BAR E%AMINATION 2004

#ABOR & SOCIA# #E"IS#ATION

05 September 2004 INSTRUCTIONS

2:00 P.M. 5:00 P.M.

This questionnaire consists of ten (10) pages, excluding this cover. There are ten Roman numbers divided into sub-sets ith corresponding percentages. Read each question ver! carefull!. "ns er it directl!, concisel!, and clearl!. #rite legibl!. $tart each Roman number on a separate page. "n ans er to a sub-question under the same number ma! be ritten continuousl! on the same and immediatel! succeeding pages until completed. %o not repeat the questions. " mere &'es( or &)o( ans er to a problem ithout explanation or discussion ill not be given an! credit. HAND IN YOUR NOTEBOOK ITH THIS !UESTIONNAIRE.

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!UESTION NO. I ". R$, a securit! guard, filed a complaint for illegal dismissal against $tar $ecurit! "genc!. *e alleged he as constructivel! dismissed after ten !ears of service to the "genc!. *aving been placed on &off-detail( and &floating status( for + months alread!, he claimed the "genc! ,ust reall! anted to get rid of him because it required him to ta-e a neurops!chiatric evaluation test b! .ahusa! .edical /enter. R$ said he alread! submitted the result of his evaluation test b! 0rent .edical /linic as precondition to a ne assignment, but the report as re,ected b! the "genc!. R$ added that .ahusa! .edical /enter had close ties ith $tar1s president. 2t could manipulate tests to favor onl! those guards hom the "genc! anted to retain. $tar defended its polic! of reliance on .ahusa! .edical /enter because it has been dul! accredited b! the 3hilippine )ational 3olice. 2t is not one of those dubious testing centers issuing read!-made reports. $tar cited its sad experience last !ear hen a guard ran amuc- and shot an emplo!ee of a client-ban-. $tar claimed management prerogative in assigning its guards, and pra!ed that R$1 complaint be dismissed. #hat are the issues4 2dentif! and resolve them. (56) 0. " spinster school teacher too- pit! on one of her pupils, a robust and precocious 17-!ear old bo! hose poor famil! could barel! afford the cost of his schooling. $he lives alone at her house near the school after her housemaid left. 2n the afternoon, she lets the bo! do various chores as cleaning, fetching ater and all -inds of errands after school hours. $he gives him rice and 380.00 before the bo! goes home at 9:00 ever! night. The school principal learned about it and charged her ith violating the la hich prohibits the emplo!ment of children belo 15 !ears of age. 2n her defense, the teacher stated that the or- performed b! her pupil is not ha;ardous, and she invo-ed the exception provided in the %epartment <rder of %<=> for the engagement of persons in domestic and household service. 2s her defense tenable4 Reason. (56)

!UESTION NO. II ". %istinguish clearl! but briefl! bet een: 1. $!mpath! stri-e and general stri-e. 7. /ompan! union and union shop. 8. =oc--out and closed shop. ?. /onsent election and certification election. 5. $ocial securit! and union securit!. (56)

0.

>numerate and discuss briefl!: 1. #hat are the statutor! requisites for a valid stri-e b! the or-ers4 $hould these requisites be complied ith substantiall! or strictl!4 7. #hat are the authori;ed causes for a valid dismissal b! the emplo!er of an emplo!ee4 #h! are the! distinct from the ,ust causes4 (56) !UESTION NO. III

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#hich of the follo ing ma! be considered among industries most vital to national interest as to be the sub,ect of immediate assumption of ,urisdiction b! the $ecretar! of =abor and >mplo!ment or certification for compulsor! arbitration in case of stri-e or or- stoppage arising from a labor dispute4 (1) 0ulletin dail! ne spaper publishing compan!.

(7) (8) (?) (5)

=ocal franchise of @ollibee and $tarbuc-s. $hipping and port services in /ebu and .anila. >nchanted Aingdom, >lephant 2sland and 0oraca! Resort. =0/, %*= and Bed>x centers.

