2018 BAR EXAMINATIONS IN LABOR LAW
Unless the parties provide for broader inclusions, the
I term ‘one-half (1/2) month salary’ shall mean fifteen (15)
Narciso filed a complaint against Norte University for the
payment of retirement benefits after having been a part-
time professional lecturer in the same school since 1974.
Narciso taught for two semesters and a summer term for
the school year 1975, took a leave of absence from 1975
to 1977, and resumed teaching until 2003. Since then, his
contract has been renewed at the start of every semester
and summer, until November 2005 when he was told that
he could no longer teach because he was already 75
years old. Norte University also denied Narciso’s claim for
retirement benefits stating that only full-time permanent
faculty, who have served for at least five years
immediately preceding the termination of their
employment, can avail themselves of post-employment
benefits. As part-time faculty member, Narciso did not
acquire permanent employment status under the Manual
of Regulations for Private Schools, in relation to the Labor
Code, regardless of his length service.
(a) Is Narciso entitled to retirement benefits? (2.5%)
SUGGESTED ANSWER:
Yes, Narciso is entitled to retirement benefits. A part-time
lecturer, with a fixed-term employment, who did not
attain permanent status, is entitled to retirement pay.
This was ruled by the Supreme Court in De La Salle
Araneta University v. Bernardo, G. R. No. 190809,
February 13, 2017 as follows: Republic Act No. 7641
states that "any employee may be retired upon reaching
the retirement age x xx;" and "[i]n case of retirement, the
employee shall be entitled to receive such retirement
benefits as he may have earned under existing laws and
any collective bargaining agreement and other
agreements." The Implementing Rules provide that
Republic Act No. 7641 applies to "all employees in the
private sector, regardless of their position, designation or
status and irrespective of the method by which their
wages are paid, except to those specifically exempted x
xx." And Secretary Quisumbing' s Labor Advisory further
clarifies that the employees covered by Republic Act No.
7641 shall "include part-time employees, employees of
service and other job contractors and domestic helpers
or persons in the personal service of another."
NOTE: The foregoing answer can be found in pages 921-
924 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018, by Atty. Voltaire T. Duano.
This was the first time that this question was asked in the
bar examinations.
(b) If he is entitled to retirement benefits, how should
retirement pay be computed in the absence of any
contract between him and Norte University providing for
such benefits? (2.5%)
SUGGESTED ANSWER:
The retirement will be 22.5 days salary, exclusive of leave
conversion benefits. According to Capitol Wireless, Inc. v.
Honorable Secretary Ma. Nieves R. Confessor, G.R. No.
117174, November 13,1996:
For purposes of computing compulsory sand optional
retirement benefits and to align the current retirement
plan with the minimum standards of Art. 287 of the
Labor Code, as amended by R.A. 7641, and Sec. 5 (5.2) of
its implementing rules, “1/2 month salary” means 22.5
days salary, exclusive of leave conversion benefits.
xxxxxxxxx
days plus one-twelfth (1/12) of the 13th month pay and
the cash equivalent of not more than five (5) days of
service incentive leaves x xxx (italics supplied).
NOTE: The foregoing answer can be found in pages 924-
925 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018, by Atty. Voltaire T. Duano.
Questions involving the same subject matter were given
during the 2011 and 2001 Bar Examinations.
II
Nayon Federation issued a charter certificate creating a
rank-and-file Neuman Employees Union. On the same
day, New Neuman Employees filed a petition for
certification election with the Department of Labor and
Employment (DOLE) Regional Office, attaching the
appropriate charter certificate.
a) The employer, Neuman Corporation, filed a motion to
dismiss the petition for lack of legal personality on the
part of the petitioner union. Should the motion be
granted? (2.5%)
SUGGESTED ANSWER:
The motion should be denied. For purposes of filing a
petition for certification election, New Neuman
Employees has legal personality from the time it was
issued with a charter certificate. This clear under the
Labor Code, which provides, The chapter shall acquire
legal personality only for purposes of filing a petition for
certification election from the date it was issued a charter
certificate. (Article 241 [234-A], As inserted by Section 2,
Republic Act No. 9481 which lapsed into law on May 25,
2007 and became effective on June 14, 2007)
NOTE: The foregoing answer can be found in page 218 of
the book entitled Principles and Cases Labor Relations,
Second Edition 2018, by Atty. Voltaire T. Duano. This was
the first time that this question was asked in the bar
examiantions.
b) The employer likewise filed a petition for cancellation
of union registration against New Neuman Employees
Union, alleging that Nayon Federation already had a
chartered local rank-and-file union, Neuman Employees
Union, pertaining to the same bargaining unit within the
establishment. Should the petition for cancellation
prosper? (2.5%)
SUGGESTED ANSWER:
Under Article 247 of the Labor Code, the following are
the relevant grounds for cancellation of union
registration:
(a) Misrepresentation, false statement or fraud in
connection with the adoption or ratification of the
constitution and by-laws or amendments thereto, the
minutes of ratification, and the list of members who took
part in the ratification;
(b) Misrepresentation, false statements or fraud in
connection with the election of officers, minutes of the
election of officers, and the list of voters;
(c) Voluntary dissolution by the members.
Unless the employer can prove that any of the foregoing
grounds are present the petition for cancellation will not
prosper.
NOTE: The foregoing answer can be found in page 223 of
the book entitled Principles and Cases Labor Relations,
Second Edition 2018, by Atty. Voltaire T. Duano. This was
the first time that this question was asked in the bar
examiantions.
III
Due to his employer’s dire financial situation, Nicanor
was prevailed upon by his employer to voluntarily resign.
In exchange, he demanded payment of salary
differentials, 13th month pay, and financial assistance, as
promised by his employer. Management promised to pay
him as soon as it is able to pay off all retrenched rank-
and-file employees. Five years later, and before
management was able to pay Nicanor the amount
promised to him, Nicanor died of a heart attack. His
widow, Norie, filed a money claim against the company
before the National Labor Relations Commission (NLRC),
including interest on the amount of the unpaid claim. She
also claimed additional damages arguing that the
supposed resignation letter was obtained from her
spouse through undue pressure and influence. The
employer filed a motion to dismiss on the ground that (A)
the NLRC did not have jurisdiction over money claims,
and (B) the action has prescribed.
(a) Does the NLRC have jurisdiction to award money
claims including interest on the amount unpaid? (2.5%)
SUGGESTED ANSWER:
Jurisdiction will depend on the amount being claimed by
Nicanor’s surviving spouse. If the amount exceeds Five
Thousand Pesos (PhP5,000.00) as provided in Article 224
(a [6]) of the Labor Code then jurisdiction belongs to the
Arbitration Branch of the NLRC. However, if the amount
did not exceed Five Thousand Pesos (PhP5,000.00) and
then jurisdiction belongs to the Regional Director under
Article 129 of the Labor Code involving recovery of
wages, simple money claims and other benefits. Either of
the said quasi-judicial body can award interest in the
concept of actual and compensatory damages in
accordance. The award of interest in money claim was
explained in Limlingan v. Asian Institute Management,
Inc., G.R. No. 220481, February 17, 2016, that the rate of
interest in the concept of actual and compensatory
damages as well as its accrual are as follows:
1. When the obligation is breached, and it consists in the
payment of a sum of money, i.e., a loan or forbearance of
money, the interest due should be that which may have
been stipulated in writing. Furthermore, the interest due
shall itself earn legal interest from the time it is judicially
demanded. In the absence of stipulation, the rate of
interest shall be 6% per annum to be computed from
default, i.e., from judicial or extrajudicial demand under
and subject to the provisions of Article 1169 of the Civil
Code.
2. When an obligation, not constituting a loan or
forbearance of money, is breached, an interest on the
amount of damages awarded may be imposed at the
discretion of the court at the rate of 6% per annum. No
interest, however, shall be adjudged on unliquidated
claims or damages, except when or until the demand can
be established with reasonable certainty. Accordingly,
where the demand is established with reasonable
certainty, the interest shall begin to run from the time the
claim is made judicially or extrajudicially (Art. 1169, Civil
Code), but when such certainty cannot be so reasonably
established at the time the demand is made, the interest
shall begin to run only from the date the judgment of the
court is made (at which time the quantification of
damages may be deemed to have been reasonably
ascertained). The actual base for the computation of legal
interest shall, in any case, be on the amount finally
adjudged.
3. When the judgment of the court awarding a sum of
money becomes final and executory, the rate of legal
interest, whether the case falls under paragraph 1 or
paragraph 2, above, shall be 6% per annum from such
finality until its satisfaction, this interim period being
deemed to be by then an equivalent to a forbearance of
credit.
NOTE: The foregoing answer can be found in page 26 of
the book entitled Principles and Cases Labor Relations,
Second Edition 2018, by Atty. Voltaire T. Duano and in
pages 589-590 of the book entitled Principles and Cases
Labor Standards and Social Legislation, Second Edition
2018, by Atty. Voltaire T. Duano. Questions involving the
same subject matter were given during the 2011 and
2016 (on award of interest in money claim) Bar
Examinations.
(b) Assuming that the NLRC has jurisdiction, has the
action prescribed? (2.5%)
SUGGESTED ANSWER:
The action has not prescribed. This is because Nicanor’s
surviving spouse’s cause of action will accrue upon the
categorical denial of the claim. In this case, there was
demand for its payment, however, the management had
promsied to pay as soon as it is able to pay off all
retrenched rank-and-file employees. However, it is was
only after five (5) years that the management was able to
pay. Moreover, there was no denial of the claim.
Therefore, prescription did not set in. In the Degamo v.
Avantgarde Shipping Corp., G.R. No. 154460, November
22, 2005 and Serrano v. Court of Appeals, G.R. No.
139420, August 15, 2001, following cases, the Supreme
Court explained the accrual of a cause of action under
Article 306 [291].
NOTE: The foregoing answer can be found in pages 943-
946 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018, by Atty. Voltaire T. Duano.
Questions involving the same subject matter was given
during the 2010 Bar Examination.
(c) May Nicanor’s spouse successfully claim additional
damages as a result of the alleged undue pressure and
influence? (2.5%)
SUGGESTED ANSWER:
Yes, Nicanor’s spouse can successfully claim additional
damages as a result of the alleged undue pressure and
influence. This is provided under Article 224 (a [4] of the
Labor Code which provides for claims for actual, moral,
exemplary and other forms of damages arising from
employer-employee relationship within the jurisdictional
authority of the Arbitration Branch of the NLRC.
In the alternative, it can be argued that Nicanor’s spouse
cannot successfully claim additional damages because it
is the jurisdictional authority of the Arbitration Branch of
the NLRC. The employer-employee relationship is only
incidental and the cause of action arises from other
sources like torts and damages. Therefore, jurisdiction
belongs to the regular courts.
NOTE: The foregoing answer can be found in pages 26,
32-38 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018, by Atty. Voltaire T. Duano.
Questions involving the same subject matter were given
during the 2016, 199 and 1995 Bar Examinations.
IV
Natasha Shoe Company adopted an organizational
streamlining program that resulted in the retrenchment
of 550 employees in its main plant. After having been
paid their separation benefits, the retrenched workers
demanded payment of retirement benefits under a CBA
between their union and management Natasha Shoe
Company denied the workers’ demand.
(a) What is the most procedurally peaceful means to
resolve this dispute? (2.5%)
SUGGESTED ANSWER:
Since this is a money claim involving the interpretation
and implementation of the CBA, the retrenched workers
can refer the matter to the grievance machinery and if it
remained unresolved within seven (7) days from the date
of its submission the same shall be automatically referred
to the voluntary arbitration prescribed in the CBA.
In the alternative it can be argued, that since this is a
dispute between the retrenched workers and the
employer the same cannot be a subject matter of
grievance and voluntary arbitration. This is because only
disputes between the union and the company as ruled in
Tabique v. International Copra Export Corporation, G. R.
No. 183335, December 23, 2009, shall be referred to
grievance machinery or voluntary arbitrators. Thus, the
dispute should be resolved by way of mandatory
conciliation-mediation in accordance with Article 234 of
the Labor Code.
NOTE: The foregoing answer can be found in pages 193-
195, 436, 433-442 of the book entitled Principles and
Cases Labor Relations, Second Edition 2018, by Atty.
Voltaire T. Duano. Questions involving the same subject
matter were given during the 2017, 2010, 2008, 2001,
1997 and 1995 Bar Examinations.
(b) Can the workers claim both separation pay and
retirement benefits. (2.5%)
SUGGESTED ANSWER:
Yes, the workers can claim both separation pay and
retirement benefits. This was settled rule in the case of
Goodyear v. Marina Angus, G.R. No. 185499, 14
November 2014 where it was ruled that in the absence of
an express or implied prohibition against it, collection of
both retirement benefits and separation pay upon
severance from employment is allowed. This is grounded
on the social justice policy that doubts should always be
resolved in favor of labor rights. (Aquino v. National Labor
Relations Commission, G.R. No. 87653, February 11,
1992)
V However, on the assumption that she complied with the
Nelda worked as a chambermaid in Hotel Neverland with
a basic wage of PhP560.00 for an eight-hour workday. On
Good Friday, she worked for one (1) hour from 10:00 PM
to 11:00 PM. Her employer paid her only PhP480 for each
8-hour workday, and PhP70.00 for work done on Good
Friday. She sued for underpayment of wages and non-
payment of holiday pay and night shit differential for
working on a Good Friday. Hotel Neverland denied the
alleged underpayment, arguing that based on long-
standing unwritten tradition, food and lodging costs were
partially shouldered by the employer and partially paid
for by the employee through salary deduction. According
to the employer, such valid deduction caused the
payment of Nelda’s wage to be below the prescribed
minim m. The hotel also claimed that she was not
entitled to holiday pay and night shift differential pay
hotel workers have to work on holidays and may be be
assigned to work at night.
(a) Does the hotel have valid legal grounds to deduct food
and lodging costs from Nelda's basis salary? (2.5%)
SUGGESTED ANSWER:
As held in Mabeza v. National Labor Relations
Commission, G.R. No. 118506, April 18, 1997: Granting
that meals and lodging were provided and indeed
constituted facilities, such facilities could not be
deducted without the employer complying first with
certain legal requirements. Without satisfying these
requirements, the employer simply cannot deduct the
value from the employee’s wages. First, proof must be
shown that such facilities are customarily furnished by
the trade. Second, the provision of deductible facilities
must be voluntarily accepted in writing by the employee.
