2009 Labor Law

I. TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the

statement is false. Explain your answer in not more than two (2)
sentences. (5%)

[a] An employment contract prohibiting employment in a competing

company within one year from separation is valid.

[b] All confidential employees are disqualified to unionize for the

purpose of collective bargaining.

[c] A runaway shop is an act constituting unfair labor practice.

[d] In the law on labor relations, the substitutionary doctrine prohibits a

new collective bargaining agent from repudiating an existing collective
bargaining agreement.

[e] The visitorial and enforcement powers of the DOLE Regional Director
to order and enforce compliance with labor standard laws can be
exercised even when the individual claim exceeds P5,000.00.

ANS:
a) true..the contract is valid so as to protect the former
employer's interest. furthermore the terms of the contract is
reasonable, the prohibition is to a specified competing firm and
not to all kinds of employment, and the period is only for one
year.
b) true. confidential employees are treated as similar to
managerial employees because of the nature of their work, which
requires the utmost trust and confidence of the employer.
c)false. runaway shop will only be an of ulp if the management
transferred its business to discriminate the former company's
union activities or to avoid their obligation towards the employees
in the old firm, otherwise, such act is valid.
d) true. but the new bargaining unit may only negotiate to
shorten the existing cba because they can only negotiate for a
new cba during the freedom period.
e)true. under the labor code

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II. [a] Enumerate at least four (4) policies enshrined in Section 3, Article
XIII of the Constitution that are not covered by Article 3 of the Labor
Code on declaration of basic policy. (2%)

[b] Clarito, an employee of Juan, was dismissed for allegedly stealing

Juans wristwatch. In the illegal dismissal case instituted by Clarito, the
Labor Arbiter, citing Article 4 of the Labor Code, ruled in favor of Clarito
upon finding Juans testimony doubtful. On appeal, the NLRC reversed
the Labor Arbiter holding that Article 4 applies only when the doubt
involves implementation and interpretation of the Labor Code
provisions. The NLRC explained that the doubt may not necessarily be
resolved in favor of labor since this case involves the application of the
Rules onEvidence, not the Labor Code. Is the NLRC correct? Reasons.
(3%)

ANS:
a. The 4 policies are:

1. It shall guarantee the rights of all workers to self-organization,

collective bargaining and negotiations, and peaceful concerted
activities, including the right to strike in accordance with law.
2. They shall also participate in policy and decision-making
processes affecting their rights and benefits as may be provided
by law.
3. The State shall promote the principle of shared responsibility
between workers and employers and the preferential use of
voluntary modes in settling disputes, including conciliation, and
shall enforce their mutual compliance therewith to foster
industrial peace.

4. ???

B.Yes, the NLRC is correct, with respect to its contention that

Article 4 is not applicable in this case. Instead, the provision in the
Labor Code which states that Labor Arbiter shall use every and
reasonable means to ascertain the facts in the case will apply.

However, the NLRC erred in reversing the decision of the Labor

Arbiter since it is well-settled that in a dismissal case, it is the
employer who has the burden of proving the legality of the
dismissal of the employee. In this case, there is no showing that
Juan was able to discharge this burden. Thus, Claritos dismissal,
in the absence of other clear and convincing proof, is illegal.

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III. Richie, a driver-mechanic, was recruited by Supreme Recruiters (SR)
and its principal, Mideast Recruitment Agency (MRA), to work in Qatar
for a period of two (2) years. However, soon after the contract was
approved by POEA, MRA advised SR to forego Richies deployment
because it had already hired another Filipino driver-mechanic, who had
just completed his contract in Qatar. Aggrieved, Richie filed with the
NLRC a complaint against SR and MRA for damages corresponding to his
two years salary under the POEA-approved contract.

SR and MRA traversed Richies complaint, raising the following

arguments:

[a] The Labor Arbiter has no jurisdiction over the case; (2%)

[b] Because Richie was not able to leave for Qatar, no employer-
employee relationship was established between them; (2%) and

[c] Even assuming that they are liable, their liability would, at most, be
equivalent to Richies salary for only six (6) months, not two years.
(3%).

Rule on the validity of the foregoing arguments with reasons.

ANS:
A. - The Labor Arbiter has newly acquired jurisdiction over
monetary claims arising out of by virtue of any law or contract
involving FILIPINO WOKRKERS FOR OVERSEAS DEPLOYMENT,
including claims for actual, moral, exemplary and other forms of
damages.

