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LABOR LAW PHILIPPINE BAR EXAMINATION

QUESTIONS AND ANSWERS 2007

-I-
(5 Points)

a. What is the principle of codetermination?

The principle of co-determination states that it is a joint responsibility of the


employer and the employee to establish terms and conditions of employment.
In establishing such terms and conditions of employment, the employer and
the employee must take into consideration existing laws and regulations.

b. What, if any, is the basis under the Constitution for adopting it?

The basis for the principle of codetermination is Paragraph 3, Section 3 of Art


XIII of the Constitution which states, in part, that the State shall promote the
principle of shared responsibility between workers and employers.

Full: section 3 (par 3), article 13, 1987 Constitution: the state shall promote the
principle of shared responsibility between workers and employers and the
preferential use of voluntary modes of settling disputes, including conciliation,
and shall enforce their mutual compliance therewith to foster industrial peace.

- II -
(5 Points)

a. Discuss the statutory restrictions on the employment of minors?

Department of Labor and Employment Department Advisory No. 01-08 (June


1, 2008), whose policies are pursuant to the provisions of the Labor Code of the
Philippines and RA 9231 ( An Act Providing for the Elimination of the Worst
Forms of Child Labor and Affording Special Protection for the Working Child,
Amending for this purpose RA 7610, as amended) and consistent with
Department Order No. 65-04 (Rules and Regulations Implementing RA 9231
Amending RA 7610, as amended).

RA 9231 defines the hours of work of a working child. A child fifteen (15) years
of age but below eighteen (18) shall not be allowed to work for more than eight
(8) hours a day, and in no case beyond forty (40) hours a week. As to work at
night, the same law states that no child fifteen (15) years of age but below
eighteen (18) shall be allowed to work between ten oclock in the evening and
six oclock in the morning of the following day. Meaning, no overtime work;
only 8 hours a day and 40 hours a week; and no night shift work for those 15
years old to below 18 years old.

In reiteration of RA 7610 as amended by RA 7658, RA 9231 requires the issuance


of a work permit prior to the employment of children below fifteen years of age,
as allowed in exceptional situations. This law, however, is silent with regard to
the issuance of a permit or certificate to those who are 15 but below 18 years of
age, although these young persons are still considered children. Meaning, a
work permit is required for children below 15 years old to work.
Department Order No. 65-04 (Rules and Regulations Implementing RA 9231)
clarifies the prohibitions, which are: the employment of children in the worse
forms of child labor in any public or private establishments and the
employment of children in advertisements directly or indirectly promoting
alcoholic beverages, intoxicating drinks, tobacco and its by-products,
gambling or any form of violence or pornography.

The employment of a young person 15 to below 18 years of age, therefore, may


be allowed subject to the conditions and prohibitions in RA 9231 and the Labor
Code.

Conditions of Employment:

Every child shall have access to formal and non-formal education, including
alternative learning systems, Thus, where the young person 15 to below 18 years
of age is employed, the employer shall provide him or her with access to at least
elementary or secondary education, including alternative learning systems. In
order to provide access, no employer shall hinder the young persons education
and learning opportunities.

The employer shall observe the prohibitions on employment of a young person,


comply with the above conditions on nature of work, number of hours of work,
time of work and meet the requirements on recruiting or hiring, legitimate
contracting, general labor standards and social protection, among others.

The issuance of a DOLE certificate to youth aged 15 to below 18 years prior to


employment is not required by law. No employer shall deny opportunity to any
such youth applying for employment merely on the basis of lack of DOLE work
permit or certificate of eligibility for employment. Any young person 15 to
below 18 years of age may present copy of this DOLE advisory to any employer,
job provider, government authority or his/her representative when seeking
employment or anytime during employment.

b. May a house help be assigned to non-household work?

No. Article145 of the Labor Code provides that no househelper shall be


assigned to work in a commercial, industrial or agricultural enterprise at a wage
or salary rate lower than that provided for agricultural or non-agricultural
workers as prescribed herein.

- III -
(5 Points)

a. Discuss the types of illegal recruitment under the Labor Code.

