ demand.
SUGGESTED ANSWER:
(a) What is the most procedurally peaceful means to
resolve this dispute? (2.5%) As held in Mabeza v. National Labor Relations
Commission, G.R. No. 118506, April 18, 1997: Granting
SUGGESTED ANSWER: that meals and lodging were provided and indeed
Since this is a money claim involving the interpretation constituted facilities, such facilities could not be
and implementation of the CBA, the retrenched workers deducted without the employer complying first with
can refer the matter to the grievance machinery and if it certain legal requirements. Without satisfying these
remained unresolved within seven (7) days from the date requirements, the employer simply cannot deduct the
of its submission the same shall be automatically referred value from the employee’s wages. First, proof must be
to the voluntary arbitration prescribed in the CBA. shown that such facilities are customarily furnished by
the trade. Second, the provision of deductible facilities
In the alternative it can be argued, that since this is a
must be voluntarily accepted in writing by the employee.
dispute between the retrenched workers and the
Finally, facilities must be charged at fair and reasonable
employer the same cannot be a subject matter of
value. (Labor Code, Art. 97 [f])
grievance and voluntary arbitration. This is because only
Applying the above, unless the hotel can comply with the
disputes between the union and the company as ruled in
legal requirements it has no valid legal grounds to deduct
Tabique v. International Copra Export Corporation, G. R.
food and lodging costs from Nelda's basis salary.
No. 183335, December 23, 2009, shall be referred to
grievance machinery or voluntary arbitrators. Thus, the NOTE: The foregoing answer can be found in page 502 of
dispute should be resolved by way of mandatory the book entitled Principles and Cases Labor Standards
conciliation-mediation in accordance with Article 234 of and Social Legislation, Second Edition 2018, by Atty.
the Labor Code. Voltaire T. Duano. Questions involving the same subject
matter were given during the 2013 and 2010 Bar
NOTE: The foregoing answer can be found in pages 193-
Examinations.
195, 436, 433-442 of the book entitled Principles and
Cases Labor Relations, Second Edition 2018, by Atty. (b) Applying labor standards law, how much should Nelda
Voltaire T. Duano. Questions involving the same subject be paid for work done Good Friday? Show the
matter were given during the 2017, 2010, 2008, 2001, computation in your test booklet and encircle your final
1997 and 1995 Bar Examinations. answer. (2.5%)
(b) Can the workers claim both separation pay and SUGGESTED ANSWER:
retirement benefits. (2.5%) It can be argued:
SUGGESTED ANSWER: The rule in order to be paid regular holiday like two
Yes, the workers can claim both separation pay and successive holidays provides as follows, Where there are
retirement benefits. This was settled rule in the case of two (2) successive regular holidays, like Holy Thursday
Goodyear v. Marina Angus, G.R. No. 185499, 14 and Good Friday, an employee may not be paid for both
November 2014 where it was ruled that in the absence of holidays if he absents himself from work on the day
an express or implied prohibition against it, collection of immediately preceding the first holiday, unless he works
both retirement benefits and separation pay upon on the first holiday, in which case he is entitled to his
severance from employment is allowed. This is grounded holiday pay on the second holiday.(Section 10, Rule IV,
on the social justice policy that doubts should always be Book III, Rules to Implement the Labor Code)
resolved in favor of labor rights. (Aquino v. National Labor Applying the above rule, unless Nelda had complied with
Relations Commission, G.R. No. 87653, February 11, the rules on absences she is not entitled for her holiday
1992) pay for work done on Good Friday.
V However, on the assumption that she complied with the
Nelda worked as a chambermaid in Hotel Neverland with rules Nelda should be paid as follows: P560 x
a basic wage of PhP560.00 for an eight-hour workday. On 200%=P1,120.00 or since he only worked for one hour
Good Friday, she worked for one (1) hour from 10:00 PM the pay should be as follows: 70 x 200% = P140.00
to 11:00 PM. Her employer paid her only PhP480 for each NOTE: The foregoing answer can be found in page 453 of
8-hour workday, and PhP70.00 for work done on Good the book entitled Principles and Cases Labor Standards
and Social Legislation, Second Edition 2018, by Atty. NOTE: The foregoing answer can be found in page 402 of
Voltaire T. Duano. Questions involving the same subject the book entitled Principles and Cases Labor Relations,
matter was given during the 2013 and 2010 Bar Second Edition 2018, by Atty. Voltaire T. Duano. This is
Examinations. the first time that this type if question was asked in the
VI Bar Examinations.

