Professional Documents
Culture Documents
2008 Labor Bar A and A
2008 Labor Bar A and A
SUGGESTED ANSWER:
SUGGESTED ANSWER:
II
SUGGESTED ANSWER:
“Art. 262. Jurisdiction over labor disputes. The voluntary arbitrator or panel of
voluntary arbitrators, upon agreement of the parties, shall also hear and decide all
other labor disputes, including unfair labor practice and bargaining deadlocks.”
SUGGESTED ANSWER:
III
SUGGESTED ANSWER:
a) I would rule in favor of Lina, et al. In Pure Foods Corporation v. NLRC (283
SCRA 135(1997]), the scheme of the employer in hiring workers on a uniformly fixed
contract basis of 5 months and replacing them upon the expiration of their contracts
with other workers with the same employment status was found to have been
designed to prevent “casual” employees from attaining the status of a regular
employee.
I will resolve the illegal dismissal case in favor of SDS. In Brent, the Supreme
Court En Banc held that while fixed term employment has already been repealed by
the various amendments to the Labor Code, the Civil Code still allows fixed term
employment. Such kind of employment is valid as long as it is established that: (1) the
fixed period of employment was knowingly and voluntarily agreed upon by the parties,
without any force, duress or improper pressure being brought to bear upon the
employee and absent any other circumstance vitiating his consent; and (2) the
employer and employee dealt with each other on more or less equal terms with no
moral dominance on the latter.
Since admittedly, Lina, et al. agreed, prior to their engagement, to the fixed term
employment, and It appearing that their consent was not vitiated, and considering
further that it has not been argued that the parties dealt with each other on less
equal terms, it then follows that Lina, et al’s fixed term employment is valid. No illegal
dismissal can take place upon expiration of such fixed term employment.
b) The owner of SDS considered the hunger strike staged by Lina, et al., an
eyesore and disruptive of SDS’ business. He wrote the Secretary of Labor a letter
asking him to assume jurisdiction over the dispute and enjoin the hunger “strike”.
What answer will you give if you were the Secretary of Labor? (3%)
SUGGESTED ANSWER:
SUGGESTED ANSWER:
c) No, the Compliance Order is not valid. The Regional Director only
exercises both visitorial and enforcement powers over labor standard cases, and
empowered to adjudicate uncontested money claims of persons still employed.
The Regional Director has no jurisdiction to rule on SDS’ 5-month term policy.
Super Comfort Hotel employed a regular pool of “extra waiters” who are called or
asked to report for duty when the Hotel’s volume of business is beyond the capacity of
he regularly employed waiters to undertake. Pedro has been an “extra waiter” for more
than 10 years. He is also called upon to work on weekends, on holidays and when
there are big affairs at the hotel.
What is Pedro’s status as an employee under the Labor Code? Why? Explain your
answer fully. (6%)
SUGGESTED ANSWER:
Pedro has acquired the status of a regular employee. Pedro was engaged to
perform activities which are necessary or desirable in the usual business or trade of
the employer.
Moreover, Pedro has been “extra waiter” for more than 10 years. Under the law,
any employee who has rendered service at least one year of service, whether such
service is continuous or broken, shall be considered a regular employee with respect
to the activity in which he is employed and his employment shall continue while such
activity exists (Art. 280, Labor Code).
The Pizza Corporation (PizCorp) and Ready Supply Cooperative (RSC) entered into
a “service agreement” where RSC, in consideration of service fees to be paid by
PizCorp, will exclusively supply PizCorp with a group of RSC motorcycle- owning
cooperative members who will henceforth perform PizCorp’s pizza delivery service.
RSC assumes - under the agreement - full obligation for the payment of the salaries
and other statutory benefits of its members deployed to PizCorp. The parties also
stipulated that there shall be no employer-employee relationship between PizCorp and
the RSC members. However, if PizCorp is materially prejudiced by any act of the
delivery crew that violates PizCorp’s directives and orders, PizCorp can directly impose
disciplinary sanctions on, including the power to dismiss, the erring RSC member/s.
SUGGESTED ANSWER:
a) The agreement between PizCorp and RSC, that there is, or will not be, an
employer-employee relationship between the RSC motorcycle-owning cooperative
members performing delivery services is not binding on labor officials because “the
test of employer-employee relationship is law and not agreement between the parties”
(Insular Life etc., v. NLRC, 287 SCRA 476[1998).
