PART ONE

I.

What are the accepted tests to determine the existence of an employer-employee

relationship? Briefly explain each test. (5%)

II.

What are the exceptions to the rule that direct hiring of migrant workers is not allowed?
Explain your answer. (5%)

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.

III.

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 stipulated period through no fault of the learners (Article 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.

IV.

JM was hired as an insurance undewriter by JMG Insurance Corporation (“JMG”). He does

not receive any salary but solely relies on commissions earned for every insurance policy
approved by JMG. He hires and pays his own secretary but is provided free office space in
the office of JMG. JM is, however, required to meet a monthly quota of twenty (20)
insurance policies, otherwise, he may be terminated. He was made to agree to a Code of
Conduct for underwriters and is supervised by a Unit Manager.

A.
Is JM an employee of JMG? (3%)

B.
Suppose JM is appointed as Unit Manager and assigned to supervise several underwriters.
He holds office in the company premises, receives an overriding commission on the
commissions of his underwriters, as well as a monthly allowance from the company, and is
supervised by a branch manager. He is governed by the Code of Conduct for Unit Managers.
Is he an employee of JMG if this is the case? Explain briefly. (3%)

2016 Bar Question

V.
Klinton, a bus driver of Rainbow Tranport, was involved in a collision with a car, damaging
the bus. The manager of Rainbow Transport, Ronel, accused him of being responsible for
the damage and was told to submit his written explanation within forty-eight (48) hours.
Klinton submitted his explanation within the period. The day after, Klinton received a
notice of termination stating that, effective immediately, he is dismissed for reckless
driving resulting to damage to property.

Klinton asks you, as his counsel, if the company complied with the procedural due process
with respect to dismissal of employees.

A.
Explain the twin notice and hearing rule. (3%)

B.
Did Rainbow Transport comply with the prior procedural requirements for dismissal?
Explain. (3%)

2016 Bar Question

VI.

Due to his employer’s dire financial situation, Julia was prevailed upon by her employer,
Kim Development Corporation (“KDC”), to voluntarily resign. In exchange for her
voluntary resignation, Julia demanded payment of the following:

1. Salary differentials;
2. 13th month pay; and
3. Financial assistance, which was promised by KDC.

The management of KDC promised to pay these to Julia as soon as it is able to pay off all
the retrenched rank-and-file employees. Five years thereafter, before the management was
able to pay Julia the amount promised to her, Julia unfortunately died of heart attack. Her
widower, Stephen, filed a money claim against KDC before the National Labor Relations
Commission (NLRC). The money claim includes a claim for the interest on the amount of
the unpaid claim.

Stephen also claimed additional damages arguing that the supposed resignation letter of
Julia was obtained from his wife through undue pressure and influence. KDC immediately
filed a motion to dismiss the case on the ground that: (a) the NLRC does not have
jurisdiction over money claims; and (b) the action has already prescribed.

A.
Does the NLRC have jurisdiction to award money claims, including interest on the amount
unpaid? (3%)
 B.
Assuming that the NLRC has jurisdiction, has the action prescribed? (3%)

C.
May Stephen successfully claim additional damages as a result of the alleged undue
pressure and influence inflicted upon Julia? (3%)

Bar 2018 Question

VII.

Mavic is an Accounting Supervisor in a trading company, Joice Trading Company (“JTC”).

He has rendered exemplary services to the company for twenty (20) years. Her co-employee
and kumare, Jasmin, called her over the phone and requested her to punch her (Jasmin’s)
daily time card as she (Jasmin) was caught in a monstrous traffic jam. Dion acceded to
Jasmin’s request but was later caught by the Personnel Manager, Bolet, while punching
Jasmin’s time card. JTC terminated the employment of Mavic on the ground of misconduct.
Is the dismissal valid and just? Explain. (5%)

2016 Bar Exam Question

VIII.

Zoe was employed as a computer programmer by Jaro Network Coporation (“JNC”), a

telecommunication firm. She has been coming to work in shorts and sneakers which is in
violation of the “prescribed uniform policy” based on company rules and regulations. JNC’s
human resources manager, Emma, wrote Zoe a letter giving him ten (10) days to comply
with the company uniform policy. Zoe, however, refused to budge and asserted that
wearing shorts and sneakers made her more productive and cited her above-average
output.