A certification election was conducted in Nation


Manufacturing Corporation, whereby 55% of eligible VII
voters in the bargaining unit cast their votes. The results Nico is a medical representative engaged in the
were as follows: promotion of Pharmaceutical products and medical
Union Nana : 45 votes devices for North Pharmaceuticals, Inc. He regularly
Union Nada : 40 votes visits. physicians' clinics to inform them of the chemical
Union Nara : 30 votes composition and benefits of his employer's products. A
No Union : 80 votes the end of everyday, he receives a basis wage of
Union Nana moved to be declared as the winner of the PhP700.00 plus a PhP150.00 "productivity allowance."
certification election. For purposes of computing Nico's 13th month pay, should
the daily "productivity allowance" be included? (2.5%)
a) Can Union Nana be declared as the winner? (2.5%)
SUGGESTED ANSWER:
SUGGESTED ANSWER:
For purposes of computing Nico's 13th month pay his
Union Nana cannot be declared as the winner. This is daily "productivity allowance" cannot be included.
because the said union did not obtain the majority of the In Philippine Spring Water Resources, Inc. v. Court of
valid votes casts as provided under Article 268 of the Appeals, G.R. No. 205278, June 11, 2014, clarified as to
Labor Code. when a commission forms part of basic salary to be
NOTE: The foregoing answer can be found in pages 416- considered in the computation of 13th month pay. The
417 and 419of the book entitled Principles and Cases High Court said: It is well-established in jurisprudence
Labor Relations, Second Edition 2018, by Atty. Voltaire T. that the determination of whether or not a commission
Duano. Questions involving the same subject matter forms part of the basic salary depends upon the
were given during the 2014, 2009 Bar Examinations. circumstances or conditions for its payment. In Phil
Duplicators, Inc. v. NLRC, G.R. No. 110068, November 11,
b) Assume that the eligibility of 30 voters was challenged
1993, 227 SCRA 747, the Court held that commissions
during pre-election conference. The ballots of the 30
earned by salesmen form part of their basic salary. The
challenged voters were placed inside an envelope sealed
salesmen’s commissions, comprising a pre-determined
by the DOLE Election Office. Considering the said
percentage of the selling price of the goods sold by each
envelope remains sealed, what should be the next course
salesman, were properly included in the term basic salary
of action with respect to the said challenged votes?
for purposes of computing the 13th month pay. The
(2.5%)
salesmen’s commissions are not overtime payments, nor
SUGGESTED ANSWER: profit-sharing payments nor any other fringe benefit, but
The procedure in the Challenge of Votes provides as a portion of the salary structure which represents an
follows: automatic increment to the monetary value initially
The ballot of the voter who has been property challenged assigned to each unit of work rendered by a salesman.
during the Pre-Election conferences, shall be placed in an On the other hand, in Boie-Takeda Chemicals, Inc. v. De la
envelope which shall be sealed by the Election Officer in Serna, G.R. Nos. 92174 and 102552, December 10, 1993,
the presence of the voter and the representatives of the 228 SCRA 329, the so-called commissions paid to or
contending unions. The election Officer shall indicate on received by medical representatives were excluded from
the envelope the voter’s name, the union challenging the the term basic salary because these were paid to the
voter, and the ground for the challenged. The sealed medical representatives and rank-and-file employees as
envelope shall then be signed by the Election Officer and productivity bonuses, which were generally tied to the
the representatives of the contending unions. The productivity, or capacity for revenue production, of a
Election Officer shall note all challenges in the minutes of corporation and such bonuses closely resemble profit-
the election proceedings and shall have custody of all sharing payments and had no clear direct or necessary
envelops containing the challenged votes. The envelopes relation to the amount of work actually done by each
shall be opened and the question of eligibility shall be individual employee.
passed upon by the Mediator-Arbiter only if the number Applying the above rule, the productivity allowance
of segregated votes will materially alter the results of the cannot be included.
election. (Section 11, Rule IX, Book V, Rules to Implement NOTE: The foregoing answer can be found in page 492 of
the Labor Code, as amended by Department Order No. the book entitled Principles and Cases Labor Standards
40-F-03, Series of 2008 and renumbered by Department and Social Legislation, Second Edition 2018. Question
Order No. 40-I-15, Series of 2015) involving the same subject matter was given during the
Applying the said procedure, if the number of segregated 2011 Bar Examination. An alternative answer can be
votes will materially alter the results of the election the given by stating that it will depend as to whether the
next course of action with respect to the said challenged productivity bonus form part of the salary. In fine,
votes is to open the said envelopes and the question of whether or not the productivity bonus forms part of the
eligibility shall be passed upon by the Mediator-Arbiter. basic salary depends upon the circumstances or
conditions for its payment, which indubitably are factual
in nature. If the productivity bonuses were because they
were generally tied to the productivity, or capacity for As to whether Nathaniel is a regular employee of
revenue production it will not form part of the salary. Nutrition City, the rules are as follows:
However, if has a clear direct or necessary relation to the Regular employees are further classified into: (1) regular
amount of work actually done by each individual employees by nature of work; and (2) regular employees
employee then it form part of the salary. This was the by years of service. (E. Ganzon, Inc. vs. National Labor
distinction given by the case of Reyes v. NLRC, G.R. No. Relations Commission, G.R. No. 123769, 22 December
160233, August 8, 2007 citing the cases of Phil 1999, 321 SCRA 434, 440) The former refers to those
Duplicators, Inc. v. NLRC, G.R. No. 110068, November 11, employees who perform a particular activity which is
1993 and monetary value initially assigned to each unit of necessary or desirable in the usual business or trade of
work rendered by a salesman. On the other hand, in the employer, regardless of their length of service; while
Boie-Takeda Chemicals, Inc. v. De la Serna, G.R. Nos. the latter refers to those employees who have been
92174 and 102552, December 10, 1993. performing the job, regardless of the nature thereof, for
VIII at least a year. (Pangilinan vs. General Milling
Corporation, G.R. No. 149329, 12 July 2004)
Nathaniel has been a salesman assigned by Newmark Tested from the nature of his work and the activity of the
Enterprises (Newmark) for nearly two years at the Manila principal Nathaniel could be a regular employee while if it
office of Nutrition City, Inc. (Nutrition City). He was is tested on the length of service then Nathaniel is a
deployed pursuant to a service agreement between regular employee as he has been employed with the
Newmark and Nutrition City, the salient provisions of principal for a least a year. In fact he was employed for
which were as follows: nearly two years.
a) the Contractor (Newmark) agrees to perform and
provide the Client (Nutrition City), on a non-exclusive NOTE: The foregoing answer can be found in page 561 of
basis, such tasks or activities that are considered the book entitled Principles and Cases Labor Standards
contractible under existing laws, as may be needed by and Social Legislation, Second Edition 2018, and page 676
the Client from time to time; of the book entitled Principles and Cases Labor Relations,
b) the Contractor shall employ the necessary personnel Second Edition 2018, by Atty. Voltaire T. Duano.
like helpers, salesmen, and drivers who are determined Questions involving the same subject matter were given
by the Contractor to be efficiently trained; during the 2009 (on terms of Service Agreement) and
c) the Client may request replacement of the Contractor’s 22013 and 2008 (on regular employees) Bar
personnel if quality of the desired result is not achieved; Examinations. An alternative answer can be given by
d) the Contractors personnel will comply with the Client's characterizing the relationship of the principal with the
policies, rules, and regulations; and contractor as to whether it is a job contracting or LOC.
e) the Contractor’s two service vehicles and necessary Then as to who would be the direct employer and extent
equipment will be utilized in carrying out the provisions of liability can be determined or concluded.
of this Agreement. IX
When Newmark fired Nathaniel, he filed an illegal Sgt. Nemesis was a detachment non-commissioned
dismissal case against the wealthier company, Nutrition officer of the Armed Forces of the Philippines in Nueva
City, Inc., alleging that he was a regular employee of the Ecija. He and some other members of his detachment
same. Is Nathaniel correct? (2.5%) sought permission from their Company Commander for
SUGGESTED ANSWER: an overnight pass to Nueva Vizcaya to settle some
important matters. The Company Commander orally
Nathaniel is correct in so far as the existence of approved their request and allowed them to carry their
employer-employee relationship between him and the firearms as the place they were going to was classified as
principal. a “critical place.” They arrived at the place past midnight;
The rules requires that the Service Agreement between and as they were alighting from a tricycle, one of his
the principal and the contractor shall include the companions accidentally dropped his rifle, which fired a
following: single shot, and in the process hit Sgt. Nemesis fatally.
i. The specific description of the job or work being The shooting was purely accidental. At the time of his
subcontracted, including its term or duration. death, he was still legally married_to Nelda but had been
ii. The place of work and terms and conditions governing separated de facto from her for 17 years. For the last 15
the contracting arrangement, to include the agreed years of his life, he was living in with Narda, with whom
amount of the contracted job or work as well as the he has two minor children. Since Narda works as a
standard administrative fee of not less than ten percent kasambahay, the two children lived with their
(10%) of the total contract cost; and grandparents, who provided their daily- support. Sgt.
iii. A provision on the issuance of the bond/s defined Nemesis and Narda only sent money to them every year
under Section 3(a) renewable every year. (Section 11, to them for their school tuition.
D.O. No. 174, Series of 2017) Nelda and Narda, both for themselves and the latter, also
On the other hand, a finding of violation of 11 shall on behalf of her minor children, separately filed claims
render the principal the direct employer of the for compensation as a result of the death of Sgt.
employees of the contractor or subcontractor, pursuant Nemesis. The Line of Duty Board of the AFP declared Sgt.
to Article 109 of the Labor Code, as amended. (Section Nemesis’ death to have been “in line of duty’, and
12, D.O. No. 174, Series of 2017) recommended that all benefits due to Sgt. Nemesis be
Applying the above rules, since Newmark and Nutrition given to his dependents. However, the claims were
City violated the required terms to be stated in the denied by GSIS because Sgt. Nemesis was not in his
Service Agreement then Nutrition City is the direct
employer of Nathaniel.
workplace nor performing his duty as a soldier of the and its principal, with a claim for total disability benefits
Philippine Army when he died. based on the ailments that he developed on board N-
(a) Are the dependents of Sgt. Nemesis entitled to Train hipping-vessels. The claim was based on the
compensation as a result of his death? (2.5%) certification of his own physician, Dr. Nunez, that he was
unfit for sea duties because of his hypertension and
SUGGESTED ANSWER: diabetes.
The death of Sgt. Nemesis is compensable because it is
work-connected. However, in so far as entitlement of the a) Was Nonato a regular employee of N-Train Shipping?
dependents of Sgt. Nemesis for compensation as a result (2.5%)
of his death the dependent spouse cannot claim SUGGESTED ANSWER:
compensation. The law requires that the dependent Nonato is not a regular employee of N-Train Shipping.
spouse should be a legitimate spouse living with the The fact that seafarers are not regular employees is
employee. (Article 173 [i], Labor Code). already a settled rule.
In this case, the legitimate spouse Nelda is not entitled In Petroleum Shipping Limited (formerly Esso
because she is not living with Sgt. Nemesis while Narda International Shipping (Bahamas) Co., Ltd.) v. NLRC, G.R.
will not qualify as dependent spouses as she is not a No. 148130, June 16,2006, the Supreme Court said that
legitimate spouse of Sgt. Nemesis although she is living the issue on whether seafarers are regular employees is
with the latter. On the other hand, in so far as the already a settled matter. Thus, the High Court said:
dependent child the law requires that the dependent It was in Ravago v. Esso Eastern Marine, Ltd., G.R. No.
child be legitimate, legitimated, legally adopted or xxx, 158324, 14 March 2005, 453 SCRA 381 where the
who is unmarried, not gainfully employed, not over 21 Honorable Supreme Court traced its ruling in a number of
years of age provided he is incapacitated and incapable of cases that seafarers are contractual, not regular,
self-support due to physical or mental defect which is employees. Thus, in Brent School, Inc. v. Zamora, G.R. No.
congenital or acquired during minority. The two minor 48494, 5 February 1990, 181 SCRA 702 the Supreme
children are therefore qualified as dependent children. Court cited overseas employment contract as an example
Hence, entitled to compensation. of contracts where the concept of regular employment
NOTE: The foregoing answer can be found in pages 835 does not apply, whatever the nature of the engagement
and 857-860 of the book entitled Principles and Cases and despite the provisions of Article 280 of the Labor
Labor Standards and Social Legislation, Second Edition Code. In Coyoca v. NLRC, G.R. No. 113658 March 31,
2018, by Atty. Voltaire T. Duano. Question involving the 1995, the Supreme Court held that the agency is liable
same subject matter was given during the 2005 and 1996 for payment of a seaman’s medical and disability benefits
Bar Examinations. in the event that the principal fails or refuses to pay the
benefits or wages due the seaman although the seaman
(b) As between Nelda and Narda, who should be entitled may not be a regular employee of the agency.
to the benefits? (2.5%) The Supreme Court squarely passed upon the issue in
SUGGESTED ANSWER: Millares v. NLRC, G.R. No. 110524, July 29, 2002, where
one of the issues raised was whether seafarers are
Nelda and Narda are not entitled to the benefits because
regular or contractual employees whose employment are
they failed to qualify within the definition (Article 173 [i],
terminated every time their contracts of employment
Labor Code) of dependent spouse.
expire. The Supreme Court explained:
NOTE: The foregoing answer can be found in pages 835 [I]t is clear that seafarers are considered contractual
and 857-860 of the book entitled Principles and Cases employees. They can not be considered as regular
Labor Standards and Social Legislation, Second Edition employees under Article 280 of the Labor Code. Their
2018, by Atty. Voltaire T. Duano. Question involving the employment is governed by the contracts they sign
same subject matter was given during the 2005 and 1996 everytime they are rehired and their employment is
Bar Examinations. terminated when the contract expires. Their employment
X is contractually fixed for a certain period of time. They fall
under the exception of Article 280 whose employment
Nonato had been continuously employed and deployed
has been fixed for a specific project or undertaking the
as a seaman who performed services that were necessary
completion or termination of which has been determined
and desirable to the business of N-Train hipping, through
at the time of engagement of the employee or where the
its local agent, Narita Maritime Services (Agency), in
work or services to be performed is seasonal in nature
accordance with the 2010 Philippine Overseas
and the employment is for the duration of the season.
Employment Administration Standard Employment
We need not depart from the rulings of the Court in the
Contract (2010 POEA-SEC). Nonato's last contract (for ye
two aforementioned cases which indeed constitute stare
months) expired on November 15, 2016. Nonato was
decisis with respect to the employment status of
then repatriated due to "finished contract." He
seafarers.
immediately reported to the Agency and complained that
e had been experiencing dizziness, weakness, and NOTE: The foregoing answer can be found in pages 721-
difficulty in breathing. The agency referred him to Dr. 723 of the book entitled Principles and Cases Labor
Neri, who examined, treated, and prescribed him with Relations, Second Edition 2018, by Atty. Voltaire T. Duano.
medications. After a few months of treatment and Questions involving the same subject matter were given
consultations, Nonato was declared fit to resume work as during the 2017, 2014 and 2002 Bar Examinations.
a seaman. Nonato went back to the Agency to ask for re- b) Can Nonato successfully claim disability benefits
deployment but the Agency rejected his application. against N-Train Shipping and its agent Narita Maritime
Nonato filed an illegal dismissal case against the Agency Services? (2.5%)
SUGGESTED ANSWER: that day. TitaNilda also claims that this Contract of
The claim for disability benefits of Nonato against N-Train Engagement should embody the terms and conditions of
Shipping and its agent Narita Maritime Services will not Noray’s work as the engagement of a kasambahay is a