The types of illegal recruitment under the Labor Code are the following:

1. Simple illegal recruitment;


2. Illegal recruitment considered as an offense involving economic
sabotage which can be further classified to:
a) Illegal recruitment committed by a syndicate;
b) Illegal recruitment committed in a large scale.
Simple illegal recruitment or illegal recruitment covers any recruitment activity
undertaken by non-licensees or non-holders of authority. It includes the
commission of prohibited practices by licensees or holders of authority.

Illegal recruitment when committed by a syndicate or in large scale shall be


considered an offense involving economic sabotage. Illegal recruitment is
committed by a syndicate when it is committed by a group of three or more
persons conspiring or confederating with one another. Illegal recruitment is
committed in a large scale if committed against three or more persons.

b. In initiating actions against alleged illegal recruiters, may the Secretary of Labor and
Employment issue search and arrest warrants?

No, under the 1987 Constitution, only judges may issue warrants of arrest or
search warrant.

- IV -
(5 Points)

Explain

a. The Globe Doctrine.

The Globe Doctrine states that when the workers, through plebiscites, desires
to have their own representatives, the bargaining units may be formed by a
separation of a new unit from existing units. (Democratic Labor Union vs.
Cebu Stevedoring Co.)

b. The Community of Interest Rule.

Under the Community of Interest Rule, a bargaining unit must have a


community of interests of employees. Thus, in choosing a bargaining unit there
must be a community or mutuality of interests such as similarity of works or
duties, compensation or working conditions. This is important because the
basic test of a bargaining units acceptability is whether it is the grouping which
will assure that collective bargaining rights of the employees be fully exercised,

-V-
(5 Points)

May non-lawyers appear before the NLRC or Labor Arbiter? May they charge attorney's fee
for such appearance provided it is charged against union funds and in an amount freely agreed
upon by the parties? Discuss fully.

Yes, non-lawyer may appear before the NLRC or Labor Arbiter under the
following conditions:

a. if they represent themselves


b. if they represent their legitimate labor organizations or members
thereof
c. if they are duly accredited members of any legal aid office duly
recognize by the DOJ or IBP (Art 222, Labor Code)
They cannot charge attorneys fees because such fees only exist where there is
an attorney-client relationship. However, attorneys fees may be charged
against the union funds if agreed upon by the parties provided the following
requisites are complied:

a. there must be an authorization thru a written resolution by a


majority of all the members at a general membership meeting called
for that purpose;
b. the secretary must record the minutes of the meeting;
c. the individual written authorization for check-off duly signed by the
employee concerned.

- VI -
(5 Points)

Procedurally, how do you stay a decision, award or order of the Labor Arbiter? Discuss fully.

To stay a decision, award or order of the Labor Arbiter, an appeal must be filed
to the NLRC by either of the parties within 10 calendar days from the receipt of
such decision, award or order.

Appeal on judgment of monetary awards by the Labor Arbiter may only be


stayed upon the posting of cash or surety bond issued by a reputable bonding
company duly accredited by the Commission in the amount equivalent to the
monetary award in the judgment appealed from (Art 223, Labor Code)

- VII -
(5 Points)

a. May the NLRC or the courts take jurisdictional cognizance over compromise
agreements/settlements involving labor matters?

No. Under Article 227 of the Labor Code, any compromise agreement,
including those involving labor standards laws, voluntary agreed upon by the
parties with the assistance of the Bureau or the regional office of the
Department of Labor, shall be final and binding upon the parties. The NLRC
or any court shall not assume jurisdiction over issues involved therein except
in case of non-compliance thereof or if there is prima facie evidence that the
settlement was obtained through fraud, misrepresentation or coercion.

b. How sacrosanct are statements/data made at conciliation proceedings in the


Department of Labor and Employment? What is the philosophy behind your answer?

Under Article 233 of the Labor Code, Information and statements made at
conciliation proceedings shall be treated as privilege communication and shall
not be used as evidence against in the NLRC. Conciliators and similar officials
shall not testify in any court or body regarding any matters taken up at
conciliation proceedings conducted by them.

The reason is to allow conciliators to search for important facts of the


controversy which the parties may be afraid to disclose if such can be used
against them.
- VIII -
(5 Points)

Discuss in full the jurisdiction over the civil and criminal aspects of a case involving an unfair
labor practice for which a charge is pending with the Department of Labor and Employment.