Finally, facilities must be charged at fair and reasonable
value. (Labor Code, Art. 97 [f])
Applying the above, unless the hotel can comply with the
legal requirements it has no valid legal grounds to deduct
food and lodging costs from Nelda's basis salary.
NOTE: The foregoing answer can be found in page 502 of
the book entitled Principles and Cases Labor Standards
and Social Legislation, Second Edition 2018, by Atty.
Voltaire T. Duano. Questions involving the same subject
matter were given during the 2013 and 2010 Bar
Examinations.
(b) Applying labor standards law, how much should Nelda
be paid for work done Good Friday? Show the
computation in your test booklet and encircle your final
answer. (2.5%)
SUGGESTED ANSWER:
It can be argued:
The rule in order to be paid regular holiday like two
successive holidays provides as follows, Where there are
two (2) successive regular holidays, like Holy Thursday
and Good Friday, an employee may not be paid for both
holidays if he absents himself from work on the day
immediately preceding the first holiday, unless he works
on the first holiday, in which case he is entitled to his
holiday pay on the second holiday.(Section 10, Rule IV,
Book III, Rules to Implement the Labor Code)
Applying the above rule, unless Nelda had complied with
the rules on absences she is not entitled for her holiday
pay for work done on Good Friday.
rules Nelda should be paid as follows: P560 x
200%=P1,120.00 or since he only worked for one hour
the pay should be as follows: 70 x 200% = P140.00
NOTE: The foregoing answer can be found in page 453 of
the book entitled Principles and Cases Labor Standards
and Social Legislation, Second Edition 2018, by Atty.
Voltaire T. Duano. Questions involving the same subject
matter was given during the 2013 and 2010 Bar
Examinations.
VI
A certification election was conducted in Nation
Manufacturing Corporation, whereby 55% of eligible
voters in the bargaining unit cast their votes. The results
were as follows:
Union Nana : 45 votes
Union Nada : 40 votes
Union Nara : 30 votes
No Union : 80 votes
Union Nana moved to be declared as the winner of the
certification election.
a) Can Union Nana be declared as the winner? (2.5%)
SUGGESTED ANSWER:
Union Nana cannot be declared as the winner. This is
because the said union did not obtain the majority of the
valid votes casts as provided under Article 268 of the
Labor Code.
NOTE: The foregoing answer can be found in pages 416-
417 and 419of the book entitled Principles and Cases
Labor Relations, Second Edition 2018, by Atty. Voltaire T.
Duano. Questions involving the same subject matter
were given during the 2014, 2009 Bar Examinations.
b) Assume that the eligibility of 30 voters was challenged
during pre-election conference. The ballots of the 30
challenged voters were placed inside an envelope sealed
by the DOLE Election Office. Considering the said
envelope remains sealed, what should be the next course
of action with respect to the said challenged votes?
(2.5%)
SUGGESTED ANSWER:
The procedure in the Challenge of Votes provides as
follows:
The ballot of the voter who has been property challenged
during the Pre-Election conferences, shall be placed in an
envelope which shall be sealed by the Election Officer in
the presence of the voter and the representatives of the
contending unions. The election Officer shall indicate on
the envelope the voter’s name, the union challenging the
voter, and the ground for the challenged. The sealed
envelope shall then be signed by the Election Officer and
the representatives of the contending unions. The
Election Officer shall note all challenges in the minutes of
the election proceedings and shall have custody of all
envelops containing the challenged votes. The envelopes
shall be opened and the question of eligibility shall be
passed upon by the Mediator-Arbiter only if the number
of segregated votes will materially alter the results of the
election. (Section 11, Rule IX, Book V, Rules to Implement
the Labor Code, as amended by Department Order No.
40-F-03, Series of 2008 and renumbered by Department
Order No. 40-I-15, Series of 2015)
Applying the said procedure, if the number of segregated
votes will materially alter the results of the election the
next course of action with respect to the said challenged
votes is to open the said envelopes and the question of
eligibility shall be passed upon by the Mediator-Arbiter.
NOTE: The foregoing answer can be found in page 402 of
the book entitled Principles and Cases Labor Relations,
Second Edition 2018, by Atty. Voltaire T. Duano. This is
the first time that this type if question was asked in the
Bar Examinations.
VII
Nico is a medical representative engaged in the
promotion of Pharmaceutical products and medical
devices for North Pharmaceuticals, Inc. He regularly
visits. physicians' clinics to inform them of the chemical
composition and benefits of his employer's products. A
the end of everyday, he receives a basis wage of
PhP700.00 plus a PhP150.00 "productivity allowance."
For purposes of computing Nico's 13th month pay, should
the daily "productivity allowance" be included? (2.5%)
SUGGESTED ANSWER:
For purposes of computing Nico's 13th month pay his
daily "productivity allowance" cannot be included.
In Philippine Spring Water Resources, Inc. v. Court of
Appeals, G.R. No. 205278, June 11, 2014, clarified as to
when a commission forms part of basic salary to be
considered in the computation of 13th month pay. The
High Court said: It is well-established in jurisprudence
that the determination of whether or not a commission
forms part of the basic salary depends upon the
circumstances or conditions for its payment. In Phil
Duplicators, Inc. v. NLRC, G.R. No. 110068, November 11,
1993, 227 SCRA 747, the Court held that commissions
earned by salesmen form part of their basic salary. The
salesmen’s commissions, comprising a pre-determined
percentage of the selling price of the goods sold by each
salesman, were properly included in the term basic salary
for purposes of computing the 13th month pay. The
salesmen’s commissions are not overtime payments, nor
profit-sharing payments nor any other fringe benefit, but
a portion of the salary structure which represents an
automatic increment to the monetary value initially
assigned to each unit of work rendered by a salesman.
On the other hand, in Boie-Takeda Chemicals, Inc. v. De la
Serna, G.R. Nos. 92174 and 102552, December 10, 1993,
228 SCRA 329, the so-called commissions paid to or
received by medical representatives were excluded from
the term basic salary because these were paid to the
medical representatives and rank-and-file employees as
productivity bonuses, which were generally tied to the
productivity, or capacity for revenue production, of a
corporation and such bonuses closely resemble profit-
sharing payments and had no clear direct or necessary
relation to the amount of work actually done by each
individual employee.
Applying the above rule, the productivity allowance
cannot be included.
NOTE: The foregoing answer can be found in page 492 of
the book entitled Principles and Cases Labor Standards
and Social Legislation, Second Edition 2018. Question
involving the same subject matter was given during the
2011 Bar Examination. An alternative answer can be
given by stating that it will depend as to whether the
productivity bonus form part of the salary. In fine,
whether or not the productivity bonus forms part of the
basic salary depends upon the circumstances or
conditions for its payment, which indubitably are factual
in nature. If the productivity bonuses were because they
were generally tied to the productivity, or capacity for
revenue production it will not form part of the salary.
However, if has a clear direct or necessary relation to the
amount of work actually done by each individual
employee then it form part of the salary. This was the
distinction given by the case of Reyes v. NLRC, G.R. No.
160233, August 8, 2007 citing the cases of Phil
Duplicators, Inc. v. NLRC, G.R. No. 110068, November 11,
1993 and monetary value initially assigned to each unit of
work rendered by a salesman. On the other hand, in
Boie-Takeda Chemicals, Inc. v. De la Serna, G.R. Nos.
92174 and 102552, December 10, 1993.
VIII
Nathaniel has been a salesman assigned by Newmark
Enterprises (Newmark) for nearly two years at the Manila
office of Nutrition City, Inc. (Nutrition City). He was
deployed pursuant to a service agreement between
Newmark and Nutrition City, the salient provisions of
which were as follows:
a) the Contractor (Newmark) agrees to perform and
provide the Client (Nutrition City), on a non-exclusive
basis, such tasks or activities that are considered
contractible under existing laws, as may be needed by
the Client from time to time;
b) the Contractor shall employ the necessary personnel
like helpers, salesmen, and drivers who are determined
by the Contractor to be efficiently trained;
c) the Client may request replacement of the Contractor’s
personnel if quality of the desired result is not achieved;
d) the Contractors personnel will comply with the Client's
policies, rules, and regulations; and
e) the Contractor’s two service vehicles and necessary
equipment will be utilized in carrying out the provisions
of this Agreement.
When Newmark fired Nathaniel, he filed an illegal
dismissal case against the wealthier company, Nutrition
City, Inc., alleging that he was a regular employee of the
same. Is Nathaniel correct? (2.5%)
SUGGESTED ANSWER:
Nathaniel is correct in so far as the existence of
employer-employee relationship between him and the
principal.
The rules requires that the Service Agreement between
the principal and the contractor shall include the
following:
i. The specific description of the job or work being
subcontracted, including its term or duration.
ii. The place of work and terms and conditions governing
the contracting arrangement, to include the agreed
amount of the contracted job or work as well as the
standard administrative fee of not less than ten percent
(10%) of the total contract cost; and
iii. A provision on the issuance of the bond/s defined
under Section 3(a) renewable every year. (Section 11,
D.O. No. 174, Series of 2017)
On the other hand, a finding of violation of 11 shall
render the principal the direct employer of the
employees of the contractor or subcontractor, pursuant
to Article 109 of the Labor Code, as amended. (Section
12, D.O. No. 174, Series of 2017)
Applying the above rules, since Newmark and Nutrition
City violated the required terms to be stated in the
Service Agreement then Nutrition City is the direct
employer of Nathaniel.
As to whether Nathaniel is a regular employee of
Nutrition City, the rules are as follows:
Regular employees are further classified into: (1) regular
employees by nature of work; and (2) regular employees
by years of service. (E. Ganzon, Inc. vs. National Labor
Relations Commission, G.R. No. 123769, 22 December
1999, 321 SCRA 434, 440) The former refers to those
employees who perform a particular activity which is
necessary or desirable in the usual business or trade of
the employer, regardless of their length of service; while
the latter refers to those employees who have been
performing the job, regardless of the nature thereof, for
at least a year. (Pangilinan vs. General Milling
Corporation, G.R. No. 149329, 12 July 2004)
Tested from the nature of his work and the activity of the
principal Nathaniel could be a regular employee while if it
is tested on the length of service then Nathaniel is a
regular employee as he has been employed with the
principal for a least a year. In fact he was employed for
nearly two years.
NOTE: The foregoing answer can be found in page 561 of
the book entitled Principles and Cases Labor Standards
and Social Legislation, Second Edition 2018, and page 676
of the book entitled Principles and Cases Labor Relations,
Second Edition 2018, by Atty. Voltaire T. Duano.
Questions involving the same subject matter were given
during the 2009 (on terms of Service Agreement) and
22013 and 2008 (on regular employees) Bar
Examinations. An alternative answer can be given by
characterizing the relationship of the principal with the
contractor as to whether it is a job contracting or LOC.
Then as to who would be the direct employer and extent
of liability can be determined or concluded.
IX
Sgt. Nemesis was a detachment non-commissioned
officer of the Armed Forces of the Philippines in Nueva
Ecija. He and some other members of his detachment
sought permission from their Company Commander for
an overnight pass to Nueva Vizcaya to settle some
important matters. The Company Commander orally
approved their request and allowed them to carry their
firearms as the place they were going to was classified as
a “critical place.” They arrived at the place past midnight;
and as they were alighting from a tricycle, one of his
companions accidentally dropped his rifle, which fired a
single shot, and in the process hit Sgt. Nemesis fatally.
The shooting was purely accidental. At the time of his
death, he was still legally married_to Nelda but had been
separated de facto from her for 17 years. For the last 15
years of his life, he was living in with Narda, with whom
he has two minor children. Since Narda works as a
kasambahay, the two children lived with their
grandparents, who provided their daily- support. Sgt.
Nemesis and Narda only sent money to them every year
to them for their school tuition.
Nelda and Narda, both for themselves and the latter, also
on behalf of her minor children, separately filed claims
for compensation as a result of the death of Sgt.
Nemesis. The Line of Duty Board of the AFP declared Sgt.
Nemesis’ death to have been “in line of duty’, and
recommended that all benefits due to Sgt. Nemesis be
given to his dependents. However, the claims were
denied by GSIS because Sgt. Nemesis was not in his
workplace nor performing his duty as a soldier of the
Philippine Army when he died.
(a) Are the dependents of Sgt. Nemesis entitled to
compensation as a result of his death? (2.5%)
SUGGESTED ANSWER:
The death of Sgt. Nemesis is compensable because it is
work-connected. However, in so far as entitlement of the
dependents of Sgt. Nemesis for compensation as a result
of his death the dependent spouse cannot claim
compensation. The law requires that the dependent
spouse should be a legitimate spouse living with the
employee. (Article 173 [i], Labor Code).
In this case, the legitimate spouse Nelda is not entitled
because she is not living with Sgt. Nemesis while Narda
will not qualify as dependent spouses as she is not a
legitimate spouse of Sgt. Nemesis although she is living
with the latter. On the other hand, in so far as the
dependent child the law requires that the dependent
child be legitimate, legitimated, legally adopted or xxx,
who is unmarried, not gainfully employed, not over 21
years of age provided he is incapacitated and incapable of
self-support due to physical or mental defect which is
congenital or acquired during minority. The two minor
children are therefore qualified as dependent children.
Hence, entitled to compensation.
NOTE: The foregoing answer can be found in pages 835
and 857-860 of the book entitled Principles and Cases
Labor Standards and Social Legislation, Second Edition
2018, by Atty. Voltaire T. Duano. Question involving the
same subject matter was given during the 2005 and 1996
Bar Examinations.
(b) As between Nelda and Narda, who should be entitled
to the benefits? (2.5%)
SUGGESTED ANSWER:
Nelda and Narda are not entitled to the benefits because
they failed to qualify within the definition (Article 173 [i],
Labor Code) of dependent spouse.
NOTE: The foregoing answer can be found in pages 835
and 857-860 of the book entitled Principles and Cases
Labor Standards and Social Legislation, Second Edition
2018, by Atty. Voltaire T. Duano. Question involving the
same subject matter was given during the 2005 and 1996
Bar Examinations.
X is contractually fixed for a certain period of time. They fall
Nonato had been continuously employed and deployed
as a seaman who performed services that were necessary
and desirable to the business of N-Train hipping, through
its local agent, Narita Maritime Services (Agency), in
accordance with the 2010 Philippine Overseas
Employment Administration Standard Employment
Contract (2010 POEA-SEC). Nonato's last contract (for ye
months) expired on November 15, 2016. Nonato was
then repatriated due to "finished contract." He
immediately reported to the Agency and complained that
e had been experiencing dizziness, weakness, and
difficulty in breathing. The agency referred him to Dr.