@ustif! !our ans er or choice. (56) 0. /oncerned Bilipino contract or-ers in the .iddle >ast reported to the %epartment of Boreign "ffairs (%B") that C'D, a private recruitment and placement agenc!, is covertl! transporting extremists to terrorist training camps abroad. 2ntelligence agencies of the government allegedl! confirmed the report. Epon being alerted b! the %B", the %epartment of =abor and >mplo!ment issued orders cancelling the licenses of C'D, and imposing an immediate travel ban on its recruits for the .iddle >ast. C'D appealed to the <ffice of the 3resident to reverse and set aside the %<=> orders, citing damages from loss of emplo!ment of its recruits, and violations of due process including lac- of notice and hearing b! %<=>. The %<=> in its ans er claimed the existence of an emergenc! in the .iddle >ast hich required prompt measures to protect the life and limb of <B#s from a clear and present danger posed b! the ongoing ar against terrorism. $hould the %<=> orders be upheld or set aside4 (56) !UESTION NO. I' ". Ender a seaman1s contract of emplo!ment ith a local manning agent of a foreign shipping compan!, /apt. TR<' embar-ed on an oceangoing vessel in good health. <ne storm! night at sea, he as drenched ith rain ater. The follo ing morning, he contracted fever hich lasted for da!s. *e suffered loose bo el movement, lost his appetite, and eventuall! he died before a scheduled airlift to the nearest port.

$ubsequentl!, the ido of /apt. TR<' complained against the local manning agent and its foreign principal before the Regional "rbitration 0ranch of %<=>, for actual and exemplar! damages and attorne!1s fees. $he invo-ed the =abor /ode provision hich requires the emplo!er to provide all necessar! assistance to ensure the adequate and necessar! medical attendance and treatment of the in,ured or sicemplo!ee in case of emergenc!. Respondents moved to dismiss the complaint on the ground that the =abor "rbiter has no ,urisdiction over the complaint for damages arising from illness and death of /apt. TR<' abroad. Resolve the motion ith reasons. (56) 0. 3edrito .asculado, a college graduate from the province, tried his luc- in the cit! and landed a ,ob as utilit!Fmaintenance man at the arehouse of a big shopping mall. "fter or-ing as a casual emplo!ee for six months, he signed a contract for probationar! emplo!ment for six months. 0eing ell-built and ph!sicall! attractive, his supervisor, .r. *ercules 0ara-, too- special interest to befriend him. #hen his probationar! period as about to expire, he as surprised hen one afternoon after or-ing hours, .r. 0ara- follo ed him to the men1s comfort room. "fter seeing that no one else as around, .r. 0araplaced his arm over 3edrito1s shoulder and softl! said: &'ou have great potential to become regular emplo!ee and 2 thin- 2 can give !ou a favorable recommendation. /an !ou come over to m! condo unit on $aturda! evening so e can have a little drin-4 21m alone, and 21m sure !ou ant to sta! longer ith the compan!.( 2s .r. 0ara- liable for sexual harassment committed in a related or emplo!ment environment4 (56) !UESTION NO. ' ". .3* =abor Enion is the dul! certified bargaining representative of the ran--and-file emplo!ees of .. 3ar- *otel since the 1G901s. The collective bargaining agreement contained union shop securit! provisions. "fter the signing of the 7000H7005 /0", the Enion demanded the dismissal of 8 or--

emplo!ees, CC, '' and DD, pursuant to the union securit! clause in the /0". The *otel .anagement replied that it as legall! impossible to compl! ith the demand of the Enion. 2t might even be construed as unfair labor practice. Bor it appeared that CC, '' and DD had been recentl! promoted as supervisors and resigned from the Enion. 0ut according to the Enion, the three submitted their resignations outside the freedom period after the 1GG+H7000 /0" expired on @une 80, 7000. The Enion argued that the *otel .anagement could not s-irt its obligation to respect and implement the union securit! clause b! promoting the three emplo!ees. That could be vie ed as re arding emplo!ees for their dislo!alt! to the union, said the union officers. %oes the union securit! clause sufficientl! ,ustif! the demand for dismissal of the three emplo!ees or not4 .a! the *otel .anagement validl! refuse the Enion1s demand4 (56) 0. The /0" bet een the /ompan! and the ran--and-file Enion contained the follo ing provision: &$ection 8. .>"= "==<#")/>. The /ompan! agrees to grant a .>"= "==<#")/> of T>) 3>$<$ (310.00) to all emplo!ees ho render at least T#< (7) hours or more of actual overtime or- on a or-da!, and BR>> .>"=$, as presentl! practiced, not exceeding T#>)T' B2I> 3>$<$ (375.00) after T*R>> (8) hours of actual overtime or-.( %ispute in the interpretation of the above provision arose as the /ompan! asserts that the phrase &after three (8) hours of actual overtime or-( does not mean after exactl! three (8) hours of actual overtime or-J it means after more than three (8) hours of actual overtime or-. The Enion, on the other hand, maintained that &after three (8) hours of actual overtime or-( simpl! means after rendering exactl!, or no less than, three (8) hours of actual overtime or-. #hich interpretation do !ou thin- should prevail4 #h!4 (56)