B. - The contention is of no moment. The deployment period

already commenced from the moment the contract was already
approved by the POEA. In other words, SR and MRA are already
solidarily bound by the deployment of Richie, in breach thereof,
they become liable to Richie.

C. -Such contention is untenable. The above liabilities shall

continue during the entire period or duration of the employment
contract and shall not be affected by any substitution,
amendment or modification made locally or in a foreign country
or the said contract.

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IV. Diosdado, a carpenter, was hired by Building Industries Corporation
(BIC), and assigned to build a small house in Alabang. His contract of
employment specifically referred to him as a project employee,
although it did not provide any particular date of completion of the
project.

Is the completion of the house a valid cause for the termination of

Diosdados employment? If so, what are the due process requirements
that the BIC must satisfy? If not, why not? (3%)

ANS:
- The services of a project employees are co-terminus with the
project and may be terminated upon the end or completion of the
project for which they were hired. No prior notice of termination is
required if the termination is brought about by completion of the
contract or phase thereof for which the worker has been engaged.
This is because completion of the work or project automatically
terminates the employment. (Cioco vs. C.E. Construction
Corporation, G.R. No. 156748, Sept. 8, 2004). Diosdado being a
project employee whose nature of employment was fully informed
about at the time of his engagement, his employment legally
ends upon completion of said project.

- No. Diosdado is a regular employee and shall be terminated only

based on just or authorized cause.

In a contract of a project employee, at the beginning of the

engagement, the completion or termination of the project must
be be specifically determined, which is not the case at bar.

Hence, completion of the house is not a valid cause of the

termination.

V. [a] Baldo was dismissed from employment for having beenabsent

without leave (AWOL) for eight months. It turned outthat the reason for
his absence was his incarceration after he was mistaken as his
neighbors killer. Eventually acquitted and released from jail, Baldo
returned to his employer and demanded reinstatement and full
backwages. Is Baldo entitled to reinstatement and backwages? Explain
your answer. (3%)

[b] Domingo, a bus conductor of San Juan Transportation Company,

intentionally did not issue a ticket to a female passenger, Kim, his long-

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time crush. As a result, Domingo was dismissed from employment for
fraud or willful breach of trust. Domingo contests his dismissal, claiming
that he is not a confidential employee and, therefore, cannot be
dismissed from the service for breach of trust. Is Domingo correct?
Reasons. (2%)

ANS:
A. - Yes, Baldos absence cannot be deemed as abandonment.
Abandonment as a just ground for dismissal requires clear, willful,
deliberate, and unjustified refusal of the employee to resume his
employment. Mere absence or failure to report for work, even
after notice to return, is not tantamount to abandonment.

B. - No, he is wrong. A confidential employee is one entrusted

with confidence on delicate matters, or with the custody,
handling, or care and protection of the employers property. Here,
Domingo is entrusted with the custody of the tickets.

a. No, Baldo is not entitled to backwages but he is entitled to

reinstatement. A similar case was decided by the SC during
Martial Law period where an employee was erroneously charged
for rebellion and was incarcerated for several months only to be
released later for being a "fall guy". The SC ruled that he is
entitled to reinstatement as it was not his fault that he failed to
report to work. In fact, he was a victim of injustice and it would
further add to the injustice if he will be terminated from his
employment.

However, following the doctrine of "no work, no pay" he is not

entitled to backwages since the same is only for past work
performed.

b. No, Domingo is not correct. The SC has ruled that a job that
involves the handling of money (e.g. cashier,conductor) is one
that involves trust and confidence. Here, being a Conductor,
Domingo's job involves the handling of money belonging to the
company. For this reason, Domingo may be terminated for breach
of trust.

Hence, Domingo is incorrect.

VI. Albert, a 40-year old employer, asked his domestic helper, Inday, to
give him a private massage. When Inday refused, Albert showed her

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Article 141 of the Labor Code, which says that one of the duties of a
domestic helper is to minister to the employers personal comfort and
convenience.

[a] Is Indays refusal tenable? Explain. (3%)

[b] Distinguish briefly, but clearly, a househelper from a

homeworker. (2%)

ANS:
A. Yes, the term personal comfort in the provision means those
which are usually necessary or desirable for the maintenance and
enjoyment of the employers home. Giving an employers a
massage is not considered necessary for the maintenance and
enjoyment of thereof.