Neri, who examined, treated, and prescribed him with
medications. After a few months of treatment and
consultations, Nonato was declared fit to resume work as
a seaman. Nonato went back to the Agency to ask for re-
deployment but the Agency rejected his application.
Nonato filed an illegal dismissal case against the Agency
and its principal, with a claim for total disability benefits
based on the ailments that he developed on board N-
Train hipping-vessels. The claim was based on the
certification of his own physician, Dr. Nunez, that he was
unfit for sea duties because of his hypertension and
diabetes.
a) Was Nonato a regular employee of N-Train Shipping?
(2.5%)
SUGGESTED ANSWER:
Nonato is not a regular employee of N-Train Shipping.
The fact that seafarers are not regular employees is
already a settled rule.
In Petroleum Shipping Limited (formerly Esso
International Shipping (Bahamas) Co., Ltd.) v. NLRC, G.R.
No. 148130, June 16,2006, the Supreme Court said that
the issue on whether seafarers are regular employees is
already a settled matter. Thus, the High Court said:
It was in Ravago v. Esso Eastern Marine, Ltd., G.R. No.
158324, 14 March 2005, 453 SCRA 381 where the
Honorable Supreme Court traced its ruling in a number of
cases that seafarers are contractual, not regular,
employees. Thus, in Brent School, Inc. v. Zamora, G.R. No.
48494, 5 February 1990, 181 SCRA 702 the Supreme
Court cited overseas employment contract as an example
of contracts where the concept of regular employment
does not apply, whatever the nature of the engagement
and despite the provisions of Article 280 of the Labor
Code. In Coyoca v. NLRC, G.R. No. 113658 March 31,
1995, the Supreme Court held that the agency is liable
for payment of a seaman’s medical and disability benefits
in the event that the principal fails or refuses to pay the
benefits or wages due the seaman although the seaman
may not be a regular employee of the agency.
The Supreme Court squarely passed upon the issue in
Millares v. NLRC, G.R. No. 110524, July 29, 2002, where
one of the issues raised was whether seafarers are
regular or contractual employees whose employment are
terminated every time their contracts of employment
expire. The Supreme Court explained:
[I]t is clear that seafarers are considered contractual
employees. They can not be considered as regular
employees under Article 280 of the Labor Code. Their
employment is governed by the contracts they sign
everytime they are rehired and their employment is
terminated when the contract expires. Their employment
under the exception of Article 280 whose employment
has been fixed for a specific project or undertaking the
completion or termination of which has been determined
at the time of engagement of the employee or where the
work or services to be performed is seasonal in nature
and the employment is for the duration of the season.
We need not depart from the rulings of the Court in the
two aforementioned cases which indeed constitute stare
decisis with respect to the employment status of
seafarers.
NOTE: The foregoing answer can be found in pages 721-
723 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018, by Atty. Voltaire T. Duano.
Questions involving the same subject matter were given
during the 2017, 2014 and 2002 Bar Examinations.
b) Can Nonato successfully claim disability benefits
against N-Train Shipping and its agent Narita Maritime
Services? (2.5%)
SUGGESTED ANSWER:
The claim for disability benefits of Nonato against N-Train
Shipping and its agent Narita Maritime Services will not
prosper for prematurity.
The Supreme Court laid down the procedures for filing
disability benefits and its effect in case of failure to
comply with the procedures in Daraug v. KGJS Fleet
Management Manila, G.R. No. 211211, January 14, 2015.
Thus, in denying the claim for disability benefits due to
prematurity the Supreme Court ruled:
Petitioner Did Not Comply With The Procedures
In Vergara v. Hammonia Maritime Services, Inc.31
(Vergara), it was stated that the Department of Labor and
Employment (DOLE), through the POEA, has simplified
the determination of liability for work-related death,
illness or injury in the case of Filipino seamen working on
foreign oceangoing vessels. Every seaman and the vessel
owner (directly or represented by a local manning
agency) are required to execute the POEA Standard
Employment Contract (POEA-SEC) as a condition sine qua
non prior to the deployment of the seaman for overseas
work. The POEA-SEC is supplemented by the Collective
Bargaining Agreement (CBA) between the owner of the
vessel and the covered seaman. In this case, the parties
entered in to a contract of employment in accordance
with the POEA-SEC and they agreed to be bound by the
CBA.
Thus, in resolving petitioner’s claim for disability
compensation, the Court will be guided by the
procedures laid down in the POEA-SEC and in the CBA.
On this point, Section 20(B)(3) of the POEA-SEC provides:
Upon sign-off from the vessel for medical treatment, the
seafarer is entitled to sickness allowance equivalent to his
basic wage until he is declared fit to work or the degree
of permanent disability has been assessed by the
company-designated physician but in no case shall this
period exceed one hundred twenty (120) days.
For this purpose, the seafarer shall submit himself to a
post-employment medical examination by a company-
designated physician within three working days upon his
return except when he is physically incapacitated to so, in
which case, a written notice to the agency within the
same period is deemed a compliance. Failure of the
seafarer to comply with the mandatory reporting
requirement shall result in his forfeiture of the right to
claim the above benefits.
If a doctor appointed by the seafarer disagrees with the
assessment, a third doctor may be agreed jointly
between the Employer and the seafarer. The third
doctor’s decision shall be final and binding on both
parties.
NOTE: The foregoing answer can be found in pages 917-
921 of the book entitled Principles and Cases Labor
Standards and Social Legislation, Second Edition 2018, by
Atty. Voltaire T. Duano. Question involving the same
subject matter was given during the 2013 Bar
Examination.
Xl
Your favorite relative, TitaNilda, approaches you and
seeks your advice n her treatment of her kasambahay,
Noray. TitaNilda shows you a document called a
“Contract of Engagement” for your review. Under the
Contract of Engagement, Noray shall be entitled to a rest
day every week, provided that she may be requested to
work on a rest day if TitaNilda should need her services
that day. TitaNilda also claims that this Contract of
Engagement should embody the terms and conditions of
Noray’s work as the engagement of a kasambahay is a
private matter and should not be regulated by the State.
a) Is TitaNilda correct in saying that this is a private
matter and should not be regulated by the State? (2.5%)
SUGGESTED ANSWER:
TitaNilda is not correct in saying that engagement of a
kasambahay is a private matter and should not be
regulated by the State. This is a valid subject matter of
the exercise of police power to give effect to the declared
policy of the law such as the need to protect the rights of
domestic workers against abuse, harassment, violence,
economic exploitation and performance of work that is
hazardous to their physical and mental health; and in
protecting domestic workers and recognizing their special
needs to ensure safe and healthful working conditions,
promotes gender-sensitive measures in the formulation
and implementation of policies and programs affecting
the local domestic work. (Section 2, Article I, Republic Act
No. 10361)
NOTE: The foregoing answer can be found in page 759 of
the book entitled Principles and Cases Labor Standards
and Social Legislation, Second Edition 2018. This is the
first time that this type of question was asked in the Bar
Examination.
b) is the stipulation that she may be requested to work
on a rest day legal? (2.5%)
SUGGESTED ANSWER:
The stipulation that Noray may be requested to work on
a rest day is legal. The law provides that, “ Nothing in this
provision shall deprive the domestic worker and the
employer from agreeing to the following:
(a) Offsetting a day of absence with a particular rest day;
(b) Waiving a particular rest day in return for an
equivalent daily rate of pay;
(c) Accumulating rest days not exceeding five (5) days; or
(d) Other similar arrangements. (Section 21, Article IV,
Republic Act No. 10361)
NOTE: The foregoing answer can be found in page 778 of
the book entitled Principles and Cases Labor Standards
and Social Legislation, Second Edition 2018. This is the
first time that this type of question was asked in the Bar
Examination.
c) Are stay-in family drivers included under the
Kasambahay Law?(2.5%)
SUGGESTED ANSWER:
Stay-in family drivers are not included under the
Kasambahay Law. This was very clear in the Rules
Implementing the Kasambahay Law providing as follows:
The following are not covered:
(a) Service providers;
(b) Family drivers;
(c) Children under foster family arrangement; and
(d) Any other person who performs work occasionally or
sporadically and not on an occupational basis. (Section 2,
Rule I, Implementing Rules and Regulations of Republic
Act 10361)
NOTE: The foregoing answer can be found in page 761 of
the book entitled Principles and Cases Labor Standards
and Social Legislation, Second Edition 2018. Questions
involving the same subject matter were given during the
2012 and 1998 Bar Examinations.
XII
Nena worked as an Executive Assistant for Nesting, CEO
of Now Corporation. One day, Nesting called Nena into
his office and showed her lewd pictures of women in
seductive poses which Nena found offensive. Nena
complained before the General Manager who, in turn,
investigated the matter and recommended the dismissal
of Nesting to the Board of Directors. Before the Board of
Directors, Nesting argued, that-since the Anti-Sexual
Harassment Law requires the existence of “sexual favors,”
he should not be dismissed from the service since he did
not ask for any-sexual favor from Nena. Is Nesting
correct? (2.5%)
SUGGESTED ANSWER:
Nesting is not correct.
The law penalizing sexual harassment in our jurisdiction is
RA 7877. Section 3 thereof defines work-related sexual
harassment in this wise:
Sec. 3. Work, Education or Training-related Sexual
Harassment Defined.—Work, education or training-
related sexual harassment is committed by an employer,
manager, supervisor, agent of the employer, teacher,
instructor, professor, coach, trainor, or any other person
who, having authority, influence or moral ascendancy
over another in a work or training or education
environment, demands, requests or otherwise requires
any sexual favor from the other, regardless of whether
the demand, request or requirement for submission is
accepted by the object of said Act.
(a) In a work-related or employment environment, sexual
harassment is committed when: xxx (3) The above acts
would result in an intimidating, hostile, or offensive
environment for the employee.
Contrary to Nesting’s claim, it is enough that his acts
result in creating an intimidating, hostile or offensive
environment for the employee.
NOTE: The foregoing answer can be found in page 696 of
the book entitled Principles and Cases Labor Standards
and Social Legislation, Second Edition 2018. Questions
involving the same subject matter were given during the
2011, 2009, 2006, 2005, 2004, 2003 and 2000 Bar
Examinations.
XIII
Nicodemus was employed as a computer programmer by
Network Corporation, a telecommunications firm. He has
been coming to work in shorts and sneakers, in violation
of the “prescribed uniform policy” based on company
rules and regulations. The company human resources
manager wrote him a letter, giving him 10 days to comply
with the company uniform policy. Nicodemus asserted
that wearing shorts and sneakers made him more
productive, and cited his above-average output. When he
came to work still in violation of the uniform policy, the
company sent him a letter of termination of employment.
Nicodemus filed an illegal dismissal case. The Labor
Arbiter ruled in favor of Nicodemus and ordered his
reinstatement with backwages. Network Corporation,
however, refused to reinstate him. The NLRC 1st Division
sustained the Labor Arbiter’s judgment. Network
Corporation still refused to reinstate Nicodemus.
Eventually, the Court of Appeals reversed the decision of
the NLRC and ruled that the dismissal was valid. Despite
the reversal, Nicodemus still filed a motion for execution
with respect to his accrued backwages.
(a) Were there valid legal grounds to dismiss Nicodemus
from his employment? (2.5%)
SUGGESTED ANSWER:
Yes, Nicodemus can be dismissed on based on willful
disobedience to the lawful order under Article 297 (a) of
the Labor Code and the “prescribed uniform policy” of
the company.
The basis is the case of St. Luke’s v. Sanchez, G.R. No.
212054, March 11, 2015 were it was ruled: At the same
time, the employee has the corollary duty to obey all
reasonable rules, orders, and instructions of the
employer; and willful or intentional disobedience
thereto, as a general rule, justifies termination of the
contract of service and the dismissal of the employee.
(Malabago v. NLRC, 533 Phil. 292, 300 [2006]) x xxx. Note
that for an employee to be validly dismissed on this
ground, the employer’s orders, regulations, or
instructions must be: (1) reasonable and lawful, (2)
sufficiently known to the employee, and (3) in connection
with the duties which the employee has been engaged to
discharge.”
NOTE: The foregoing answer can be found in page 786 of
the book entitled Principles and Cases Labor Relations,
Second Edition 2018. Questions involving the same
subject matter were given during the 2008, 2003 and
1995 Bar Examinations.
(b) Should Nicodemus’ motion for execution be granted?
(2.5%)
SUGGESTED ANSWER:
Yes, Nicodemus’ motion for execution should be granted.
He is entitled to his accrued salary.
The accrued wages/salaries (reinstatement
wages/salaries) is the consequence of the reinstatement
aspect of the decision of the Labor Arbiter referred in
paragraph 3, Article 229 [223] of the Labor Code. This
means that a dismissed employee whose case was
favorably decided by the Labor Arbiter is entitled to
receive wages pending appeal upon reinstatement, which
is immediately executory. In other words, it refers to the
wages or salaries which automatically accrued to a
dismissed employee from the notice of the Labor
Arbiter’s order of reinstatement until its ultimate reversal
by the higher court, which could be the NLRC, the Court
of Appeals or the Supreme Court. The entitlement to
accrued wages/salaries (reinstatement wages/salaries )
of a dismissed employee was discussed in the cases of
Roquero v. Philippine Airlines, G.R. No. 152329, 449 Phil.
437 (2003), Garcia v. Philippine Airlines, G.R. No. 164856,
January 20, 2009, 576 SCRA 479, Islriz Trading v. Capada,
G.R. No. 168501, January 31, 2011, Pfizer Inc. v. Velasco,
G.R. No. 177467, March 9, 2011 and Wenphil Corporation
v. Abing, G.R. No. 207983, April 7, 2014.
In resolving the rule on entitlement to accrued wages
between the period where the Labor Arbiter’s order of
reinstatement is pending appeal and the NLRC Resolution
overturning that of the Labor Arbiter, the case of Garcia v.
Philippine Airlines, Inc., G.R. No. 164856, January 20,
2009, 576 SCRA 479, is in point. The Supreme Court
examined its conflicting rulings with respect to the
application of paragraph 3 of Article 223 of the Labor
Code, viz:
The core of the seeming divergence is the application of
paragraph 3 of Article 223 of the Labor Code which reads:
‘In any event, the decision of the Labor Arbiter reinstating
a dismissed or separated employee, insofar as the
reinstatement aspect is concerned, shall immediately be
executory, pending appeal. The employee shall either be
admitted back to work under the same terms and
conditions prevailing prior to his dismissal or separation
or, at the option of the employer, merely reinstated in the
payroll. The posting of a bond by the employer shall not
stay the execution for reinstatement provided herein.’
