PART ONE:
election from the date it was issued a charter certificate. (Article 241
SUGGESTED ANSWERS IN THE 2018 BAR EXAMINATIONS IN LABOR
LAW
I 2007)
Narciso filed a complaint against Norte University for the payment of
retirement benefits after having been a part-time professional
lecturer in the same school since 1974. Narciso taught for two
semesters and a summer term for the school year 1975, took a leave
of absence from 1975 to 1977, and resumed teaching until 2003.
Since then, his contract has been renewed at the start of every
semester and summer, until November 2005 when he was told that
he could no longer teach because he was already 75 years old. Norte
University also denied Narciso’s claim for retirement benefits stating
that only full-time permanent faculty, who have served for at least
five years immediately preceding the termination of their
employment, can avail themselves of post-employment benefits. As
part-time faculty member, Narciso did not acquire permanent
employment status under the Manual of Regulations for Private
Schools, in relation to the Labor Code, regardless of his length
service.
(a) Is Narciso entitled to retirement benefits? (2.5%)
SUGGESTED ANSWER:
Yes, Narciso is entitled to retirement benefits. A part-time lecturer,
with a fixed-term employment, who did not attain permanent
status, is entitled to retirement pay. This was ruled by the Supreme
Court in De La Salle Araneta University v. Bernardo, G. R. No.
190809, February 13, 2017 as follows: Republic Act No. 7641 states
that "any employee may be retired upon reaching the retirement
age x x x;" and "[i]n case of retirement, the employee shall be
entitled to receive such retirement benefits as he may have earned
under existing laws and any collective bargaining agreement and
other agreements." The Implementing Rules provide that Republic
Act No. 7641 applies to "all employees in the private sector,
regardless of their position, designation or status and irrespective of
the method by which their wages are paid, except to those
specifically exempted x x x." And Secretary Quisumbing' s Labor
Advisory further clarifies that the employees covered by Republic
Act No. 7641 shall "include part-time employees, employees of
service and other job contractors and domestic helpers or persons in
the personal service of another."
(b) If he is entitled to retirement benefits, how should retirement
pay be computed in the absence of any contract between him and
Norte University providing for such benefits? (2.5%)
SUGGESTED ANSWER:
The retirement will be 22.5 days salary, exclusive of leave conversion
benefits. According to Capitol Wireless, Inc. v. Honorable Secretary
Ma. Nieves R. Confessor, G.R. No. 117174, November 13,1996:
For purposes of computing compulsory sand optional retirement
benefits and to align the current retirement plan with the minimum
standards of Art. 287 of the Labor Code, as amended by R.A. 7641,
and Sec. 5 (5.2) of its implementing rules, “1/2 month salary” means
22.5 days salary, exclusive of leave conversion benefits.
xxx xxx xxx
Unless the parties provide for broader inclusions, the term ‘one-half
(1/2) month salary’ shall mean fifteen (15) days plus one-twelfth
(1/12) of the 13th month pay and the cash equivalent of not more
than five (5) days of service incentive leaves x x x x (italics supplied).
II
Nayon Federation issued a charter certificate creating a rank-and-file
Neuman Employees Union. On the same day, New Neuman
Employees filed a petition for certification election with the
Department of Labor and Employment (DOLE) Regional Office,
attaching the appropriate charter certificate.
a) The employer, Neuman Corporation, filed a motion to dismiss the
petition for lack of legal personality on the part of the petitioner
union. Should the motion be granted? (2.5%)
SUGGESTED ANSWER:
The motion should be denied. For purposes of filing a petition for
certification election, New Neuman Employees has legal personality
from the time it was issued with a charter certificate. This clear
under the Labor Code, which provides, The chapter shall acquire
legal personality only for purposes of filing a petition for certification
[234-A], As inserted by Section 2, Republic Act No. 9481 which
lapsed into law on May 25, 2007 and became effective on June 14,
NOTE: The foregoing answer can be found in page 218 of the book
entitled Principles and Cases Labor Relations, Second Edition 2018,
by Atty. Voltaire T. Duano. This was the first time that this question
was asked in the bar examiantions.
b) The employer likewise filed a petition for cancellation of union
registration against New Neuman Employees Union, alleging that
Nayon Federation already had a chartered local rank-and-file union,
Neuman Employees Union, pertaining to the same bargaining unit
within the establishment. Should the petition for cancellation
prosper? (2.5%)
SUGGESTED ANSWER:
Under Article 247 of the Labor Code, the following are the relevant
grounds for cancellation of union registration:
(a) Misrepresentation, false statement or fraud in connection with
the adoption or ratification of the constitution and by-laws or
amendments thereto, the minutes of ratification, and the list of
members who took part in the ratification;
(b) Misrepresentation, false statements or fraud in connection with
the election of officers, minutes of the election of officers, and the
list of voters;
(c) Voluntary dissolution by the members.
Unless the employer can prove that any of the foregoing grounds
are present the petition for cancellation will not prosper.
NOTE: The foregoing answer can be found in page 223 of the book
entitled Principles and Cases Labor Relations, Second Edition 2018,
by Atty. Voltaire T. Duano. This was the first time that this question
was asked in the bar examiantions.
III
Due to his employer’s dire financial situation, Nicanor was prevailed
upon by his employer to voluntarily resign. In exchange, he
demanded payment of salary differentials, 13th month pay, and
financial assistance, as promised by his employer. Management
promised to pay him as soon as it is able to pay off all retrenched
rank-and-file employees. Five years later, and before management
was able to pay Nicanor the amount promised to him, Nicanor died
of a heart attack. His widow, Norie, filed a money claim against the
company before the National Labor Relations Commission (NLRC),
including interest on the amount of the unpaid claim. She also
claimed additional damages arguing that the supposed resignation
letter was obtained from her spouse through undue pressure and
influence. The employer filed a motion to dismiss on the ground that
(A) the NLRC did not have jurisdiction over money claims, and (B)
the action has prescribed.
(a) Does the NLRC have jurisdiction to award money claims including
interest on the amount unpaid? (2.5%)
SUGGESTED ANSWER:
Jurisdiction will depend on the amount being claimed by Nicanor’s
surviving spouse. If the amount exceeds Five Thousand Pesos
(PhP5,000.00) as provided in Article 224 (a [6]) of the Labor Code
then jurisdiction belongs to the Arbitration Branch of the NLRC.
However, if the amount did not exceed Five Thousand Pesos
(PhP5,000.00) and then jurisdiction belongs to the Regional Director
under Article 129 of the Labor Code involving recovery of wages,
simple money claims and other benefits. Either of the said quasi-
judicial body can award interest in the concept of actual and
compensatory damages in accordance. The award of interest in
money claim was explained in Limlingan v. Asian Institute
Management, Inc., G.R. No. 220481, February 17, 2016, that the rate
of interest in the concept of actual and compensatory damages as
well as its accrual are as follows:
1. When the obligation is breached, and it consists in the payment of
a sum of money, i.e., a loan or forbearance of money, the interest
due should be that which may have been stipulated in writing.
Furthermore, the interest due shall itself earn legal interest from the
time it is judicially demanded. In the absence of stipulation, the rate
of interest shall be 6% per annum to be computed from default, i.e.,
from judicial or extrajudicial demand under and subject to the
provisions of Article 1169 of the Civil Code.
2. When an obligation, not constituting a loan or forbearance of
money, is breached, an interest on the amount of damages awarded
may be imposed at the discretion of the court at the rate of 6% per
annum. No interest, however, shall be adjudged on unliquidated
claims or damages, except when or until the demand can be
established with reasonable certainty. Accordingly, where the
demand is established with reasonable certainty, the interest shall
begin to run from the time the claim is made judicially or
extrajudicially (Art. 1169, Civil Code), but when such certainty
cannot be so reasonably established at the time the demand is
made, the interest shall begin to run only from the date the
judgment of the court is made (at which time the quantification of
damages may be deemed to have been reasonably ascertained). The
actual base for the computation of legal interest shall, in any case,
be on the amount finally adjudged.