B. Househelper is a person who renders services in and about the

employer's home and which services are usually necessary or
desirable for the maintenance and enjoyment thereof, and
ministers exclusively to the personal comfort and enjoyment of
the employer's family.

Homeworker is a person who performs industrial homework for an

employer, contractor or
sub-contractor.

VII. Johnny is the duly elected President and principal union organizer of
the Nagkakaisang Manggagawa ng Manila Restaurant (NMMR), a
legitimate labor organization. He was unceremoniously dismissed by
management for spending virtually 95% of his working hours in union
activities. On the same day Johnny received the notice of termination,
the labor union went on strike.

Management filed an action to declare the strike illegal, contending

that:

[a] The union did not observe the cooling-off period mandated by the
Labor Code; (2%) and

[b] The union went on strike without complying with the strike-vote
requirement under the Labor Code. (2%)

Rule on the foregoing contentions with reasons.

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[c] The Labor Arbiter found management guilty of unfair labor practice
for the unlawful dismissal of Johnny. The decision became final.
Thereafter, the NMMR filed a criminal case against the Manager of
Manila Restaurant. Would the Labor Arbiters finding be sufficient to
secure the Managers conviction? Why or why not? (2%)

ANS:
a.) Cooling-off period is not required in union busting.

b.) Despite being exempted from the cooling-off period, a strike

vote and strike vote report as well as 24 hour notice to the NCMB
is still required.

c.) Decision of the labor arbiter in unlawful dismissal cases is a

condition precedent for the filing of ULP in the regular courts.
However, the deicision of the arbiter is not sufficient to convict
the manager because it requires proof beyond reasonable doubt.
In labor cases, substantial evidence is sufficient.

VIII. Alexander, a security guard of Jaguar Security Agency (JSA), could

not be given any assignment because no client would accept him. He
had a face only a mother could love. After six (6) months of being on
floating status, Alexander sued JSA for constructive dismissal. The
Labor Arbiter upheld Alexanders claim of constructive dismissal and
ordered JSA to immediately reinstate Alexander. JSA appealed the
decision to the NLRC. Alexander sought immediate enforcement of the
reinstatement order while the appeal was pending.

JSA hires you as lawyer, and seeks your advice on the following:

[a] Because JSA has no client who would accept Alexander, can it still be
compelled to reinstate him pending appeal even if it has posted an
appeal bond? (2%)

[b] Can the order of reinstatement be immediately enforced in the

absence of a motion for the issuance of a writ of execution? (2%)

[c] If the order of reinstatement is being enforced, what should JSA do in

order to prevent reinstatement? (2%)

Explain your answers.

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ANS:
a. No. It would be grossly arbitrary in this case to require JSA to
reinstate Alexander in view of the fact that no client wold ever
accept him. Principle of non-oppression between management
and labor applies in this case.

b. No. An order of reinstatement is not self-executing. Thus, it

needs to be carried out by the issuance of a writ of execution in
order for it to become effective and enforceable.

- The reinstatement order of the Labor Arbiter in an illegal

dismissal case, it is immediately executory even pending appeal.
Such award does not require a writ of execution. In the case of
Pioner Texturizing Corporation vs. NLRC, et al., 280 SCRA 806
(1997), it is the employer who is duty-bound to inform employee
of the reinstatement. The employee ordered reinstated need not
secure a writ of execution from the Labor Arbiter.

c. JSA, in this case, may opt to incorporate Alexander into its

payroll if it finds that reinstatement to work at conditions
prevailing prior to his dismissal is not feasible. This is one of the
options granted to an employer.

- JSA is practically left with no effective contra-remedy that may

forestall or stay execution of a Labor Arbiter's order for immediate
reinstatement. All that JSA has is to avail of any of the following
options:
a.) Actual reinstatement of the employee to his work under the
same terms and conditions prevailing prior to his dismissal or
separation; or
b.) reinstatement of the employee in the payroll of the company,
without requiring him to report back to his work. (Art. 223, Labor
Code; Zamboanga City Water District vs. Buat, 232 SCRA 587).