!UESTION NO. 'I ". Kabriela =i anag has been or-ing as boo--eeper at Kreat Boods, 2nc., hich operates a chain of high-end restaurants throughout the countr!, since 1G90 hen it as still a small eater! at 0inondo. 2n the earl! part of the !ear 7008, Kabriela, ho as alread! 50 !ears old, reported for or- after a ee--long vacation in her province. 2t as the height of the $"R$ ($evere "cute Respirator! $!ndrome) scare, and management learned that the first confirmed $"R$ death case in the 3hilippines, a &bali-ba!an( nurse from /anada, is a to nmate of Kabriela. 2mmediatel!, a memorandum as issued b! management terminating the services of Kabriela on the ground that she is a probable carrier of $"R$ virus and that her continued emplo!ment is pre,udicial to the health of her co-emplo!ees. 2s the action ta-en b! the emplo!er ,ustified4 (56) 0. 3resident BC, head of a ne l! formed labor union composed of 1F8 of the total number of ran--and-file emplo!ees in $uper $tores, 2nc., agitated his fello emplo!ees to demand from management pa! increases and overtime pa!. *is supervisor summoned him to explain his tardiness and refusal to obe! regulations. Beeling threatened, he gathered 70 of his members and staged a 7-da! pic-et in front of the shopping mall. $ecurit! staff arrived and dismantled the placards and barricades bloc-ing the emplo!ees1 entr! to the mall. 2n retaliation, BC thre stones at the guards, but the other stri-ing or-ers ,ust stood b! atching him. $even da!s after the pic-et, BC ho had gone absent ithout leave returned to the mall and announced that he had filed a complaint for illegal dismissal and unfair labor practice against $$2. $$2 learned that BC1s group as not registered. )o stri-e vote and stri-e notice ere filed prior to the pic-et. The guards ere told not to allo BC entr! to the compan! premises as management considered him effectivel! terminated. <ther union members ere accepted bac- to orb! $$2. #as the dismissal of BC for a valid cause4 observed4 (56) #as due process

!UESTION NO. 'II ". Kil 0ates, a computer anal!st and programmer of *ard %rive /ompan!, or-s eight hours a da! for five da!s a ee- at the main office providing customers information technolog! assistance. <n $aturda!s, ho ever, the compan! requires him to -eep his cellular phone open from L:00 "... to 5:00 3... so that the .anagement could contact him in case of heav! or- load or emergenc! problems needing his expertise. .a! said hours on $aturda!s be considered compensable or-ing hours & hile on call(4 2f so, should said compensation be reported to the $ocial $ecurit! $!stem4 (56) 0. TRC, a local shipping firm, maintains a pl!ing the island baranga!s of "3, a coastal to operatorsFcre members turn over to the boat o from cargo fees and passenger fares, less the food, landing fees and spare parts. fleet of motori;ed boats n. "t da!1s end the boat ner their cash collections expenses for diesel fuel,

Bift! percent (506) of the monthl! income or earnings derived from the operations of the boats are given to the boatmen b! a! of compensation. %educted from the individual shares of the boatmen are their cash advance and peso value of their absences, if an!. "re these boatmen entitled to overtime pa!, holida! pa!, and 18 th month pa!4 (56) !UESTION NO. 'III ". /lean .anpo er 2nc. (/.2) had provided ,anitorial services to the )ational >conomic %evelopment "uthorit! ()>%") since "pril 1GLL. 2ts service contract as rene ed ever! three months. *o ever, in the bidding held on @ul! 1GG7, /.2 as disqualified and excluded. 2n 1GG8, six ,anitors of /.2 formerl! assigned at )>%" filed a complaint for

