Beruflich Dokumente
Kultur Dokumente
I
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.
(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 and 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.
xxx xxx xxx
Unless the parties provide for broader inclusions, the term ‘one-half (1/2) month salary’ shall mean
fifteen (15) 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 x x x (italics supplied).
NOTE: 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 is clear
under the Labor Code, which provides that 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])
Alternative answer:
The motion should be denied. The employer can question the legal personality of the union only
through independent petition for cancellation of union registration and not by way of collateral attack
in the petition for certification election.
NOTE: This was the first time that this question was asked in the bar examinations.
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: This was the first time that this question was asked in the bar examinations.
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) 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. 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: 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 promised 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.
the Supreme Court explained the accrual of a cause of action under Article 306 [291] in 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 .
NOTE: 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 not within 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 the 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 arbitration. Thus, the dispute should be resolved by way of mandatory conciliation-
mediation in accordance with Article 234 of the Labor Code. Then file a money claim before the Labor
Arbiter if it exceeds P5,000.00 or if it is less than P5,000.00 for each of the employees then the money
claims is within the jurisdictional authority of the Regional Director under Article 129 of the Labor Code.
NOTE: 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
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: 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.
The formula can be used: regular wage/8 x 200%x130%=_____x200%x130%x Hour/s of OT (1 hour).
However, on the assumption that she complied with the rules Nelda should be paid as follows: P560/8
x 200%x130%= 182.00 x 200%x 130% x 1 hour= P473.2 This is the OT rate per hour. Nelda should
therefore be paid the total amount of P1,593.00 (basic wage of P560 x 200% plus the OT rate/per
hour)
NOTE: 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: 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: 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: 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: 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: 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: Question involving the same subject matter
was given during the 2005 and 1996 Bar Examinations.
X
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) Is Tita Nilda correct in saying that this is a private matter and should not be regulated by the
State? (2.5%)
SUGGESTED ANSWER:
Tita Nilda 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: 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: This is the first time that this type of question was asked in the Bar Examination.
(a) Were there valid legal grounds to dismiss Nicodemus from his employment? (2.5%)
SUGGESTED ANSWER:
Yes, Nicodemus can be dismissed 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 x x x. 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: Questions involving the same subject matter were given during the 2008, 2003 and 1995 Bar
Examinations.
(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: 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 Code, 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: 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.
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: 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 x x
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: 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 CBA stating that : “New employees within the coverage of the
bargaining unit who may be regularly employed shall become members of Nagrab Union.
NOTE: 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 should 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: 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: 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: 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: 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: 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.
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.
By way of ALTERNATIVE ANSWER: It can be argued also that the right was violated applying the test
stated above.
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.