3. When the judgment of the court awarding a sum of money
becomes final and executory, the rate of legal interest, whether the
case falls under paragraph 1 or paragraph 2, above, shall be 6% per
annum from such finality until its satisfaction, this interim period
being deemed to be by then an equivalent to a forbearance of
credit.
NOTE: The foregoing answer can be found in page 26 of the book
entitled Principles and Cases Labor Relations, Second Edition 2018,
by Atty. Voltaire T. Duano and in pages 589-590 of the book entitled
Principles and Cases Labor Standards and Social Legislation, Second
Edition 2018, by Atty. Voltaire T. Duano. Questions involving the
same subject matter were given during the 2011 and 2016 (on
award of interest in money claim) Bar Examinations.
(b) Assuming that the NLRC has jurisdiction, has the action
prescribed? (2.5%)
SUGGESTED ANSWER:
The action has not prescribed. This is because Nicanor’s surviving
spouse’s cause of action will accrue upon the categorical denial of
the claim. In this case, there was demand for its payment, however,
the management had promsied to pay as soon as it is able to pay off
all retrenched rank-and-file employees. However, it is was only after
five (5) years that the management was able to pay. Moreover,
there was no denial of the claim. Therefore, prescription did not set
in. In the Degamo v. Avantgarde Shipping Corp., G.R. No. 154460,
November 22, 2005 and Serrano v. Court of Appeals, G.R. No.
139420, August 15, 2001, following cases, the Supreme Court
explained the accrual of a cause of action under Article 306 [291].
NOTE: The foregoing answer can be found in pages 943-946 of the
book entitled Principles and Cases Labor Relations, Second Edition
2018, by Atty. Voltaire T. Duano. Questions involving the same
subject matter was given during the 2010 Bar Examination.
(c) May Nicanor’s spouse successfully claim additional damages as a
result of the alleged undue pressure and influence? (2.5%)
SUGGESTED ANSWER:
Yes, Nicanor’s spouse can successfully claim additional damages as a
result of the alleged undue pressure and influence. This is provided
under Article 224 (a [4] of the Labor Code which provides for claims
for actual, moral, exemplary and other forms of damages arising
from employer-employee relationship within the jurisdictional
authority of the Arbitration Branch of the NLRC.
In the alternative, it can be argued that Nicanor’s spouse cannot
successfully claim additional damages because it is the jurisdictional
authority of the Arbitration Branch of the NLRC. The employer-
employee relationship is only incidental and the cause of action
arises from other sources like torts and damages. Therefore,
jurisdiction belongs to the regular courts.
NOTE: The foregoing answer can be found in pages 26, 32-38 of the
book entitled Principles and Cases Labor Relations, Second Edition
2018, by Atty. Voltaire T. Duano. Questions involving the same
subject matter were given during the 2016, 199 and 1995 Bar
Examinations.
IV
Natasha Shoe Company adopted an organizational streamlining
program that resulted in the retrenchment of 550 employees in its
main plant. After having been paid their separation benefits, the
retrenched workers demanded payment of retirement benefits
under a CBA between their union and management Natasha Shoe
Company denied the workers’ demand.
(a) What is the most procedurally peaceful means to resolve this
dispute? (2.5%)
SUGGESTED ANSWER:
Since this is a money claim involving the interpretation and
implementation of the CBA, the retrenched workers can refer the
matter to the grievance machinery and if it remained unresolved
within seven (7) days from the date of its submission the same shall
be automatically referred to the voluntary arbitration prescribed in
the CBA.
In the alternative it can be argued, that since this is a dispute
between the retrenched workers and the employer the same cannot
be a subject matter of grievance and voluntary arbitration. This is
because only disputes between the union and the company as ruled
in Tabique v. International Copra Export Corporation, G. R. No.
183335, December 23, 2009, shall be referred to grievance
machinery or voluntary arbitrators. Thus, the dispute should be
resolved by way of mandatory conciliation-mediation in accordance
with Article 234 of the Labor Code.
NOTE: The foregoing answer can be found in pages 193-195, 436,
433-442 of the book entitled Principles and Cases Labor Relations,
Second Edition 2018, by Atty. Voltaire T. Duano. Questions involving
the same subject matter were given during the 2017, 2010, 2008,
2001, 1997 and 1995 Bar Examinations.
(b) Can the workers claim both separation pay and retirement
benefits. (2.5%)
SUGGESTED ANSWER:
Yes, the workers can claim both separation pay and retirement
benefits. This was settled rule in the case of Goodyear v. Marina
Angus, G.R. No. 185499, 14 November 2014 where it was ruled that
in the absence of an express or implied prohibition against it,
collection of both retirement benefits and separation pay upon
severance from employment is allowed. This is grounded on the
social justice policy that doubts should always be resolved in favor of
labor rights. (Aquino v. National Labor Relations Commission, G.R.
No. 87653, February 11, 1992)
V
Nelda worked as a chambermaid in Hotel Neverland with a basic
wage of PhP560.00 for an eight-hour workday. On Good Friday, she
worked for one (1) hour from 10:00 PM to 11:00 PM. Her employer
paid her only PhP480 for each 8-hour workday, and PhP70.00 for
work done on Good Friday. She sued for underpayment of wages
and non-payment of holiday pay and night shit differential for
working on a Good Friday. Hotel Neverland denied the alleged
underpayment, arguing that based on long-standing unwritten
tradition, food and lodging costs were partially shouldered by the
employer and partially paid for by the employee through salary
deduction. According to the employer, such valid deduction caused
the payment of Nelda’s wage to be below the prescribed minim m.
The hotel also claimed that she was not entitled to holiday pay and
night shift differential pay hotel workers have to work on holidays
and may be be assigned to work at night.
(a) Does the hotel have valid legal grounds to deduct food and
lodging costs from Nelda's basis salary? (2.5%)
SUGGESTED ANSWER:
As held in Mabeza v. National Labor Relations Commission, G.R. No.
118506, April 18, 1997: Granting that meals and lodging were
provided and indeed constituted facilities, such facilities could not
be deducted without the employer complying first with certain legal
requirements. Without satisfying these requirements, the employer
simply cannot deduct the value from the employee’s wages. First,
proof must be shown that such facilities are customarily furnished
by the trade. Second, the provision of deductible facilities must be
voluntarily accepted in writing by the employee. Finally, facilities
must be charged at fair and reasonable value. (Labor Code, Art. 97
[f])
Applying the above, unless the hotel can comply with the legal
requirements it has no valid legal grounds to deduct food and
lodging costs from Nelda's basis salary.
NOTE: The foregoing answer can be found in page 502 of the book
entitled Principles and Cases Labor Standards and Social Legislation,
Second Edition 2018, by Atty. Voltaire T. Duano. Questions involving
the same subject matter were given during the 2013 and 2010 Bar
Examinations.
(b) Applying labor standards law, how much should Nelda be paid
for work done Good Friday? Show the computation in your test
booklet and encircle your final answer. (2.5%)
SUGGESTED ANSWER:
It can be argued:
The rule in order to be paid regular holiday like two successive
holidays provides as follows, Where there are two (2) successive
regular holidays, like Holy Thursday and Good Friday, an employee
may not be paid for both holidays if he absents himself from work
on the day immediately preceding the first holiday, unless he works
on the first holiday, in which case he is entitled to his holiday pay on
the second holiday.(Section 10, Rule IV, Book III, Rules to Implement
the Labor Code)
Applying the above rule, unless Nelda had complied with the rules
on absences she is not entitled for her holiday pay for work done on
Good Friday.
However, on the assumption that she complied with the rules Nelda
should be paid as follows: P560 x 200%=P1,120.00 or since he only
worked for one hour the pay should be as follows: 70 x 200% =
P140.00
NOTE: The foregoing answer can be found in page 453 of the book
entitled Principles and Cases Labor Standards and Social Legislation,
Second Edition 2018, by Atty. Voltaire T. Duano. Questions involving
the same subject matter was given during the 2013 and 2010 Bar
Examinations.