prosper for prematurity. private matter and should not be regulated by the State.
The Supreme Court laid down the procedures for filing a) Is TitaNilda correct in saying that this is a private
disability benefits and its effect in case of failure to matter and should not be regulated by the State? (2.5%)
comply with the procedures in Daraug v. KGJS Fleet
Management Manila, G.R. No. 211211, January 14, 2015. SUGGESTED ANSWER:
Thus, in denying the claim for disability benefits due to TitaNilda is not correct in saying that engagement of a
prematurity the Supreme Court ruled: kasambahay is a private matter and should not be
Petitioner Did Not Comply With The Procedures regulated by the State. This is a valid subject matter of
In Vergara v. Hammonia Maritime Services, Inc.31 the exercise of police power to give effect to the declared
(Vergara), it was stated that the Department of Labor and policy of the law such as the need to protect the rights of
Employment (DOLE), through the POEA, has simplified domestic workers against abuse, harassment, violence,
the determination of liability for work-related death, economic exploitation and performance of work that is
illness or injury in the case of Filipino seamen working on hazardous to their physical and mental health; and in
foreign oceangoing vessels. Every seaman and the vessel protecting domestic workers and recognizing their special
owner (directly or represented by a local manning needs to ensure safe and healthful working conditions,
agency) are required to execute the POEA Standard promotes gender-sensitive measures in the formulation
Employment Contract (POEA-SEC) as a condition sine qua and implementation of policies and programs affecting
non prior to the deployment of the seaman for overseas the local domestic work. (Section 2, Article I, Republic Act
work. The POEA-SEC is supplemented by the Collective No. 10361)
Bargaining Agreement (CBA) between the owner of the
NOTE: The foregoing answer can be found in page 759 of
vessel and the covered seaman. In this case, the parties
the book entitled Principles and Cases Labor Standards
entered in to a contract of employment in accordance
and Social Legislation, Second Edition 2018. This is the
with the POEA-SEC and they agreed to be bound by the
first time that this type of question was asked in the Bar
CBA.
Examination.
Thus, in resolving petitioner’s claim for disability
compensation, the Court will be guided by the b) is the stipulation that she may be requested to work
procedures laid down in the POEA-SEC and in the CBA. on a rest day legal? (2.5%)
On this point, Section 20(B)(3) of the POEA-SEC provides: SUGGESTED ANSWER:
Upon sign-off from the vessel for medical treatment, the The stipulation that Noray may be requested to work on
seafarer is entitled to sickness allowance equivalent to his a rest day is legal. The law provides that, “ Nothing in this
basic wage until he is declared fit to work or the degree provision shall deprive the domestic worker and the
of permanent disability has been assessed by the employer from agreeing to the following:
company-designated physician but in no case shall this (a) Offsetting a day of absence with a particular rest day;
period exceed one hundred twenty (120) days. (b) Waiving a particular rest day in return for an
For this purpose, the seafarer shall submit himself to a equivalent daily rate of pay;
post-employment medical examination by a company- (c) Accumulating rest days not exceeding five (5) days; or
designated physician within three working days upon his (d) Other similar arrangements. (Section 21, Article IV,
return except when he is physically incapacitated to so, in Republic Act No. 10361)
which case, a written notice to the agency within the
NOTE: The foregoing answer can be found in page 778 of
same period is deemed a compliance. Failure of the
the book entitled Principles and Cases Labor Standards
seafarer to comply with the mandatory reporting
and Social Legislation, Second Edition 2018. This is the
requirement shall result in his forfeiture of the right to
first time that this type of question was asked in the Bar
claim the above benefits.
Examination.
If a doctor appointed by the seafarer disagrees with the
assessment, a third doctor may be agreed jointly c) Are stay-in family drivers included under the
between the Employer and the seafarer. The third Kasambahay Law?(2.5%)
doctor’s decision shall be final and binding on both SUGGESTED ANSWER:
parties.
Stay-in family drivers are not included under the
NOTE: The foregoing answer can be found in pages 917- Kasambahay Law. This was very clear in the Rules
921 of the book entitled Principles and Cases Labor Implementing the Kasambahay Law providing as follows:
Standards and Social Legislation, Second Edition 2018, by The following are not covered:
Atty. Voltaire T. Duano. Question involving the same (a) Service providers;
subject matter was given during the 2013 Bar (b) Family drivers;
Examination. (c) Children under foster family arrangement; and
Xl (d) Any other person who performs work occasionally or
sporadically and not on an occupational basis. (Section 2,
Your favorite relative, TitaNilda, approaches you and
Rule I, Implementing Rules and Regulations of Republic
seeks your advice n her treatment of her kasambahay,
Act 10361)
Noray. TitaNilda shows you a document called a
“Contract of Engagement” for your review. Under the NOTE: The foregoing answer can be found in page 761 of
Contract of Engagement, Noray shall be entitled to a rest the book entitled Principles and Cases Labor Standards
day every week, provided that she may be requested to and Social Legislation, Second Edition 2018. Questions
work on a rest day if TitaNilda should need her services
involving the same subject matter were given during the Corporation still refused to reinstate Nicodemus.
2012 and 1998 Bar Examinations. Eventually, the Court of Appeals reversed the decision of
XII the NLRC and ruled that the dismissal was valid. Despite
the reversal, Nicodemus still filed a motion for execution
with respect to his accrued backwages.
Nena worked as an Executive Assistant for Nesting, CEO
of Now Corporation. One day, Nesting called Nena into (a) Were there valid legal grounds to dismiss Nicodemus
his office and showed her lewd pictures of women in from his employment? (2.5%)
seductive poses which Nena found offensive. Nena SUGGESTED ANSWER:
complained before the General Manager who, in turn, Yes, Nicodemus can be dismissed on based on willful
investigated the matter and recommended the dismissal disobedience to the lawful order under Article 297 (a) of
of Nesting to the Board of Directors. Before the Board of the Labor Code and the “prescribed uniform policy” of
Directors, Nesting argued, that-since the Anti-Sexual the company.
Harassment Law requires the existence of “sexual favors,”
he should not be dismissed from the service since he did The basis is the case of St. Luke’s v. Sanchez, G.R. No.
not ask for any-sexual favor from Nena. Is Nesting 212054, March 11, 2015 were it was ruled: At the same
correct? (2.5%) time, the employee has the corollary duty to obey all
reasonable rules, orders, and instructions of the
SUGGESTED ANSWER: employer; and willful or intentional disobedience
Nesting is not correct. thereto, as a general rule, justifies termination of the
The law penalizing sexual harassment in our jurisdiction is contract of service and the dismissal of the employee.
RA 7877. Section 3 thereof defines work-related sexual (Malabago v. NLRC, 533 Phil. 292, 300 [2006]) x xxx. Note
harassment in this wise: that for an employee to be validly dismissed on this
ground, the employer’s orders, regulations, or
Sec. 3. Work, Education or Training-related Sexual instructions must be: (1) reasonable and lawful, (2)
Harassment Defined.—Work, education or training- sufficiently known to the employee, and (3) in connection
related sexual harassment is committed by an employer, with the duties which the employee has been engaged to
manager, supervisor, agent of the employer, teacher, discharge.”
instructor, professor, coach, trainor, or any other person
who, having authority, influence or moral ascendancy NOTE: The foregoing answer can be found in page 786 of
over another in a work or training or education the book entitled Principles and Cases Labor Relations,
environment, demands, requests or otherwise requires Second Edition 2018. Questions involving the same
any sexual favor from the other, regardless of whether subject matter were given during the 2008, 2003 and
the demand, request or requirement for submission is 1995 Bar Examinations.
accepted by the object of said Act. (b) Should Nicodemus’ motion for execution be granted?
(a) In a work-related or employment environment, sexual (2.5%)
harassment is committed when: xxx (3) The above acts SUGGESTED ANSWER:
would result in an intimidating, hostile, or offensive Yes, Nicodemus’ motion for execution should be granted.
environment for the employee. He is entitled to his accrued salary.
Contrary to Nesting’s claim, it is enough that his acts The accrued wages/salaries (reinstatement
result in creating an intimidating, hostile or offensive wages/salaries) is the consequence of the reinstatement
environment for the employee. aspect of the decision of the Labor Arbiter referred in
NOTE: The foregoing answer can be found in page 696 of paragraph 3, Article 229 [223] of the Labor Code. This
the book entitled Principles and Cases Labor Standards means that a dismissed employee whose case was
and Social Legislation, Second Edition 2018. Questions favorably decided by the Labor Arbiter is entitled to
involving the same subject matter were given during the receive wages pending appeal upon reinstatement, which
2011, 2009, 2006, 2005, 2004, 2003 and 2000 Bar is immediately executory. In other words, it refers to the
Examinations. wages or salaries which automatically accrued to a
XIII dismissed employee from the notice of the Labor
Arbiter’s order of reinstatement until its ultimate reversal
Nicodemus was employed as a computer programmer by by the higher court, which could be the NLRC, the Court
Network Corporation, a telecommunications firm. He has of Appeals or the Supreme Court. The entitlement to
been coming to work in shorts and sneakers, in violation accrued wages/salaries (reinstatement wages/salaries )
of the “prescribed uniform policy” based on company of a dismissed employee was discussed in the cases of
rules and regulations. The company human resources Roquero v. Philippine Airlines, G.R. No. 152329, 449 Phil.
manager wrote him a letter, giving him 10 days to comply 437 (2003), Garcia v. Philippine Airlines, G.R. No. 164856,
with the company uniform policy. Nicodemus asserted January 20, 2009, 576 SCRA 479, Islriz Trading v. Capada,
that wearing shorts and sneakers made him more G.R. No. 168501, January 31, 2011, Pfizer Inc. v. Velasco,
productive, and cited his above-average output. When he G.R. No. 177467, March 9, 2011 and Wenphil Corporation
came to work still in violation of the uniform policy, the v. Abing, G.R. No. 207983, April 7, 2014.
company sent him a letter of termination of employment.
Nicodemus filed an illegal dismissal case. The Labor In resolving the rule on entitlement to accrued wages
Arbiter ruled in favor of Nicodemus and ordered his between the period where the Labor Arbiter’s order of
reinstatement with backwages. Network Corporation, reinstatement is pending appeal and the NLRC Resolution
however, refused to reinstate him. The NLRC 1st Division overturning that of the Labor Arbiter, the case of Garcia v.
sustained the Labor Arbiter’s judgment. Network Philippine Airlines, Inc., G.R. No. 164856, January 20,
2009, 576 SCRA 479, is in point. The Supreme Court from labor and employment shall be subject to
examined its conflicting rulings with respect to the mandatory conciliation-mediation.
application of paragraph 3 of Article 223 of the Labor NOTE: The foregoing answer can be found in pages 193-
Code, viz: 195 of the book entitled Principles and Cases Labor
The core of the seeming divergence is the application of Relations, Second Edition 2018. This was the first time
paragraph 3 of Article 223 of the Labor Code which reads: that a question of this nature was asked in the Bar
‘In any event, the decision of the Labor Arbiter reinstating Examinations.
a dismissed or separated employee, insofar as the (b) Should the Regional Director sustain Needy
reinstatement aspect is concerned, shall immediately be Corporation’s argument? (2.5%)
executory, pending appeal. The employee shall either be
admitted back to work under the same terms and SUGGESTED ANSWER:
conditions prevailing prior to his dismissal or separation The Regional Director should not sustain Needy
or, at the option of the employer, merely reinstated in the Corporation’s argument. This is because under Article 239
payroll. The posting of a bond by the employer shall not of the Labor Cod, information and statements made at
stay the execution for reinstatement provided herein.’ conciliation proceedings shall be treated as privileged
The view as maintained in a number of cases is that: communication and shall not be used as evidence in the
‘x xx [E]ven if the order of reinstatement of the Labor Commission. Conciliators and similar officials shall not
Arbiter is reversed on appeal, it is obligatory on the part testify in any court or body regarding any matters taken
of the employer to reinstate and pay the wages of the up at conciliation proceedings conducted by them. Thus,
dismissed employee during the period of appeal until Needy Corporation cannot raise the argument that
reversal by the higher court. On the other hand, if the Nelson was willing to settle for 75% of his money claim
employee has been reinstated during the appeal period during conciliation proceedings.
and such reinstatement order is reversed with finality,
NOTE: The foregoing answer can be found in pages 239 of
the employee is not required to reimburse whatever
the book entitled Principles and Cases Labor Relations,
salary he received for he is entitled to such, more so if he
Second Edition 2018. Question involving the same
actually rendered services during the period.
subject matter was given during the 2007 Bar
In other words, a dismissed employee whose case was
Examination.
favorably decided by the Labor Arbiter is entitled to
receive wages pending appeal upon reinstatement, which XV
is immediately executory. Unless there is a restraining Nexturn Corporation employed Nini and Nono, whose
order, it is ministerial upon the Labor Arbiter to tasks involved directing and supervising rank-and-file
implement the order of reinstatement and it is employees engaged in company operations. Nini and
mandatory on the employer to comply therewith. Nono are required to ensure that such employees obey
NOTE: The foregoing answer can be found in pages 143- company rules and regulations, and recommend to the
145 of the book entitled Principles and Cases Labor company's Human Resources Department any required
Relations, Second Edition 2018. Question involving the disciplinary action against erring employees. In Nexturn
same subject matter was given during the 2009 Bar Corporation, there are independent unions, representing
Examination. rank- and-file and supervisory employees, respectively.
XIV a) May Nini and Nono join a union? (2.5%)
Nelson complained before the DOLE Regional Office SUGGESTED ANSWER:
about Needy Corporation's failure to pay his wage Yes, Nini and Nono can join a union. This is clearly
increase amounting to PhP5,000.00 as mandated in a allowed under Article 255 of the Labor Code which
Wage Order issued by the Regional Tripartite Wages and provides in substance that supervisory employees may
Productivity Board. Consequently, Nelson-asked the DOLE join, assist or form separate collective bargaining units
to immediately issue an Order sustaining his money and/or legitimate labor organizations of their own.
claim. To his surprise, he received a notice from the DOLE
NOTE: The foregoing answer can be found in page 264 of
to appear before the Regional Director for purposes of
the book entitled Principles and Cases Labor Relations,
conciliating the dispute between him and Needy
Second Edition 2018. Question involving the same
Corporation. When conciliation before the Regional
subject matter was given during the 2017, 2010, 2004
Director the latter proceeded to direct both parties to
and 1994 Bar Examinations.
submit their respective position papers in relation to the
dispute. Needy Corporation argued, that since Nelson b) May the two unions be affiliated with the same Union
was willing to settle for 75% of his money claim during Federation? (2.5%)
conciliation proceedings, only a maximum of 75% of the SUGGESTED ANSWER:
said money claim may be awarded to him. Yes, the two unions can be affiliated with the same Union
(a) Was DOLE’s action to conduct mandatory conciliation Federation. This is clearly allowed under Article 255 of
in light of Nelson’s complaint valid? (2.5%) the Labor Code which provides in substance that the
SUGGESTED ANSWER: rank-and-file union and the supervisors’ union operating
within the same establishment may join the same
Yes, the DOLE’s action to conduct mandatory conciliation
federation or national union.
is valid. This is mandated by Article 234 of the Labor
Code, except as provided in Title VII-A, Book V of this NOTE: The foregoing answer can be found in page 264 of
Code, as amended, or as may be excepted by the the book entitled Principles and Cases Labor Relations,
Secretary of Labor and Employment, all issues arising Second Edition 2018. Question involving the same
subject matter was given during the 2017, 2010, 2004 The newly-regularized employee of Nagrab Corporation
and 1994 Bar Examinations. (who is not-part of the absorbed employees) cannot
XVI refuse to join Nagrab Union in view of the union security
clause provision of the CBA. While the right to join
Nagrab Union and Nagrab Corporation have an existing includes the right not to join, however, the exception is
CBA which contains the following provision: the UNION SECURITY CLAUSE where it imposes upon
“New_employees within the coverage of the bargaining employees the obligation to acquire or retain union
unit who may be regularly employed shall become membership as a condition affecting employment. Thus, I