IX. [a] What is wage distortion? Can a labor union invoke wage
distortion as a valid ground to go on strike? Explain. (2%)

[b] What procedural remedies are open to workers who seek correction
of wage distortion? (2%)

ANS:
a.) "Wage distortion" is a situation where an increase in
prescribed wage rates results in the elimination or severe

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 contraction of intentional quantitative differences in wage or
salary rates between and among employee groups in an
establishment as to effectively obliterate the distinctions
embodied in such wage structure based on skills, length of
service, or other logical bases of differentiation.
Under Republic Act No. 6727 otherwise known as the Wage
Rationalization Act, a strike is illegal if based on alleged salary
distortion. The legislative intent that solution to the problem of
wage distortions shall be sought by voluntary negotiation or
arbitration, and not by strikes, lockouts or other concerted
activities of the employees or management, is made clear in the
rules implementing Republic Act No. 6727 issued by the Secretary
of Labor and Employment pursuant to the authority granted by
Section 13 of the said law.

b.) Under Article 124 of the LC, any dispute arising from wage
distortion shall be resolved thru the grievance procedure under
the CBA and if it remains unresolved, thru voluntary arbitration.
Unless otherwise agreed by the parties in writing, such dispute
shall be decided by voluntary arbitrators within 10 calendar days
from the time said dispute was referred to voluntary arbitration. In
cases, where there are no CBA or organized labor unions, the
employers and workers shall endeavor to correct such distortions.
Any dispute arising therefrom shall be settled thru NCMB and, if it
remains unresolved after 10 calendar days of conciliation, it shall
be referred to the appropriate branch of NLRC.

X. [a] State briefly the compulsory coverage of the Government Service

Insurance Act. (2%)

[b] Can a member of a cooperative be deemed an employee for

purposes of compulsory coverage under the Social Security Act?
Explain. (2%)

ANS:
a.) Membership in the GSIS shall be compulsory for all employees
receiving compensation who have not reached the compulsory
retirement age, irrespective of employment status, except
members of the Armed Forces and Phil. National Police, subject to
the condition that they must settle first their financial obligation
with GSIS, and contractuals who have no employer and employee
relationship with the agency they serve.

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 b.) No, member of the cooperative is not deemed an employee for
purposes of compulsory coverage under SSS. Cooperative
organized under RA 6938, otherwise known as "The Cooperative
COde of the Phils" are composed of members. Consequently,
members thereof are not considered employees and outside the
compulsory coverage of SSS.

XI. TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the
statement is false. Explain your answer in not more than two (2)
sentences. (5%)

[a] Seafarers who have worked for twenty (20) years on board the same
vessel are regular employees.

[b] Employment of children below fifteen (15) years of age in any public
or private establishment is absolutely prohibited.

[c] Government employees have the right to organize and join

concerted mass actions without incurring administrative liability.

[d] A waiver of the right to claim overtime pay is contrary to law.

[e] Agency fees cannot be collected from a non-union member in the

absence of a written authorization signed by the worker concerned.

ANS:
a. - False, seafarers are considered contractual employees and
cannot be considered as regular employees under the Labor
Code. Their employment is governed by the contracts they sign
every time they are rehired and their employment is terminated
when the contract expires.

b.- False, As a rule children below fifteen (15) years of age cannot
be employed except:
(1) When a child works directly under the sole responsibility of his
parents or legal guardian and where only members of the
employer's family are employed or (2) When a child's
employment or participation in public & entertainment or
information through cinema, theater, radio or television is
essential

c.- False. Government employees are prohibited from striking

because their employment is fixed by law. Any violation thereof,

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 will be a ground for administrative liability under Civil Service
Law.

d.- False, Where it is shown that the person making the waiver did
so voluntarily, with full understanding of what he was doing, and
the consideration for the quitclaim is credible and reasonable, the
waiver must be recognized as a valid and binding undertaking.

XII. In her State of the Nation Address, the President stressed the need
to provide an investor-friendly business environment so that the country
can compete in the global economy that now suffers from a crisis
bordering on recession. Responding to the call, Congress passed two
innovative legislative measures, namely: (1) a law abolishing the
security of tenure clause in the Labor Code; and (2) a law allowing
contractualization in all areas needed in the employers business
operations. However, to soften the impact of these new measures, the
law requires that all employers shall obtain mandatory unemployment
insurance coverage for all their employees.

The constitutionality of the two (2) laws is challenged in court. As judge,

how will you rule? (5%)

ANS:
Unconstitutional.Congress cannot alter constitutionally protected
rights through a legislation as this will result to an indirect
amendment of the constitution, which can only be done through a
consitutional convention, constituent assembly or people's
initiative.