VI
A certification election was conducted in Nation Manufacturing
Corporation, whereby 55% of eligible voters in the bargaining unit
cast their votes. The results were as follows:
Union Nana : 45 votes
Union Nada : 40 votes
Union Nara : 30 votes
No Union : 80 votes
Union Nana moved to be declared as the winner of the certification
election.
a) Can Union Nana be declared as the winner? (2.5%)
SUGGESTED ANSWER:
Union Nana cannot be declared as the winner. This is because the
said union did not obtain the majority of the valid votes casts as
provided under Article 268 of the Labor Code.
NOTE: The foregoing answer can be found in pages 416-417 and
419of the book entitled Principles and Cases Labor Relations, Second
Edition 2018, by Atty. Voltaire T. Duano. Questions involving the
same subject matter were given during the 2014, 2009 Bar
Examinations.
b) Assume that the eligibility of 30 voters was challenged during pre-
election conference. The ballots of the 30 challenged voters were
placed inside an envelope sealed by the DOLE Election Office.
Considering the said envelope remains sealed, what should be the
next course of action with respect to the said challenged votes?
(2.5%)
SUGGESTED ANSWER:
The procedure in the Challenge of Votes provides as follows:
The ballot of the voter who has been property challenged during the
Pre-Election conferences, shall be placed in an envelope which shall
be sealed by the Election Officer in the presence of the voter and
the representatives of the contending unions. The election Officer
shall indicate on the envelope the voter’s name, the union
challenging the voter, and the ground for the challenged. The sealed
envelope shall then be signed by the Election Officer and the
representatives of the contending unions. The Election Officer shall
note all challenges in the minutes of the election proceedings and
shall have custody of all envelops containing the challenged votes.
The envelopes shall be opened and the question of eligibility shall be
passed upon by the Mediator-Arbiter only if the number of
segregated votes will materially alter the results of the election.
(Section 11, Rule IX, Book V, Rules to Implement the Labor Code, as
amended by Department Order No. 40-F-03, Series of 2008 and
renumbered by Department Order No. 40-I-15, Series of 2015)
Applying the said procedure, if the number of segregated votes will
materially alter the results of the election the next course of action
with respect to the said challenged votes is to open the said
envelopes and the question of eligibility shall be passed upon by the
Mediator-Arbiter.
NOTE: The foregoing answer can be found in page 402 of the book
entitled Principles and Cases Labor Relations, Second Edition 2018,
by Atty. Voltaire T. Duano. This is the first time that this type if
question was asked in the Bar Examinations.
VII
Nico is a medical representative engaged in the promotion of
Pharmaceutical products and medical devices for North
Pharmaceuticals, Inc. He regularly visits. physicians' clinics to inform
them of the chemical composition and benefits of his employer's
products. A the end of everyday, he receives a basis wage of
PhP700.00 plus a PhP150.00 "productivity allowance." For purposes
of computing Nico's 13th month pay, should the daily "productivity
allowance" be included? (2.5%)
SUGGESTED ANSWER:
For purposes of computing Nico's 13th month pay his daily
"productivity allowance" cannot be included.
In Philippine Spring Water Resources, Inc. v. Court of Appeals, G.R.
No. 205278, June 11, 2014, clarified as to when a commission forms
part of basic salary to be considered in the computation of 13th
month pay. The High Court said: It is well-established in
jurisprudence that the determination of whether or not a
commission forms part of the basic salary depends upon the
circumstances or conditions for its payment. In Phil Duplicators, Inc.
v. NLRC, G.R. No. 110068, November 11, 1993, 227 SCRA 747, the
Court held that commissions earned by salesmen form part of their
basic salary. The salesmen’s commissions, comprising a pre-
determined percentage of the selling price of the goods sold by each
salesman, were properly included in the term basic salary for
purposes of computing the 13th month pay. The salesmen’s
commissions are not overtime payments, nor profit-sharing
payments nor any other fringe benefit, but a portion of the salary
structure which represents an automatic increment to the monetary
value initially assigned to each unit of work rendered by a salesman.
On the other hand, in Boie-Takeda Chemicals, Inc. v. De la Serna,
G.R. Nos. 92174 and 102552, December 10, 1993, 228 SCRA 329, the
so-called commissions paid to or received by medical
representatives were excluded from the term basic salary because
these were paid to the medical representatives and rank-and-file
employees as productivity bonuses, which were generally tied to the
productivity, or capacity for revenue production, of a corporation
and such bonuses closely resemble profit-sharing payments and had
no clear direct or necessary relation to the amount of work actually
done by each individual employee.
Applying the above rule, the productivity allowance cannot be
included.
NOTE: The foregoing answer can be found in page 492 of the book
entitled Principles and Cases Labor Standards and Social Legislation,
Second Edition 2018. Question involving the same subject matter
was given during the 2011 Bar Examination. An alternative answer
can be given by stating that it will depend as to whether the
productivity bonus form part of the salary. In fine, whether or not
the productivity bonus forms part of the 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 revenue
production it will not form part of the salary. However, if has a clear
direct or necessary relation to the amount of work actually done by
each individual employee then it form part of the salary. This was
the distinction given by the case of Reyes v. NLRC, G.R. No. 160233,
August 8, 2007 citing the cases of Phil Duplicators, Inc. v. NLRC, G.R.
No. 110068, November 11, 1993 and monetary value initially
assigned to each unit of work rendered by a salesman. On the other
hand, in Boie-Takeda Chemicals, Inc. v. De la Serna, G.R. Nos. 92174
and 102552, December 10, 1993.
VIII
Nathaniel has been a salesman assigned by Newmark Enterprises
(Newmark) for nearly two years at the Manila office of Nutrition
City, Inc. (Nutrition City). He was deployed pursuant to a service
agreement between Newmark and Nutrition City, the salient
provisions of which were as follows:
a) the Contractor (Newmark) agrees to perform and provide the
Client (Nutrition City), on a non-exclusive basis, such tasks or
activities that are considered contractible under existing laws, as
may be needed by the Client from time to time;
b) the Contractor shall employ the necessary personnel like helpers,
salesmen, and drivers who are determined by the Contractor to be
efficiently trained;
c) the Client may request replacement of the Contractor’s personnel
if quality of the desired result is not achieved;
d) the Contractors personnel will comply with the Client's policies,
rules, and regulations; and
e) the Contractor’s two service vehicles and necessary equipment
will be utilized in carrying out the provisions of this Agreement.
When Newmark fired Nathaniel, he filed an illegal dismissal case
against the wealthier company, Nutrition City, Inc., alleging that he
was a regular employee of the same. Is Nathaniel correct? (2.5%)
SUGGESTED ANSWER:
Nathaniel is correct in so far as the existence of employer-employee
relationship between him and the principal.
The rules requires that the Service Agreement between the principal
and the contractor shall include the following:
i. The specific description of the job or work being subcontracted,
including its term or duration.
ii. The place of work and terms and conditions governing the
contracting arrangement, to include the agreed amount of the
contracted job or work as well as the standard administrative fee of
not less than ten percent (10%) of the total contract cost; and
iii. A provision on the issuance of the bond/s defined under Section
3(a) renewable every year. (Section 11, D.O. No. 174, Series of
2017)
On the other hand, a finding of violation of 11 shall render the
principal the direct employer of the employees of the contractor or
subcontractor, pursuant to Article 109 of the Labor Code, as
amended. (Section 12, D.O. No. 174, Series of 2017)
Applying the above rules, since Newmark and Nutrition City violated
the required terms to be stated in the Service Agreement then
Nutrition City is the direct employer of Nathaniel.
As to whether Nathaniel is a regular employee of Nutrition City, the
rules are as follows:
Regular employees are further classified into: (1) regular employees
by nature of work; and (2) regular employees by years of service. (E.
Ganzon, Inc. vs. National Labor Relations Commission, G.R. No.
123769, 22 December 1999, 321 SCRA 434, 440) The former refers
to those employees who perform a particular activity which is
necessary or desirable in the usual business or trade of the
employer, regardless of their length of service; while the latter
refers to those employees who have been performing the job,
regardless of the nature thereof, for at least a year. (Pangilinan vs.