The view as maintained in a number of cases is that:
‘x xx [E]ven if the order of reinstatement of the Labor
Arbiter is reversed on appeal, it is obligatory on the part
of the employer to reinstate and pay the wages of the
dismissed employee during the period of appeal until
reversal by the higher court. On the other hand, if the
employee has been reinstated during the appeal period
and such reinstatement order is reversed with finality,
the employee is not required to reimburse whatever
salary he received for he is entitled to such, more so if he
actually rendered services during the period.
In other words, a dismissed employee whose case was
favorably decided by the Labor Arbiter is entitled to
receive wages pending appeal upon reinstatement, which
is immediately executory. Unless there is a restraining
order, it is ministerial upon the Labor Arbiter to
implement the order of reinstatement and it is
mandatory on the employer to comply therewith.
NOTE: The foregoing answer can be found in pages 143-
145 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018. Question involving the
same subject matter was given during the 2009 Bar
Examination.
XIV
Nelson complained before the DOLE Regional Office
about Needy Corporation's failure to pay his wage
increase amounting to PhP5,000.00 as mandated in a
Wage Order issued by the Regional Tripartite Wages and
Productivity Board. Consequently, Nelson-asked the DOLE
to immediately issue an Order sustaining his money
claim. To his surprise, he received a notice from the DOLE
to appear before the Regional Director for purposes of
conciliating the dispute between him and Needy
Corporation. When conciliation before the Regional
Director the latter proceeded to direct both parties to
submit their respective position papers in relation to the
dispute. Needy Corporation argued, that since Nelson
was willing to settle for 75% of his money claim during
conciliation proceedings, only a maximum of 75% of the
said money claim may be awarded to him.
(a) Was DOLE’s action to conduct mandatory conciliation
in light of Nelson’s complaint valid? (2.5%)
SUGGESTED ANSWER:
Yes, the DOLE’s action to conduct mandatory conciliation
is valid. This is mandated by Article 234 of the Labor
Code, except as provided in Title VII-A, Book V of this
Code, as amended, or as may be excepted by the
Secretary of Labor and Employment, all issues arising
from labor and employment shall be subject to
mandatory conciliation-mediation.
NOTE: The foregoing answer can be found in pages 193-
195 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018. This was the first time
that a question of this nature was asked in the Bar
Examinations.
(b) Should the Regional Director sustain Needy
Corporation’s argument? (2.5%)
SUGGESTED ANSWER:
The Regional Director should not sustain Needy
Corporation’s argument. This is because under Article 239
of the Labor Cod, information and statements made at
conciliation proceedings shall be treated as privileged
communication and shall not be used as evidence in the
Commission. Conciliators and similar officials shall not
testify in any court or body regarding any matters taken
up at conciliation proceedings conducted by them. Thus,
Needy Corporation cannot raise the argument that
Nelson was willing to settle for 75% of his money claim
during conciliation proceedings.
NOTE: The foregoing answer can be found in pages 239 of
the book entitled Principles and Cases Labor Relations,
Second Edition 2018. Question involving the same
subject matter was given during the 2007 Bar
Examination.
XV
Nexturn Corporation employed Nini and Nono, whose
tasks involved directing and supervising rank-and-file
employees engaged in company operations. Nini and
Nono are required to ensure that such employees obey
company rules and regulations, and recommend to the
company's Human Resources Department any required
disciplinary action against erring employees. In Nexturn
Corporation, there are independent unions, representing
rank- and-file and supervisory employees, respectively.
a) May Nini and Nono join a union? (2.5%)
SUGGESTED ANSWER:
Yes, Nini and Nono can join a union. This is clearly
allowed under Article 255 of the Labor Code which
provides in substance that supervisory employees may
join, assist or form separate collective bargaining units
and/or legitimate labor organizations of their own.
NOTE: The foregoing answer can be found in page 264 of
the book entitled Principles and Cases Labor Relations,
Second Edition 2018. Question involving the same
subject matter was given during the 2017, 2010, 2004
and 1994 Bar Examinations.
b) May the two unions be affiliated with the same Union
Federation? (2.5%)
SUGGESTED ANSWER:
Yes, the two unions can be affiliated with the same Union
Federation. This is clearly allowed under Article 255 of
the Labor Code which provides in substance that the
rank-and-file union and the supervisors’ union operating
within the same establishment may join the same
federation or national union.
NOTE: The foregoing answer can be found in page 264 of
the book entitled Principles and Cases Labor Relations,
Second Edition 2018. Question involving the same
subject matter was given during the 2017, 2010, 2004
and 1994 Bar Examinations.
XVI
Nagrab Union and Nagrab Corporation have an existing
CBA which contains the following provision:
“New_employees within the coverage of the bargaining
unit who may be regularly employed shall become
members of Nagrab Union. Membership in good standing
with the Nagrab Union is a requirement for continued
employment with Nagrab Corporation.” Nagrab
Corporation subsequently acquired all the assets and
rights of Nuber Corporation and absorbed all of the
latter’s employees. Nagrab Union immediately demanded
enforcement of the above-stated CBA provision with
respect to the absorbed employees. Nagrab Corporation
refused on the ground that this should not apply fo the
absorbed employees who were former employees of
another corporation whose assets and rights it had
acquired.
(a) Was Nagrab Corporation correct in refusing to enforce
the CBA 4 provision with respect to the absorbed
employees? (2.5%)
SUGGESTED ANSWER:
Nagrab Corporation was not correct in refusing to enforce
the CBA provision with respect to the absorbed
employees. This is because it cannot invoke its merger
with another corporation as a valid ground to exempt its
absorbed employees from the coverage of a union shop
clause contained in its existing Collective Bargaining
Agreement (CBA) with its own certified labor union. In
BANK OF THE PHILIPPINE ISLANDS V. BPI EMPLOYEES
UNION-DAVAO CHAPTER-FEDERATION OF UNIONS IN BPI
UNIBANK, G.R. No. 164301, August 10, 2010, the High
Court resolved the question in this manner: At the
outset, we should call to mind the spirit and the letter of
the Labor Code provisions on union security clauses,
specifically Article 248 (e), which states, x xx Nothing in
this Code or in any other law shall stop the parties from
requiring membership in a recognized collective
bargaining agent as a condition for employment, except
those employees who are already members of another
union at the time of the signing of the collective
bargaining agreement. This case which involves the
application of a collective bargaining agreement with a
union shop clause should be resolved principally from the
standpoint of the clear provisions of our labor laws, and
the express terms of the CBA in question, and not by
inference from the general consequence of the merger of
corporations under the Corporation Code, which
obviously does not deal with and, therefore, is silent on
the terms and conditions of employment in corporations
or juridical entities.
NOTE: The foregoing answer can be found in page 305-
308 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018. Question involving the
same subject matter was given during the 2011 Bar
Examination.
(b) May a newly-regularized employee of Nagrab
Corporation (who is not-part of the absorbed employees)
refuse to join Nagrab Union? How would you advise the
human resources manager of Nagrab Corporation to
proceed? (2.5%)
SUGGESTED ANSWER:
The newly-regularized employee of Nagrab Corporation
(who is not-part of the absorbed employees) cannot
refuse to join Nagrab Union in view of the union security
clause provision of the CBA. While the right to join
includes the right not to join, however, the exception is
the UNION SECURITY CLAUSE where it imposes upon
employees the obligation to acquire or retain union
membership as a condition affecting employment. Thus, I
will advise the human resources manager of Nagrab
Corporation to comply with the provision of the CAB
stating that : “New_employees within the coverage of the
bargaining unit who may be regularly employed shall
become members of Nagrab Union.
NOTE: The foregoing answer can be found in page 299,
303-308 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018. Questions involving the
same subject matter were given during the 2005, 2011
and 1997 Bar Examinations.
XVII
Upon compliance with the legal requirements on the
conduct of a strike, Navarra Union staged a strike against
Newfound Corporation on account of a collective
bargaining deadlock. During the strike, some members of
Navarra Union broke the windows and punctured the
tires of the company-owned buses. he Secretary of Labor
and Employment assumed jurisdiction over the dispute.
(a) Should all striking employees be admitted back to
work upon the assumption of jurisdiction by the
Secretary of Labor and Employment? Will these include
striking employees who damaged company properties?
(2.5%)
SUGGESTED ANSWER:
All striking employees be admitted back to work and
including striking employees who damaged company
properties. The effect of assumption of jurisdiction of the
Secretary of Labor is clear under Article 278 (g) which
provides in substance that such assumption shall have
the effect of automatically enjoining the intended or
impending strike or lockout as specified in the
assumption or certification order. If one has already taken
place at the time of assumption or certification, all
striking or locked out employees shall immediately
return-to-work and the employer shall immediately
resume operations and readmit all workers under the
same terms and conditions prevailing before the strike or
lockout.
NOTE: The foregoing answer can be found in page 478 of
the book entitled Principles and Cases Labor Relations,
Second Edition 2018. Questions involving the same
subject matter were given during the 2003 and 1997 Bar
Examinations.
(b) May the company, readmit strikers only by restoring
them to the payroll? 5%)
SUGGESTED ANSWER:
The company may not readmit strikers by restoring them
to the payroll. The phrase “under the same terms and
conditions” found in Article 278 (g) [263 (g)] of the Labor
Code was interpreted by the Supreme Court in the case
of the University of Immaculate Concepcion, Inc. v.
Secretary of Labor, G.R. No. 151379, January 14, 2005 as
follows:
With respect to the Secretary’s Order allowing payroll
reinstatement instead of actual reinstatement for the
individual respondents herein, an amendment to the
previous Orders issued by her office, the same is usually
not allowed. Article 263(g) of the Labor Code
aforementioned states that all workers must immediately
return to work and all employers must readmit all of
them under the same terms and conditions prevailing
before the strike or lockout. The phrase “under the same
terms and conditions” makes it clear that the norm is
actual reinstatement. This is consistent with the idea that
any work stoppage or slowdown in that particular
industry can be detrimental to the national interest.
Clearly, reinstatement should be actual and not payroll
reinstatement.
NOTE: The foregoing answer can be found in page 496 of
the book entitled Principles and Cases Labor Relations,
Second Edition 2018. This is the first time that a question
of this nature was asked in the Bar Examinations.
XVIII
Nestor and Nadine have been living in for the last 10
years without the benefit of marriage. Their union has
produced four children. Nadine was three months
pregnant with her 5th child when Nestor left her for
another woman. When Nadine was eight months
pregnant with her 5th child, she applied for maternity
leave benefits. Her employer refused on the ground that
this was already her 5" pregnancy and that she was only
living in with the father of her child, who is now in a
relationship with another woman. When Nadine gave
birth, Nestor applied for paternity leave benefits. His
employer also denied the application on the same
grounds that Nadine’s employer denied her application.
(a) Can Nadine’s employer legally deny her claim for
maternity benefits? (2.5%)
SUGGESTED ANSWER:
Yes, Nadine’s employer can legally deny her claim for
maternity benefits. This is because the maternity benefits
shall be paid only for the first four (4) deliveries or
miscarriages. (See Section 14-A, RA 8282) In this case, the
said pregnancy was the 5th child of Nadine. Thus, she
already exhausted the limitations for entitlement to
maternity benefits under the law.
NOTE: The foregoing answer can be found in page 474 of
the book entitled Principles and Cases Labor Standards
and Social Legislation, Second Edition 2018, by Atty.
Voltaire T. Duano. Questions involving this subject matter
were given during the 2015, 2012, 2010, 2005 and 2000
Bar Examinations.
(b) Can Nestor’s employer legally deny his claim for
paternity benefits? (2.5%)
SUGGESTED ANSWER:
Nestor’s employer can legally deny his claim for paternity
benefits for his failure to comply with the conditions for
entitlement to paternity benefits.
Under the law, a married male employee shall be entitled
to paternity benefits provided that:
a. he is an employee at the time of delivery of his child;
b. he is cohabiting with his spouse at the time she gives
birth or suffers a miscarriage.
c. he has applied for paternity leave in accordance with
Section 4 hereof; and
d. his wife has given birth or suffered a miscarriage.
(Section 3, Revised Implementing Rules and Regulations
of Republic Act No. 8187 for the Private Sector)
In this case, Nadine is not Nestor’s lawful wife to whom
he is cohabiting.
NOTE: The foregoing answer can be found in pages 470-
471 of the book entitled Principles and Cases Labor
Standards and Social Legislation, Second Edition 2018, by
Atty. Voltaire T. Duano. Questions involving this subject
matter were given during the 2013, 2012, 2011, 2005 and
2002 Bar Examinations.
XIX
Northeast Airlines sent notices to transfer without
diminution in salary or rank, to 50 ground crew personnel
who were front-liners at Northeast Airlines counters at
the Ninoy Aquino International Airport (NAIA). The 50
employees were informed that they would be distributed
to various airports in Mindanao to anticipate robust
passenger volume growth in the area. Northeast Union
representing rank-and-file employees, filed unfair labor
practice and illegal dismissal cases before the NLRC,
citing, among others, the inconvenience of the 50
concerned employees and union discrimination, as 8 of
the 50 concerned round crew personnel were union
officers. Also, the Union argued that Northeast Airlines
could easily hire additional employees from Mindanao to
boost ground operations in the Mindanao airports.
a) Will the transfer of the 50 ground crew personnel
amount to Illegal dismissal (5%)
SUGGESTED ANSWER:
The transfer of the 50 ground crew personnel does not
amount to Illegal dismissal. This is because their transfer
is a valid exercise of management prerogatives.
In Gemina, Jr. v. Bankwise, Inc. (Thrift Bank) G.R. No.
175365, October 23, 2013, it was held: The employer’s
right to conduct the affairs of its business, according to its
own discretion and judgment, is well-recognized. An
employer has a free reign and enjoys wide latitude of
discretion to regulate all aspects of employment and the
only criterion to guide the exercise of its management
prerogative is that the policies, rules and regulations on
work-related activities of the employees must always be
fair and reasonable. (The Coca-Cola Export Corporation v.
Gacayan, G.R. No. 149433, December 15, 2010, 638 SCRA
377, 398-399)
According to Endico v. Quantum Foods Distribution
Center, G.R. 161615, January 30,2009, “Managerial
prerogatives, however, are subject to limitations provided
by law, collective bargaining agreements, and general
principles of fair play and justice. The test for determining
the validity of the transfer of employees was explained in
the case of Blue Dairy Corporation v. NLRC, G.R. No.