members of Nagrab Union. Membership in good standing will advise the human resources manager of Nagrab
with the Nagrab Union is a requirement for continued Corporation to comply with the provision of the CAB
employment with Nagrab Corporation.” Nagrab stating that : “New_employees within the coverage of the
Corporation subsequently acquired all the assets and bargaining unit who may be regularly employed shall
rights of Nuber Corporation and absorbed all of the become members of Nagrab Union.
latter’s employees. Nagrab Union immediately demanded
enforcement of the above-stated CBA provision with NOTE: The foregoing answer can be found in page 299,
respect to the absorbed employees. Nagrab Corporation 303-308 of the book entitled Principles and Cases Labor
refused on the ground that this should not apply fo the Relations, Second Edition 2018. Questions involving the
absorbed employees who were former employees of same subject matter were given during the 2005, 2011
another corporation whose assets and rights it had and 1997 Bar Examinations.
acquired. XVII
(a) Was Nagrab Corporation correct in refusing to enforce Upon compliance with the legal requirements on the
the CBA 4 provision with respect to the absorbed conduct of a strike, Navarra Union staged a strike against
employees? (2.5%) Newfound Corporation on account of a collective
SUGGESTED ANSWER: bargaining deadlock. During the strike, some members of
Navarra Union broke the windows and punctured the
Nagrab Corporation was not correct in refusing to enforce tires of the company-owned buses. he Secretary of Labor
the CBA provision with respect to the absorbed and Employment assumed jurisdiction over the dispute.
employees. This is because it cannot invoke its merger
with another corporation as a valid ground to exempt its (a) Should all striking employees be admitted back to
absorbed employees from the coverage of a union shop work upon the assumption of jurisdiction by the
clause contained in its existing Collective Bargaining Secretary of Labor and Employment? Will these include
Agreement (CBA) with its own certified labor union. In striking employees who damaged company properties?
BANK OF THE PHILIPPINE ISLANDS V. BPI EMPLOYEES (2.5%)
UNION-DAVAO CHAPTER-FEDERATION OF UNIONS IN BPI SUGGESTED ANSWER:
UNIBANK, G.R. No. 164301, August 10, 2010, the High All striking employees be admitted back to work and
Court resolved the question in this manner: At the including striking employees who damaged company
outset, we should call to mind the spirit and the letter of properties. The effect of assumption of jurisdiction of the
the Labor Code provisions on union security clauses, Secretary of Labor is clear under Article 278 (g) which
specifically Article 248 (e), which states, x xx Nothing in provides in substance that such assumption shall have
this Code or in any other law shall stop the parties from the effect of automatically enjoining the intended or
requiring membership in a recognized collective impending strike or lockout as specified in the
bargaining agent as a condition for employment, except assumption or certification order. If one has already taken
those employees who are already members of another place at the time of assumption or certification, all
union at the time of the signing of the collective striking or locked out employees shall immediately
bargaining agreement. This case which involves the return-to-work and the employer shall immediately
application of a collective bargaining agreement with a resume operations and readmit all workers under the
union shop clause should be resolved principally from the same terms and conditions prevailing before the strike or
standpoint of the clear provisions of our labor laws, and lockout.
the express terms of the CBA in question, and not by
inference from the general consequence of the merger of NOTE: The foregoing answer can be found in page 478 of
corporations under the Corporation Code, which the book entitled Principles and Cases Labor Relations,
obviously does not deal with and, therefore, is silent on Second Edition 2018. Questions involving the same
the terms and conditions of employment in corporations subject matter were given during the 2003 and 1997 Bar
or juridical entities. Examinations.
NOTE: The foregoing answer can be found in page 305- (b) May the company, readmit strikers only by restoring
308 of the book entitled Principles and Cases Labor them to the payroll? 5%)
Relations, Second Edition 2018. Question involving the SUGGESTED ANSWER:
same subject matter was given during the 2011 Bar
The company may not readmit strikers by restoring them
Examination.
to the payroll. The phrase “under the same terms and
(b) May a newly-regularized employee of Nagrab conditions” found in Article 278 (g) [263 (g)] of the Labor
Corporation (who is not-part of the absorbed employees) Code was interpreted by the Supreme Court in the case
refuse to join Nagrab Union? How would you advise the of the University of Immaculate Concepcion, Inc. v.
human resources manager of Nagrab Corporation to Secretary of Labor, G.R. No. 151379, January 14, 2005 as
proceed? (2.5%) follows:
SUGGESTED ANSWER: With respect to the Secretary’s Order allowing payroll
reinstatement instead of actual reinstatement for the (Section 3, Revised Implementing Rules and Regulations
individual respondents herein, an amendment to the of Republic Act No. 8187 for the Private Sector)
previous Orders issued by her office, the same is usually In this case, Nadine is not Nestor’s lawful wife to whom
not allowed. Article 263(g) of the Labor Code he is cohabiting.
aforementioned states that all workers must immediately
return to work and all employers must readmit all of NOTE: The foregoing answer can be found in pages 470-
them under the same terms and conditions prevailing 471 of the book entitled Principles and Cases Labor
before the strike or lockout. The phrase “under the same Standards and Social Legislation, Second Edition 2018, by
terms and conditions” makes it clear that the norm is Atty. Voltaire T. Duano. Questions involving this subject
actual reinstatement. This is consistent with the idea that matter were given during the 2013, 2012, 2011, 2005 and
any work stoppage or slowdown in that particular 2002 Bar Examinations.
industry can be detrimental to the national interest. XIX
Clearly, reinstatement should be actual and not payroll Northeast Airlines sent notices to transfer without
reinstatement. diminution in salary or rank, to 50 ground crew personnel
NOTE: The foregoing answer can be found in page 496 of who were front-liners at Northeast Airlines counters at
the book entitled Principles and Cases Labor Relations, the Ninoy Aquino International Airport (NAIA). The 50
Second Edition 2018. This is the first time that a question employees were informed that they would be distributed
of this nature was asked in the Bar Examinations. to various airports in Mindanao to anticipate robust
passenger volume growth in the area. Northeast Union
XVIII representing rank-and-file employees, filed unfair labor
Nestor and Nadine have been living in for the last 10 practice and illegal dismissal cases before the NLRC,
years without the benefit of marriage. Their union has citing, among others, the inconvenience of the 50
produced four children. Nadine was three months concerned employees and union discrimination, as 8 of
pregnant with her 5th child when Nestor left her for the 50 concerned round crew personnel were union
another woman. When Nadine was eight months officers. Also, the Union argued that Northeast Airlines
pregnant with her 5th child, she applied for maternity could easily hire additional employees from Mindanao to
leave benefits. Her employer refused on the ground that boost ground operations in the Mindanao airports.
this was already her 5" pregnancy and that she was only a) Will the transfer of the 50 ground crew personnel
living in with the father of her child, who is now in a amount to Illegal dismissal (5%)
relationship with another woman. When Nadine gave
birth, Nestor applied for paternity leave benefits. His SUGGESTED ANSWER:
employer also denied the application on the same The transfer of the 50 ground crew personnel does not
grounds that Nadine’s employer denied her application. amount to Illegal dismissal. This is because their transfer
(a) Can Nadine’s employer legally deny her claim for is a valid exercise of management prerogatives.
maternity benefits? (2.5%) In Gemina, Jr. v. Bankwise, Inc. (Thrift Bank) G.R. No.
SUGGESTED ANSWER: 175365, October 23, 2013, it was held: The employer’s
right to conduct the affairs of its business, according to its
Yes, Nadine’s employer can legally deny her claim for own discretion and judgment, is well-recognized. An
maternity benefits. This is because the maternity benefits employer has a free reign and enjoys wide latitude of
shall be paid only for the first four (4) deliveries or discretion to regulate all aspects of employment and the
miscarriages. (See Section 14-A, RA 8282) In this case, the only criterion to guide the exercise of its management
said pregnancy was the 5th child of Nadine. Thus, she prerogative is that the policies, rules and regulations on
already exhausted the limitations for entitlement to work-related activities of the employees must always be
maternity benefits under the law. fair and reasonable. (The Coca-Cola Export Corporation v.
NOTE: The foregoing answer can be found in page 474 of Gacayan, G.R. No. 149433, December 15, 2010, 638 SCRA
the book entitled Principles and Cases Labor Standards 377, 398-399)
and Social Legislation, Second Edition 2018, by Atty. According to Endico v. Quantum Foods Distribution
Voltaire T. Duano. Questions involving this subject matter Center, G.R. 161615, January 30,2009, “Managerial
were given during the 2015, 2012, 2010, 2005 and 2000 prerogatives, however, are subject to limitations provided
Bar Examinations. by law, collective bargaining agreements, and general
(b) Can Nestor’s employer legally deny his claim for principles of fair play and justice. The test for determining
paternity benefits? (2.5%) the validity of the transfer of employees was explained in
SUGGESTED ANSWER: the case of Blue Dairy Corporation v. NLRC, G.R. No.
129843, 14 September 1999, 314 SCRA 401, 408-409 the
Nestor’s employer can legally deny his claim for paternity Supreme Court explained the test for determining the
benefits for his failure to comply with the conditions for validity of the transfer of employees, as follows:
entitlement to paternity benefits.
Under the law, a married male employee shall be entitled But, like other rights, there are limits thereto. The
to paternity benefits provided that: managerial prerogative to transfer personnel must be
a. he is an employee at the time of delivery of his child; exercised without grave abuse of discretion, bearing in
b. he is cohabiting with his spouse at the time she gives mind the basic elements of justice and fair play. Having
birth or suffers a miscarriage. the right should not be confused with the manner in
c. he has applied for paternity leave in accordance with which that right is exercised. Thus, it cannot be used as a
Section 4 hereof; and subterfuge by the employer to rid himself of an
d. his wife has given birth or suffered a miscarriage. undesirable worker. In particular, the employer must be
able to show that the transfer is not unreasonable, In Northern Lights Corporation, union members Nad, Ned
inconvenient or prejudicial to the employee; nor does it and Nod sought permission from the company to
involve a demotion in rank or a diminution of his salaries, distribute flyers with respect to a weekend union activity.
privileges and other benefits. The company HR manager granted the request through a
As their employer, Northeast Airlines has the right to text message sent to another union member, Norlyn.
regulate, according to its discretion and best judgment, While Nad, Ned, and Nod re distributing the flyers at the
work assignments, work methods, work supervision, and company assembly plant, a Company supervisor barged
work regulations, including the hiring, firing and in and demanded that they cease from distributing the
discipline of its employees. The Supreme Court upholds flyers, stating that the assembly line employees were
these management prerogatives so long as they are trying to beat a production deadline and were thoroughly
exercised in good faith for the advancement of the distracted. Norlyn tried to show the HR manager's text
employer’s interest and not for the purpose of defeating message authorizing flyer distribution during work hours,
or circumventing the rights of the employees under but the supervisor brushed it aside. As a result, Nad, Ned,
special laws and valid agreements. (Challenge Socks and Nod were suspended for violating company rules on
Corporation v. Court of Appeals, G.R. No. 165268, trespass and highly-limited union activities during work
November 8, 2005, 474 SCRA 356, 362-363) hours. The Union filed an unfair labor practice (ULP) case
before the NLRC for union discrimination.
In this case it does not show that Northeast Airlines
implemented the transfer for the purpose of defeating or a) Will the ULP case filed by the Union prosper? (2.5%)
circumventing the rights of the said 50 ground crew SUGGESTED ANSWER:
personnel. The ULP case filed by the Union will not prosper. This is
NOTE: The foregoing answer can be found in pages 31-32 because the act did not constitute an act of interfering,
of the book entitled Principles and Cases Labor Standards restraining or coercing the said employees in the exercise
and Social Legislation, Second Edition 2018, by Atty. of their right to self-organization under Article 259 [a] of
Voltaire T. Duano, and in pages 789-790of the book the Labor Code.
entitled Principles and Cases Labor Relations, Second In T & T Shoplifters Corporation/Gin Queen Corporation
Edition 2018, by Atty. Voltaire T. Duano. Questions v. T&T Shoplifters Corporation/Gin Queen Corporation
involving management prerogatives were given during Workers Union, G.R. No. 191714, February 26, 2014 citing
the 2000, 2001 and 1994 Bar Examinations. the case of Insular Life Assurance Co., Ltd. Employees
b) Will the unfair labor practice case prosper? (2.5%) Association – NATU v. Insular Life Assurance Co., Ltd.,
SUGGESTED ANSWER: (147 Phil. 194 [1971]) the Supreme Court had occasion to
lay down the test of whether an employer has interfered
The unfair labor practice case will not prosper. This is with and coerced employees in the exercise of their right
because the act did not constitute an act of interfering, to self-organization, that is, whether the employer has
restraining or coercing the said employees in the exercise engaged in conduct which, it may reasonably be said,
of their right to self-organization under Article 259 [a] of tends to interfere with the free exercise of employees’
the Labor Code. rights; and that it is not necessary that there be direct
In T & T Shoplifters Corporation/Gin Queen Corporation evidence that any employee was in fact intimidated or
v. T&T Shoplifters Corporation/Gin Queen Corporation coerced by statements of threats of the employer if there
Workers Union, G.R. No. 191714, February 26, 2014 citing is a reasonable inference that anti-union conduct of the
the case of Insular Life Assurance Co., Ltd. Employees employer does have an adverse effect on self-
Association – NATU v. Insular Life Assurance Co., Ltd., organization and collective bargaining.
(147 Phil. 194 [1971]) the Supreme Court had occasion to In the given facts, it does not show that the act of the
lay down the test of whether an employer has interfered company supervisor in barging in and demanding for
with and coerced employees in the exercise of their right Nad, Ned, and Nod to cease from distributing the flyers
to self-organization, that is, whether the employer has relates to the commission of acts that transgress their
engaged in conduct which, it may reasonably be said, right to organize or it was made to interfere, restrain or
tends to interfere with the free exercise of employees’ coerce them with the exercise of their right to self-
rights; and that it is not necessary that there be direct organization.
evidence that any employee was in fact intimidated or
coerced by statements of threats of the employer if there NOTE: The foregoing answer can be found in page 282-
is a reasonable inference that anti-union conduct of the 284 of the book entitled Principles and Cases Labor
employer does have an adverse effect on self- Relations, Second Edition 2018. . Questions involving the
organization and collective bargaining. same subject matter were given during the 2004 Bar
Examinations.
In the given facts, it does not show that the act of
Northern Airlines in sending notices of transfer relates to b) Assume the NLRC ruled in favor of the Union. The
the commission of acts that transgress their right to Labor Arbiter's judgment included, among others, an
organize or it was made to interfere, restrain or coerce award for moral and exemplary damages at
them with the exercise of their right to self-organization. PhP50,000.00 each for Nad, Ned, and Nod. Northern
Lights Corporation argued that any award of damages
NOTE: The foregoing answer can be found in page 282- should be given to the Union and not individually to its
284 of the book entitled Principles and Cases Labor members. Is Northern Lights Corporation correct? (2.5%)
Relations, Second Edition 2018.
SUGGESTED ANSWER:
XX
Northern Lights Corporation is not correct. The rights that
were violated belongs to the union members, Nad, Ned,
and Nod, and not the union itself. Further, the said union route prescribed by the franchising authority and the
members were the real party in interest in the said case rules promulgated as regards its operation. Now, the fact
for ULP filed by the union against the corporation and not that the drivers do not receive fixed wages but get only
the union itself. The union is a juridical person and as a that in excess of the so-called “boundary” they pay to the
rule it cannot not suffer moral damages. owner/operator is not sufficient to withdraw the
relationship between them from that of employer and
2017 BAR EXAMINATIONS IN LABOR LAW employee.