General Milling Corporation, G.R. No. 149329, 12 July 2004)
Tested from the nature of his work and the activity of the principal
Nathaniel could be a regular employee while if it is tested on the
length of service then Nathaniel is a regular employee as he has
been employed with the principal for a least a year. In fact he was
employed for nearly two years.
NOTE: The foregoing answer can be found in page 561 of the book
entitled Principles and Cases Labor Standards and Social Legislation,
Second Edition 2018, and page 676 of the book entitled Principles
and Cases Labor Relations, Second Edition 2018, by Atty. Voltaire T.
Duano. Questions involving the same subject matter were given
during the 2009 (on terms of Service Agreement) and 22013 and
2008 (on regular employees) Bar Examinations. An alternative
answer can be given by characterizing the relationship of the
principal with the contractor as to whether it is a job contracting or
LOC. Then as to who would be the direct employer and extent of
liability can be determined or concluded.
IX
Sgt. Nemesis was a detachment non-commissioned officer of the
Armed Forces of the Philippines in Nueva Ecija. He and some other
members of his detachment sought permission from their Company
Commander for an overnight pass to Nueva Vizcaya to settle some
important matters. The Company Commander orally approved their
request and allowed them to carry their firearms as the place they
were going to was classified as a “critical place.” They arrived at the
place past midnight; and as they were alighting from a tricycle, one
of his companions accidentally dropped his rifle, which fired a single
shot, and in the process hit Sgt. Nemesis fatally. The shooting was
purely accidental. At the time of his death, he was still legally
married_to Nelda but had been separated de facto from her for 17
years. For the last 15 years of his life, he was living in with Narda,
with whom he has two minor children. Since Narda works as a
kasambahay, the two children lived with their grandparents, who
provided their daily- support. Sgt. Nemesis and Narda only sent
money to them every year to them for their school tuition.
Nelda and Narda, both for themselves and the latter, also on behalf
of her minor children, separately filed claims for compensation as a
result of the death of Sgt. Nemesis. The Line of Duty Board of the
AFP declared Sgt. Nemesis’ death to have been “in line of duty’, and
recommended that all benefits due to Sgt. Nemesis be given to his
dependents. However, the claims were denied by GSIS because Sgt.
Nemesis was not in his workplace nor performing his duty as a
soldier of the Philippine Army when he died.
(a) Are the dependents of Sgt. Nemesis entitled to compensation as
a result of his death? (2.5%)
SUGGESTED ANSWER:
The death of Sgt. Nemesis is compensable because it is work-
connected. However, in so far as entitlement of the dependents of
Sgt. Nemesis for compensation as a result of his death the
dependent spouse cannot claim compensation. The law requires
that the dependent spouse should be a legitimate spouse living with
the employee. (Article 173 [i], Labor Code).
In this case, the legitimate spouse Nelda is not entitled because she
is not living with Sgt. Nemesis while Narda will not qualify as
dependent spouses as she is not a legitimate spouse of Sgt. Nemesis
although she is living with the latter. On the other hand, in so far as
the dependent child the law requires that the dependent child be
legitimate, legitimated, legally adopted or xxx, who is unmarried, not
gainfully employed, not over 21 years of age provided he is
incapacitated and incapable of self-support due to physical or
mental defect which is congenital or acquired during minority. The
two minor children are therefore qualified as dependent children.
Hence, entitled to compensation.
NOTE: The foregoing answer can be found in pages 835 and 857-860
of the book entitled Principles and Cases Labor Standards and Social
Legislation, Second Edition 2018, by Atty. Voltaire T. Duano.
Question involving the same subject matter was given during the
2005 and 1996 Bar Examinations.
(b) As between Nelda and Narda, who should be entitled to the
benefits? (2.5%)
SUGGESTED ANSWER:
Nelda and Narda are not entitled to the benefits because they failed
to qualify within the definition (Article 173 [i], Labor Code) of
dependent spouse.
NOTE: The foregoing answer can be found in pages 835 and 857-860
of the book entitled Principles and Cases Labor Standards and Social
Legislation, Second Edition 2018, by Atty. Voltaire T. Duano.
Question involving the same subject matter was given during the
2005 and 1996 Bar Examinations.
X
Nonato had been continuously employed and deployed as a seaman
who performed services that were necessary and desirable to the
business of N-Train hipping, through its local agent, Narita Maritime
Services (Agency), in accordance with the 2010 Philippine Overseas
Employment Administration Standard Employment Contract (2010
POEA-SEC). Nonato's last contract (for ye months) expired on
November 15, 2016. Nonato was then repatriated due to "finished
contract." He immediately reported to the Agency and complained
that e had been experiencing dizziness, weakness, and difficulty in
breathing. The agency referred him to Dr. Neri, who examined,
treated, and prescribed him with medications. After a few months of
treatment and consultations, Nonato was declared fit to resume
work as a seaman. Nonato went back to the Agency to ask for re-
deployment but the Agency rejected his application. Nonato filed an
illegal dismissal case against the Agency and its principal, with a
claim for total disability benefits based on the ailments that he
developed on board N-Train hipping-vessels. The claim was based on
the certification of his own physician, Dr. Nunez, that he was unfit
for sea duties because of his hypertension and diabetes.
a) Was Nonato a regular employee of N-Train Shipping? (2.5%)
SUGGESTED ANSWER:
Nonato is not a regular employee of N-Train Shipping. The fact that
seafarers are not regular employees is already a settled rule.
In Petroleum Shipping Limited (formerly Esso International Shipping
(Bahamas) Co., Ltd.) v. NLRC, G.R. No. 148130, June 16,2006, the
Supreme Court said that the issue on whether seafarers are regular
employees is already a settled matter. Thus, the High Court said:
It was in Ravago v. Esso Eastern Marine, Ltd., G.R. No. 158324, 14
March 2005, 453 SCRA 381 where the Honorable Supreme Court
traced its ruling in a number of cases that seafarers are contractual,
not regular, employees. Thus, in Brent School, Inc. v. Zamora, G.R.
No. 48494, 5 February 1990, 181 SCRA 702 the Supreme Court cited
overseas employment contract as an example of contracts where
the concept of regular employment does not apply, whatever the
nature of the engagement and despite the provisions of Article 280
of the Labor Code. In Coyoca v. NLRC, G.R. No. 113658 March 31,
1995, the Supreme Court held that the agency is liable for payment
of a seaman’s medical and disability benefits in the event that the
principal fails or refuses to pay the benefits or wages due the
seaman although the seaman may not be a regular employee of the
agency.
The Supreme Court squarely passed upon the issue in Millares v.
NLRC, G.R. No. 110524, July 29, 2002, where one of the issues raised
was whether seafarers are regular or contractual employees whose
employment are terminated every time their contracts of
employment expire. The Supreme Court explained:
[I]t is clear that seafarers are considered contractual employees.
They can not be considered as regular employees under Article 280
of the Labor Code. Their employment is governed by the contracts
they sign everytime they are rehired and their employment is
terminated when the contract expires. Their employment is
contractually fixed for a certain period of time. They fall under the
exception of Article 280 whose employment has been fixed for a
specific project or undertaking the completion or termination of
which has been determined at the time of engagement of the
employee or where the work or services to be performed is seasonal
in nature and the employment is for the duration of the season. We
need not depart from the rulings of the Court in the two
aforementioned cases which indeed constitute stare decisis with
respect to the employment status of seafarers.
NOTE: The foregoing answer can be found in pages 721-723 of the
book entitled Principles and Cases Labor Relations, Second Edition
2018, by Atty. Voltaire T. Duano. Questions involving the same
subject matter were given during the 2017, 2014 and 2002 Bar
Examinations.
b) Can Nonato successfully claim disability benefits against N-Train
Shipping and its agent Narita Maritime Services? (2.5%)
SUGGESTED ANSWER:
The claim for disability benefits of Nonato against N-Train Shipping
and its agent Narita Maritime Services will not prosper for
prematurity.