Subject to the exercise by the President or by the Secretary of Labor and


Employment of the powers vested in them by Articles 263 and 264 of this Code,
the civil aspects of all cases involving unfair labor practices, which may include
claims for actual, moral, exemplary and other forms of damages, attorneys fees
and other affirmative relief, shall be under the jurisdiction of the Labor Arbiters.
They shall resolve such cases within thirty (30) calendar days from the time
they are submitted for decision.
Recovery of civil liability in the administrative proceedings shall bar recovery
under the Civil Code.
No criminal prosecution shall be instituted without a final judgment finding
that an unfair labor practice was committed, having been first obtained in the
preceding paragraph. During the pendency of such administrative proceeding,
the running of the period of prescription of the criminal offense herein
penalized shall be considered interrupted: Provided, however, that the final
judgment in the administrative proceedings shall not be binding in the criminal
case nor be considered as evidence of guilt but merely as proof of compliance
of the requirements therein set forth.

- IX -
(5 Points)

Discuss the legal requirements of a valid strike.

Suggested Answer:
The legal requirements of a valid strike are as follows:
(1) No labor union may strike on grounds involving inter-union and intra-union
disputes.
(2) In cases of bargaining deadlocks, the duly certified or recognized
bargaining agent may file a notice of strike with the Department of Labor and
Employment at least 30 days before the intended date thereof. In cases of unfair
labor practice, the period of notice shall be 15 days and in the absence of a duly
certified or recognized bargaining agent, the notice of strike may be filed by
any legitimate labor organization in behalf of its members. However, in case of
dismissal from employment of union officers duly elected in accordance with
the union constitution and by-laws, which may constitute union busting where
the existence of the union is threatened, the 15-day cooling-off period shall not
apply and the union may take action immediately.
(3) A decision to declare a strike must be approved by a majority of the total
union membership in the bargaining unit concerned, obtained by secret ballot
in meetings or referenda called for that purpose.
(4) In every case, the union shall furnish the department of labor and
Employment the voting at least seven days before the intended strike subject
to the cooling-off period herein provided.
(5) No labor organization shall declare a strike without first having bargained
collectively; without first having filed the notice required or without the
necessary strike vote first having been obtained and reported to the department
of labor and Employment.
(6) No strike shall be declared after assumption of jurisdiction by the president
or the secretary or after certification or submission of the dispute o compulsory
or voluntary arbitration or during the pendency of cases involving the same
grounds for the strike.
(7) In a strike no person engaged in picketing should commit any act of
violence, coercion or intimidation or obstruct the free ingress to or egress from
the employers premises for lawful purpose, or obstruct public thoroughfares.
Alternative Answer:
A valid strike requires compliance of both substantial and procedural grounds.
Substantially, a valid strike has to be grounded on either unfair labor practice
or deadlock in collective bargaining. Procedurally, the same must comply with
the requirements of: (1) notice of strike to be filed at least 15 days before the
intended ULP grounded strike or at least 15 days before the intended ULP
grounded strike or at least 30 days prior to the deadlock in bargaining grounded
strike; (2) Must comply with the strike vote requirement, meaning, a majority
of the union membership in the bargaining unit must have voted for the staging
of the strike, and notice hereon shall be furnished to the NCMB at least 24
hours before the strike vote is taken; and (3) the strike vote results must be
furnished to the NCMB at least 7 days before the intended strike. The dismissal
of a duly elected officer excuses, however, the union from the 15/30 days
cooling-off requirement in Art. 263(c) of the Labor Code.

-X-
(5 Points)

Discuss briefly the instances when non-compliance by the employer with a reinstatement order
of an illegally dismissed employee is allowed.

Despite a reinstatement order, an employer may not reinstate an employee in


the following instances: (a) when the position or any substantial equivalent
thereof no longer exists; (b) when reinstatement has been rendered moot and
academic by supervening events, such as insolvency of the employer as
declared by the court or closure of the business; or (c) the existence of strained
relations between the employer and the illegally dismissed employee, provided
the matter is raised before the Labor Arbiter.
- XI -
(5 Points)

a. A rule, when is retirement due?

