U.P.

Portia Sorority Bar Ops 2007

MOCK BAR EXAMINATIONS

ANSWERS TO LABOR MOCK BAR EXAM

I.

Hermie is not correct. He is not an employee because he does not meet the four- fold test for him to be an employee
of Diamond Triangle. All that he could claim is: he worked within the premises of Diamond Triangle. He was not
engaged as an employee by Diamond Triangle. He was not paid wages by Diamond Triangle. Diamond Triangle
does not have the power to dismiss him although Diamond Triangle may not continue to allow him to work within
the premises. And most important of all, Hermie was not under the control of Diamond Triangle as regards the
work he performs for the customers.

The Supreme Court has ruled: in stark contrast to the Companys regular employees, there are independent, free
lance operators who are permitted by the Company to position themselves proximate to the Company premises.
These independent operators are allowed by the Company to wait on Company customers who would be requiring
their services. In exchange for privileges of favourable recommendation by the Company and immediate access to
the customers in need of their services, these independent operators allow the Company to collect their service fee
from the customer and this fee is given back to the independent operator at the end of the week. In effect, they do
not earn fixed wages from the Company as their variable fees are earned by them from the customers of the
Company. The Company has no control over and does not restrict the methodology or the means and the manner
by which these operators perform their work. These operators are not supervised by any employee of the Company
since the results of their work is controlled by the customers who hire the. Likewise, the Company has no control as
an employer over these operators. They are not subject to the regular hours and days of work and may come and
go as they wish. They are not subject to any disciplinary measures from the Company, save merely for the inherent
rules of general behaviour and conduct. (Ushio Marketing v. NLRC, 294 SCRA 673 (1998)).

II.

A. A wage distortion is that brought about where an increase in the prescribed wage rates results in the elimination
or severe contraction of intentional quantitative differences in wage and salary rates between and among employee
groups in an establishment as to effectively obliterate the distinctions embodied in such wage rates based on skills,
length of service and other logical bases of differentiation.

B. No. the existence of wage distortion is not a valid ground for a strike because Art. 124 of the Labor Code
provides for a specific method of procedure for correcting wage distortion. In Ilaw at Buklod ng Mangagawa v. NLRC
(198 SCRA 586), the Court said:

It goes without saying that these joint or coordinated activities may be forbidden or restricted by law or
contract. For the particular instance of distortions of the wage structure within an establishment resulting
from the application of any prescribed wage increase by virtue of law or wage order, Sec. 3 of RA 6727
prescribes a specific, detailed and comprehensive procedure for the correction thereof, thereby implicitly
excluding strikes or lockouts or other concerted activities as modes of settlement of the issue.

Alternative answer: A wage distortion, alleged by the employees but rejected by the employer can be a valid
ground for staging a strike if it happens that in rejecting the allegation of wage distortion, the employer refuses to
consider the issue under the grievance procedure provided for in the applicable CBA, and latter on through
Voluntary Arbitration. These acts of the employer could be considered as a violation of its duty to bargain
collectively which is unfair labor practice (ULP). A ULP strike is legal.

III.

No, because of the non- transferability of the license to engage in recruitment and placement. The Labor Code (in
Article 29) provides that no license to engage in recruitment and placement shall be used directly or indirectly by
any person other than the one in whose favor it was issued nor may such license be transferred, conveyed or

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MOCK BAR EXAMINATIONS

assigned to any other person or entity. It may be noted that the grant of a license is a governmental act by the
Department of Labor and Employment based on personal qualifications and citizenship and capitalization
requirements. (Art. 27-28 of the Labor Code)

IV.

For failure to comply with the memorandum to submit a feasibility study on his area of operation, Jay can not be
terminated (presumable for insubordination or wilful disobedience) because the same envisages the concurrence of
at least two requisites: (1) the employees assailed conduct must have been willful or intentional, the wilfulness
being characterized by a wrongful and perverse attitude; and (2) the order violated must have been reasonable or
lawful, made known to the employee and must pertain to the duties which he had been engaged to discharge.

In the case at bar, at least two requisites are absent, namely: (1) Jay did not wilfully disobey the memorandum with
perverse attitude, and (2) the directive to make a feasibility study did not pertain to his duties. Hence, the
termination from employment of Jay Manzano is not lawful.

V.