The Supreme Court laid down the procedures for filing disability
benefits and its effect in case of failure to comply with the
procedures in Daraug v. KGJS Fleet Management Manila, G.R. No.
211211, January 14, 2015. Thus, in denying the claim for disability
benefits due to prematurity the Supreme Court ruled:
Petitioner Did Not Comply With The Procedures
In Vergara v. Hammonia Maritime Services, Inc.31 (Vergara), it was
stated that the Department of Labor and Employment (DOLE),
through the POEA, has simplified the determination of liability for
work-related death, illness or injury in the case of Filipino seamen
working on foreign oceangoing vessels. Every seaman and the vessel
owner (directly or represented by a local manning agency) are
required to execute the POEA Standard Employment Contract
(POEA-SEC) as a condition sine qua non prior to the deployment of
the seaman for overseas work. The POEA-SEC is supplemented by
the Collective Bargaining Agreement (CBA) between the owner of
the vessel and the covered seaman. In this case, the parties entered
in to a contract of employment in accordance with the POEA-SEC
and they agreed to be bound by the CBA.
Thus, in resolving petitioner’s claim for disability compensation, the
Court will be guided by the procedures laid down in the POEA-SEC
and in the CBA. On this point, Section 20(B)(3) of the POEA-SEC
provides:
Upon sign-off from the vessel for medical treatment, the seafarer is
entitled to sickness allowance equivalent to his basic wage until he is
declared fit to work or the degree of permanent disability has been
assessed by the company-designated physician but in no case shall
this period exceed one hundred twenty (120) days.
For this purpose, the seafarer shall submit himself to a post-
employment medical examination by a company-designated
physician within three working days upon his return except when he
is physically incapacitated to so, in which case, a written notice to
the agency within the same period is deemed a compliance. Failure
of the seafarer to comply with the mandatory reporting requirement
shall result in his forfeiture of the right to claim the above benefits.
If a doctor appointed by the seafarer disagrees with the assessment,
a third doctor may be agreed jointly between the Employer and the
seafarer. The third doctor’s decision shall be final and binding on
both parties.
NOTE: The foregoing answer can be found in pages 917-921 of the
book entitled Principles and Cases Labor Standards and Social
Legislation, Second Edition 2018, by Atty. Voltaire T. Duano.
Question involving the same subject matter was given during the
2013 Bar Examination.
Xl
Your favorite relative, Tita Nilda, approaches you and seeks your
advice n her treatment of her kasambahay, Noray. Tita Nilda shows
you a document called a “Contract of Engagement” for your review.
Under the Contract of Engagement, Noray shall be entitled to a rest
day every week, provided that she may be requested to work on a
rest day if Tita Nilda should need her services that day. Tita Nilda
also claims that this Contract of Engagement should embody the
terms and conditions of Noray’s work as the engagement of a
kasambahay is a private matter and should not be regulated by the
State.
a) Is Tita Nilda correct in saying that this is a private matter and
should not be regulated by the State? (2.5%)
SUGGESTED ANSWER:
Tita Nilda is not correct in saying that engagement of a kasambahay
is a private matter and should not be regulated by the State. This is a
valid subject matter of the exercise of police power to give effect to
the declared policy of the law such as the need to protect the rights
of domestic workers against abuse, harassment, violence, economic
exploitation and performance of work that is hazardous to their
physical and mental health; and in protecting domestic workers and
recognizing their special needs to ensure safe and healthful working
conditions, promotes gender-sensitive measures in the formulation
and implementation of policies and programs affecting the local
domestic work. (Section 2, Article I, Republic Act No. 10361)
NOTE: The foregoing answer can be found in page 759 of the book
entitled Principles and Cases Labor Standards and Social Legislation,
Second Edition 2018. This is the first time that this type of question
was asked in the Bar Examination.
b) is the stipulation that she may be requested to work on a rest day
legal? (2.5%)
SUGGESTED ANSWER:
The stipulation that Noray may be requested to work on a rest day is
legal. The law provides that, “ Nothing in this provision shall deprive
the domestic worker and the employer from agreeing to the
following:
(a) Offsetting a day of absence with a particular rest day;
(b) Waiving a particular rest day in return for an equivalent daily rate
of pay;
(c) Accumulating rest days not exceeding five (5) days; or
(d) Other similar arrangements. (Section 21, Article IV, Republic Act
No. 10361)
NOTE: The foregoing answer can be found in page 778 of the book
entitled Principles and Cases Labor Standards and Social Legislation,
Second Edition 2018. This is the first time that this type of question
was asked in the Bar Examination.
c) Are stay-in family drivers included under the Kasambahay
Law?(2.5%)
SUGGESTED ANSWER:
Stay-in family drivers are not included under the Kasambahay Law.
This was very clear in the Rules Implementing the Kasambahay Law
providing as follows:
The following are not covered:
(a) Service providers;
(b) Family drivers;
(c) Children under foster family arrangement; and
(d) Any other person who performs work occasionally or sporadically
and not on an occupational basis. (Section 2, Rule I, Implementing
Rules and Regulations of Republic Act 10361)
NOTE: The foregoing answer can be found in page 761 of the book
entitled Principles and Cases Labor Standards and Social Legislation,
Second Edition 2018. Questions involving the same subject matter
were given during the 2012 and 1998 Bar Examinations.
XII
Nena worked as an Executive Assistant for Nesting, CEO of Now
Corporation. One day, Nesting called Nena into his office and
showed her lewd pictures of women in seductive poses which Nena
found offensive. Nena complained before the General Manager
who, in turn, investigated the matter and recommended the
dismissal of Nesting to the Board of Directors. Before the Board of
Directors, Nesting argued, that-since the Anti-Sexual Harassment
Law requires the existence of “sexual favors,” he should not be
dismissed from the service since he did not ask for any-sexual favor
from Nena. Is Nesting correct? (2.5%)
SUGGESTED ANSWER:
Nesting is not correct.
The law penalizing sexual harassment in our jurisdiction is RA 7877.
Section 3 thereof defines work-related sexual harassment in this
wise:
Sec. 3. Work, Education or Training-related Sexual Harassment
Defined.—Work, education or training-related sexual harassment is
committed by an employer, manager, supervisor, agent of the
employer, teacher, instructor, professor, coach, trainor, or any other
person who, having authority, influence or moral ascendancy over
another in a work or training or education environment, demands,
requests or otherwise requires any sexual favor from the other,
regardless of whether the demand, request or requirement for
submission is accepted by the object of said Act.
(a) In a work-related or employment environment, sexual
harassment is committed when: xxx (3) The above acts would result
in an intimidating, hostile, or offensive environment for the
employee.
Contrary to Nesting’s claim, it is enough that his acts result in
creating an intimidating, hostile or offensive environment for the
employee.
NOTE: The foregoing answer can be found in page 696 of the book
entitled Principles and Cases Labor Standards and Social Legislation,
Second Edition 2018. Questions involving the same subject matter
were given during the 2011, 2009, 2006, 2005, 2004, 2003 and 2000
Bar Examinations.
XIII
Nicodemus was employed as a computer programmer by Network
Corporation, a telecommunications firm. He has been coming to
work in shorts and sneakers, in violation of the “prescribed uniform
policy” based on company rules and regulations. The company
human resources manager wrote him a letter, giving him 10 days to
comply with the company uniform policy. Nicodemus asserted that
wearing shorts and sneakers made him more productive, and cited
his above-average output. When he came to work still in violation of
the uniform policy, the company sent him a letter of termination of
employment. Nicodemus filed an illegal dismissal case. The Labor
Arbiter ruled in favor of Nicodemus and ordered his reinstatement
with backwages. Network Corporation, however, refused to
reinstate him. The NLRC 1st Division sustained the Labor Arbiter’s
judgment. Network Corporation still refused to reinstate
Nicodemus. Eventually, the Court of Appeals reversed the decision
of 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.
(a) Were there valid legal grounds to dismiss Nicodemus from his
employment? (2.5%)
SUGGESTED ANSWER:
Yes, Nicodemus can be dismissed on based on willful disobedience
to the lawful order under Article 297 (a) of the Labor Code and the
“prescribed uniform policy” of the company.