SUGGESTED ANSWER:
b) Using the control test, the employer of the RSC members is PizCorp. According
to the facts, the RSC members are supposed to make their deliveries in accordance
with PizCorp directives and orders. In addition, the PizCorp can directly impose
disciplinary sanction, including the power to dismiss the RSC members.
SUGGESTED ANSWER:
VI
On the day that the Union could validly declare a strike, the Secretary of Labor
issued an order assuming jurisdiction over the dispute and enjoining the strike, or if
one has commenced, ordering the striking workers to immediately return to work. The
retum-to-work order required the employees to return to work within twenty-four
hours and was served at 8 a.m. of the day the strike was to start. The order at the
same time directed the Company to accept all employees under the same terms and
conditions of employment prior to the work stoppage. The Union members did not
return to work on the day the Secretary’s assumption order was served, nor on the
next day; instead, they held a continuing protest rally against the company’s alleged
unfair labor practices. Because of the accompanying picket, some of the employees
who wanted to return to work failed to do so. On the 3rd day, the workers reported for
work, claiming that they do so in compliance with the Secretary’s retum-to-work order
that binds them as well as the Company. The Company, however, refused to admit
them back since they had violated the Secretary’s retum-to-work order and are now
considered to have lost their employment status.
The Union officers and members filed a complaint for illegal dismissal arguing
that there was no strike but a protest rally which is a valid exercise of the workers’
constitutional right to peaceable assembly and freedom of expression. Hence, there
was no basis for the termination of their employment.
You are the Labor Arbiter to whom the case was raffled. Decide, ruling on the
following issues:
a) Was there a strike? (4%)
SUGGESTED ANSWER:
a) Yes, there was a strike because of the concerted stoppage of work by the
union members.
Yes, there was a strike. No matter how they call it, the “continuing protest rally
against the company’s alleged unfair labor practices” constitutes a “temporary
stoppage of work by he concerted action of employees as a result of an industrial or
labor dispute” - a case of strike as defined in Art. 212(o) of the Labor Code.
b) Were the employees simply exercising their constitutional right to petition for
redress of their grievances? (3%)
SUGGESTED ANSWER:
b) No. After the issuance of a return to work order based on the assumption
powers of the Secretary of Labor under Art. 263(g) of the Labor Code, the strike was
already taken outside of the employees’ constitutionally protected right to engage in
peaceful concerted activities for redress of their grievances.
c) What are the consequences, if any of the acts of the employees? (3%)
SUGGESTED ANSWER:
VII
If you were Tito’s employer, would you grant his request? Why? (6%)
SUGGESTED ANSWER:
The compulsory coverage of employers and employees under the SSS law is
actually a legal imposition on the employers and employees, designed to provide
social security to workingmen. Membership in SSS is in compliance with a lawful
exercise of the police power of the State, and may not be Waived by agreement of any
party (Phil. Blooming Mills, Co., Inc. v. SSS, 17 SCRA 1077(1966]).
VIII
SUGGESTED ANSWER:
Carol died while going to her place of work. As held in the case of Alano v.
Employees’ Compensation Commission (158 SCRA 669(1988]), she was at the place
where her job necessarily required her to be if she was to reach her place of work on
time. There was nothing private or personal about Carol’s place being at the place of
the accident. She was there because her employment required her to be there.
The claim will not prosper as a claim for employees compensation will prosper
only in the event of work- connected disability or death and the death of Carol dela
Cruz will be considered as work connected only if it was because of “any accident
arising out of and in the course of employment.” This was not the case of Carol dela
Cruz. She was not yet working when the accident that caused her death took place.
IX
Assume that in Problem 5, Mario, an RSC member disgusted with the non-
payment of his night shift differential and overtime pay, filed a complaint with the
DOLE Regional Office against RSC and PizCorp. After inspection, It was found that
indeed Mario was not getting his correct differential and overtime pay and that he
was not declared an SSS member (so that no premiums for SSS membership were
ever remitted). On this basis, the Regional Director issued a compliance order holding
PizCorp and RSC solidarily liable for the payment of the correct differential and
overtime pay and ordering PizCorp to report Mario for membership with SSS and
remit the overdue SSS premiums.