NOTE: The foregoing answer in can be found in pages


341-342 of the book entitled Principles and Cases Labor
I
Standards and Social Legislation, First Edition 2015, by
A. Atty. Voltaire T. Duano. The topic on employer-employee
relation has been time and again the subject matter of
What are the accepted tests to determine the existence bar questions, more specifically during the 2016, 2014,
of an employer-employee relationship? (5%) 2012, 2011, 2010, 2008, 2002, 1996 and 1991 Bar
Examinations.
SUGGESTED ANSWER:
II.
The four elements of an employment relationship are: (a)
the selection and engagement of the employee; (b) the Procopio was dismissed from employment for stealing his
payment of wages; (c) the power of dismissal; and (d) the co-employee Raul’s watch. Procopio filed a complaint for
employer’s power to control the employee’s conduct. illegal dismissal. The Labor Arbiter ruled in Procopio’s
(LakassaIndustriya ng KapatirangHaligi ng Alyansa- favor on the ground that Raul’s testimony was doubtful,
Pinagbuklod ng Manggagawang Promo ng Burlingame v. and, therefore, the doubt should be resolved in favor of
Burlingame Corporation, G.R. No. 162833, June 15, 2007, Procopio. On appeal, the NLRC reversed the ruling
524 SCRA 690, 695, citing Sy v. Court of Appeals, 398 because Article 4 of the Labor Code – which states that
SCRA 301, 307-308 (2003); Pacific Consultants all doubts in the interpretation and implementation of
International Asia, Inc. v. Schonfeld, G.R. No. 166920, the provisions of the Labor Code, including the
February 19, 2007, 516 SCRA 209, 228) implementing rules and regulations, shall be resolved in
favor of labor – applied only when the doubt involved the
NOTE: The foregoing answer in can be found in page 332
“implementation and interpretation” of the Labor Code;
of the book entitled Principles and Cases Labor Standards
hence, the doubt, which involved the application of the
and Social Legislation, First Edition 2015, by Atty. Voltaire
rules on evidence, not the Labor Code, could not
T. Duano. The topic on employer-employee relation has
necessarily be resolved in favor of Procopio. Was the
been time and again the subject matter of bar questions,
reversal correct? Explain your answer. (3%)
more specifically during the 2016, 2014, 2012, 2011,
2010, 2008, 2002, 1996 and 1991 Bar Examinations. SUGGESTED ANSWER:
B. In Peñaflor v. Outdoor Clothing Manufacturing, G.R. No.
177114, January 21, 2010, the Supreme Court explained
Applying the tests to determine the existence of an
the application of Article 4 of the Labor Code regarding
employer-employee relationship, is a jeepney driver
doubts on respondent’s evidence on the voluntariness of
operating under the boundary system an employee of his
petitioner’s resignation. Thus, the High Court said:
jeepney operator or a mere lessee of the jeepney?
Explain your answer. (3%) Another basic principle is that expressed in Article 4 of
the Labor Code – that all doubts in the interpretation and
SUGGESTED ANSWER:
implementation of the Labor Code should be interpreted
In a number of cases decided by the Supreme Court, in favor of the workingman. This principle has been
(National Labor Union vs. Dinglasan, 98 Phil. 649, 652 extended by jurisprudence to cover doubts in the
(1996); Magboo vs. Bernardo, 7 SCRA 952, 954 (1963); evidence presented by the employer and the employee.
Lantaco, Sr. vs. Llamas, 108 SCRA 502, 514 [1981]), it was (Fujitsu Computer Products Corporation of the
ruled that the relationship between jeepney Philippines v. Court of Appeals, 494 Phil. 697 [2005]) As
owners/operators on one hand and jeepney drivers on shown above, Peñaflor has, at very least, shown serious
the other under the boundary system is that of employer- doubts about the merits of the company’s case,
employee and not of lessor-lessee. It was explained that particularly in the appreciation of the clinching evidence
in the lease of chattels, the lessor loses complete control on which the NLRC and CA decisions were based. In such
over the chattel leased although the lessee cannot be contest of evidence, the cited Article 4 compels us to rule
reckless in the use thereof, otherwise he would be in Peñaflor’s favor. Thus, we find that Peñaflor was
responsible for the damages to the lessor. In the case of constructively dismissed given the hostile and
jeepney owners/operators and jeepney drivers, the discriminatory working environment he found himself in,
former exercise supervision and control over the latter. particularly evidenced by the escalating acts of unfairness
The management of the business is in the owner’s hands. against him that culminated in the appointment of
The owner as holder of the certificate of public another HRD manager without any prior notice to him.
convenience must see to it that the driver follows the Where no less than the company’s chief corporate officer
was against him, Peñaflor had no alternative but to resign The direct hires are exceptions to the ban on direct-hiring
from his employment. (Unicorm Safety Glass, Inc. v. under Article 18 of the Labor Code.
Basarte, 486 Phil. 493 [2004])
NOTE: The foregoing answer in can be found in page 112
NOTE: The foregoing answer in can be found in page 30 of the book entitled Principles and Cases Labor Standards
of the book entitled Principles and Cases Labor Standards and Social Legislation, First Edition 2015, by Atty. Voltaire
and Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano. The topic on direct hiring was asked last 2010
T. Duano. The topic on Article 4 regarding the application Bar Examination.
of Article 4 on doubts in the evidence was asked last
C.
2009 Bar Examination.
Phil, a resident alien, sought employment in the
III.
Philippines. The employer, noticing that Phil was a
A. foreigner, demanded that eh first secures an employment
permit from the DOLE. Is the employer correct? Explain
Andrew Manning Agency (AMA) recruited Feliciano for your answer. (2.5%)
employment by Invictus Shipping, its foreign principal.
Meantime, AMA and Invictus Shipping terminated their SUGGESTED ANSWER:
agency agreement. Upon his repatriation following his
The employer is not correct. According to Section 2,
premature termination, Feliciano claimed from AMA and
Department Order No. 97-09 Series of 2009, issued on
Invictus Shipping the payment of his salaries and benefits
August 26, 2009 [Revised Rules for the Issuance of
for the unserved portion of the contract. AMA denied
Employment Permits to Foreign Nationals]one of the
liability on the ground that it no longer had any agency
foreign nationals that are exempt from securing an
agreement with Invictus Shipping. Is AMA correct?
employment permit is a permanent permanent resident
Explain your answer. (3%)
foreign nationals, probationary or temporary visa
SUGGESTED ANSWER: holders. Moreover, the Labor Code speaks of non-
resident aliens that are required to obtain an alien
AMA is not correct. Section 10 of Republic Act 10022
employment permit.
provides that the liability of the principal/employer and
the recruitment/placement agency for any and all claims NOTE: The foregoing answer can be found in pages 270
shall be joint and several. This provision shall be and 271 of the book entitled Principles and Cases Labor
incorporated in the contract for overseas employment Standards and Social Legislation, First Edition 2015, by
and shall be a condition precedent for its approval. Such Atty. Voltaire T. Duano. The topic on alien employment
liabilities shall continue during the entire period or permit has been time and again the subject matter of bar
duration of the employment contract and shall not be questions, more specifically during the 2007 and 1995
affected by any substitution, amendment or modification Bar Examinations.
made locally or in a foreign country of the said contract.
IV
NOTE: The foregoing answer in can be found in page 675
The Regional Tripartite and Productivity Board (RTWPB)
of the book entitled Principles and Cases Labor Relations,
for Region 3 issued a wage order on November 2, 2017
First Edition 2016, by Atty. Voltaire T. Duano.
fixing the minimum wages for all industries throughout
B. Region 3.

As a rule, direct hiring of migrant workers is not allowed. (a) Is the wage order subject to the approval of the
What are the exceptions? Explain your answer. (2.5%) National Wages and Productivity Commission before it
takes effect? (2%)
SUGGESTED ANSWER:
SUGGESTED ANSWER:
Direct Hires — workers directly hired by employers for
overseas employment as authorized by the Secretary of No. the National Wages and Productivity Commission
Labor and Employment and processed by the POEA, function is to review the Wage Order issued by the
including: Regional Tripartite and Productivity Board (RTWPB) (See
Section 4, Rule IV, NWPC GUIDELINES NO. 01 Series of
1. Those hired by international organizations 2007, dated June 19, 2007)
2. Those hired members of the diplomatic corps.
NOTE: The foregoing answer can be found in page 558 of
3. Name hires or workers who are able to secure overseas the book entitled Principles and Cases Labor Standards
employment opportunity with an employer without the and Social Legislation, First Edition 2015, by Atty. Voltaire
assistance or participation of any agency. [Labor Code, T. Duano.
POEA Rules] (Section 1(i), Rule II, Omnibus Rules and
(b) The law mandates that no petition for wage increase
Regulations Implementing The Migrant Workers and shall be entertained within a period of 12 months from
Overseas Filipinos Act of 1995 as amended by Republic
the effectivity of the wage order. Under what
Act No. 10022) circumstances may the KilusangWalangTakot, a
federation of labor organizations that publicly and openly
assails the wage order as blatantly unjust, initiate the (Articles 58 [c] in relation to Article 61 and 3.10, TESDA
review of the wage increases under the wage order Circular No. 16, Series of 2004); In learnership, the
without waiting for the end of the 12-month period? agreement period shall not be more than three (3)
Explain your answer. (3%) months; (Article 75 (c), Labor Code, 3.10, TESDA Circular
No. 16, Series of 2004);
SUGGESTED ANSWER:
As to obligations to hire
If KilusangWalangTakot feels aggrieved by the Wage
Order issued by the Board it may appeal such Order to In apprenticeship, the enterprise is not obliged to hire
the National Wages and Productivity Commission by filing the apprentice after the apprenticeship period; (Articles
a verified appeal with the Board not later than ten (10) 61, Labor Code, 3.10, TESDA Circular No. 16, Series of
days from the date of publication of the Order on the 2004); In learnership, the enterprise is obliged to hire the
grounds of non-conformity with prescribed guidelines learner after the learnership period (Article 75 (d), Labor
and/or procedures, questions of law and grave abuse of Code, 3.10, TESDA Circular No. 16, Series of 2004);
discretion. (See Section 1, Rule IV, in relation to Section 2
As to pre-termination of the agreement
Rule V, NWPC GUIDELINES NO. 01 Series of 2007, dated
June 19, 2007) In apprenticeship, upon pre-termination of the
agreement there is no regular employment by operation
NOTE: The foregoing answer can be found in pages 559-
of law; (Articles 57-72, Labor Code); In learnership, a
560 of the book entitled Principles and Cases Labor
learner allowed or suffered to work during the first two
Standards and Social Legislation, First Edition 2015, by
(2) months shall be deemed regular employees if training
Atty. Voltaire T. Duano.
is terminated by the employer before the end of the
V stipulated period through no fault of the learners (Article
75 (d), Labor Code);
A.
As to the person hired
Percival was a mechanic of Pacific Airlines. He enjoyed a
meal break of one hour. However, during meal breaks, he In apprenticeship, the persons hired as trainees is known
was required to be on stand-by for emergency work. as apprentice; (Articles 58 [a], Labor Code, 2, TESDA
During emergencies, he was made to forego his meals or Circular No. 16, Series of 2004); In learnership, the
to hurry up eating. He demanded payment of overtime persons hired as trainees is known as learner (Articles 73,
for work done during his meal periods. Is Percival Labor Code, 2, TESDA Circular No. 16, Series of 2004);
correct? Explain your answer. (3%)
As to the supplement on theoretical instructions
SUGGESTED ANSWER:
In apprenticeship, the training on the job is with
Percival is correct. While as a rule the eight hour period compulsory related theoretical instructions; (Article 58
does not include the meal break however, in the case of [a], Labor Code, Section 4 [j], R.A. 7796, and 2, TESDA
Percival he was required to forego his meals or to hurry Circular No. 16, Series of 2004); In learnership, the
up eating. The meal period should therefore be practical training on the job may or may not be
considered compensable hours of work and a work supplemented by related theoretical instructions; (2,
beyond eight hours. Percival is therefore entitled to TESDA Circular No. 16, Series of 2004);
overtime time.
As to the reasons for hiring
NOTE: The foregoing answer can be found in page 371 of
In apprenticeship, the law did not provide any reasons
the book entitled Principles and Cases Labor Standards
where an apprentice may be hired (Articles 59-72, Labor
and Social Legislation, First Edition 2015, by Atty. Voltaire
Code); In learnership, the law provides the following
T. Duano.
reasons for hiring (1) when no experienced workers are
B. available; (2) the employment of learners is necessary to
prevent curtailment of employment opportunities; and
Distinguish a learner from an apprentice. (4%) (3) the employment does not create unfair competition in
SUGGESTED ANSWER: terms of labor costs or impair or lower working standards
(Article 74, Labor Code);
As to the agreement
As to qualifications
In Apprenticeship, the agreement entered by the parties
is known as Apprenticeship Agreement. (Articles 58 [d], In apprenticeship, the qualifications are (a) At least
Labor Code); In learnership, the agreement entered by fifteen (15) years of age; (b) Possess vocational aptitude
the parties is known as Learnership Agreement (Article and capacity for appropriate tests; and (c) Possess the
75, Labor Code); ability to comprehend and follow oral and written
instructions and no justifications or reasons given by law
As to the period of agreement for hiring; (Articles 59, Labor Code); In learnership, the
law did not provide such qualifications. However, reasons
In Apprenticeship, the agreement shall not be less than
four (4) months and not more than six (6) months;
or justifications for hiring are provided by law (Articles against discrimination afforded all women workers under
74, Labor Code); Article 136 (now 134) of the Labor Code.