XIII. Atty. Renan, a CPA-lawyer and Managing Partner of an accounting

firm, conducted the orientation seminar for newly-hired employees of
the firm, among them, Miss Maganda. After the seminar, Renan
requested Maganda to stay, purportedly to discuss

some work assignment. Left alone in the training room, Renan asked
Maganda to go out with him for dinner and ballroom dancing.
Thereafter, he persuaded her to accompany him to the mountain
highway in Antipolo for sight-seeing. During all these, Renan told
Maganda that most, if not all, of the lady supervisors in the firm are
where they are now, in very productive and lucrative posts, because of
his favorable endorsement.

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[a] Did Renan commit acts of sexual harassment in a work- related or
employment environment? Reasons. (3%)

[b] The lady supervisors in the firm, slighted by Renans revelations

about them, succeeded in having him expelled from the firm. Renan
then filed with the Arbitration Branch of the NLRC an illegal dismissal
case with claims for damages against the firm. Will the case prosper?
Reasons. (2%)

ANS:
A.Yes, a demand, request, or requirement of a sexual favor need
not be articulated in a categorical oral or written statement and
instead may already be sufficiently discerned from the offenders
acts. His acts generates an intimidating, hostile, or offensive
environment.

B.No, no employer-employee relationship exists. He is a partner in

the accounting firm.

1. Renan did not commit an act violative of the Anti Harassment

law since Renan did not ask for sexual favors in exchange for
promotion.

2. the case will not prosper since Renan is a partner of the

accounting firm not an employee. Employee - employer
relationship does not exist between the company and him,
therefore the Labor arbiter does not have jurisdiction over his
case. His recourse, if ever, is to bring his action before the regular
courts of justice.

XIV. Jolli-Mac Restaurant Company (Jolli-Mac) owns and operates the

largest food chain in the country. It engaged Matiyaga Manpower
Services, Inc. (MMSI), a job contractor registered with the Department
of Labor and Employment, to provide its restaurants the necessary
personnel, consisting of cashiers, motorcycle delivery boys and food
servers, in its operations. The Service Agreement warrants, among
others, that MMSI has a paid- up capital of P2,000,000.00; that it would
train and determine the qualification and fitness of all personnel to be
assigned to Jolli- Mac; that it would provide these personnel with proper
Jolli-Mac uniforms; and that it is exclusively responsible to these
personnel for their respective salaries and all other mandatory statutory
benefits.

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After the contract was signed, it was revealed, based on research
conducted, that MMSI had no other clients except Jolli- Mac, and one of
its major owners was a member of the Board of Directors of Jolli-Mac.

[a] Is the Service Agreement between Jolli-Mac and MMSI legal and
valid? Why or why not? (3%)

[b] If the cashiers, delivery boys and food servers are not paid their
lawful salaries, including overtime pay, holiday pay, 13th

month pay, and service incentive leave pay, against whom may these
workers file their claims? Explain. (2%)

ANS:
a.) No. MMSI in this case is deemed an in-house agency of Jolli-
Mac. In-house agency is prohibited by law.

b.) The workers may file their claims against Jolli-Mac. Jolli-Mac in
this case is deemed considered as the employer of the workers
for purposes of recovering the foregoing claims.

A.-No, it is a labor-only contracting because MMSI is merely

perrforming activities which are directly related to the main
business of the Jolli-Mac. Further, 2,000,000 pesos is not a
substantial capital to supply enough qualified and trained
personnel for Jolli-Macs restaurants which is the largest food
chain in the country.

B.- They should file their claim against Jolli-Mac because the
employer-employee relationship exists between them, and not
with MMSI, which is considered by law as a mere agent of Jolli-
Mac.

a. No, the Service Agreement is not legal nor valid. The SC has
held that, one of the basic criteria to determine labor-only
contracting is that the jobs being farmed out are usually
neccessary to the business of the company. Here, the company is
engaged in the restaurant business where food servers, cashiers
and delivery boys are usually necessary to its operations.

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 Moreover, another indication that MMSI is engaged in labor-only
contracting is the fact that one of its major owners is a member of
the Board of Jolli-Mac coupled with the fact that MSSI only has
Jolli-Mac as a client. All these are strong indicia that MMSI is a
labor-only contracting company.

Hence, the Service Agreement is not legal.

b. The said employees should file their claims over said benefits
with Jolli-Mac or MMSI since the former and the latter are regarded
by law as one and the same employer since MMSI is engaged in
labor-only contracting.