When she came to work still in violation of the uniform policy, JNC sent him a letter of
termination of employment. Zoe then filed an illegal dismissal case against JNC.

The Labor Arbiter ruled in favor of Zoe and ordered reinstatement with backwages. JNC,
however, refused to reinstate her. The NLRC 1st Division sustained the Labor Arbiter’s
judgment. Eventually, the Court of Appeals reversed the decision of the NLRC and ruled
that the dismissal was valid. Despite the reversal, Zoe still filed a motion for execution with
respect to his accrued backwages.

A.
Were there any valid legal grounds to dismiss Zoe from his employment? (3%)

B.
Should Zoe’s motion for execution be granted? (3%)
Bar 2018 Questions
IX.

Under the Labor Code, is the right of first preference a lien on the property of the insolvent
debtor in favor of the workers? Explain. (4%)

Suggested Answer (Q. No. 8):

The right of first preference in favor of workers is not a lien on the property of the insolvent
debtor. The preference could be exercised only in the event of bankruptcy or liquidation of
an employer’s business.

Alternative Answer:
A preference does not attach to specific properties. Lien creates charges on a particular
property. The right of first preference as regards unpaid wages recognized by the Labor
Code does not constitute a lien on the property of the Insolvent debtor In favor of the
workers. It is but a preference of credit in their favor, a preference in application. The Labor
Code does not purport to create a lien in favor of workers or employees for unpaid wages
either upon all of the properties or upon any particular property owned by their employer.

PART TWO

X.

Lalaine was approached for possible overseas deployment in Dubai by Mavs, an interviewer
of job applicants for Unit 106 Personnel Services, Inc. (“Unit 106”). Mavs assured Lalaine
that she can send Lalaine to work in Dubai. Because of this, Lalaine initially gave PhP
70,000.00 to Mavs. Thereafter, she paid another PhP30,000.00.

Instead of being deployed to Dubai, Lalaine was sent to Thailand to wait for the processing
of her non-immigrant visa to Dubai. Then, Lalaine was made to travel from Thailand to
Penang, Malaysia to obtain a non-immigrant Thailand visa to validate her stay in Thailand.
This caused Lalaine to be arrested and deported back to the Philippines by the Thailand
Immigration Office.

Upon her return, Lalaine filed a complaint for illegal recruitment against Mavs.

A.
Define illegal recruitment. (2.5%)

B.
Is Mavs guilty of illegal recruitment? Explain. (2.5%)
 C.
Suppose that, under the same facts enumerated above, Mavs approached three (3) persons
– Lalain, Ayin, and Suzie. What crime is committed by Mavs? Explain. (2.5%)

D.
Suppose that, under the same facts enumerate above, Mavs is joined by Terrence and Nico
in assuring that Lalaine that they have the requisite capacity to send her to London. What
crime is committed by Mavs, Terrence and Nico? (2.5%)

E.
When does illegal recruitment involve economic sobotage? (2.5%)

XI.

James brought a complaint for illegal dismissal and damages against Lustre Construction.
He claimed that Lustre Construction had employed him as mason. He claimed that he had
been diagnosed to be suffering from pulmonary tuberculosis, thereby necessitating his
leave of absence. Upon his recovery, he immediately reported back to work. However, the
company refused to accept him and had instead handed him a termination paper. James
was hired as a mason in several projects of Lustre Construction.

The Labor Arbiter later rendered a decision dismissing the complaint filed by James on the
ground that he is merely a project employee.

A.
Is the Labor Arbiter’s ruling correct? Explain (2.5%)

B.
What is a project employee? (2.5%)

XII.

Prince Harry was employed by Royalty Savings Bank as its security guard. Prince Harry is
assigned in the Quezon City Branch of Royalty Savings Bank. During the course of Prince
Harry’s employment, Elizabeth, a Senior Manager complained about the bad attitude of
Prince Harry. Because of this complaint, Prince Harry and his immediate supervisor had a
verbal altercation.