The claim of Union LT is valid. The Labor Code is very clear; undertime work on any particular day shall not be
offset by overtime work on any other day. (Article 88, Labor Code)

The right arising from the above provision, meaning, entitlement to overtime pay for one hour for working 9 hours
per day, 3 days a week, (Art. 87 Labor Code) cannot be considered as waived by a CBA, even if the CBA is ratified
by the employees concerned. The waiver in this instance is against the law, morals and public policy. The law must
prevail over the CBA.

VI.

A. Wages are those paid to any employee as his renumeration or earnings payable by an employer for work done
or to be done, or for services rendered or to be rendered. On the other hand, salary is used in the law that
provides for a 13th month pay. In this law, basic salary includes all renumeration or earnings paid by an employer
to his employees for services rendered, but does not include allowances or monetary benefits which are not
considered or integrated as part of the regular or basic salary. (Art. 97(f), LC; Sec. 2(b), PD 851).

Alternative Answer: The term wages applies to compensation for manual labor, skilled, or unskilled, while
salary denotes a compensation for a higher degree of employment. (Gaa v. CA)

B. Under Art. 1708 CC, only wages are exempt from attachment or execution. Salaries are not exempt from
attachment or execution. (Gaa v. CA)

VII.

A. Chris is entitled to receive benefits from the SSS even if his employer did not remit Chris contribution to the
System because the Social Security Law provides in Sec. 22(b) that the failure or refusal of the employer to pay or
remit contributions shall not prejudice the right of the covered employee to the benefits of the coverage.

But Chris is not entitled to retirement benefits in the form of a monthly pension unless at the time of the accident,
he has reached the age of sixty years and has paid at least 120 monthly contributions prior to the semester of the
accident. (Sec. 12- B, Social Security Law).

B. The heirs are not entitled, but his primary beneficiaries or in the absence of primary beneficiaries, his secondary
beneficiaries are entitled.

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MOCK BAR EXAMINATIONS

VIII.

A. 1. There is direct certification if a Med- Arbiter certifies that a certain Union is the exclusive collective bargaining
representative of the employees of an appropriate bargaining unit without the holding of a certification election,
but merely on the basis of evidence presented in support of the Unions claim that it is the choice of the majority of
the employees. Such evidence may consist of affidavits made by a clear majority of the employees stating that they
are members of and are supporting the Union petitioning for direct certification to be their exclusive collecting
bargaining representation.

2. A certification election is an election ordered by Med- Arbiter for the purpose of determining the sole
and exclusive bargaining agent of the employees in an appropriate bargaining unit.

3. A consent election is an election agreed upon by the parties to determine the issue of majority
representation of all the workers of an appropriate collective bargaining unit.

B. It is proper to grant direct certification to said Union, but in addition to its being the only union claiming to be
the bargaining representative, it should submit evidence that it is the choice of a majority of the employees in an
appropriate bargaining unit, as the bargaining representative. The Labor Code (in Art. 255) provides that the labor
organization designated or selected by the majority of the employees in an appropriate collective bargaining unit
shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining.

IX.

The strike is not valid. It is true that the Labor Code provides that if an employer violates a collective bargaining
agreement, the said employer commits an unfair labor practice act, which in turn is a legal ground for a strike.

But Rep. Act No. 6715 amended the Labor Code by providing that violations of a collective bargaining agreement,
except those which are gross in character shall no longer be treated as unfair labor practice and shall be resolved as
grievances under the collective bargaining agreement. The violation involved in the question is not a gross
violation because there is no flagrant and/ or malicious refusal to comply with the economic provisions of such
agreement, which is how the Code defines a gross violation of a CBA.

X.

Yes, in order that the special assessment (death aid benefit) may be upheld as valid, the following requirements
must be complies with: (1) authorization by a written resolution of the majority of all the members at the general
membership meeting duly called for the purpose; (2) Secretarys record of the meeting; and (3) individual written
authorization for the check- off duly signed by the employee concerned. (ABS- CBN Supervisors Employees Union
Members v. ABS- CBN Broadcasting Corp. and Union Officers)

In the problem given, none of the above requisites were complied with by the union. Hence, Terd can object to the
deduction made by the union for being invalid.

XI.