The basis is the case of St. Luke’s v. Sanchez, G.R. No. 212054, March
11, 2015 were it was ruled: At the same time, the employee has the
corollary duty to obey all reasonable rules, orders, and instructions
of the employer; and willful or intentional disobedience thereto, as a
general rule, justifies termination of the contract of service and the
dismissal of the employee. (Malabago v. NLRC, 533 Phil. 292, 300
[2006]) x x x x. Note that for an employee to be validly dismissed on
this ground, the employer’s orders, regulations, or instructions must
be: (1) reasonable and lawful, (2) sufficiently known to the
employee, and (3) in connection with the duties which the employee
has been engaged to discharge.”
NOTE: The foregoing answer can be found in page 786 of the book
entitled Principles and Cases Labor Relations, Second Edition 2018.
Questions involving the same subject matter were given during the
2008, 2003 and 1995 Bar Examinations.
(b) Should Nicodemus’ motion for execution be granted? (2.5%)
SUGGESTED ANSWER:
Yes, Nicodemus’ motion for execution should be granted. He is
entitled to his accrued salary.
The accrued wages/salaries (reinstatement wages/salaries) is the
consequence of the reinstatement aspect of the decision of the
Labor Arbiter referred in paragraph 3, Article 229 [223] of the Labor
Code. This means that a dismissed employee whose case was
favorably decided by the Labor Arbiter is entitled to receive wages
pending appeal upon reinstatement, which is immediately
executory. In other words, it refers to the wages or salaries which
automatically accrued to a dismissed employee from the notice of
the Labor Arbiter’s order of reinstatement until its ultimate reversal
by the higher court, which could be the NLRC, the Court of Appeals
or the Supreme Court. The entitlement to accrued wages/salaries
(reinstatement wages/salaries ) of a dismissed employee was
discussed in the cases of Roquero v. Philippine Airlines, G.R. No.
152329, 449 Phil. 437 (2003), Garcia v. Philippine Airlines, G.R. No.
164856, January 20, 2009, 576 SCRA 479, Islriz Trading v. Capada,
G.R. No. 168501, January 31, 2011, Pfizer Inc. v. Velasco, G.R. No.
177467, March 9, 2011 and Wenphil Corporation v. Abing, G.R. No.
207983, April 7, 2014.
In resolving the rule on entitlement to accrued wages between the
period where the Labor Arbiter’s order of reinstatement is pending
appeal and the NLRC Resolution overturning that of the Labor
Arbiter, the case of Garcia v. Philippine Airlines, Inc., G.R. No.
164856, January 20, 2009, 576 SCRA 479, is in point. The Supreme
Court examined its conflicting rulings with respect to the application
of paragraph 3 of Article 223 of the Labor Code, viz:
The core of the seeming divergence is the application of paragraph 3
of Article 223 of the Labor Code which reads:
‘In any event, the decision of the Labor Arbiter reinstating a
dismissed or separated employee, insofar as the reinstatement
aspect is concerned, shall immediately be executory, pending
appeal. The employee shall either be admitted back to work under
the same terms and conditions prevailing prior to his dismissal or
separation or, at the option of the employer, merely reinstated in
the payroll. The posting of a bond by the employer shall not stay the
execution for reinstatement provided herein.’
The view as maintained in a number of cases is that:
‘x x x [E]ven if the order of reinstatement of the Labor Arbiter is
reversed on appeal, it is obligatory on the part of the employer to
reinstate and pay the wages of the dismissed employee during the
period of appeal until reversal by the higher court. On the other
hand, if the employee has been reinstated during the appeal period
and such reinstatement order is reversed with finality, the employee
is not required to reimburse whatever salary he received for he is
entitled to such, more so if he actually rendered services during the
period.
In other words, a dismissed employee whose case was favorably
decided by the Labor Arbiter is entitled to receive wages pending
appeal upon reinstatement, which is immediately executory. Unless
there is a restraining order, it is ministerial upon the Labor Arbiter to
implement the order of reinstatement and it is mandatory on the
employer to comply therewith.
NOTE: The foregoing answer can be found in pages 143-145 of the
book entitled Principles and Cases Labor Relations, Second Edition
2018. Question involving the same subject matter was given during
the 2009 Bar Examination.
XIV
Nelson complained before the DOLE Regional Office about Needy
Corporation's failure to pay his wage increase amounting to
PhP5,000.00 as mandated in a Wage Order issued by the Regional
Tripartite Wages and Productivity Board. Consequently, Nelson-
asked the DOLE to immediately issue an Order sustaining his money
claim. To his surprise, he received a notice from the DOLE to appear
before the Regional Director for purposes of conciliating the dispute
between him and Needy Corporation. When conciliation before the
Regional Director the latter proceeded to direct both parties to
submit their respective position papers in relation to the dispute.
Needy Corporation argued, that since Nelson was willing to settle for
75% of his money claim during conciliation proceedings, only a
maximum of 75% of the said money claim may be awarded to him.
(a) Was DOLE’s action to conduct mandatory conciliation in light of
Nelson’s complaint valid? (2.5%)
SUGGESTED ANSWER:
Yes, the DOLE’s action to conduct mandatory conciliation is valid.
This is mandated by Article 234 of the Labor Code, except as
provided in Title VII-A, Book V of this Code, as amended, or as may
be excepted by the Secretary of Labor and Employment, all issues
arising from labor and employment shall be subject to mandatory
conciliation-mediation.
NOTE: The foregoing answer can be found in pages 193-195 of the
book entitled Principles and Cases Labor Relations, Second Edition
2018. This was the first time that a question of this nature was asked
in the Bar Examinations.
(b) Should the Regional Director sustain Needy Corporation’s
argument? (2.5%)
SUGGESTED ANSWER:
The Regional Director should not sustain Needy Corporation’s
argument. This is because under Article 239 of the Labor Cod,
information and statements made at conciliation proceedings shall
be treated as privileged communication and shall not be used as
evidence in the Commission. Conciliators and similar officials shall
not testify in any court or body regarding any matters taken up at
conciliation proceedings conducted by them. Thus, Needy
Corporation cannot raise the argument that Nelson was willing to
settle for 75% of his money claim during conciliation proceedings.
NOTE: The foregoing answer can be found in pages 239 of the book
entitled Principles and Cases Labor Relations, Second Edition 2018.
Question involving the same subject matter was given during the
2007 Bar Examination.
XV
Nexturn Corporation employed Nini and Nono, whose tasks involved
directing and supervising rank-and-file employees engaged in
company operations. Nini and Nono are required to ensure that
such employees obey company rules and regulations, and
recommend to the company's Human Resources Department any
required disciplinary action against erring employees. In Nexturn
Corporation, there are independent unions, representing rank- and-
file and supervisory employees, respectively.
a) May Nini and Nono join a union? (2.5%)
SUGGESTED ANSWER:
Yes, Nini and Nono can join a union. This is clearly allowed under
Article 255 of the Labor Code which provides in substance that
supervisory employees may join, assist or form separate collective
bargaining units and/or legitimate labor organizations of their own.
NOTE: The foregoing answer can be found in page 264 of the book
entitled Principles and Cases Labor Relations, Second Edition 2018.
Question involving the same subject matter was given during the
2017, 2010, 2004 and 1994 Bar Examinations.
b) May the two unions be affiliated with the same Union
Federation? (2.5%)
SUGGESTED ANSWER:
Yes, the two unions can be affiliated with the same Union
Federation. This is clearly allowed under Article 255 of the Labor
Code which provides in substance that the rank-and-file union and
the supervisors’ union operating within the same establishment may
join the same federation or national union.
NOTE: The foregoing answer can be found in page 264 of the book
entitled Principles and Cases Labor Relations, Second Edition 2018.
Question involving the same subject matter was given during the
2017, 2010, 2004 and 1994 Bar Examinations.