Coincidentally, right after this verbal altercation, Royalty Savings Bank is in need of a
security guard in its Manila Branch. With this, Royalty Saving Bank sent Prince Harry a
letter from the bank’s Vice-President for Operations ordering him to report to work in the
Manila Branch of Royalty Savings Bank.
Prince Harry refused to comply with this order of transfer. Because of this, Royalty Savings
Bank sent Prince Harry two (2) more letters ordering him to report to work to the Manila
Branch of Royalty Savings Bank.

Prince Harry then immediately filed an illegal dismissal case against Royalty Savings Bank
alleging that the bank constructively dismissed him when it re-assigned him to Royalty
Savings Bank – Manila City.

A.
Was Prince Harry illegally dismissed? (3%)

B.
Does the re-assignment of Prince Harry to Royalty Savings Bank Manila constitute
constructive dismissal? (3%)

C.
Assuming that Prince Harry was illegally dismissed, what is he entitled to under Article 279
of the Labor Code? (2.5%)

D.
Assuming that Prince Harry was validly dismissed, can he claim separation pay and
backwages? (1.5%)

XIII.

Fraulien Corporation and Fraulien United Union, the ceritified bargaining agent of its
employees, concluded a CBA for the period January 1, 2014 to December 31, 2018. But, long
before the CBA expired, members of Samahang Fraulien Employees, a minority union in
Fraulien Corporation, showed dissatisfaction with the CBA under the belief that Fraulien
United Union was a company union. Samahang Fraulien Employees then filed a petition
for certification election on December 1, 2018.

A.
What is a company union? (2.5%)

B.
Will the petition for Certification Election filed by Samahang Fraulien Employees prosper?
(2.5%)

XIV.
Fritzie was employed as a bartender in Manila Hotel. Fritzie, together with Mac (who is a
maintenance electrician of the Manila Hotel), are in the middle of organizing a union for
the rank-and-file employees of Manila Hotel.

Aizen and Dodi, both managers of the Manila Hotel, dismissed Fritzie and Mac verbally for
allegedly committing theft of company property.

Both Fritzie and Mac filed a complaint for illegal dismissal and unfair labor practices.

A.
Define unfair labor practices. (2.5%)

B.
Is Manila Hotel guilty of unfair labor practice? Explain. (2.5%)

XV.

Enzo Motors Corporation (“Enzo Motors”) has five hundred (500) regular employees in its
car assembly plant. Due to the Asian Financial Crisis, Enzo Motors experience very low car
sales resulting to huge financial losses. It implemented several cost-cutting measures such
as cost reduction on use of office supplies, employment hiring freeze, prohibition on
representation and travel expenses, separation of casuals and reduced work week.

A.
Can Enzo Motors opt to retrench its employees? (2.5%)

B.
As counsel for Enzo Motors what are the measures the company should undertake to
implement a valid retrenchment? (2.5%)

XVI.
Justin is a bus driver of Happy Lemon Transport Services, Inc (“Happy Lemon”). On the
other hand, LJ is a conductor of Happy Lemon.

As a bus driver, Justin is obligated by Happy Lemon to transport the passengers from SM
Fairview to Quiapo, Manila. Justin is also obligated to be at the bus terminal at 5:00am. As
conductor, LJ is obligated to issue tickets to the passengers of Happy Lemon and he is also
required to report to work at 5:00am.
Happy Lemon assigned checkers at tactical places along the travel route in order to check
the whether Happy Lemon’s passengers are issued tickets. In addition, dispatchers are
assigned to the bus terminal in order to ensure that the bus arrives and leaves the terminal
on time.

Justin and LJ, feeling dissatisfied with the salary and benefits they are receiving from Happy
Lemon, filed a complaint before the Labor Arbiter for regularization, underpayment of
wages, non-payment of services incentive leave and attorney’s fees. They allege that they
are regular employees of Happy Lemon. On the other hand, Happy Lemon asserts that
Justin and LJ are merely field employees.

A.
Define field employees. (2.5%)

B.
Define regular employees. (2.5%)

C.
Can Justin and LJ be considered as regular employees of Happy Lemon? (2.5%)