129843, 14 September 1999, 314 SCRA 401, 408-409 the
Supreme Court explained the test for determining the
validity of the transfer of employees, as follows:
But, like other rights, there are limits thereto. The
managerial prerogative to transfer personnel must be
exercised without grave abuse of discretion, bearing in
mind the basic elements of justice and fair play. Having
the right should not be confused with the manner in
which that right is exercised. Thus, it cannot be used as a
subterfuge by the employer to rid himself of an
undesirable worker. In particular, the employer must be
able to show that the transfer is not unreasonable,
inconvenient or prejudicial to the employee; nor does it
involve a demotion in rank or a diminution of his salaries,
privileges and other benefits.
As their employer, Northeast Airlines has the right to
regulate, according to its discretion and best judgment,
work assignments, work methods, work supervision, and
work regulations, including the hiring, firing and
discipline of its employees. The Supreme Court upholds
these management prerogatives so long as they are
exercised in good faith for the advancement of the
employer’s interest and not for the purpose of defeating
or circumventing the rights of the employees under
special laws and valid agreements. (Challenge Socks
Corporation v. Court of Appeals, G.R. No. 165268,
November 8, 2005, 474 SCRA 356, 362-363)
In this case it does not show that Northeast Airlines
implemented the transfer for the purpose of defeating or
circumventing the rights of the said 50 ground crew
personnel.
NOTE: The foregoing answer can be found in pages 31-32
of the book entitled Principles and Cases Labor Standards
and Social Legislation, Second Edition 2018, by Atty.
Voltaire T. Duano, and in pages 789-790of the book
entitled Principles and Cases Labor Relations, Second
Edition 2018, by Atty. Voltaire T. Duano. Questions
involving management prerogatives were given during
the 2000, 2001 and 1994 Bar Examinations.
b) Will the unfair labor practice case prosper? (2.5%)
SUGGESTED ANSWER:
The unfair labor practice case will not prosper. This is
because the act did not constitute an act of interfering,
restraining or coercing the said employees in the exercise
of their right to self-organization under Article 259 [a] of
the Labor Code.
In T & T Shoplifters Corporation/Gin Queen Corporation
v. T&T Shoplifters Corporation/Gin Queen Corporation
Workers Union, G.R. No. 191714, February 26, 2014 citing
the case of Insular Life Assurance Co., Ltd. Employees
Association – NATU v. Insular Life Assurance Co., Ltd.,
(147 Phil. 194 [1971]) the Supreme Court had occasion to
lay down the test of whether an employer has interfered
with and coerced employees in the exercise of their right
to self-organization, that is, whether the employer has
engaged in conduct which, it may reasonably be said,
tends to interfere with the free exercise of employees’
rights; and that it is not necessary that there be direct
evidence that any employee was in fact intimidated or
coerced by statements of threats of the employer if there
is a reasonable inference that anti-union conduct of the
employer does have an adverse effect on self-
organization and collective bargaining.
In the given facts, it does not show that the act of
Northern Airlines in sending notices of transfer relates to
the commission of acts that transgress their right to
organize or it was made to interfere, restrain or coerce
them with the exercise of their right to self-organization.
NOTE: The foregoing answer can be found in page 282-
284 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018.
XX
In Northern Lights Corporation, union members Nad, Ned
and Nod sought permission from the company to
distribute flyers with respect to a weekend union activity.
The company HR manager granted the request through a
text message sent to another union member, Norlyn.
While Nad, Ned, and Nod re distributing the flyers at the
company assembly plant, a Company supervisor barged
in and demanded that they cease from distributing the
flyers, stating that the assembly line employees were
trying to beat a production deadline and were thoroughly
distracted. Norlyn tried to show the HR manager's text
message authorizing flyer distribution during work hours,
but the supervisor brushed it aside. As a result, Nad, Ned,
and Nod were suspended for violating company rules on
trespass and highly-limited union activities during work
hours. The Union filed an unfair labor practice (ULP) case
before the NLRC for union discrimination.
a) Will the ULP case filed by the Union prosper? (2.5%)
SUGGESTED ANSWER:
The ULP case filed by the Union will not prosper. This is
because the act did not constitute an act of interfering,
restraining or coercing the said employees in the exercise
of their right to self-organization under Article 259 [a] of
the Labor Code.
In T & T Shoplifters Corporation/Gin Queen Corporation
v. T&T Shoplifters Corporation/Gin Queen Corporation
Workers Union, G.R. No. 191714, February 26, 2014 citing
the case of Insular Life Assurance Co., Ltd. Employees
Association – NATU v. Insular Life Assurance Co., Ltd.,
(147 Phil. 194 [1971]) the Supreme Court had occasion to
lay down the test of whether an employer has interfered
with and coerced employees in the exercise of their right
to self-organization, that is, whether the employer has
engaged in conduct which, it may reasonably be said,
tends to interfere with the free exercise of employees’
rights; and that it is not necessary that there be direct
evidence that any employee was in fact intimidated or
coerced by statements of threats of the employer if there
is a reasonable inference that anti-union conduct of the
employer does have an adverse effect on self-
organization and collective bargaining.
In the given facts, it does not show that the act of the
company supervisor in barging in and demanding for
Nad, Ned, and Nod to cease from distributing the flyers
relates to the commission of acts that transgress their
right to organize or it was made to interfere, restrain or
coerce them with the exercise of their right to self-
organization.
NOTE: The foregoing answer can be found in page 282-
284 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018. . Questions involving the
same subject matter were given during the 2004 Bar
Examinations.
b) Assume the NLRC ruled in favor of the Union. The
Labor Arbiter's judgment included, among others, an
award for moral and exemplary damages at
PhP50,000.00 each for Nad, Ned, and Nod. Northern
Lights Corporation argued that any award of damages
should be given to the Union and not individually to its
members. Is Northern Lights Corporation correct? (2.5%)
SUGGESTED ANSWER:
Northern Lights Corporation is not correct. The rights that
were violated belongs to the union members, Nad, Ned,
and Nod, and not the union itself. Further, the said union
members were the real party in interest in the said case
for ULP filed by the union against the corporation and not
the union itself. The union is a juridical person and as a
rule it cannot not suffer moral damages.
2017 BAR EXAMINATIONS IN LABOR LAW
I
A.
What are the accepted tests to determine the existence
of an employer-employee relationship? (5%)
SUGGESTED ANSWER:
The four elements of an employment relationship are: (a)
the selection and engagement of the employee; (b) the
payment of wages; (c) the power of dismissal; and (d) the
employer’s power to control the employee’s conduct.
(LakassaIndustriya ng KapatirangHaligi ng Alyansa-
Pinagbuklod ng Manggagawang Promo ng Burlingame v.
Burlingame Corporation, G.R. No. 162833, June 15, 2007,
524 SCRA 690, 695, citing Sy v. Court of Appeals, 398
SCRA 301, 307-308 (2003); Pacific Consultants
International Asia, Inc. v. Schonfeld, G.R. No. 166920,
February 19, 2007, 516 SCRA 209, 228)
NOTE: The foregoing answer in can be found in page 332
of the book entitled Principles and Cases Labor Standards
and Social Legislation, First Edition 2015, by Atty. Voltaire
T. Duano. The topic on employer-employee relation has
been time and again the subject matter of bar questions,
more specifically during the 2016, 2014, 2012, 2011,
2010, 2008, 2002, 1996 and 1991 Bar Examinations.
B.
Applying the tests to determine the existence of an
employer-employee relationship, is a jeepney driver
operating under the boundary system an employee of his
jeepney operator or a mere lessee of the jeepney?
Explain your answer. (3%)
SUGGESTED ANSWER:
In a number of cases decided by the Supreme Court,
(National Labor Union vs. Dinglasan, 98 Phil. 649, 652
(1996); Magboo vs. Bernardo, 7 SCRA 952, 954 (1963);
Lantaco, Sr. vs. Llamas, 108 SCRA 502, 514 [1981]), it was
ruled that the relationship between jeepney
owners/operators on one hand and jeepney drivers on
the other under the boundary system is that of employer-
employee and not of lessor-lessee. It was explained that
in the lease of chattels, the lessor loses complete control
over the chattel leased although the lessee cannot be
reckless in the use thereof, otherwise he would be
responsible for the damages to the lessor. In the case of
jeepney owners/operators and jeepney drivers, the
former exercise supervision and control over the latter.
The management of the business is in the owner’s hands.
The owner as holder of the certificate of public
convenience must see to it that the driver follows the
route prescribed by the franchising authority and the
rules promulgated as regards its operation. Now, the fact
that the drivers do not receive fixed wages but get only
that in excess of the so-called “boundary” they pay to the
owner/operator is not sufficient to withdraw the
relationship between them from that of employer and
employee.
NOTE: The foregoing answer in can be found in pages
341-342 of the book entitled Principles and Cases Labor
Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano. The topic on employer-employee
relation has been time and again the subject matter of
bar questions, more specifically during the 2016, 2014,
2012, 2011, 2010, 2008, 2002, 1996 and 1991 Bar
Examinations.
II.
Procopio was dismissed from employment for stealing his
co-employee Raul’s watch. Procopio filed a complaint for
illegal dismissal. The Labor Arbiter ruled in Procopio’s
favor on the ground that Raul’s testimony was doubtful,
and, therefore, the doubt should be resolved in favor of
Procopio. On appeal, the NLRC reversed the ruling
because Article 4 of the Labor Code – which states that
all doubts in the interpretation and implementation of
the provisions of the Labor Code, including the
implementing rules and regulations, shall be resolved in
favor of labor – applied only when the doubt involved the
“implementation and interpretation” of the Labor Code;
hence, the doubt, which involved the application of the
rules on evidence, not the Labor Code, could not
necessarily be resolved in favor of Procopio. Was the
reversal correct? Explain your answer. (3%)
SUGGESTED ANSWER:
In Peñaflor v. Outdoor Clothing Manufacturing, G.R. No.
177114, January 21, 2010, the Supreme Court explained
the application of Article 4 of the Labor Code regarding
doubts on respondent’s evidence on the voluntariness of
petitioner’s resignation. Thus, the High Court said:
Another basic principle is that expressed in Article 4 of
the Labor Code – that all doubts in the interpretation and
implementation of the Labor Code should be interpreted
in favor of the workingman. This principle has been
extended by jurisprudence to cover doubts in the
evidence presented by the employer and the employee.
(Fujitsu Computer Products Corporation of the
Philippines v. Court of Appeals, 494 Phil. 697 [2005]) As
shown above, Peñaflor has, at very least, shown serious
doubts about the merits of the company’s case,
particularly in the appreciation of the clinching evidence
on which the NLRC and CA decisions were based. In such
contest of evidence, the cited Article 4 compels us to rule
in Peñaflor’s favor. Thus, we find that Peñaflor was
constructively dismissed given the hostile and
discriminatory working environment he found himself in,
particularly evidenced by the escalating acts of unfairness
against him that culminated in the appointment of
another HRD manager without any prior notice to him.
Where no less than the company’s chief corporate officer
was against him, Peñaflor had no alternative but to resign
from his employment. (Unicorm Safety Glass, Inc. v.
Basarte, 486 Phil. 493 [2004])
NOTE: The foregoing answer in can be found in page 30
of the book entitled Principles and Cases Labor Standards
and Social Legislation, First Edition 2015, by Atty. Voltaire
T. Duano. The topic on Article 4 regarding the application
of Article 4 on doubts in the evidence was asked last
2009 Bar Examination.
III.
A.
Andrew Manning Agency (AMA) recruited Feliciano for
employment by Invictus Shipping, its foreign principal.
Meantime, AMA and Invictus Shipping terminated their
agency agreement. Upon his repatriation following his
premature termination, Feliciano claimed from AMA and
Invictus Shipping the payment of his salaries and benefits
for the unserved portion of the contract. AMA denied
liability on the ground that it no longer had any agency
agreement with Invictus Shipping. Is AMA correct?
Explain your answer. (3%)
SUGGESTED ANSWER:
AMA is not correct. Section 10 of Republic Act 10022
provides that the liability of the principal/employer and
the recruitment/placement agency for any and all claims
shall be joint and several. This provision shall be
incorporated in the contract for overseas employment
and shall be a condition precedent for its approval. Such
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 of the said contract.
NOTE: The foregoing answer in can be found in page 675
of the book entitled Principles and Cases Labor Relations,
First Edition 2016, by Atty. Voltaire T. Duano.
B.
As a rule, direct hiring of migrant workers is not allowed.
What are the exceptions? Explain your answer. (2.5%)
SUGGESTED ANSWER:
Direct Hires — workers directly hired by employers for
overseas employment as authorized by the Secretary of
Labor and Employment and processed by the POEA,
including:
1. Those hired by international organizations
2. Those hired members of the diplomatic corps.
3. Name hires or workers who are able to secure overseas
employment opportunity with an employer without the
assistance or participation of any agency. [Labor Code,
POEA Rules] (Section 1(i), Rule II, Omnibus Rules and
Regulations Implementing The Migrant Workers and
Overseas Filipinos Act of 1995 as amended by Republic
Act No. 10022)
The direct hires are exceptions to the ban on direct-hiring
under Article 18 of the Labor Code.
NOTE: The foregoing answer in can be found in page 112
of the book entitled Principles and Cases Labor Standards
and Social Legislation, First Edition 2015, by Atty. Voltaire
T. Duano. The topic on direct hiring was asked last 2010
Bar Examination.
C.
Phil, a resident alien, sought employment in the
Philippines. The employer, noticing that Phil was a
foreigner, demanded that eh first secures an employment
permit from the DOLE. Is the employer correct? Explain
your answer. (2.5%)
SUGGESTED ANSWER:
The employer is not correct. According to Section 2,
Department Order No. 97-09 Series of 2009, issued on
August 26, 2009 [Revised Rules for the Issuance of
Employment Permits to Foreign Nationals]one of the
foreign nationals that are exempt from securing an
employment permit is a permanent permanent resident
foreign nationals, probationary or temporary visa
holders. Moreover, the Labor Code speaks of non-
resident aliens that are required to obtain an alien
employment permit.
NOTE: The foregoing answer can be found in pages 270
and 271 of the book entitled Principles and Cases Labor
Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano. The topic on alien employment
permit has been time and again the subject matter of bar
questions, more specifically during the 2007 and 1995
Bar Examinations.