XVI
Nagrab Union and Nagrab Corporation have an existing CBA which
contains the following provision: “New_employees within the
coverage of the bargaining unit who may be regularly employed
shall become members of Nagrab Union. Membership in good
standing with the Nagrab Union is a requirement for continued
employment with Nagrab Corporation.” Nagrab Corporation
subsequently acquired all the assets and rights of Nuber Corporation
and absorbed all of the latter’s employees. Nagrab Union
immediately demanded enforcement of the above-stated CBA
provision with respect to the absorbed employees. Nagrab
Corporation refused on the ground that this should not apply fo the
absorbed employees who were former employees of another
corporation whose assets and rights it had acquired.
(a) Was Nagrab Corporation correct in refusing to enforce the CBA 4
provision with respect to the absorbed employees? (2.5%)
SUGGESTED ANSWER:
Nagrab Corporation was not correct in refusing to enforce the CBA
provision with respect to the absorbed employees. This is because it
cannot invoke its merger with another corporation as a valid ground
to exempt its absorbed employees from the coverage of a union
shop clause contained in its existing Collective Bargaining
Agreement (CBA) with its own certified labor union. In BANK OF THE
PHILIPPINE ISLANDS V. BPI EMPLOYEES UNION-DAVAO CHAPTER-
FEDERATION OF UNIONS IN BPI UNIBANK, G.R. No. 164301, August
10, 2010, the High Court resolved the question in this manner: At
the outset, we should call to mind the spirit and the letter of the
Labor Code provisions on union security clauses, specifically Article
248 (e), which states, x x x Nothing in this Code or in any other law
shall stop the parties from requiring membership in a recognized
collective bargaining agent as a condition for employment, except
those employees who are already members of another union at the
time of the signing of the collective bargaining agreement. This case
which involves the application of a collective bargaining agreement
with a union shop clause should be resolved principally from the
standpoint of the clear provisions of our labor laws, and the express
terms of the CBA in question, and not by inference from the general
consequence of the merger of corporations under the Corporation
Code, which obviously does not deal with and, therefore, is silent on
the terms and conditions of employment in corporations or juridical
entities.
NOTE: The foregoing answer can be found in page 305-308 of the
book entitled Principles and Cases Labor Relations, Second Edition
2018. Question involving the same subject matter was given during
the 2011 Bar Examination.
(b) May a newly-regularized employee of Nagrab Corporation (who
is not-part of the absorbed employees) refuse to join Nagrab Union?
How would you advise the human resources manager of Nagrab
Corporation to proceed? (2.5%)
SUGGESTED ANSWER:
The newly-regularized employee of Nagrab Corporation (who is not-
part of the absorbed employees) cannot refuse to join Nagrab Union
in view of the union security clause provision of the CBA. While the
right to join includes the right not to join, however, the exception is
the UNION SECURITY CLAUSE where it imposes upon employees the
obligation to acquire or retain union membership as a condition
affecting employment. Thus, I will advise the human resources
manager of Nagrab Corporation to comply with the provision of the
CAB stating that : “New_employees within the coverage of the
bargaining unit who may be regularly employed shall become
members of Nagrab Union.
NOTE: The foregoing answer can be found in page 299, 303-308 of
the book entitled Principles and Cases Labor Relations, Second
Edition 2018. Questions involving the same subject matter were
given during the 2005, 2011 and 1997 Bar Examinations.
XVII
Upon compliance with the legal requirements on the conduct of a
strike, Navarra Union staged a strike against Newfound Corporation
on account of a collective bargaining deadlock. During the strike,
some members of Navarra Union broke the windows and punctured
the tires of the company-owned buses. he Secretary of Labor and
Employment assumed jurisdiction over the dispute.
(a) Should all striking employees be admitted back to work upon the
assumption of jurisdiction by the Secretary of Labor and
Employment? Will these include striking employees who damaged
company properties? (2.5%)
SUGGESTED ANSWER:
All striking employees be admitted back to work and including
striking employees who damaged company properties. The effect of
assumption of jurisdiction of the Secretary of Labor is clear under
Article 278 (g) which provides in substance that such assumption
shall have the effect of automatically enjoining the intended or
impending strike or lockout as specified in the assumption or
certification order. If one has already taken place at the time of
assumption or certification, all striking or locked out employees shall
immediately return-to-work and the employer shall immediately
resume operations and readmit all workers under the same terms
and conditions prevailing before the strike or lockout.
NOTE: The foregoing answer can be found in page 478 of the book
entitled Principles and Cases Labor Relations, Second Edition 2018.
Questions involving the same subject matter were given during the
2003 and 1997 Bar Examinations.
(b) May the company, readmit strikers only by restoring them to the
payroll? 5%)
SUGGESTED ANSWER:
The company may not readmit strikers by restoring them to the
payroll. The phrase “under the same terms and conditions” found in
Article 278 (g) [263 (g)] of the Labor Code was interpreted by the
Supreme Court in the case of the University of Immaculate
Concepcion, Inc. v. Secretary of Labor, G.R. No. 151379, January 14,
2005 as follows:
With respect to the Secretary’s Order allowing payroll reinstatement
instead of actual reinstatement for the individual respondents
herein, an amendment to the previous Orders issued by her office,
the same is usually not allowed. Article 263(g) of the Labor Code
aforementioned states that all workers must immediately return to
work and all employers must readmit all of them under the same
terms and conditions prevailing before the strike or lockout. The
phrase “under the same terms and conditions” makes it clear that
the norm is actual reinstatement. This is consistent with the idea
that any work stoppage or slowdown in that particular industry can
be detrimental to the national interest.
Clearly, reinstatement should be actual and not payroll
reinstatement.
NOTE: The foregoing answer can be found in page 496 of the book
entitled Principles and Cases Labor Relations, Second Edition 2018.
This is the first time that a question of this nature was asked in the
Bar Examinations.
XVIII
Nestor and Nadine have been living in for the last 10 years without
the benefit of marriage. Their union has produced four children.
Nadine was three months pregnant with her 5th child when Nestor
left her for another woman. When Nadine was eight months
pregnant with her 5th child, she applied for maternity leave
benefits. Her employer refused on the ground that this was already
her 5" pregnancy and that she was only living in with the father of
her child, who is now in a relationship with another woman. When
Nadine gave birth, Nestor applied for paternity leave benefits. His
employer also denied the application on the same grounds that
Nadine’s employer denied her application.
(a) Can Nadine’s employer legally deny her claim for maternity
benefits? (2.5%)
SUGGESTED ANSWER:
Yes, Nadine’s employer can legally deny her claim for maternity
benefits. This is because the maternity benefits shall be paid only for
the first four (4) deliveries or miscarriages. (See Section 14-A, RA
8282) In this case, the said pregnancy was the 5th child of Nadine.
Thus, she already exhausted the limitations for entitlement to
maternity benefits under the law.
NOTE: The foregoing answer can be found in page 474 of the book
entitled Principles and Cases Labor Standards and Social Legislation,
Second Edition 2018, by Atty. Voltaire T. Duano. Questions involving
this subject matter were given during the 2015, 2012, 2010, 2005
and 2000 Bar Examinations.
(b) Can Nestor’s employer legally deny his claim for paternity
benefits? (2.5%)
SUGGESTED ANSWER:
Nestor’s employer can legally deny his claim for paternity benefits
for his failure to comply with the conditions for entitlement to
paternity benefits.
Under the law, a married male employee shall be entitled to
paternity benefits provided that:
a. he is an employee at the time of delivery of his child;
b. he is cohabiting with his spouse at the time she gives birth or
suffers a miscarriage.
c. he has applied for paternity leave in accordance with Section 4
hereof; and
d. his wife has given birth or suffered a miscarriage. (Section 3,
Revised Implementing Rules and Regulations of Republic Act No.
8187 for the Private Sector)
In this case, Nadine is not Nestor’s lawful wife to whom he is
cohabiting.
NOTE: The foregoing answer can be found in pages 470-471 of the
book entitled Principles and Cases Labor Standards and Social
Legislation, Second Edition 2018, by Atty. Voltaire T. Duano.
Questions involving this subject matter were given during the 2013,
2012, 2011, 2005 and 2002 Bar Examinations.