As to what occupations hired NOTE: The foregoing answer can be found in pages 623
and 627 of the book entitled Principles and Cases Labor
In apprenticeship, the occupations involves “highly Standards and Social Legislation, First Edition 2015, by
technical industries” which means trade, business,
Atty. Voltaire T. Duano. The topic on stipulation against
enterprise, industry, or other activity, which is engaged in marriage has been time and again the subject matter of
the application of advanced technology and
bar questions, more specifically during the 2012, 2010,
apprenticeable occupations must be approved by TESDA; 1997 and 1995 Bar Examinations.
(Articles 60, Labor Code and 3.3, TESDA Circular No. 16,
Series of 2004). In learnership, the occupations involves B.
are semi-skilled and other industrial occupations which
Tarcisio was employed as operations manager and
are non-apprenticeable and learnable occupations must
received a monthly salary of P25,000.00 through his
be approved by TESDA (Articles 73, Labor Code and 3.3,
payroll account with DB Bank. He obtained a loan from
TESDA Circular No. 16, Series of 2004).
Roberto to purchase a car. Tarcisio failed to pay Roberto
NOTE: The foregoing answer can be found in pages 313- when the loan fell due. Roberto sued to collect, and
314 of the book entitled Principles and Cases Labor moved to garnish Tarcisio’s payroll account. The latter
Standards and Social Legislation, First Edition 2015, by vigorously objected and argued that slaries were exempt
Atty. Voltaire T. Duano. The topic on the distinctions from garnishment. Is Tarcisio correct? Explain your
between apprentice and learner has been the subject answer. (3%)
matter of bar questions during the 2016 and 2012 Bar
SUGGESTED ANSWER:
Examinations.
Tarciso is not correct. In Gaa v. Court of Appeals, G.R. No.
C.
L-44169 December 3, 1985, the Supreme Court ruled that
Are there differences between a househelper and a Article 1708 used the word "wages" and not "salary" in
homeworker? Explain your answer? relation to "laborer" when it declared what are to be
exempted from attachment and execution. The monthly
Domestic worker or “Kasambahay” refers to any person
salary of Tarcisio is therefore subject to garnishment.
engaged in domestic work within an employment
relationship such as, but not limited to, the following: NOTE: The foregoing answer can be found in page 450 of
general househelp, nursemaid or “yaya”, cook, gardener, the book entitled Principles and Cases Labor Standards
or laundry person while (b) “Industrial Homeworker” and Social Legislation, First Edition 2015, by Atty. Voltaire
means a worker who is engaged in industrial homework. T. Duano. The topic on the distinction between salary and
wage has been the subject matter of bar questions during
NOTE: The foregoing answer can be found in pages 676
the 1994 Bar Examination.
and 712 of the book entitled Principles and Cases Labor
Standards and Social Legislation, First Edition 2015, by VII
Atty. Voltaire T. Duano.
Dr. Crisostomo entered into a retainer agreement with AB
VI. Hotel and Resort whereby he would provide medical
services to the guests and employees of AB Hoteland
A. Resort, which, in turn, would provide the clinic premises
One Pacific Airline’s policies was to hire only single and medical supplies. He received a monthly retainer fee
applicants as flight attendants, and considered as of P60,000.00, plus a 70% share in the service charges
automatically resigned the flight attendants at the from AB Hoteland Resort’s guests availing themselves of
moment they got married. Is the policy valid? Explain the clinic’s services. The clinic employed nurses and allied
your answer. (2.5%) staff, whose salaries, SSS contributions and other benefits
he undertook to pay. AB Hotel and Resort issued
SUGGESTED ANSWER: directives giving instructions to him on the replenishment
of emergency kits and forbidding the clinic staff from
The policy is not valid. The policy is a violation of the
receiving cash payments from guests. In time, the nurses
Labor Code’s prohibition on stipulation against marriage
and the clinic staff claimed entitlement to rights as
under Article 134. The requirement that a company
regular employees of AB Hotelnad Resort, but the latter
policy must be reasonable under the circumstances to
refused on the ground that Dr. Crisostomo, who was their
qualify as a valid exercise of management prerogative
employer, was an independent contractor. Rule, with
was also at issue in the 1997 case of Philippine Telegraph
reasons. (4%)
and Telephone Company v. NLRC, G.R. No. 118978, May
23, 1997. In said case, the employee was dismissed in SUGGESTED ANSWER:
violation of petitioner’s policy of disqualifying from work
any woman worker who contracts marriage. The The test of independent contractorship was applied in
Supreme held that the company policy violates the right the case of Polyfoam-RGC International Corporation v.
Concepcion, G.R. No. 172349, June 13, 2012. Thus, the
High Court ruled:
The test of independent contractorship is “whether one employees whose employment are terminated every
claiming to be an independent contractor has contracted time their contracts of employment expire. The Supreme
to do the work according to his own methods and Court explained:
without being subject to the control of the employer,
[I]t is clear that seafarers are considered contractual
except only as to the results of the work.” (San Miguel
employees. They can not be considered as regular
Corporation v. Aballa, G.R. No. 149011, June 28, 2005,
employees under Article 280 of the Labor Code. Their
461 SCRA 392, 421) In San Miguel Corporation v.
employment is governed by the contracts they sign
Semillano, G.R. No. 164257, July 5, 2010, 623 SCRA 114
everytime they are rehired and their employment is
the Court laid down the criteria in determining the
terminated when the contract expires. Their employment
existence of an independent and permissible contractor
is contractually fixed for a certain period of time. They fall
relationship, to wit:
under the exception of Article 280 whose employment
“x xx [W]hether or not the contractor is carrying on an has been fixed for a specific project or undertaking the
independent business; the nature and extent of the completion or termination of which has been determined
work; the skill required; the term and duration of the at the time of engagement of the employee or where the
relationship; the right to assign the performance of a work or services to be performed is seasonal in nature
specified piece of work; the control and supervision of and the employment is for the duration of the season.
the work to another; the employer’s power with respect We need not depart from the rulings of the Court in the
to the hiring, firing and payment of the contractor’s two aforementioned cases which indeed constitute stare
workers; the control of the premises; the duty to supply decisis with respect to the employment status of
the premises, tools, appliances, materials, and labor; and seafarers.
the mode, manner and terms of payment.” (San Miguel
NOTE: The foregoing answer can be found in page 739 of
Corporation v. Semillano, supra, at p. 124; Sasan, Sr. v.
the book entitled Principles and Cases Labor Relations,
National Labor Relations Commission 4th Division, supra
First Edition 2016, by Atty. Voltaire T. Duano. The topic on
at p. 691)
the seafarers has been time and again the subject matter
Applying the above-test, the nurses are employees of Dr. of bar questions, more specifically during the 2014 and
Crisostomo. The facts had clearly stated that Dr. 2002 Bar Examinations.
Crisostomo was the one paying the salaries of the nurses
IX
and even reported them for SSS coverage. The element of
payment of wages is present. Section 255 (245) of the Labor Code recognizes three
categories of employees , namely: managerial,
NOTE: The foregoing answer can be found in page 497 of
supervisory, and rank-and-file.
the book entitled Principles and Cases Labor Standards
and Social Legislation, First Edition 2015, by Atty. Voltaire (a) Give the characteristics of each category of
T. Duano. The topic on the distinction between salary and employees, and state whether the employees in each
wage has been the subject matter of bar questions during category may organized and form unions. Explain your
the 1994 Bar Examination. The problem can also be answer. (5%)
resolved by characterizing the relationship of Dr.
Crisostomo and AB Hoteland Resort as to whether it is a SUGGESTED ANSWER:
legitimate contracting or labor-only contracting. The topic
Under Article 255 [245] of the Labor Code the following
on contracting/subcontracting has been time and again
are provided:
the subject matter of bar questions, more specifically
during the 2016, 2014, 2013, 2012, 2011, 2009, 2004, Managerial employees are not eligible to join, assist or
2002, 2001, 2000, 1997 and 1994 Bar Examinations. form any labor organization.

VIII Supervisory employees shall not be eligible for


membership in the collective bargaining unit of the rank-
Marciano was hired as Chief Engineer on board the vessel
and-file employees but may join, assist or form separate
M/V Australia. His contract of employment was for nine
collective bargaining units and/or legitimate labor
months. After nine months, he was re-hired. He was
organizations of their own.
hired a third time after another nine months. He now
claims entitlement to the benefits of a regular employee The rank-and-file union and the supervisors’ union
based on his performed tasks usually necessary and operating within the same establishment may join the
desirable to the employer’s business for a continuous same federation or national union.
period of more than one year. Is Marciano’s claim
tenable? Explain. (b) May confidential employees who assist managerial
employees, and who act in a confidential capacity or have
SUGGESTED ANSWER: access to confidential matters being handled by persons
exercising managerial functions in the field of labor
Marciano’s claim is not tenable. The Supreme Court
relations form, or assist, or join labor unions? Explain
squarely passed upon the issue in Millares v. NLRC, G.R.
your answer? (2.5%)
No. 110524, July 29, 2002, where one of the issues raised
was whether seafarers are regular or contractual SUGGESTED ANSWER:
No. In TunaynaPagkakaisa ng Manggagawasa Asia (a) The contractor or subcontractor carries on a distinct
Brewery v. Asia Brewery, Inc., G.R. No. 162025, August 3, and independent business and undertakes to perform the
2010, the High Court explained, who are those job, work or service on its own account and under its
confidential employees covered by the prohibition to own responsibility according to its own manner and
join, form and assist any labor organization under Article method, and free from the control and direction of the
245 [now 255] of the Labor Code, as follows: principal in all matters connected with the performance
of the work except as to the results thereof;
Confidential employees are defined as those who (1)
assist or act in a confidential capacity, (2) to persons who (b) The contractor or subcontractor has substantial
formulate, determine, and effectuate management capital or investment; and
policies in the field of labor relations. The two (2) criteria
(c) The agreement between the principal and contractor
are cumulative, and both must be met if an employee is
or subcontractor assures the contractual employees
to be considered a confidential employee that is, the
entitlement to all labor and occupational safety and
confidential relationship must exist between the
health standards, free exercise of the right to self-
employee and his supervisor, and the supervisor must
organization, security of tenure, and social and welfare
handle the prescribed responsibilities relating to labor
benefits.
relations. The exclusion from bargaining units of
employees who, in the normal course of their duties, In contrast, labor-only contracting, a prohibited act, is an
become aware of management policies relating to labor arrangement where the contractor or subcontractor
relations is a principal objective sought to be merely recruits, supplies or places workers to perform a
accomplished by the confidential employee rule. (San job, work or service for a principal. In labor-only
Miguel Corp. Supervisors and Exempt Employees Union v. contracting, the following elements are present:
Laguesma, G.R. No. 110399, August 15, 1997, 277 SCRA
370, 374-375, citing Westinghouse Electric Corp. v. NLRB (a) The contractor or subcontractor does not have
(CA6) 398 F2d 669 (1968), Ladish Co., 178 NLRB 90 (1969) substantial capital or investment to actually perform the
and B.F. Goodrich Co., 115 NLRB 722 [1956]) job, work or service under its own account and
responsibility; and
NOTE: The foregoing answer can be found in page 273 of
the book entitled Principles and Cases Labor Relations, (b) The employees recruited, supplied or placed by such
First Edition 2016, by Atty. Voltaire T. Duano. The topic on contractor or subcontractor are performing activities
the confidential employees covered by the prohibition which are directly related to the main business of the
has been time and again the subject matter of bar principal.” (Sasan, Sr. v. National Labor Relations
questions, more specifically during the 2014, 2011, 2009, Commission 4th Division, supra, at pp. 689-690.
2002 and 1999 Bar Examinations. [Citations omitted])