Who has the obligation to report the RSC members for membership with the SSS,
with the concomitant obligation to remit SSS premiums? Why? (6%)
SUGGESTED ANSWER:
Ordinarily, if RSC is engaged in permissible job contracting, it would be RSC who
would be the employer and, therefore, would have the obligation to report its
employees to the SSS and remit its premiums.
Pepe Santos was an international Flight steward of FlySafe Airlines. Under FSA’s
Cabin Crew Administration Manual, Santos must maintain, given his height and
body frame, a weight of 150 to 170 pounds.
After 5 years as a flight steward, Santos began struggling with his weight; he
weighed 200 lbs., 30 pounds over the prescribed maximum weight. The Airline gave
him a one- year period to attain the prescribed weight, and enrolled him in several
weight reduction programs. He consistently failed to meet his target. He,was given a
6-month grace period, after which he still failed to meet the weight limit. FSC thus
send him a Notice of Administrative Charge for violation of company standards on
weight requirements. He stated in his answer that, for medical reasons, he cannot
have a rapid weight loss. A clarificatory hearing was held where Santos fully
explained his predicament. The explanation did not satisfy FSA and so it decided to
terminate Santos’s service for violation of company standards.
Santos Filed a complaint for illegal dismissal, arguing that the company’s weight
requirement policy js unreasonable and that his case is not a disciplinary but a
medical issue (as one gets older, the natural tendency is to grow heavier). FSA
defended its policy as a valid exercise of management prerogative and from the point
of view of passenger safety and extraordinary diligence required by law of common
carriers; it also posited that Santos’ failure to achieve his ideal weight constituted
gross and habitual neglect of duty, as well s willful disobedience to lawful employer
orders. The Labor arbiter found the dismissal illegal for there was neither gross and
habitual neglect of duty nor willful disobedience.
Is the Labor Arbiter correct? Why or why not? Explain fully. (6%)
SUGGESTED ANSWER:
The Labor Arbiter is correct. There is no gross and habitual neglect because it
appears that Pepe was trying to meet the weight limit, but just could not do so. His
acts or omissions were not willfully or intentionally done with conscious indifference
to the consequences of such acts or omissions.
There was no willful disobedience because Pepe’s actions or omissions were not
motivated by a wrongful or perverse attitude. Besides, the rigid requirement of
meeting the 170-pound maximum weight limit is not reasonable, considering a
person who could just be a few pounds over shall already be terminated. At worst,
Pepe could be suspended or reprimanded for his inability to reach the weight limit.
Dismissal would be too harsh a penalty to impose.
The Labor Arbiter is not correct in finding the dismissal of Santos illegal.
The FSA, through its Cabin Crew Administrative Manual, told Santos, that given his
height and body frame, he must maintain his weight between 130 and 170 pounds.
This pre-requisite is an exercise of management prerogative. When Santos became a
flight steward at FSA, he accepted his employment with this prerequisite which is not
violative of any law but is instead positively based on passenger safety and
extraordinary diligence required by law of common carrier.
Thus, the termination of Santos was for a valid reason: He was no longer
complying with a pre-requisite which was in his contract of employment from the
very beginning.
XI
Complainants had worked five (5) years as waitresses in a cocktail lounge owned
by the respondent. They did not receive any salary directly from the respondent but
shared in all services charges collected for food and drinks to the extent of 75%. With
respondent’s prior permission, they could sit with and entertain guests inside the
establishment and appropriate for themselves the tips given by guests. After five (5)
years, the complainants’ individual shares in the collected service charges dipped to
below minimum wage level as a consequence of the lounge’s marked business
decline. Thereupon, complainants asked respondent to increase their share in the
collected service charges to 85%, or the minimum wage level, whichever is higher.
Respondent terminated the services of the complainants who countered by filing
a consolidated complaint or unlawful dismissal, with prayer for 85% of the collected
services or the minimum wage for the appropriate periods, whichever is higher.
Decide. (6%)
SUGGESTED ANSWER:
The waitresses were employees of the owner of the cocktail lounge. Article 138 of
the Labor Code provides: “Any woman who is permitted or suffered to work, with or
without compensation, in any night club, cocktail lounge, massage clinic, bar or
similar establishment, under the effective control or supervision of the employer for a
substantial period of time as determined by the Secretary of Labor, shall be
considered as an employee of such establishment for purposes of labor and social
legislation.”