XIX
Northeast Airlines sent notices to transfer without diminution in
salary or rank, to 50 ground crew personnel who were front-liners at
Northeast Airlines counters at the Ninoy Aquino International
Airport (NAIA). The 50 employees were informed that they would be
distributed to various airports in Mindanao to anticipate robust
passenger volume growth in the area. Northeast Union representing
rank-and-file employees, filed unfair labor practice and illegal
dismissal cases before the NLRC, citing, among others, the
inconvenience of the 50 concerned employees and union
discrimination, as 8 of the 50 concerned round crew personnel were
union officers. Also, the Union argued that Northeast Airlines could
easily hire additional employees from Mindanao to boost ground
operations in the Mindanao airports.
a) Will the transfer of the 50 ground crew personnel amount to
Illegal dismissal (5%)
SUGGESTED ANSWER:
The transfer of the 50 ground crew personnel does not amount to
Illegal dismissal. This is because their transfer is a valid exercise of
management prerogatives.
In Gemina, Jr. v. Bankwise, Inc. (Thrift Bank) G.R. No. 175365,
October 23, 2013, it was held: The employer’s right to conduct the
affairs of its business, according to its own discretion and judgment,
is well-recognized. An employer has a free reign and enjoys wide
latitude of discretion to regulate all aspects of employment and the
only criterion to guide the exercise of its management prerogative is
that the policies, rules and regulations on work-related activities of
the employees must always be fair and reasonable. (The Coca-Cola
Export Corporation v. Gacayan, G.R. No. 149433, December 15,
2010, 638 SCRA 377, 398-399)
According to Endico v. Quantum Foods Distribution Center, G.R.
161615, January 30,2009, “Managerial prerogatives, however, are
subject to limitations provided by law, collective bargaining
agreements, and general principles of fair play and justice. The test
for determining the validity of the transfer of employees was
explained in the case of Blue Dairy Corporation v. NLRC, G.R. No.
129843, 14 September 1999, 314 SCRA 401, 408-409 the Supreme
Court explained the test for determining the validity of the transfer
of employees, as follows:
But, like other rights, there are limits thereto. The managerial
prerogative to transfer personnel must be exercised without grave
abuse of discretion, bearing in mind the basic elements of justice
and fair play. Having the right should not be confused with the
manner in which that right is exercised. Thus, it cannot be used as a
subterfuge by the employer to rid himself of an undesirable worker.
In particular, the employer must be able to show that the transfer is
not unreasonable, inconvenient or prejudicial to the employee; nor
does it involve a demotion in rank or a diminution of his salaries, the said employees in the exercise of their right to self-organization
privileges and other benefits. under Article 259 [a] of the Labor Code.
As their employer, Northeast Airlines has the right to regulate, In T & T Shoplifters Corporation/Gin Queen Corporation v. T&T
according to its discretion and best judgment, work assignments, Shoplifters Corporation/Gin Queen Corporation Workers Union, G.R.
work methods, work supervision, and work regulations, including No. 191714, February 26, 2014 citing the case of Insular Life
the hiring, firing and discipline of its employees. The Supreme Court Assurance Co., Ltd. Employees Association – NATU v. Insular Life
upholds these management prerogatives so long as they are Assurance Co., Ltd., (147 Phil. 194 [1971]) the Supreme Court had
exercised in good faith for the advancement of the employer’s occasion to lay down the test of whether an employer has interfered
interest and not for the purpose of defeating or circumventing the with and coerced employees in the exercise of their right to self-
rights of the employees under special laws and valid agreements. organization, that is, whether the employer has engaged in conduct
(Challenge Socks Corporation v. Court of Appeals, G.R. No. 165268, which, it may reasonably be said, tends to interfere with the free
November 8, 2005, 474 SCRA 356, 362-363) exercise of employees’ rights; and that it is not necessary that there
be direct evidence that any employee was in fact intimidated or
In this case it does not show that Northeast Airlines implemented
the transfer for the purpose of defeating or circumventing the rights coerced by statements of threats of the employer if there is a
reasonable inference that anti-union conduct of the employer does
of the said 50 ground crew personnel.
have an adverse effect on self-organization and collective
NOTE: The foregoing answer can be found in pages 31-32 of the bargaining.
book entitled Principles and Cases Labor Standards and Social
In the given facts, it does not show that the act of the company
Legislation, Second Edition 2018, by Atty. Voltaire T. Duano, and in
pages 789-790of the book entitled Principles and Cases Labor supervisor in barging in and demanding for Nad, Ned, and Nod to
Relations, Second Edition 2018, by Atty. Voltaire T. Duano. cease from distributing the flyers relates to the commission of acts
that transgress their right to organize or it was made to interfere,
Questions involving management prerogatives were given during
the 2000, 2001 and 1994 Bar Examinations. restrain or coerce them with the exercise of their right to self-
organization.
b) Will the unfair labor practice case prosper? (2.5%)
NOTE: The foregoing answer can be found in page 282-284 of the
SUGGESTED ANSWER: book entitled Principles and Cases Labor Relations, Second Edition
The unfair labor practice case will not prosper. This is because the 2018. . Questions involving the same subject matter were given
act did not constitute an act of interfering, restraining or coercing during the 2004 Bar Examinations.
the said employees in the exercise of their right to self-organization b) Assume the NLRC ruled in favor of the Union. The Labor Arbiter's
under Article 259 [a] of the Labor Code. judgment included, among others, an award for moral and
In T & T Shoplifters Corporation/Gin Queen Corporation v. T&T exemplary damages at PhP50,000.00 each for Nad, Ned, and Nod.
Shoplifters Corporation/Gin Queen Corporation Workers Union, G.R. Northern Lights Corporation argued that any award of damages
No. 191714, February 26, 2014 citing the case of Insular Life should be given to the Union and not individually to its members. Is
Assurance Co., Ltd. Employees Association – NATU v. Insular Life Northern Lights Corporation correct? (2.5%)
Assurance Co., Ltd., (147 Phil. 194 [1971]) the Supreme Court had SUGGESTED ANSWER:
occasion to lay down the test of whether an employer has interfered
with and coerced employees in the exercise of their right to self- Northern Lights Corporation is not correct. The rights that were
violated belongs to the union members, Nad, Ned, and Nod, and not
organization, that is, whether the employer has engaged in conduct
which, it may reasonably be said, tends to interfere with the free the union itself. Further, the said union members were the real party
in interest in the said case for ULP filed by the union against the
exercise of employees’ rights; and that it is not necessary that there
corporation and not the union itself. The union is a juridical person
be direct evidence that any employee was in fact intimidated or
coerced by statements of threats of the employer if there is a and as a rule it cannot not suffer moral damages.
reasonable inference that anti-union conduct of the employer does
have an adverse effect on self-organization and collective
bargaining.
In the given facts, it does not show that the act of Northern Airlines
in sending notices of transfer relates to the commission of acts that
transgress their right to organize or it was made to interfere,
restrain or coerce them with the exercise of their right to self-
organization.
NOTE: The foregoing answer can be found in page 282-284 of the
book entitled Principles and Cases Labor Relations, Second Edition
2018.
XX
In Northern Lights Corporation, union members Nad, Ned and Nod
sought permission from the company to distribute flyers with
respect to a weekend union activity. The company HR manager
granted the request through a text message sent to another union
member, Norlyn. While Nad, Ned, and Nod re distributing the flyers
at the company assembly plant, a Company supervisor barged in and
demanded that they cease from distributing the flyers, stating that
the assembly line employees were trying to beat a production
deadline and were thoroughly distracted. Norlyn tried to show the
HR manager's text message authorizing flyer distribution during
work hours, but the supervisor brushed it aside. As a result, Nad,
Ned, and Nod were suspended for violating company rules on
trespass and highly-limited union activities during work hours. The
Union filed an unfair labor practice (ULP) case before the NLRC for
union discrimination.
a) Will the ULP case filed by the Union prosper? (2.5%)
SUGGESTED ANSWER:
The ULP case filed by the Union will not prosper. This is because the
act did not constitute an act of interfering, restraining or coercing