IV
The Regional Tripartite and Productivity Board (RTWPB)
for Region 3 issued a wage order on November 2, 2017
fixing the minimum wages for all industries throughout
Region 3.
(a) Is the wage order subject to the approval of the
National Wages and Productivity Commission before it
takes effect? (2%)
SUGGESTED ANSWER:
No. the National Wages and Productivity Commission
function is to review the Wage Order issued by the
Regional Tripartite and Productivity Board (RTWPB) (See
Section 4, Rule IV, NWPC GUIDELINES NO. 01 Series of
2007, dated June 19, 2007)
NOTE: The foregoing answer can be found in page 558 of
the book entitled Principles and Cases Labor Standards
and Social Legislation, First Edition 2015, by Atty. Voltaire
T. Duano.
(b) The law mandates that no petition for wage increase
shall be entertained within a period of 12 months from
the effectivity of the wage order. Under what
circumstances may the KilusangWalangTakot, a
federation of labor organizations that publicly and openly
assails the wage order as blatantly unjust, initiate the
review of the wage increases under the wage order
without waiting for the end of the 12-month period?
Explain your answer. (3%)
SUGGESTED ANSWER:
If KilusangWalangTakot feels aggrieved by the Wage
Order issued by the Board it may appeal such Order to
the National Wages and Productivity Commission by filing
a verified appeal with the Board not later than ten (10)
days from the date of publication of the Order on the
grounds of non-conformity with prescribed guidelines
and/or procedures, questions of law and grave abuse of
discretion. (See Section 1, Rule IV, in relation to Section 2
Rule V, NWPC GUIDELINES NO. 01 Series of 2007, dated
June 19, 2007)
NOTE: The foregoing answer can be found in pages 559-
560 of the book entitled Principles and Cases Labor
Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano.
V stipulated period through no fault of the learners (Article
A.
Percival was a mechanic of Pacific Airlines. He enjoyed a
meal break of one hour. However, during meal breaks, he
was required to be on stand-by for emergency work.
During emergencies, he was made to forego his meals or
to hurry up eating. He demanded payment of overtime
for work done during his meal periods. Is Percival
correct? Explain your answer. (3%)
SUGGESTED ANSWER:
Percival is correct. While as a rule the eight hour period
does not include the meal break however, in the case of
Percival he was required to forego his meals or to hurry
up eating. The meal period should therefore be
considered compensable hours of work and a work
beyond eight hours. Percival is therefore entitled to
overtime time.
NOTE: The foregoing answer can be found in page 371 of
the book entitled Principles and Cases Labor Standards
and Social Legislation, First Edition 2015, by Atty. Voltaire
T. Duano.
B.
Distinguish a learner from an apprentice. (4%)
SUGGESTED ANSWER:
As to the agreement
In Apprenticeship, the agreement entered by the parties
is known as Apprenticeship Agreement. (Articles 58 [d],
Labor Code); In learnership, the agreement entered by
the parties is known as Learnership Agreement (Article
75, Labor Code);
As to the period of agreement
In Apprenticeship, the agreement shall not be less than
four (4) months and not more than six (6) months;
(Articles 58 [c] in relation to Article 61 and 3.10, TESDA
Circular No. 16, Series of 2004); In learnership, the
agreement period shall not be more than three (3)
months; (Article 75 (c), Labor Code, 3.10, TESDA Circular
No. 16, Series of 2004);
As to obligations to hire
In apprenticeship, the enterprise is not obliged to hire
the apprentice after the apprenticeship period; (Articles
61, Labor Code, 3.10, TESDA Circular No. 16, Series of
2004); In learnership, the enterprise is obliged to hire the
learner after the learnership period (Article 75 (d), Labor
Code, 3.10, TESDA Circular No. 16, Series of 2004);
As to pre-termination of the agreement
In apprenticeship, upon pre-termination of the
agreement there is no regular employment by operation
of law; (Articles 57-72, Labor Code); In learnership, a
learner allowed or suffered to work during the first two
(2) months shall be deemed regular employees if training
is terminated by the employer before the end of the
75 (d), Labor Code);
As to the person hired
In apprenticeship, the persons hired as trainees is known
as apprentice; (Articles 58 [a], Labor Code, 2, TESDA
Circular No. 16, Series of 2004); In learnership, the
persons hired as trainees is known as learner (Articles 73,
Labor Code, 2, TESDA Circular No. 16, Series of 2004);
As to the supplement on theoretical instructions
In apprenticeship, the training on the job is with
compulsory related theoretical instructions; (Article 58
[a], Labor Code, Section 4 [j], R.A. 7796, and 2, TESDA
Circular No. 16, Series of 2004); In learnership, the
practical training on the job may or may not be
supplemented by related theoretical instructions; (2,
TESDA Circular No. 16, Series of 2004);
As to the reasons for hiring
In apprenticeship, the law did not provide any reasons
where an apprentice may be hired (Articles 59-72, Labor
Code); In learnership, the law provides the following
reasons for hiring (1) when no experienced workers are
available; (2) the employment of learners is necessary to
prevent curtailment of employment opportunities; and
(3) the employment does not create unfair competition in
terms of labor costs or impair or lower working standards
(Article 74, Labor Code);
As to qualifications
In apprenticeship, the qualifications are (a) At least
fifteen (15) years of age; (b) Possess vocational aptitude
and capacity for appropriate tests; and (c) Possess the
ability to comprehend and follow oral and written
instructions and no justifications or reasons given by law
for hiring; (Articles 59, Labor Code); In learnership, the
law did not provide such qualifications. However, reasons
or justifications for hiring are provided by law (Articles
74, Labor Code);
As to what occupations hired
In apprenticeship, the occupations involves “highly
technical industries” which means trade, business,
enterprise, industry, or other activity, which is engaged in
the application of advanced technology and
apprenticeable occupations must be approved by TESDA;
(Articles 60, Labor Code and 3.3, TESDA Circular No. 16,
Series of 2004). In learnership, the occupations involves
are semi-skilled and other industrial occupations which
are non-apprenticeable and learnable occupations must
be approved by TESDA (Articles 73, Labor Code and 3.3,
TESDA Circular No. 16, Series of 2004).
NOTE: The foregoing answer can be found in pages 313-
314 of the book entitled Principles and Cases Labor
Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano. The topic on the distinctions
between apprentice and learner has been the subject
matter of bar questions during the 2016 and 2012 Bar
Examinations.
C.
Are there differences between a househelper and a
homeworker? Explain your answer?
Domestic worker or “Kasambahay” refers to any person
engaged in domestic work within an employment
relationship such as, but not limited to, the following:
general househelp, nursemaid or “yaya”, cook, gardener,
or laundry person while (b) “Industrial Homeworker”
means a worker who is engaged in industrial homework.
NOTE: The foregoing answer can be found in pages 676
and 712 of the book entitled Principles and Cases Labor
Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano.
VI.
A.
One Pacific Airline’s policies was to hire only single
applicants as flight attendants, and considered as
automatically resigned the flight attendants at the
moment they got married. Is the policy valid? Explain
your answer. (2.5%)
SUGGESTED ANSWER:
The policy is not valid. The policy is a violation of the
Labor Code’s prohibition on stipulation against marriage
under Article 134. The requirement that a company
policy must be reasonable under the circumstances to
qualify as a valid exercise of management prerogative
was also at issue in the 1997 case of Philippine Telegraph
and Telephone Company v. NLRC, G.R. No. 118978, May
23, 1997. In said case, the employee was dismissed in
violation of petitioner’s policy of disqualifying from work
any woman worker who contracts marriage. The
Supreme held that the company policy violates the right
against discrimination afforded all women workers under
Article 136 (now 134) of the Labor Code.
NOTE: The foregoing answer can be found in pages 623
and 627 of the book entitled Principles and Cases Labor
Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano. The topic on stipulation against
marriage has been time and again the subject matter of
bar questions, more specifically during the 2012, 2010,
1997 and 1995 Bar Examinations.
B.
Tarcisio was employed as operations manager and
received a monthly salary of P25,000.00 through his
payroll account with DB Bank. He obtained a loan from
Roberto to purchase a car. Tarcisio failed to pay Roberto
when the loan fell due. Roberto sued to collect, and
moved to garnish Tarcisio’s payroll account. The latter
vigorously objected and argued that slaries were exempt
from garnishment. Is Tarcisio correct? Explain your
answer. (3%)
SUGGESTED ANSWER:
Tarciso is not correct. In Gaa v. Court of Appeals, G.R. No.
L-44169 December 3, 1985, the Supreme Court ruled that
Article 1708 used the word "wages" and not "salary" in
relation to "laborer" when it declared what are to be
exempted from attachment and execution. The monthly
salary of Tarcisio is therefore subject to garnishment.
NOTE: The foregoing answer can be found in page 450 of
the book entitled Principles and Cases Labor Standards
and Social Legislation, First Edition 2015, by Atty. Voltaire
T. Duano. The topic on the distinction between salary and
wage has been the subject matter of bar questions during
the 1994 Bar Examination.
VII
Dr. Crisostomo entered into a retainer agreement with AB
Hotel and Resort whereby he would provide medical
services to the guests and employees of AB Hoteland
Resort, which, in turn, would provide the clinic premises
and medical supplies. He received a monthly retainer fee
of P60,000.00, plus a 70% share in the service charges
from AB Hoteland Resort’s guests availing themselves of
the clinic’s services. The clinic employed nurses and allied
staff, whose salaries, SSS contributions and other benefits
he undertook to pay. AB Hotel and Resort issued
directives giving instructions to him on the replenishment
of emergency kits and forbidding the clinic staff from
receiving cash payments from guests. In time, the nurses
and the clinic staff claimed entitlement to rights as
regular employees of AB Hotelnad Resort, but the latter
refused on the ground that Dr. Crisostomo, who was their
employer, was an independent contractor. Rule, with
reasons. (4%)
SUGGESTED ANSWER:
The test of independent contractorship was applied in
the case of Polyfoam-RGC International Corporation v.
Concepcion, G.R. No. 172349, June 13, 2012. Thus, the
High Court ruled:
The test of independent contractorship is “whether one
claiming to be an independent contractor has contracted
to do the work according to his own methods and
without being subject to the control of the employer,
except only as to the results of the work.” (San Miguel
Corporation v. Aballa, G.R. No. 149011, June 28, 2005,
461 SCRA 392, 421) In San Miguel Corporation v.
Semillano, G.R. No. 164257, July 5, 2010, 623 SCRA 114
the Court laid down the criteria in determining the
existence of an independent and permissible contractor
relationship, to wit:
“x xx [W]hether or not the contractor is carrying on an
independent business; the nature and extent of the
work; the skill required; the term and duration of the
relationship; the right to assign the performance of a
specified piece of work; the control and supervision of
the work to another; the employer’s power with respect
to the hiring, firing and payment of the contractor’s
workers; the control of the premises; the duty to supply
the premises, tools, appliances, materials, and labor; and
the mode, manner and terms of payment.” (San Miguel
Corporation v. Semillano, supra, at p. 124; Sasan, Sr. v.
National Labor Relations Commission 4th Division, supra
at p. 691)
Applying the above-test, the nurses are employees of Dr.
Crisostomo. The facts had clearly stated that Dr.
Crisostomo was the one paying the salaries of the nurses
and even reported them for SSS coverage. The element of
payment of wages is present.
NOTE: The foregoing answer can be found in page 497 of
the book entitled Principles and Cases Labor Standards
and Social Legislation, First Edition 2015, by Atty. Voltaire
T. Duano. The topic on the distinction between salary and
wage has been the subject matter of bar questions during
the 1994 Bar Examination. The problem can also be
resolved by characterizing the relationship of Dr.
Crisostomo and AB Hoteland Resort as to whether it is a
legitimate contracting or labor-only contracting. The topic
on contracting/subcontracting has been time and again
the subject matter of bar questions, more specifically
during the 2016, 2014, 2013, 2012, 2011, 2009, 2004,
2002, 2001, 2000, 1997 and 1994 Bar Examinations.
VIII
Marciano was hired as Chief Engineer on board the vessel
M/V Australia. His contract of employment was for nine
months. After nine months, he was re-hired. He was
hired a third time after another nine months. He now
claims entitlement to the benefits of a regular employee
based on his performed tasks usually necessary and
desirable to the employer’s business for a continuous
period of more than one year. Is Marciano’s claim
tenable? Explain.
SUGGESTED ANSWER:
Marciano’s claim is not tenable. The Supreme Court
squarely passed upon the issue in Millares v. NLRC, G.R.
No. 110524, July 29, 2002, where one of the issues raised
was whether seafarers are regular or contractual
employees whose employment are terminated every
time their contracts of employment expire. The Supreme
Court explained:
[I]t is clear that seafarers are considered contractual
employees. They can not be considered as regular
employees under Article 280 of the Labor Code. Their
employment is governed by the contracts they sign
everytime they are rehired and their employment is
terminated when the contract expires. Their employment
is contractually fixed for a certain period of time. They fall
under the exception of Article 280 whose employment
has been fixed for a specific project or undertaking the
completion or termination of which has been determined
at the time of engagement of the employee or where the
work or services to be performed is seasonal in nature
and the employment is for the duration of the season.
We need not depart from the rulings of the Court in the
two aforementioned cases which indeed constitute stare
decisis with respect to the employment status of
seafarers.
NOTE: The foregoing answer can be found in page 739 of
the book entitled Principles and Cases Labor Relations,
First Edition 2016, by Atty. Voltaire T. Duano. The topic on
the seafarers has been time and again the subject matter
of bar questions, more specifically during the 2014 and
2002 Bar Examinations.
IX
Section 255 (245) of the Labor Code recognizes three
categories of employees , namely: managerial,
supervisory, and rank-and-file.
(a) Give the characteristics of each category of
employees, and state whether the employees in each
category may organized and form unions. Explain your
answer. (5%)
SUGGESTED ANSWER:
Under Article 255 [245] of the Labor Code the following
are provided:
Managerial employees are not eligible to join, assist or
form any labor organization.
Supervisory employees shall not be eligible for
membership in the collective bargaining unit of the rank-
and-file employees but may join, assist or form separate
collective bargaining units and/or legitimate labor
organizations of their own.
The rank-and-file union and the supervisors’ union
operating within the same establishment may join the
same federation or national union.