Under the law, there are two types of retirement:

1. Optional retirement which may be availed of by an employee reaching


the age of 60 years; and
2. Compulsory retirement which may be availed of by an employee upon
reaching the age of 65 years. In both instances, the law imposes the
minimum service requirement of 5 years with the establishment.

b. When is retirement due for underground miners?

Under the law, An underground or surface mining employee upon reaching the
age of fifty (50) years or more, but not beyond sixty (60) years which is hereby
declared the compulsory retirement age for both underground and surface
mine workers, who has served at least five (5) years as underground or surface
mine worker may retire and shall be entitled to all the retirement benefits
provided for in this Article.

- XII -
(5 Points)

a. How do you execute a labor judgment which, on appeal, had become final and
executory? Discuss fully.

Under Article 230 of the Labor Code, execution upon finality of decision or
order is done through the issuance of a writ of execution, moto propio or on
motion of any interested party, by the Secretary of Labor and Employment or
any Regional Director, the Commission or any Labor Arbiter, or Med-Arbiter
or Voluntary Arbitrator, on a judgment within five (5) years from the date it
becomes final and executory. Such execution requires a sheriff or a duly
deputized officer to execute or enforce final decisions, orders or awards of the
aforementioned officials. In any case, it shall be the duty of the responsible
officer to separately furnish immediately the counsels of record and the parties
with copies of said decisions, orders or awards.

b. Cite two instances when an order of execution may be appealed.

An order of execution may be appealed:


a. Where, because of supervening events, it becomes imperative, in the
higher interest of justice, to direct the Order of Execution modification
in order to harmonize the disposition with the prevailing circumstances
or whenever it is necessary to accomplish the aims of justice (Galindez,
et. al vs. Rural Bank of Llanera, Inc., et. al., G.R. No. 84975, Rural Bank
of LLanera, Inc. vs. Department of Labor, etc., et.al July 5,1989)

b. Where the Order of Execution varies or goes beyond the terms of the
judgment it seeks to enforce or the terms of the judgment are
ambiguous (Development Bank of the Philippines vs. Union Bank of
the Philippines G.R. No. 155838, January 13, 2004)

- XIII -
(5 Points)

May a decision of the Labor Arbiter which has become final and executory be novated through
a compromise agreement of the parties?

Yes. Neither the Labor Code nor its implementing rule as well as the NLRC
Rules prohibit the amicable settlement of cases during the pendency of the
proceeding or after a judgment is issued thereupon. As provided in the case of
Jesalva v. Bautista, compromise agreement is encouraged and authorized by
law. Hence, they may be made even when the judgment is final and executory.
In the case of Magbanua v. Uy, the Supreme Court states that to be binding,
the compromise must be shown to have been voluntarily, freely and
intelligently executed by the parties, who had full knowledge of the judgment.
Furthermore, it must not be contrary to law, morals, good customs and public
policy.

- XIV -
(5 Points)

AB, single and living-in with CD (a married man), is pregnant with her fifth child. She applied
for maternity leave but her employer refused the application because she is not married. Who
is right? Decide.

Neither party is correct. The grant of maternity leave benefits is not


preconditioned by a legitimate marriage. The benefit applies to all female
employees, whether married or unmarried. Thus, the employer cannot refuse
the application on the ground that AB is only leaving with CD.
Neither AB is correct. Under the Social Security Law, maternity leave benefits
shall be paid only for the first four (4) deliveries or miscarriages. Since, AB is
already pregnant with her fifth (5) child, she can no longer claim for maternity
leave benefits.

- XV -
(5 Points)

Some officers and rank-and-file members of the union staged an illegal strike. Their employer
wants all the strikers dismissed. As the lawyer, what will you advise the employer? Discuss
fully.

I would advise the employer that yes he is authorized to terminate the


employment of the union officials who knowingly participated in the illegal
strike and/or any worker or union officer who knowingly participated in the
commission of other illegal acts during the strike. The requirements for a valid
strike or lockout are mandatory in character and non-compliance therewith is
sufficient ground to declare the strike or lockout illegal.

- XVI -
(5 Points)

A carpenter is employed by a private university in Manila. Is the carpenter a regular or a casual


employee? Discuss fully.