XV. Among the 400 regular rank-and-file workers of MNO Company, a

certification election was ordered conducted by the Med-Arbiter of the
Region. The contending parties obtained the following votes:

1. Union A 70

2. Union B 71

3. Union C 42

4. Union D 33

5. No union 180

6. Spoiled votes 4

There were no objections or challenges raised by any party on the

results of the election.

[a] Can Union B be certified as the sole and exclusive collective

bargaining agent among the rank-and-file workers of MNO Company
considering that it garnered the highest number of votes among the
contending unions? Why or why not? (3%)

[b] May the management or lawyer of MNO Company legally ask for the
absolute termination of the certification election proceedings because
180 of the workers a clear plurality of the voters have chosen not
to be represented by any union? Reasons. (3%)

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[c] If you were the duly designated election officer in this case, what
would you do to effectively achieve the purpose of certification election
proceedings? Discuss. (3%)

ANS:
a) No, Union B cannot be certified as the sole and exclusive
collective bargaining agent among the rank-and-file workers of
MNO Company.
ART. 256 of the labor code as amended, states 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.
In the case at bar, although Union B garnered the highest number
of votes among the contending unions, it did not received the
majority of the valid votes casted in the election.
Hence, Union B failing to receive the majority votes of the valid
votes casted failed to qualify to be certified as the sole and
exclusive bargaining agent of the employees, as mandated in the
above mentioned provision of law.

b) No, the management or lawyer of MNO Company cannot

legally ask for the absolute termination of the certification
election proceedings.
While it is true that 180 of the workers a clear plurality of the
voters have chosen not to be represented by any union, the
remaining votes casted in favor of the contending union in sum
have clearly shown that the majority of the employees wanted to
be represented by a union.
Hence, to terminate the proceedings would clearly disenfranchise
the employees by denying them their choice to be represented by
a union.

c) As the duly designated election officer in this case, I would

conduct a run-off election.
Under Art 256, labor code as amended, it is stated that : When an
election which provides for three or more choices results in no
choice receiving a majority of the valid votes cast, a run-off
election shall be conducted between the labor unions receiving
the two highest number of votes: Provided, that the total number
of votes for all contending unions is at least fifty percent (50%) of
the number of votes cast. A run-off election is in order when these
requisites concur:
- there was a valid election;

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 - that said election provides for 3 or more choices;
- that none among the choices received a majority of the valid
votes casted; and
- that the total number of votes for all contending unions is at
least fifty percent (50%) of the number of votes casted.

The facts of the case show that all the requisites are present-
hence, a run-off election is in order. Therefore, as the officer-in-
charge, I would call for the run-off election in consonance with Art
256, LC as amended.

XVI. The Company and Triple-X Union, the certified bargaining agent of
rank-and-file employees, entered into a Collective Bargaining
Agreement (CBA) effective for the period January 1, 2002 to December
31, 2007.

For the 4th and 5th years of the CBA, the significant

improvements in wages and other benefits obtained by the Union were:

1) Salary increases of P1,000 and P1,200 monthly, effective January 1,

2006 and January 1, 2007, respectively;

2) Vacation Leave and Sick Leave were adjusted from 12 days to 15

days annually for each employee;

3) Medical subsidy of P3,000 per year for the purchase of medicines and
hospitalization assistance of P10,000 per year for actual hospital
confinement;

4) Rice Subsidy of P600 per month, provided the employee has worked
for at least 20 days within the particular month; and

5) Birthday Leave with Pay and Birthday Gift of P1,500.

As early as October 2007, the Company and the Union started

negotiations to renew the CBA. Despite mutual good faith and earnest
efforts, they could not agree. However, no union filed a petition for
certification election during the freedom period. On March 30, 2008, no
CBA had been concluded. Management learned that the Union would
declare a bargaining deadlock on the next scheduled bargaining
meeting.

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As expected, on April 3, 2008, the Union declared a deadlock. In the
afternoon of the same day, management issued a formal
announcement in writing, posted on the bulletin board, that due to the
CBA expiration on December 31, 2007, all fringe benefits contained
therein are considered withdrawn and can no longer be implemented,
effective immediately.