(b) May confidential employees who assist managerial
employees, and who act in a confidential capacity or have
access to confidential matters being handled by persons
exercising managerial functions in the field of labor
relations form, or assist, or join labor unions? Explain
your answer? (2.5%)
SUGGESTED ANSWER:
No. In TunaynaPagkakaisa ng Manggagawasa Asia
Brewery v. Asia Brewery, Inc., G.R. No. 162025, August 3,
2010, the High Court explained, who are those
confidential employees covered by the prohibition to
join, form and assist any labor organization under Article
245 [now 255] of the Labor Code, as follows:
Confidential employees are defined as those who (1)
assist or act in a confidential capacity, (2) to persons who
formulate, determine, and effectuate management
policies in the field of labor relations. The two (2) criteria
are cumulative, and both must be met if an employee is
to be considered a confidential employee that is, the
confidential relationship must exist between the
employee and his supervisor, and the supervisor must
handle the prescribed responsibilities relating to labor
relations. The exclusion from bargaining units of
employees who, in the normal course of their duties,
become aware of management policies relating to labor
relations is a principal objective sought to be
accomplished by the confidential employee rule. (San
Miguel Corp. Supervisors and Exempt Employees Union v.
Laguesma, G.R. No. 110399, August 15, 1997, 277 SCRA
370, 374-375, citing Westinghouse Electric Corp. v. NLRB
(CA6) 398 F2d 669 (1968), Ladish Co., 178 NLRB 90 (1969)
and B.F. Goodrich Co., 115 NLRB 722 [1956])
NOTE: The foregoing answer can be found in page 273 of
the book entitled Principles and Cases Labor Relations,
First Edition 2016, by Atty. Voltaire T. Duano. The topic on
the confidential employees covered by the prohibition
has been time and again the subject matter of bar
questions, more specifically during the 2014, 2011, 2009,
2002 and 1999 Bar Examinations.
X.
A.
The labor sector has been loudly agitating for the end of
labor-only contracting, as distinguished from job
contracting. Explain these two kinds of labor contracting,
give the effect of a finding that one is a labor-only
contractor. Explain your answers. (4%)
SUGGESTED ANSWER:
The Supreme Court in Polyfoam-RGC International
Corporation vs. Concepcion, G.R. No. 172349, June 13,
2012 citing Sasan, Sr. v. National Labor Relations
Commission 4th Division, G.R. No. 176240, October 17,
2008, 569 SCRA 670 distinguished permissible job
contracting or subcontracting from “labor-only”
contracting, to wit:
“Permissible job contracting or subcontracting refers to
an arrangement whereby a principal agrees to put out or
farm out to a contractor or subcontractor the
performance or completion of a specific job, work or
service within a definite or predetermined period,
regardless of whether such job, work or service is to be
performed or completed within or outside the premises
of the principal. A person is considered engaged in
legitimate job contracting or subcontracting if the
following conditions concur:
(a) The contractor or subcontractor carries on a distinct
and independent business and undertakes to perform the
job, work or service on its own account and under its
own responsibility according to its own manner and
method, and free from the control and direction of the
principal in all matters connected with the performance
of the work except as to the results thereof;
(b) The contractor or subcontractor has substantial
capital or investment; and
(c) The agreement between the principal and contractor
or subcontractor assures the contractual employees
entitlement to all labor and occupational safety and
health standards, free exercise of the right to self-
organization, security of tenure, and social and welfare
benefits.
In contrast, labor-only contracting, a prohibited act, is an
arrangement where the contractor or subcontractor
merely recruits, supplies or places workers to perform a
job, work or service for a principal. In labor-only
contracting, the following elements are present:
(a) The contractor or subcontractor does not have
substantial capital or investment to actually perform the
job, work or service under its own account and
responsibility; and
(b) The employees recruited, supplied or placed by such
contractor or subcontractor are performing activities
which are directly related to the main business of the
principal.” (Sasan, Sr. v. National Labor Relations
Commission 4th Division, supra, at pp. 689-690.
[Citations omitted])
In PCI Automation Center, Inc. v. NLRC, G.R. No. 115920,
January 29, 1996, the effect of a finding that one is a
labor-only contractor was ruled as follows:
In legitimate job contracting, no employer-employee
relationship exists between the employees of the job
contractor and the principal employer. Even then, the
principal employer becomes jointly and severally liable
with the job contractor for the payment of the
employees’ wages whenever the contractor fails to pay
the same. In such case, the law creates an employer-
employee relationship between the principal employer
and the job contractor’s employees for a limited purpose,
that is, to ensure that the employees are paid their
wages. Other than the payment of wages, the principal
employer is not responsible for any claim made by the
employees. (Philippine Bank of Communications vs.
NLRC, 146 SCRA 347 [1986])
On the other hand, in labor-only contracting, an
employer-employee relationship is created by law
between the principal employer and the employees of
the labor-only contractor. In this case, the labor-only
contractor is considered merely an agent of the principal
employer. The principal employer is responsible to the
employees of the labor-only contractor as if such
employees had been directly employed by the principal
employer. The principal employer therefore becomes
solidarily liable with the labor-only contractor for all the
rightful claims of the employees. (Philippine Bank of
Communications vs. NLRC, 146 SCRA 347 [1986])
Thus, in legitimate job contracting, the principal
employer is considered only an indirect employer, (Article
107, Labor Code, as amended) while in labor-only
contracting, the principal employer is considered the
direct employer of the employees. (last paragraph of
Article 106, Labor Code, as amended)
In short, the legitimate job contractor provides services
while the labor-only contractor provides only manpower.
The legitimate job contractor undertakes to perform a
specific job for the principal employer while the labor-
only contractor merely provides the personnel to work
for the principal employer.
NOTE: The foregoing answer can be found in pages
507508 of the book entitled Principles and Cases Labor
Relations, First Edition 2016, by Atty. Voltaire T. Duano.
The topic on job-contracting and labor-only contracting
has been time and again the subject matter of bar
questions, more specifically during the 2014, 2013, 2012,
2011, 2009, 2004, 2002, 2001, 2000, 1997 and 1994 Bar
Examinations.
B.
What are the grounds for validly terminating the services
of an employee based on a just cause? (5%)
SUGGESTED ANSWER:
An employer may terminate an employment for any of
the following causes:
(a) Serious misconduct or willful disobedience by the
employee of the lawful orders of his employer or
representative in connection with his work;
(b) Gross and habitual neglect by the employee of his
duties;
(c) Fraud or willful breach by the employee of the trust
reposed in him by his employer or duly authorized
representative;
(d) Commission of a crime or offense by the employee
against the person of his employer or any immediate
member of his family or his duly authorized
representatives; and
(e) Other causes analogous to the foregoing. (Art. 297
[282], Labor Code)
NOTE: The foregoing answer can be found in pages 899-
890 of the book entitled Principles and Cases Labor
Relations, First Edition 2016, by Atty. Voltaire T. Duano.
The topic on the just cause for termination has been time
and again the subject matter of bar questions, more
specifically during the 2015, 2014, 2013, 2012, 2011,
2009, 2008, 2006, 2003, 2001, 1995, 1996, 1995, 1999
Bar Examinations.
C.
Give the procedure to be observed for validly terminating
the services of an employee based on a just cause? (4%)
SUGGESTED ANSWER:
As defined in Article 297 of the Labor Code, as amended,
the requirement of two written notices served on the
employee shall observe the following:
(a) The first written notice should contain:
1. The specific causes or grounds for termination as
provided for under Article 297 of the Labor Code, as
amended, and company policies, if any;
2. Detailed narration of the facts and circumstances that
will serve as basis for the charge against the employee. A
general description of the charge will not suffice; and
3. A directive that the employee is given opportunity to
submit a written explanation within a reasonable period.
“Reasonable period” should be construed as a period of
at least five (5) calendar days from receipt of the notice
to give the employee an opportunity to study the
accusation, consult or be represented by a lawyer or
union officer, gather data and evidence, and decide on
the defenses against the complaint. (Unilever v. Rivera,
G.R. No. 201701, June 3, 2013; Section 12, DOLE
Department Order 18-A)
(b) After serving the first notice, the employer should
afford the employee ample opportunity to be heard and
to defend himself/herself with the assistance of his/her
representative if he/she so desires, as provided in Article
299 (b) of the Labor Code, as amended.
“Ample opportunity to be heard” means any meaningful
opportunity (verbal or written) given to the employee to
answer the charges against him/her and submit evidence
in support of his/her defense, whether in a hearing,
conference or some other fair, just and reasonable way. A
formal hearing or conference becomes mandatory only
when requested by the employee in writing or substantial
evidentiary disputes exist or a company rule or practice
requires it, or when similar circumstances justify it. (Perez
v. PT&T, G.R. No. 152048, April 7, 2009, Section 12, DOLE
Department Order 18-A)
(c) After determining that termination of employment is
justified, the employer shall serve the employee a written
notice of termination indicating that: (1) all
circumstances involving the charge against the employee
have been considered; and (2) the grounds have been
established to justify the severance of their employment.
The foregoing notices shall be served personally to the
employee or to the employee’s last known address.
(Section 5, 5.1, Rule I-A, D.O. No. 147-15, Series of 2015)
NOTE: The foregoing answer can be found in pages 899-
890 of the book entitled Principles and Cases Labor
Relations, First Edition 2016, by Atty. Voltaire T. Duano.
The topic on the procedural due process has been time
and again the subject matter of bar questions, more
specifically during the 2012, 2009, 2006, 1999 and 1998
Bar Examinations.
XI
A.
The modes of determining the exclusive bargaining agent
of the employees in a business are: (a) voluntary
recognition; (b) certification election; and (c) consent
election. Explain how they differ from one another. (4%)
SUGGESTED ANSWER:
Voluntary Recognition refers to the process by which a
legitimate labor union is recognized by the employer as
the exclusive bargaining representative or agent in a
bargaining unit, reported with the Regional Office in
accordance with Rule VII, Section 2 of these Rules.
Certification Election” or Consent Election refers to the
process of determining through secret ballot the sole and
exclusive representative of the employees in an
appropriate bargaining unit for purposes of collective
bargaining or negotiation. A certification election is
ordered by the Department, while a consent election is
voluntarily agreed upon by the parties, with or without
the intervention by the Department. (Rule I, Section 1,
Book V, Rules to Implement the Labor Code)
NOTE: The foregoing answer can be found in pages 21
and 22 of the book entitled Principles and Cases Labor
Relations, First Edition 2016, by Atty. Voltaire T. Duano.
The topic on the representation issue has been time and
again the subject matter of bar questions, more
specifically during the 2006, 2004, and 2000 Bar
Examinations.
B.
Marcel was the Vice President for Finance and
Administration and a member of the Board of Directors
of Mercedes Corporation. He brought a complaint for
illegal suspension and illegal dismissal against Mercedes
Corporation, which moved to dismiss the complaint on
the ground that the complaint pertained to the
jurisdiction of the RTC due to the controversy being
intracorporate based on his positions in the corporation.
Marcel countered that he had only been removed as Vice
President for Finance and Administration, not as a
member of the Board of Directors. He also argued that
his position was not listed as among the corporate offices
in Mercedes Corporation’s by-law. Is the argument of
Marcel correct? Explain your answer. (2.5%)
SUGGESTED ANSWER:
Marcel’s contention is correct. It is settled in Matling
Industrial and Commercial Corporation v. Coros, G.R. No.
157802, 13 October 2010, cited in Marc II Marketing Inc.
v. Joson, G.R. No. 171993, December 12, 2011, where it
held, thus:
Conformably with Section 25, a position must be
expressly mentioned in the [b]y-[l]aws in order to be
considered as a corporate office. Thus, the creation of an
office pursuant to or under a [b]y-[l]aw enabling
provision is not enough to make a position a corporate
office. [In] Guerrea v. Lezama [citation omitted] the first
ruling on the matter, held that the only officers of a
corporation were those given that character either by the
Corporation Code or by the [b]y-[l]aws; the rest of the
corporate officers could be considered only as employees
or subordinate officials.
xxx
It is relevant to state in this connection that the SEC, the
primary agency administering the Corporation Code,
adopted a similar interpretation of Section 25 of the
Corporation Code in its Opinion dated November 25,
1993 [citation omitted], to wit:
Thus, pursuant to the above provision (Section 25 of the
Corporation Code), whoever are the corporate officers
enumerated in the by-laws are the exclusive Officers of
the corporation and the Board has no power to create
other Offices without amending first the corporate [b]y-
laws. However, the Board may create appointive
positions other than the positions of corporate Officers,
but the persons occupying such positions are not
considered as corporate officers within the meaning of
Section 25 of the Corporation Code and are not
empowered to exercise the functions of the corporate
Officers, except those functions lawfully delegated to
them. Their functions and duties are to be determined by
the Board of Directors/Trustees. (Matling Industrial and
Commercial Corporation v. Coros, supra at 26-27)
[Emphasis supplied.]
With the given circumstances and in conformity with
Matling Industrial and Commercial Corporation v. Coros,
Marcel was not a corporate officer of Mercedes
Corporation because his position as Vice President for
Finance and Administration was not specifically
mentioned in the roster of corporate officers in its
corporate by-laws.
NOTE: The foregoing answer can be found in page 46 of
the book entitled Principles and Cases Labor Relations,
First Edition 2016, by Atty. Voltaire T. Duano. The topic on
the on whether an position is a corporate officer has
been time and again the subject matter of bar questions,
more specifically during the 2015, 2014, 2011 and 1996
Bar Examinations.
C.
State the jurisdiction of the Voluntary Arbitrator, or Panel
of Voluntary Arbitrators in labor disputes? (4%)
SUGGESTED ANSWER:
The voluntary arbitrator or panel of voluntary arbitrators
shall have exclusive and original jurisdiction to hear and
decide all unresolved grievances arising from:
1. The implementation or interpretation of the collective
bargaining agreements; (Article 274 [261], Labor Code,
Section 4, Rule XIX, Book V, Omnibus Rules Implementing
the Labor Code)
2. The interpretation or enforcement of company
personnel policies which remain unresolved after
exhaustion of the grievance procedure; (Article 274 [261],
Labor Code, Section 4, Rule XIX, Book V, Omnibus Rules
Implementing the Labor Code)
3. Wage distortion issues arising from the application of
any wage orders in organized establishments; (par. 4,
Article 124, Labor Code, Section 4, Rule XIX, Book V,
Omnibus Rules Implementing the Labor Code)
4. The interpretation and implementation of the
productivity incentive programs under RA 6971.