Thus, the said waitresses are employees with the right to security of tenure and
cannot be dismissed just because they filed complaint against the owner of the
cocktail lounge.
And as such waitresses, who are considered employees of the cocktail lounge,
they are at the very least entitled to receive the applicable minimum wage.
Complainants are not employees of the cocktail lounge, hence, they are not
entitled to coverage of the Labor Code. There is no finding that they are “under the
effective control or supervision of the employer for a substantial period time as
determined by the Secretary of Labor.” The Labor Code reads
“Art. 138. Classification of certain workers. Any worker who is permitted to work,
with or without compensation, in any night clubs, cocktail lounge, massage clinic, bar
or similar establishment, under the effective control or supervision of the employer for
a substantial period of time as determined by the Secretary of Labor, shall be
considered an employee, of such establishment for purposes of labor and social
legislation.”
XII
SUGGESTED ANSWER:
Arnaldo was illegally dismissed. None of the cases allowing compulsory overtime
work were present. Hence, the employer’s demand for Arnaldo to render such
overtime work was unjustified.
XIII
The rank-and-file union staged a strike in the company premises which caused
the disruption of business operations. The supervisors’ union of the same company
filed a money claim for unpaid salaries for the duration of the strike, arguing that the
supervisors’ failure to report for work was not attributable to them. The company
contended that it was equally faultless, for the strike was not the direct consequence
of any lockout or unfair labor practice. May the company be held liable for the
salaries of the supervisors? Decide. (6%)
SUGGESTED ANSWER:
No. I will apply the “No Work No Pay” principle. The supervisors are not entitled
to their money claim for unpaid salaries, as they should not be compensated for
services skipped during the strike of the rank-and-file union.
The age-old rule governing the relation between labor and capital, or
management and employee of a “fair day’s wage for a fair day’s labor” remains as the
basic factor in determining employees’ wages (Aklan Electric Cooperative, Inc. v.
NLRC, 323 SCRA 258[2000]).
XIV
SUGGESTED ANSWER:
A new provision, Article 239-A is inserted into the Labor Code by RA 9481, as
follows:
“ART. 239-A. Voluntary Cancellation of Registration.
- The registration of a legitimate labor organization may be cancelled by the
organization itself: Provided, That at least two-thirds of its general membership votes,
in a meeting duly called for that purpose to dissolve the organization: Provided,
further, That an application to cancel registration is thereafter submitted by the
board of the organization, attested to by the president thereof.”
If indeed the local union was dissolved in accordance with the above provision
of law, the argument of “Puwersa” is not tenable. This is so because “Puwersa” only
had the status of an agent, while the local union remained the basic unit of the
association [Liberty Cotton Mills Workers Union v. Liberty Cotton Mills, Inc., 66
SCRA 52[1975J; cited in Filipino Pipe and Foundry Corp. v. NLRC, 318 SCRA
68[1999]).
No. Local unions do not owe their creation and existence to the national
federation to which they are affiliated, but to the will of their members. The act of
voluntary dissolution already constitutes a ground for cancellation for union
registration under Article 239 as amended by Republic Act No. 9481. Hence, the
collective bargaining agent’s legal personality has been extinguished, with Puwersa
reduced to being an agent without a principal.
Yes, Puwersa is right. Article 256 of the Labor Code mandates that the “Labor
union receiving the majority of the valid votes cast shall be certified as the exclusive
bargaining agent of all the workers in the unit.” On the assumption that it has been
so certified, Puwersa is then correct in its argument that “since it won in the
certification election, it can validly perform its functions as a bargaining agent and
represent the rank- and-file employees despite the (local) union’s dissolution”. The
refusal of the company to bargain with Puwersa is violative of its duty to bargain
collectively under Arts. 251 and 252 of the Code, thereby subjecting it to the penalty
of considering Puwersa’s proposed CBA as the parties’ effective CBA. Such was the
ruling of the Supreme Court in Divine Word University of Tacloban vs. Secretary of
Labor and Employment (213 SCRA 759 [1992]).