[a] When was the freedom period referred to in the foregoing

narration of facts? Explain. (2%)

[b] After April 3, 2008, will a petition for certification election filed by
another legitimate labor union representing the rank-and-file employees
legally prosper? Reasons. (3%)

[c] Is managements withdrawal of the fringe benefits valid? Reasons.

(2%)

[d] If you were the lawyer for the union, what legal recourse or action
would you advise? Reasons. (3%)

ANS:
a. - November 2007 or 60 days prior to the expiry date of the
CBA, which is December 31, 2007.
b. - No, it will not prosper as it is filed outside the freedom period.
Moreover, there is pending bargaining dead lock, thus, it is barred
under the dead lock bar rule.
c. - No, Under the Hold-over principle, the CBA still exist until one
has been entered into. Thus, the benefits under the said CBA
continues until a new CBA is created.
d. - As a lawyer, I would advised the union to hold a strike and
then seek for an improved offer balloting.

XVII. Alfredo was dismissed by management for serious misconduct. He

filed suit for illegal dismissal, alleging that although there may be just
cause, he was not afforded due process by management prior to his
termination. He demands reinstatement with full backwages.

[a] What are the twin requirements of due process which the employer
must observe in terminating or dismissing an employee? Explain. (3%)

[b] Is Alfredo entitled to reinstatement and full backwages? Why or why

not? (3%)

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ANS:
a.) The employer must observe the twin due process
requirements of notice and hearing. It means that the employer
should inform the employee of the nature and cause of the
accusations against him and to accord him ample opportunity to
rebut the claims against him by allowing him to present evidence
on his behalf.

No. Although generally an illegally dismissed employee is entitled

to reinstatement and full backwages the same does not apply in
this case since the termination was for a just cause.

twin requirements of due process:

1. substantive- for authorized or just cause
2. procedural:

for just cause, twin notice requirement would be:

1. notice to employee of the cause of accussation
2. notice to employee of the decision dismissing him, after due
hearing.

for authorized cause:

1. notice to employee at least 1 month before termination
2. notice to dole at least 1 month before termination

b. No, Alfredo is not entitled to reinstatement and backwages

although the dismissal should be upheld. While the procedural
infirmity cannot be cured, it should not invalidate the dismissal.
However, the employer should be held liable for nominal damages
for non-compliance with the procedural requirements of due
process.

XVIII. [a] Cite four (4) instances when an illegally dismissed employee
may be awarded separation pay in lieu of reinstatement. (3%)

[b] Explain the impact of the union security clause to the employees
right to security of tenure. (2%)

ANS:
a) 1) If there already exists strained relationships
2) If the employee has found new employment
3) If employee refuses to be reinstated
4) If there is already a cessation of buiness

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 b) the Union Security Clause in a way provides or fortifies the
employees' right to Security of Tenure since automatic
membership in a union would afford him protection against any
employer harassment/ intimidations and threats

XI. TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the
statement is false. Explain your answer in not more than two (2)
sentences. (5%)

[a] Seafarers who have worked for twenty (20) years on board the same
vessel are regular employees.

[b] Employment of children below fifteen (15) years of age in any public
or private establishment is absolutely prohibited.

[c] Government employees have the right to organize and join

concerted mass actions without incurring administrative liability.

[d] A waiver of the right to claim overtime pay is contrary to law.

[e] Agency fees cannot be collected from a non-union member in the

absence of a written authorization signed by the worker concerned.

ANS:
a. - False, seafarers are considered contractual employees and
cannot be considered as regular employees under the Labor
Code. Their employment is governed by the contracts they sign
every time they are rehired and their employment is terminated
when the contract expires.

b. - False, As a rule children below fifteen (15) years of age cannot

be employed except:
(1) When a child works directly under the sole responsibility of his
parents or legal guardian and where only members of the
employer's family are employed or (2) When a child's
employment or participation in public & entertainment or
information through cinema, theater, radio or television is
essential

c. False. Government employees are prohibited from striking

because their employment is fixed by law. Any violation thereof,

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will be a ground for administrative liability under Civil Service
Law.

d. False, Where it is shown that the person making the waiver did
so voluntarily, with full understanding of what he was doing, and
the consideration for the quitclaim is credible and reasonable, the
waiver must be recognized as a valid and binding undertaking.

e. False, No requirement of written authorization from the non-

union employee is imposed. The employee's acceptance of
benefits resulting from a collective bargaining agreement justifies
the deduction of agency fees from his pay and the union's
entitlement thereto.

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