X. In PCI Automation Center, Inc. v. NLRC, G.R. No. 115920,


January 29, 1996, the effect of a finding that one is a
A. labor-only contractor was ruled as follows:
The labor sector has been loudly agitating for the end of In legitimate job contracting, no employer-employee
labor-only contracting, as distinguished from job relationship exists between the employees of the job
contracting. Explain these two kinds of labor contracting, contractor and the principal employer. Even then, the
give the effect of a finding that one is a labor-only principal employer becomes jointly and severally liable
contractor. Explain your answers. (4%) with the job contractor for the payment of the
employees’ wages whenever the contractor fails to pay
SUGGESTED ANSWER:
the same. In such case, the law creates an employer-
The Supreme Court in Polyfoam-RGC International employee relationship between the principal employer
Corporation vs. Concepcion, G.R. No. 172349, June 13, and the job contractor’s employees for a limited purpose,
2012 citing Sasan, Sr. v. National Labor Relations that is, to ensure that the employees are paid their
Commission 4th Division, G.R. No. 176240, October 17, wages. Other than the payment of wages, the principal
2008, 569 SCRA 670 distinguished permissible job employer is not responsible for any claim made by the
contracting or subcontracting from “labor-only” employees. (Philippine Bank of Communications vs.
contracting, to wit: NLRC, 146 SCRA 347 [1986])

“Permissible job contracting or subcontracting refers to On the other hand, in labor-only contracting, an
an arrangement whereby a principal agrees to put out or employer-employee relationship is created by law
farm out to a contractor or subcontractor the between the principal employer and the employees of
performance or completion of a specific job, work or the labor-only contractor. In this case, the labor-only
service within a definite or predetermined period, contractor is considered merely an agent of the principal
regardless of whether such job, work or service is to be employer. The principal employer is responsible to the
performed or completed within or outside the premises employees of the labor-only contractor as if such
of the principal. A person is considered engaged in employees had been directly employed by the principal
legitimate job contracting or subcontracting if the employer. The principal employer therefore becomes
following conditions concur: solidarily liable with the labor-only contractor for all the
rightful claims of the employees. (Philippine Bank of Give the procedure to be observed for validly terminating
Communications vs. NLRC, 146 SCRA 347 [1986]) the services of an employee based on a just cause? (4%)

Thus, in legitimate job contracting, the principal SUGGESTED ANSWER:


employer is considered only an indirect employer, (Article
As defined in Article 297 of the Labor Code, as amended,
107, Labor Code, as amended) while in labor-only
the requirement of two written notices served on the
contracting, the principal employer is considered the
employee shall observe the following:
direct employer of the employees. (last paragraph of
Article 106, Labor Code, as amended) (a) The first written notice should contain:
In short, the legitimate job contractor provides services 1. The specific causes or grounds for termination as
while the labor-only contractor provides only manpower. provided for under Article 297 of the Labor Code, as
The legitimate job contractor undertakes to perform a amended, and company policies, if any;
specific job for the principal employer while the labor-
only contractor merely provides the personnel to work 2. Detailed narration of the facts and circumstances that
for the principal employer. will serve as basis for the charge against the employee. A
general description of the charge will not suffice; and
NOTE: The foregoing answer can be found in pages
507508 of the book entitled Principles and Cases Labor 3. A directive that the employee is given opportunity to
Relations, First Edition 2016, by Atty. Voltaire T. Duano. submit a written explanation within a reasonable period.
The topic on job-contracting and labor-only contracting
“Reasonable period” should be construed as a period of
has been time and again the subject matter of bar
at least five (5) calendar days from receipt of the notice
questions, more specifically during the 2014, 2013, 2012,
to give the employee an opportunity to study the
2011, 2009, 2004, 2002, 2001, 2000, 1997 and 1994 Bar
accusation, consult or be represented by a lawyer or
Examinations.
union officer, gather data and evidence, and decide on
B. the defenses against the complaint. (Unilever v. Rivera,
G.R. No. 201701, June 3, 2013; Section 12, DOLE
What are the grounds for validly terminating the services Department Order 18-A)
of an employee based on a just cause? (5%)
(b) After serving the first notice, the employer should
SUGGESTED ANSWER: afford the employee ample opportunity to be heard and
to defend himself/herself with the assistance of his/her
An employer may terminate an employment for any of
representative if he/she so desires, as provided in Article
the following causes:
299 (b) of the Labor Code, as amended.
(a) Serious misconduct or willful disobedience by the
“Ample opportunity to be heard” means any meaningful
employee of the lawful orders of his employer or
opportunity (verbal or written) given to the employee to
representative in connection with his work;
answer the charges against him/her and submit evidence
(b) Gross and habitual neglect by the employee of his in support of his/her defense, whether in a hearing,
duties; conference or some other fair, just and reasonable way. A
formal hearing or conference becomes mandatory only
(c) Fraud or willful breach by the employee of the trust when requested by the employee in writing or substantial
reposed in him by his employer or duly authorized
evidentiary disputes exist or a company rule or practice
representative; requires it, or when similar circumstances justify it. (Perez
(d) Commission of a crime or offense by the employee v. PT&T, G.R. No. 152048, April 7, 2009, Section 12, DOLE
against the person of his employer or any immediate Department Order 18-A)
member of his family or his duly authorized
(c) After determining that termination of employment is
representatives; and justified, the employer shall serve the employee a written
(e) Other causes analogous to the foregoing. (Art. 297 notice of termination indicating that: (1) all
[282], Labor Code) circumstances involving the charge against the employee
have been considered; and (2) the grounds have been
NOTE: The foregoing answer can be found in pages 899- established to justify the severance of their employment.
890 of the book entitled Principles and Cases Labor
Relations, First Edition 2016, by Atty. Voltaire T. Duano. The foregoing notices shall be served personally to the
The topic on the just cause for termination has been time employee or to the employee’s last known address.
and again the subject matter of bar questions, more (Section 5, 5.1, Rule I-A, D.O. No. 147-15, Series of 2015)
specifically during the 2015, 2014, 2013, 2012, 2011, NOTE: The foregoing answer can be found in pages 899-
2009, 2008, 2006, 2003, 2001, 1995, 1996, 1995, 1999
890 of the book entitled Principles and Cases Labor
Bar Examinations. Relations, First Edition 2016, by Atty. Voltaire T. Duano.
C. The topic on the procedural due process has been time
and again the subject matter of bar questions, more
specifically during the 2012, 2009, 2006, 1999 and 1998 provision is not enough to make a position a corporate
Bar Examinations. office. [In] Guerrea v. Lezama [citation omitted] the first
ruling on the matter, held that the only officers of a
XI
corporation were those given that character either by the
A. Corporation Code or by the [b]y-[l]aws; the rest of the
corporate officers could be considered only as employees
The modes of determining the exclusive bargaining agent or subordinate officials.
of the employees in a business are: (a) voluntary
recognition; (b) certification election; and (c) consent xxx
election. Explain how they differ from one another. (4%) It is relevant to state in this connection that the SEC, the
SUGGESTED ANSWER: primary agency administering the Corporation Code,
adopted a similar interpretation of Section 25 of the
Voluntary Recognition refers to the process by which a Corporation Code in its Opinion dated November 25,
legitimate labor union is recognized by the employer as 1993 [citation omitted], to wit:
the exclusive bargaining representative or agent in a
bargaining unit, reported with the Regional Office in Thus, pursuant to the above provision (Section 25 of the
accordance with Rule VII, Section 2 of these Rules. Corporation Code), whoever are the corporate officers
Certification Election” or Consent Election refers to the enumerated in the by-laws are the exclusive Officers of
process of determining through secret ballot the sole and the corporation and the Board has no power to create
exclusive representative of the employees in an other Offices without amending first the corporate [b]y-
appropriate bargaining unit for purposes of collective laws. However, the Board may create appointive
bargaining or negotiation. A certification election is positions other than the positions of corporate Officers,
ordered by the Department, while a consent election is but the persons occupying such positions are not
voluntarily agreed upon by the parties, with or without considered as corporate officers within the meaning of
the intervention by the Department. (Rule I, Section 1, Section 25 of the Corporation Code and are not
Book V, Rules to Implement the Labor Code) empowered to exercise the functions of the corporate
Officers, except those functions lawfully delegated to
NOTE: The foregoing answer can be found in pages 21 them. Their functions and duties are to be determined by
and 22 of the book entitled Principles and Cases Labor the Board of Directors/Trustees. (Matling Industrial and
Relations, First Edition 2016, by Atty. Voltaire T. Duano. Commercial Corporation v. Coros, supra at 26-27)
The topic on the representation issue has been time and [Emphasis supplied.]
again the subject matter of bar questions, more
specifically during the 2006, 2004, and 2000 Bar With the given circumstances and in conformity with
Examinations. Matling Industrial and Commercial Corporation v. Coros,
Marcel was not a corporate officer of Mercedes
B. Corporation because his position as Vice President for
Finance and Administration was not specifically
Marcel was the Vice President for Finance and
mentioned in the roster of corporate officers in its
Administration and a member of the Board of Directors
corporate by-laws.
of Mercedes Corporation. He brought a complaint for
illegal suspension and illegal dismissal against Mercedes NOTE: The foregoing answer can be found in page 46 of
Corporation, which moved to dismiss the complaint on the book entitled Principles and Cases Labor Relations,
the ground that the complaint pertained to the First Edition 2016, by Atty. Voltaire T. Duano. The topic on
jurisdiction of the RTC due to the controversy being the on whether an position is a corporate officer has
intracorporate based on his positions in the corporation. been time and again the subject matter of bar questions,
Marcel countered that he had only been removed as Vice more specifically during the 2015, 2014, 2011 and 1996
President for Finance and Administration, not as a Bar Examinations.
member of the Board of Directors. He also argued that
his position was not listed as among the corporate offices C.
in Mercedes Corporation’s by-law. Is the argument of State the jurisdiction of the Voluntary Arbitrator, or Panel
Marcel correct? Explain your answer. (2.5%)
of Voluntary Arbitrators in labor disputes? (4%)
SUGGESTED ANSWER: SUGGESTED ANSWER:
Marcel’s contention is correct. It is settled in Matling
The voluntary arbitrator or panel of voluntary arbitrators
Industrial and Commercial Corporation v. Coros, G.R. No. shall have exclusive and original jurisdiction to hear and
157802, 13 October 2010, cited in Marc II Marketing Inc.
decide all unresolved grievances arising from:
v. Joson, G.R. No. 171993, December 12, 2011, where it
held, thus: 1. The implementation or interpretation of the collective
bargaining agreements; (Article 274 [261], Labor Code,
Conformably with Section 25, a position must be Section 4, Rule XIX, Book V, Omnibus Rules Implementing
expressly mentioned in the [b]y-[l]aws in order to be
the Labor Code)
considered as a corporate office. Thus, the creation of an
office pursuant to or under a [b]y-[l]aw enabling
2. The interpretation or enforcement of company to the abovementioned Genuino v. National Labor
personnel policies which remain unresolved after Relations Commission, G.R. Nos. 142732-33 & 142753-
exhaustion of the grievance procedure; (Article 274 [261], 54, December 4, 2007, 539 SCRA 342 the social justice
Labor Code, Section 4, Rule XIX, Book V, Omnibus Rules principles of labor law outweigh or render inapplicable
Implementing the Labor Code) the civil law doctrine of unjust enrichment.

3. Wage distortion issues arising from the application of NOTE: The foregoing answer can be found in pages 636-
any wage orders in organized establishments; (par. 4, 638 of the book entitled Principles and Cases Labor
Article 124, Labor Code, Section 4, Rule XIX, Book V, Relations, First Edition 2016, by Atty. Voltaire T. Duano.
Omnibus Rules Implementing the Labor Code) The topic on refund doctrine was asked for the first time
for this year’s bar examinations.
4. The interpretation and implementation of the
productivity incentive programs under RA 6971. B.