5. Upon agreement of the parties, shall also hear and
decide all other labor disputes including unfair labor
practices and bargaining deadlocks. (Article 275. [262],
Labor Code, Section 4, Rule XIX, Book V, Omnibus Rules
Implementing the Labor Code)
6. 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;
(Article 274. [261], Labor Code)
NOTE: The foregoing answer can be found in page 442 of
the book entitled Principles and Cases Labor Relations,
First Edition 2016, by Atty. Voltaire T. Duano. The topic on
jurisdiction of the voluntary arbitrators or panel of
voluntary arbitrators has been time and again the subject
matter of bar questions, more specifically during the
2008, 2001, 1997 and 1995 Bar Examinations.
XII
A.
Juanito initiated a case for illegal dismissal against
Mandarin Company. The Labor Arbiter decided in his
favor, and ordered his immediate reinstatement with full
backwages and without loss of seniority and other
benefits. Mandarin Company did not like to allow him
back in its premises to prevent him from influencing his
co-workers to move against the interest of the company;
hence, it directed his payroll reinstatement and paid his
full backwages and other benefits even as it appealed to
the NLRC.
A few months later, the NLRC reversed the ruling of the
Labor Arbiter and declared that Juanito’s dismissal was
valid. The reversal ultimately became final.
May Mandarin Company recover the backwages and
other benefits paid to Juanito pursuant to the decision of
the Labor Arbiter in view of the reversal by the NLRC?
Rule, with reasons. (2.5%)
SUGGESTED ANSWER:
Mandarin Company cannot recover the backwages and
other benefits paid to Juanito pursuant to the decision of
the Labor Arbiter despite the reversal by the NLRC. The
refund doctrine has already been reversed in Garcia v.
Philippine Airlines, Inc., G. R. No. 164856, July 20, 2009,
where the Supreme Court then stressed that as opposed
to the abovementioned Genuino v. National Labor
Relations Commission, G.R. Nos. 142732-33 & 142753-
54, December 4, 2007, 539 SCRA 342 the social justice
principles of labor law outweigh or render inapplicable
the civil law doctrine of unjust enrichment.
NOTE: The foregoing answer can be found in pages 636-
638 of the book entitled Principles and Cases Labor
Relations, First Edition 2016, by Atty. Voltaire T. Duano.
The topic on refund doctrine was asked for the first time
for this year’s bar examinations.
B.
Gene is a married regular employee of Matibay
Corporation. The employee and Matibay Corporation had
an existing CBA that provided for funeral or bereavement
aid of P15,000.00 in case of the death of a legal
dependent of a regular employee. His widowed mother,
who had been living with him and his family for many
years, died; hence, he claimed the funeral aid. Matibay
Corporation denied the claim on the basis that she had
not been his legal dependents as the term legal
dependent was defined by the Social Security Law.
(a) Who may be the legal dependents of Gene under the
Social Security Law? (2.5%)
SUGGESTED ANSWER:
Section 8 (e) of the Social Security Law provides that the
dependents shall be the following:
(1) The legal spouse entitled by law to receive support
from the member;
(2) The legitimate, legitimated or legally adopted, and
illegitimate child who is unmarried, not gainfully
employed, and has not reached twenty-one (21) years of
age, or if over twenty-one (21) years of age, he is
congenitally or while still a minor has been permanently
incapacitated and incapable of self-support, physically or
mentally; and
(3) The parent who is receiving regular support from the
member.
NOTE: The foregoing answer can be found in page 862 of
the book entitled Principles and Cases Labor Standards
and Social Legislation, First Edition 2015, by Atty. Voltaire
T. Duano. The topic on dependents has been time and
again the subject matter of bar questions, more
specifically during the 2014 and 2002 Bar Examinations.
(b) Is Gene entitled to the funeral aid for the death of his
widowed mother? Explain your answer. (2%)
SUGGESTED ANSWER:
Gene is entitled to the funeral aid for the death of his
widowed mother under CBA. This is because the said CBA
clearly provided for funeral or bereavement aid of
P15,000.00 in case of the death of a legal dependent of a
regular employee. But in so far as the SSS law is
concerned, the only way that Gene can recover is that if
he will qualify as the primary beneficiary of his widowed
mother provided he has the restrictions on the definition
of dependent children.
NOTE: The foregoing answer can be found in pages 862-
864 of the book entitled Principles and Cases Labor
Standards and Social Legislation, First Edition 2015, by
Atty. Voltaire T. Duano in so far as the definition of
beneficiary in relation to dependents are concerned.
C.
Rosa was granted vacation leave by her employer to
spend three weeks in Africa with her family. Prior to her
departure, the General Manager of the company
requested her to visit the plant of the company in
Zimbabwe in order to derive best manufacturing
practices useful to the company. She accepted the
request because the errand would be important to the
company and Zimbabwe was anyway in her itinerary. It
appears that she contracted a serious disease during the
trip. Upon her return, she filed a claim for compensation,
insisting that she had contracted the disease while
serving the interest of her employer.
Under the Labor Code, the sickness or death of an
employee, to be compensable, must have resulted from
an illness either definitely, accepted as an occupational
disease by the Employee’s Compensation Commission, or
caused by employment subject to proof that the risk of
contracting the same is increased by working conditions.
Is the serious disease Rosa contracted during her trip to
Africa compensable? Explain your answer. (2.5%)
SUGGESTED ANSWER:
In Government Service Insurance System vs. Besitan, G.R.
No. 178901, November 23, 2011, explained the concept
of increased theory as follows:
Corollarily, for the sickness or resulting disability or death
to be compensable, the claimant must prove either (1)
that the employee’s sickness was the result of an
occupational disease listed under Annex “A” of the
Amended Rules on Employees’ Compensation, or (2) that
the risk of contracting the disease was increased by his
working conditions.
Certainty is not required only probability
Under the increased risk theory, there must be a
reasonable proof that the employee’s working condition
increased his risk of contracting the disease, or that there
is a connection between his work and the cause of the
disease. (Castor-Garupa v. Employees’ Compensation
Commission, G.R. No. 158268, April 12, 2006, 487 SCRA
171, 180) Only a reasonable proof of work-connection,
not direct causal relation, however, is required to
establish compensability of a non-occupational disease.
(Government Service Insurance System v. Cordero, G.R.
Nos. 171378 & 171388, March 17, 2009, 581 SCRA 633,
640) Probability, and not certainty, is the yardstick in
compensation proceedings; thus, any doubt should be
interpreted in favor of the employees for whom social
legislations, like PD No. 626, were enacted. (Government
Service Insurance System v. Corrales, G.R. No. 166261,
June 27, 2008, 556 SCRA 230, 243-244)
Applying the above ruling, Rosa must present a
reasonable proof that her working condition increased
his risk of contracting the disease, or that there is a
connection between his work and the cause of the
disease otherwise the same is not compensable.
NOTE: The foregoing answer can be found in page 766 of
the book entitled Principles and Cases Labor Standards
and Social Legislation, First Edition 2015, by Atty. Voltaire
T. Duano. The topic on compensation proceedings has
been time and again the subject matter of bar questions,
more specifically during the 2012, 2005 and 1996 Bar
Examinations.
.
XIII
A.
Given that the liability for an illegal strike is individual,
not collective, state when the participating union officers
and members may be terminated from employment
because of the illegal strike. Explain your answer. (4%)
SUGGESTED ANSWER:
The following are the effects of participation in an illegal
strike and commission of illegal acts during strike:
1. Any union officer who knowingly participates in an
illegal strike; and
2. Any worker or union officer who knowingly
participates in the commission of illegal acts during a
strike may be declared to have lost his employment
status; (Third paragraph, Article 279 (a) [264 (a)], Labor
Code)
NOTE: The foregoing answer can be found in page 520 of
the book entitled Principles and Cases Labor Relations,
First Edition 2016, by Atty. Voltaire T. Duano. The topic on
the effects of participation in illegal strike has been time
and again the subject matter of bar questions, more
specifically during the 2015, 2014, 2012, 2010, 2008,
2007, 2006, 1997, 1995 and 1994 Bar Examinations.
B.
A sympathetic strike is stoppage of work to make
common cause with other strikers in another
establishment or business. Is the sympathetic strike
valid? Explain your answer. (1%)
SUGGESTED ANSWER:
The illegal stoppage of work by way of sympathetic strike
has been settled in the case of BiflexPhils. Labor Union
(NAFLU) v. Filflex Industrial and Manufacturing
Cororation, G.R. No. 155679, 19 December 2006, where
it was ruled that stoppage of work due to welga ng bayan
is in the nature of a general strike, an extended sympathy
strike. It affects numerous employers including those who
do not have a dispute with their employees regarding
their terms and conditions of employment.Employees
who have no labor dispute with their employer but who,
on a day they are scheduled to work, refuse to work and
instead join a welga ng bayan commit an illegal work
stoppage. Even if petitioners joining the welga ng bayan
were considered merely as an exercise of their freedom
of expression, freedom of assembly or freedom to
petition the government for redress of grievances, the
exercise of such rights is not absolute. For the protection
of other significant state interests such as the right of
enterprises to reasonable returns on investments, and to
expansion and growth enshrined in the 1987 Constitution
must also be considered, otherwise, oppression or self-
destruction of capital in order to promote the interests of
labor would be sanctioned. And it would give imprimatur
to workers joining demonstrations/rallies even before
affording the employer an opportunity to make the
necessary arrangements to counteract the implications of
the work stoppage on the business, and ignore the novel
principle of shared responsibility between workers and
employers aimed at fostering industrial peace. There
being no showing that petitioners notified respondents of
their intention, or that they were allowed by
respondents, to join the welga ng bayan on October 24,
1990, their work stoppage is beyond legal protection.
NOTE: The foregoing answer can be found in page 506 of
the book entitled Principles and Cases Labor Relations,
First Edition 2016, by Atty. Voltaire T. Duano. The topic on
sympathetic strike has been the subject matter of bar
questions during the 2004 Bar Examinations.
C.
Due to business recession, Ballistic Company retrenched
a part of its workforce. Opposing the retrenchment,
some of the affected employees staged a strike.
Eventually, the retrenchment was found to be justified,
and the strike was declared illegal; hence, the leaders of
the strike, including the retrenched employees, were
declared to have lost their employment status.
Are the striking retrenched employees still entitled to
separation pay under Sec. 298 (283) of the Labor Code
despite the illegality of their strike? Explain your answer.
(2%)
SUGGESTED ANSWER:
The strikers including the union officers should be paid
their separation pay by virtue of retrenchment
notwithstanding the illegal strike was declared illegal. The
issue on entitlement to separation pay due to authorized
cause and the ground for termination due to knowingly
participating in illegal strike are distinct and different.
XIV
Pursuant to his power under Sec. 278(g) (263(g)) of the
Labor Code, the Secretary of Labor assumed jurisdiction
over the 3-day old strike in Armor Steel Plates, Inc., one
of the country’s bigger manufacturers of steel plates, and
ordered all the striking employees to return to work. The
striking employees ignored the order to return to work.
(a) What conditions may justify the Secretary of Labor to
assume jurisdiction? (2.5%)
SUGGESTED ANSWER:
Pursuant to Article 263 (g) [now 278 (g)], when a labor
dispute causes or is likely to cause a strike or lockout in
an industry indispensable to the national interest, the
Secretary of Labor and Employment may assume
jurisdiction over the dispute and decide it or certify the
same to the National Labor Relations Commission (NLRC)
for compulsory arbitration. (Section 1, Operational
Guidelines of Department Order No. 40-G-03, Series of
2010, dated February 24, 2011)
For a valid exercise of the assumption of jurisdiction
authority, any of the following conditions must be
present:
a. Both parties have requested the Secretary of Labor and
Employment to assume jurisdiction over the labor
dispute; or
b. After a conference called by the Office of the Secretary
of Labor and Employment on the propriety of the
issuance of the Assumption or Certification Order,
motuproprio or upon a request or petition by either party
to the labor dispute. In the said conference. the parties
shall also be encouraged to amicably settle the dispute.
(Section 2, Operational Guidelines of Department Order
No. 40-G-03, Series of 2010, dated February 24, 2011)
NOTE: The foregoing answer can be found in pages 468-
487 of the book entitled Principles and Cases Labor
Relations, First Edition 2016, by Atty. Voltaire T. Duano.
The topic on the assumption of jurisdiction has been time
and again the subject matter of bar questions, more
specifically during the 2012, 2004 and 1996 Bar
Examinations.
(b) What are the consequences of the assumption of
jurisdiction by the Secretary of Labor, and of the
disobedience to the return to work? Explain your answer.
(2.5%)
The consequences of assumption of jurisdiction are as
follows:
a. If a strike or lockout has not taken place, the parties
are enjoined to conduct any untoward action that may
lead to a strike or lockout.
b. if a strike or lockout has already taken place, all striking
and locked out workers shall, within twenty-four (24)
hours from receipt of an Assumption or Certification
Order, 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.
c. At any point in time, the parties are not prevented
from submitting the dispute to Voluntary Arbitration with
the Secretary of Labor and Employment or his/her duly
authorized representative as Voluntary Arbitrator or
Panel of Voluntary Arbitrators. (Section 3, Operational
Guidelines of Department Order No. 40-G-03, Series of
2010, dated February 24, 2011)

While the consequence of disobedience to the return to

work has been ruled in the case of Manila Hotel
Employees Association v. Manila Hotel Corporation, G.R.
No. 154591, March 5, 2007. In holding that defiance of
the assumption order or a return-to work order by a
striking employee, whether a union officer or a member,
is an illegal act and, therefore, a valid ground for loss of
employment status. The High Court explained:

The law explicitly prohibits such acts.

ART. 263. STRIKES, PICKETING, AND LOCKOUTS

x xxx (omitted)

ART. 264. PROHIBITED ACTIVITIES

(a) x xxx

(omitted)

More to the point, the Court has consistently ruled in a

long line of cases spanning several decades that once the
SOLE assumes jurisdiction over a labor dispute, such
jurisdiction should not be interfered with by the
application of the coercive processes of a strike or
lockout. Defiance of the assumption order or a return-to
work order by a striking employee, whether a union
officer or a member, is an illegal act and, therefore, a
valid ground for loss of employment status. (Grand
Boulevard Hotel v. Genuine Labor Organization of
Workers in Hotel, Restaurant and Allied Industries
(GLOWHRAIN), G.R. No. 153664, 18 July 2003, 406 SCRA
688, 710; Telefunken Semiconductors Employees Union-
FFW v. Court of Appeals, G.R. Nos. 143013-14, 18
December 2000, 348 SCRA 565, 582; Federation of Free
Workers v. Inciong, G.R. No. 49983, 20 April 1982, 208
SCRA 157, 165)