The carpenter is a casual employee because Article 295 of the Labor Code
provides that an employment shall be deemed regular where the employee has
been engaged to perform activities which are usually necessary or desirable in
the usual business or trade of the employer, except where the employment has
been fixed for a specific project or undertaking the completion or termination
of which has been determined at the time of the engagement of the employee
or where the work or service to be performed is seasonal in nature and the
employment is for the duration of the season. In this case, the work to be
performed by the carpenter is not necessary or desirable in the usual business
or trade of the employer. However, he may be considered as regular employee
if they have rendered services for at least one (1) year.

- XVII -
(5 Points)

P.D. 1508 requires the submission of disputes before the Barangay Lupong Tagapamayapa prior
to the filing of cases with the courts or other government bodies. May this decree be used to
defeat a labor case filed directly with the Labor Arbiter? Discuss fully.

No because Article 224 of the Labor Code provides that labor arbiters shall have
original and exclusive jurisdiction to hear and decide cases involving all
workers, whether agricultural or non-agricultural. Montoya vs Escayo provides
that ordinary rules on procedure are merely suppletory in character vis--vis
labor disputes which are primarily governed by the labor laws. Requiring
concilaiation of labor disputes before the barangay courts would defeat the very
salutary purposes of the law. Instead of simplifying labor proceedings designed
at expeditious settlement or referral to the proper court or office to decide it
finally. The barangay conciliation would only duplicate the conciliation
proceedings and unduly delay the disposition of the labor case.

- XVIII -
(5 Points)

Inday was employed by mining company X to perform laundry service at its staffhouse. While
attending to her assigned task, she slipped and hit her back on a stone. Unable to continue
with her work, she was permitted to go on leave for medication, but thereafter she was not
allowed to return to work. She filed a complaint for illegal dismissal but her employer X
contended that Inday was not a regular employee but a mere househelp. Decide.
If I were the judge, I would decide in favor of Inday. Rule XIII, Section 1(b),
Book 3 of the Labor Code, as amended, the terms "househelper" or "domestic
servant" shall refer to any person, whether male or female, who renders services
that are exclusively to the personal comfort and enjoyment of the employer's
family."

The foregoing definition cannot be interpreted to include househelp or


laundrywomen working in staffhouses of a company like Inday. By the same
token, it cannot be considered to extend to the driver, houseboy, or gardener
exclusively working in the company, the staffhouses and its premises.
Therefore, Inday may not be considered as within the meaning of a
"househelper" or "domestic servant" as above-defined by law since she
renders services exclusively for mining company X.

- XIX -
(5 Points)

Cite five grounds for disciplinary action by the Philippine Overseas Employment
Administration (POEA) against overseas workers.

The grounds for disciplinary action may exist either at pre-employment stage
or during employment. Under the Section 1(A) and (B), Rule III, Part VII of
the 2002 POEA Rules and Regulations Governing the Recruitment and
Employment of the Land-based Overseas Workers, the following are the
grounds for disciplinary action against overseas workers:

A. Pre-employment Offenses:

(1) Using, providing, or submitting false information or documents for


purposes of job application or employment;
(2) Unjustified refusal to depart for the worksite after all employment
and travel documents have been duly approved by the appropriate
government agency/ies.

B. Offenses during Employment:

(1) Commission of a felony or a crime punishable by Philippine Laws


or by the laws of the host country;
(2) Unjustified breach of employment contract;
(3) Embezzlement of company funds or monies and/or properties of a
fellow worker entrusted for delivery to kin or relatives in the
Philippines; and
(4) Violation/s sacred practice of the host country.
- XX -
(5 Points)

AB, a non-resident American, seeks entry to the country to work as Vice-President of a local
telecommunications company. You are with the Department of Labor and Employment
(DOLE). What permit, if any, can the DOLE issue so that AB can assume as Vice-President
in the telecommunications company? Discuss fully.

Under the Labor Code, any alien seeking admission to the Philippine for
employment purposes shall obtain an employment permit from the
Department of Labor. Furthermore, the law provides that the employment
permit may be issued to a non-resident alien or to the applicant employer after
a determination of the non-availability of a person in the Philippines who is
competent, able and willing at the time of application to perform the services
for which the alien is desired.

It is therefore necessary that an Employment Permit for Non-Resident Aliens


be issued by the DOLE in favor of AB before the latter can work and assume
as Vice-President of a local telecommunications company.