5. Upon agreement of the parties, shall also hear and Gene is a married regular employee of Matibay
decide all other labor disputes including unfair labor Corporation. The employee and Matibay Corporation had
practices and bargaining deadlocks. (Article 275. [262], an existing CBA that provided for funeral or bereavement
Labor Code, Section 4, Rule XIX, Book V, Omnibus Rules aid of P15,000.00 in case of the death of a legal
Implementing the Labor Code) dependent of a regular employee. His widowed mother,
who had been living with him and his family for many
6. Violations of a Collective Bargaining Agreement, except
years, died; hence, he claimed the funeral aid. Matibay
those which are gross in character, shall no longer be Corporation denied the claim on the basis that she had
treated as unfair labor practice and shall be resolved as
not been his legal dependents as the term legal
grievances under the Collective Bargaining Agreement; dependent was defined by the Social Security Law.
(Article 274. [261], Labor Code)
(a) Who may be the legal dependents of Gene under the
NOTE: The foregoing answer can be found in page 442 of Social Security Law? (2.5%)
the book entitled Principles and Cases Labor Relations,
First Edition 2016, by Atty. Voltaire T. Duano. The topic on SUGGESTED ANSWER:
jurisdiction of the voluntary arbitrators or panel of
Section 8 (e) of the Social Security Law provides that the
voluntary arbitrators has been time and again the subject
dependents shall be the following:
matter of bar questions, more specifically during the
2008, 2001, 1997 and 1995 Bar Examinations. (1) The legal spouse entitled by law to receive support
from the member;
XII
(2) The legitimate, legitimated or legally adopted, and
A.
illegitimate child who is unmarried, not gainfully
Juanito initiated a case for illegal dismissal against employed, and has not reached twenty-one (21) years of
Mandarin Company. The Labor Arbiter decided in his age, or if over twenty-one (21) years of age, he is
favor, and ordered his immediate reinstatement with full congenitally or while still a minor has been permanently
backwages and without loss of seniority and other incapacitated and incapable of self-support, physically or
benefits. Mandarin Company did not like to allow him mentally; and
back in its premises to prevent him from influencing his
(3) The parent who is receiving regular support from the
co-workers to move against the interest of the company;
member.
hence, it directed his payroll reinstatement and paid his
full backwages and other benefits even as it appealed to NOTE: The foregoing answer can be found in page 862 of
the NLRC. the book entitled Principles and Cases Labor Standards
and Social Legislation, First Edition 2015, by Atty. Voltaire
A few months later, the NLRC reversed the ruling of the
T. Duano. The topic on dependents has been time and
Labor Arbiter and declared that Juanito’s dismissal was
again the subject matter of bar questions, more
valid. The reversal ultimately became final.
specifically during the 2014 and 2002 Bar Examinations.
May Mandarin Company recover the backwages and
(b) Is Gene entitled to the funeral aid for the death of his
other benefits paid to Juanito pursuant to the decision of
widowed mother? Explain your answer. (2%)
the Labor Arbiter in view of the reversal by the NLRC?
Rule, with reasons. (2.5%) SUGGESTED ANSWER:
SUGGESTED ANSWER: Gene is entitled to the funeral aid for the death of his
widowed mother under CBA. This is because the said CBA
Mandarin Company cannot recover the backwages and
clearly provided for funeral or bereavement aid of
other benefits paid to Juanito pursuant to the decision of
P15,000.00 in case of the death of a legal dependent of a
the Labor Arbiter despite the reversal by the NLRC. The
regular employee. But in so far as the SSS law is
refund doctrine has already been reversed in Garcia v.
concerned, the only way that Gene can recover is that if
Philippine Airlines, Inc., G. R. No. 164856, July 20, 2009,
he will qualify as the primary beneficiary of his widowed
where the Supreme Court then stressed that as opposed
mother provided he has the restrictions on the definition Service Insurance System v. Corrales, G.R. No. 166261,
of dependent children. June 27, 2008, 556 SCRA 230, 243-244)

NOTE: The foregoing answer can be found in pages 862- Applying the above ruling, Rosa must present a
864 of the book entitled Principles and Cases Labor reasonable proof that her working condition increased
Standards and Social Legislation, First Edition 2015, by his risk of contracting the disease, or that there is a
Atty. Voltaire T. Duano in so far as the definition of connection between his work and the cause of the
beneficiary in relation to dependents are concerned. disease otherwise the same is not compensable.

C. NOTE: The foregoing answer can be found in page 766 of


the book entitled Principles and Cases Labor Standards
Rosa was granted vacation leave by her employer to
and Social Legislation, First Edition 2015, by Atty. Voltaire
spend three weeks in Africa with her family. Prior to her T. Duano. The topic on compensation proceedings has
departure, the General Manager of the company
been time and again the subject matter of bar questions,
requested her to visit the plant of the company in more specifically during the 2012, 2005 and 1996 Bar
Zimbabwe in order to derive best manufacturing
Examinations.
practices useful to the company. She accepted the
request because the errand would be important to the .
company and Zimbabwe was anyway in her itinerary. It
XIII
appears that she contracted a serious disease during the
trip. Upon her return, she filed a claim for compensation, A.
insisting that she had contracted the disease while
serving the interest of her employer. Given that the liability for an illegal strike is individual,
not collective, state when the participating union officers
Under the Labor Code, the sickness or death of an and members may be terminated from employment
employee, to be compensable, must have resulted from because of the illegal strike. Explain your answer. (4%)
an illness either definitely, accepted as an occupational
disease by the Employee’s Compensation Commission, or SUGGESTED ANSWER:
caused by employment subject to proof that the risk of
The following are the effects of participation in an illegal
contracting the same is increased by working conditions.
strike and commission of illegal acts during strike:
Is the serious disease Rosa contracted during her trip to
1. Any union officer who knowingly participates in an
Africa compensable? Explain your answer. (2.5%)
illegal strike; and
SUGGESTED ANSWER:
2. Any worker or union officer who knowingly
In Government Service Insurance System vs. Besitan, G.R. participates in the commission of illegal acts during a
No. 178901, November 23, 2011, explained the concept strike may be declared to have lost his employment
of increased theory as follows: status; (Third paragraph, Article 279 (a) [264 (a)], Labor
Code)
Corollarily, for the sickness or resulting disability or death
to be compensable, the claimant must prove either (1) NOTE: The foregoing answer can be found in page 520 of
that the employee’s sickness was the result of an the book entitled Principles and Cases Labor Relations,
occupational disease listed under Annex “A” of the First Edition 2016, by Atty. Voltaire T. Duano. The topic on
Amended Rules on Employees’ Compensation, or (2) that the effects of participation in illegal strike has been time
the risk of contracting the disease was increased by his and again the subject matter of bar questions, more
working conditions. specifically during the 2015, 2014, 2012, 2010, 2008,
2007, 2006, 1997, 1995 and 1994 Bar Examinations.
Certainty is not required only probability
B.
Under the increased risk theory, there must be a
reasonable proof that the employee’s working condition A sympathetic strike is stoppage of work to make
increased his risk of contracting the disease, or that there common cause with other strikers in another
is a connection between his work and the cause of the establishment or business. Is the sympathetic strike
disease. (Castor-Garupa v. Employees’ Compensation valid? Explain your answer. (1%)
Commission, G.R. No. 158268, April 12, 2006, 487 SCRA
SUGGESTED ANSWER:
171, 180) Only a reasonable proof of work-connection,
not direct causal relation, however, is required to The illegal stoppage of work by way of sympathetic strike
establish compensability of a non-occupational disease. has been settled in the case of BiflexPhils. Labor Union
(Government Service Insurance System v. Cordero, G.R. (NAFLU) v. Filflex Industrial and Manufacturing
Nos. 171378 & 171388, March 17, 2009, 581 SCRA 633, Cororation, G.R. No. 155679, 19 December 2006, where
640) Probability, and not certainty, is the yardstick in it was ruled that stoppage of work due to welga ng bayan
compensation proceedings; thus, any doubt should be is in the nature of a general strike, an extended sympathy
interpreted in favor of the employees for whom social strike. It affects numerous employers including those who
legislations, like PD No. 626, were enacted. (Government do not have a dispute with their employees regarding
their terms and conditions of employment.Employees (a) What conditions may justify the Secretary of Labor to
who have no labor dispute with their employer but who, assume jurisdiction? (2.5%)
on a day they are scheduled to work, refuse to work and
SUGGESTED ANSWER:
instead join a welga ng bayan commit an illegal work
stoppage. Even if petitioners joining the welga ng bayan Pursuant to Article 263 (g) [now 278 (g)], when a labor
were considered merely as an exercise of their freedom dispute causes or is likely to cause a strike or lockout in
of expression, freedom of assembly or freedom to an industry indispensable to the national interest, the
petition the government for redress of grievances, the Secretary of Labor and Employment may assume
exercise of such rights is not absolute. For the protection jurisdiction over the dispute and decide it or certify the
of other significant state interests such as the right of same to the National Labor Relations Commission (NLRC)
enterprises to reasonable returns on investments, and to for compulsory arbitration. (Section 1, Operational
expansion and growth enshrined in the 1987 Constitution Guidelines of Department Order No. 40-G-03, Series of
must also be considered, otherwise, oppression or self- 2010, dated February 24, 2011)
destruction of capital in order to promote the interests of
labor would be sanctioned. And it would give imprimatur For a valid exercise of the assumption of jurisdiction
to workers joining demonstrations/rallies even before authority, any of the following conditions must be
affording the employer an opportunity to make the present:
necessary arrangements to counteract the implications of
a. Both parties have requested the Secretary of Labor and
the work stoppage on the business, and ignore the novel
Employment to assume jurisdiction over the labor
principle of shared responsibility between workers and
dispute; or
employers aimed at fostering industrial peace. There
being no showing that petitioners notified respondents of b. After a conference called by the Office of the Secretary
their intention, or that they were allowed by of Labor and Employment on the propriety of the
respondents, to join the welga ng bayan on October 24, issuance of the Assumption or Certification Order,
1990, their work stoppage is beyond legal protection. motuproprio or upon a request or petition by either party
to the labor dispute. In the said conference. the parties
NOTE: The foregoing answer can be found in page 506 of
shall also be encouraged to amicably settle the dispute.
the book entitled Principles and Cases Labor Relations,
(Section 2, Operational Guidelines of Department Order
First Edition 2016, by Atty. Voltaire T. Duano. The topic on
No. 40-G-03, Series of 2010, dated February 24, 2011)
sympathetic strike has been the subject matter of bar
questions during the 2004 Bar Examinations. NOTE: The foregoing answer can be found in pages 468-
487 of the book entitled Principles and Cases Labor
C.
Relations, First Edition 2016, by Atty. Voltaire T. Duano.
Due to business recession, Ballistic Company retrenched The topic on the assumption of jurisdiction has been time
a part of its workforce. Opposing the retrenchment, and again the subject matter of bar questions, more
some of the affected employees staged a strike. specifically during the 2012, 2004 and 1996 Bar
Eventually, the retrenchment was found to be justified, Examinations.
and the strike was declared illegal; hence, the leaders of
(b) What are the consequences of the assumption of
the strike, including the retrenched employees, were
jurisdiction by the Secretary of Labor, and of the
declared to have lost their employment status.
disobedience to the return to work? Explain your answer.
Are the striking retrenched employees still entitled to (2.5%)
separation pay under Sec. 298 (283) of the Labor Code
The consequences of assumption of jurisdiction are as
despite the illegality of their strike? Explain your answer.
follows:
(2%)
a. If a strike or lockout has not taken place, the parties
SUGGESTED ANSWER:
are enjoined to conduct any untoward action that may
The strikers including the union officers should be paid lead to a strike or lockout.
their separation pay by virtue of retrenchment
b. if a strike or lockout has already taken place, all striking
notwithstanding the illegal strike was declared illegal. The
and locked out workers shall, within twenty-four (24)
issue on entitlement to separation pay due to authorized
hours from receipt of an Assumption or Certification
cause and the ground for termination due to knowingly
Order, immediately return to work and the employer
participating in illegal strike are distinct and different.
shall immediately resume operations and readmit all
XIV workers under the same terms and conditions prevailing
before the strike.
Pursuant to his power under Sec. 278(g) (263(g)) of the
Labor Code, the Secretary of Labor assumed jurisdiction c. At any point in time, the parties are not prevented
over the 3-day old strike in Armor Steel Plates, Inc., one from submitting the dispute to Voluntary Arbitration with
of the country’s bigger manufacturers of steel plates, and the Secretary of Labor and Employment or his/her duly
ordered all the striking employees to return to work. The authorized representative as Voluntary Arbitrator or
striking employees ignored the order to return to work. Panel of Voluntary Arbitrators. (Section 3, Operational
Guidelines of Department Order No. 40-G-03, Series of
2010, dated February 24, 2011)

While the consequence of disobedience to the return to


work has been ruled in the case of Manila Hotel
Employees Association v. Manila Hotel Corporation, G.R.
No. 154591, March 5, 2007. In holding that defiance of
the assumption order or a return-to work order by a
striking employee, whether a union officer or a member,
is an illegal act and, therefore, a valid ground for loss of
employment status. The High Court explained:

The law explicitly prohibits such acts.

ART. 263. STRIKES, PICKETING, AND LOCKOUTS

x xxx (omitted)

ART. 264. PROHIBITED ACTIVITIES

(a) x xxx

(omitted)

More to the point, the Court has consistently ruled in a


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