In a number of SC decisions, it has been ruled that an employee who is found to have been illegally dismissed shall
be awarded separation pay in lieu of reinstatement if reinstatement is no longer viable in view of the strained
relations between the employee and his employer. In a case, the SC also ruled that since reinstatement was no
longer feasible in view of the advanced age of the employees who were illegally dismissed, they should instead
receive separation pay.

The rate of separation pay is one month salary for every year of service. The SC has also ruled in the computation
of separation pay, account must be taken not only on the basic salary of the employee but also his allowances.

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In decisions applying the law before RA No. 6715, the SC ruled that the maximum limit for backwages shall be
three years.

The law has been changed by RA No. 6715. Backwages are now to be computed form the time the compensation of
the employee was withheld from him up to the time of his actual reinstatement. Thus, in applying the amendment
introduced by RA 6715, this means that backwages will now be paid for the entire period up to the actual
reinstatement of the employees, even if the period is over three years.

XII.

A. Wages, hours of work and all other terms and conditions of employment including proposals for adjusting any
grievances or questions arising from the collective bargaining agreement are considered mandatory subjects of
collective bargaining (Art. 252 LC).

B. To set in motion the mechanics of collective bargaining, these jurisdictional pre- conditions must be present,
namely:
a. The employees in a bargaining unit should form a labor organization;
b. The labor organization should be a legitimate labor organization;
c. As such legitimate labor organization, it should be recognized or certified as the collective
bargaining representative of the employees of the bargaining unit; and
d. The labor organization as the collective bargaining representative should request the employer
to bargain collectively. (Art 243, 234, 255 and 250 LC)

XIII.

A. Yes. The act of Manila Airlines management in dismissing the participants in the strike is valid. In a number of
SC decisions, it has ruled that the defiance by workers of a return to work order of the Sec. of Labor issued when he
assumes jurisdiction over a labor dispute is an illegal act and could be the basis of a legal dismissal. The return to
work order imposes a duty; it must be discharged as a duty even against the workers will.

B. When the Sec. of Labor assumes jurisdiction over a strike, all striking 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. (Art. 263 (q))

XIV.

Among the policies of the State in the field of labor relations is to promote trade unionism and to foster the
organization of a strong and united labor movement. Union security clauses, like a closed shop agreement, is one
way of implementing the aforementioned labor relations policy. Implementing to some extent the concept of
freedom of association, an employee who is already a member of a union could not be compelled to become a
member of a bargaining union, even if there is a closed shop agreement.

Alternative Answer: It could be argued that a closed shop provision in a CBA, because it requires that a person
should first be a member of the bargaining union before he is employes, is violative of the right to freedom of
association, because said right subsumes not only a right to join, but also a right not to join a union. On the other
hand, it could be argued that the exercise of the freedom of association means that workers should join unions. A
closed shop agreement, as a union security clause, encourages the joining of unions.

XV.

A. A labor-only contract is a contract between an employer and a person who supplies workers to such employer
where the person supplying workers does not have substantial capital or investment in the form of tools,

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equipment, machineries, work premises, among others, and the workers recruited and placed by such person are
performing activities which are directly related to the principal business of such employer. (Art. 106 LC)

B. A person who engages the services of a bonafide independent contractor for the performance of any work,
task, job or project is the indirect employer of the employees who have been hired by the independent contractor to
perform said work, task, job or project.

In the event that the independent contractor fails to pay the wages of his employees, an indirect employer, in the
same manner and extent that he is a liable to employees directly employed by him, is jointly and severally liable
with the independent contractor to the employees of the latter to the extent of the work performed under the
contract.

As for the person who engages the services of a labor-only contractor, the latter is considered merely as an agent
of the former who shall be responsible to the workers hired by the labor-only contractor in the same manner and
extent as if he directly employed such workers.

Alternative Answer: An employer who engages the service of a bonafide independent contractor is solidarily
liable with his contractor or sub- contractor only for non- payment or under- payment of wages and other labor
standards provisions of the LC, whereas an employer who engages a labor- only contractor is liable for all
benefits, terms and conditions of employment that if normally grants to its regular or direct employees.

An employer who deals with a bonafide independent contractor shall be liable only subsidiarily, if the contractor or
sub-contractor fails to pay the wages to the workers in accordance with the LC.

Upon the other hand, an employer who deals with a labor-only contractor shall be primarily responsible to the
workers in the same manner and extent as if the latter were directly employed by him. (Art 106-107, LC)

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