underpa!ment of ages. 0oth /.2 and )>%" ere impleaded as respondents for failure to compl! ith )/R #age <rders )os. 01 and 07, hich too- effect on )ovember 1, 1GG0 and @anuar! 7, 1GG7, respectivel!. $hould )>%", a government agenc! sub,ect to budgetar! constraints, be held liable solidaril! ith /.2 for the pa!ment of salar! differentials due the complainants4 /ite the legal basis of !our ans er. (56) 0. "tt!. /=., a dedicated and efficient public official, as the top executive of a government o ned and controlled corporation (K<//). #hile inspecting an ongoing pro,ect in a remote village in .indanao, she suffered a stro-e and since then had been confined to a heelchair. "t the time she stopped or-ing because of her illness in line of dut!, "tt!. /=. as onl! sixt! !ears old but she had been an active member of the K$2$ for thirt! !ears ithout an! brea- in her service record. #hat benefits could she claim from the K$2$4 /ite at least five benefits. (56) !UESTION NO. I% ". "round 100 or-ers of a mill in a coconut plantation organi;ed themselves for the purpose of promoting their common interest and elfare. The or-ers1 association prepared a petition for increasing the dail! pa! of its members in compliance ith minimum age rates for their sector in the region, and for granting benefits to hich the! are entitled under the la . *o ever, the or-ers became restless and anxious after the o ner-manager threatened them ith mass la!-off if the association ould press for their demands. .ost of its members have or-ed in the mill for 10 to 15 !ears ith no improvement in or-ing conditions and monetar! benefits. The leaders of the or-ers1 association approached !ou and as-ed: hat legal steps could the! ta-e to protect their securit! of tenure4 #hat advice could !ou give them4 (56)

0.

", 0, / and % (treasurer, accountant, elementar! department 3rincipal, and secretar! of the %irector, respectivel!), regular emplo!ees of a private educational institution, ere administrativel! charged for their participation in a pic-et held in front of the campus after office hours. $everal facult! members, non-academic staff and students ,oined the peaceful pra!er rall! organi;ed b! disgruntled emplo!ees to protest certain alleged abuses of the incumbent $chool %irector. $ubsequentl!, the ran--and-file emplo!ees succeeded in forming the first and onl! union of the $chool. %uring the investigation, the administration discovered that t o (7) da!s prior to the rall!, ", 0, / and % attended the meeting of the $chool1s emplo!ees1 association hich planned the protest activit!. T o ell-no n organi;ersFleaders of a national labor federation ere also present. ", 0, / and % ere dismissed b! the $chool on the ground of violating the =abor /ode hich prohibits managerial emplo!ees to &,oin, assist or form an! labor organi;ation(. 2s the contention of the $chool tenable4 2s the dismissal of ", 0, / and % valid4 >xplain. (56)

!UESTION NO. % ". >mplo!ees of "0/ declared a stri-e after filing a )otice of $tri-e ith the %<=>. The! barricaded compan! gates and damaged vehicles entering compan! premises. <n the second da! of the stri-e, "0/ filed a petition ith the %<=> $ecretar! to intervene through the issuance of an assumption of ,urisdiction order that the $ecretar! ma! issue hen a stri-e or loc--out ill adversel! affect national interest. "0/ furnished the $ecretar! ith evidence to sho that compan! vehicles had been damagedJ that electric po er had been cut offJ and equipment and materials ere damaged because electric po er as not immediatel! restored. "0/ forecast that the countr!1s suppl! of chlorine for ater

treatment ( hich the compan! produces) ould be affected adversel! if "0/1s operations ere closed do n b! the stri-ers. /ould the %<=> $ecretar! intervene, assume ,urisdiction and issue a TR< (Temporar! Restraining <rder)4 0riefl! ,ustif! !our ans er. (56) 0. 0ecause of alleged &unfair labor practices( b! the management of KB2 $!stem, a government-o ned and controlled financial corporation, its emplo!ees al-ed out from their ,obs and refused to return to or- until the management ould grant their union official recognition and start negotiations ith them. The leaders of the al--out ere dismissed, and the other participants ere suspended for sixt! da!s. 2n arguing their case before the /ivil $ervice /ommission, the! cited the principle of social ,ustice for or-ers and the right to self-organi;ation and collective action, including the right to stri-e. The! claimed that the /onstitution shielded them from an! penalt! because their al--out as a concerted action pursuant to their rights guaranteed b! the basic la . 2s the position ta-en b! the al--out leaders and participants legall! correct4 Reason briefl!. (56)