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SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATIONS LABOR AND SOCIAL LEGISLATION:

PART ONE
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. (Lakas sa Industriya ng Kapatirang Haligi 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)
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.
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])
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.

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.

C.
Phil, a resident alien, sought employment in the Philippines. The employer, noticing that Phil was a
foreigner, demanded that he 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 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.

SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATIONS IN LABOR AND SOCIAL LEGISLATION:
PART TWO:
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 cannot 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.
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 Tunay na Pagkakaisa ng Manggagawa sa 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])
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.
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)
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)
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.
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)
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.
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.
(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.
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)
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 Biflex Phils.
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.
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, motu proprio 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 x x x (omitted)
ART. 264. PROHIBITED ACTIVITIES
(a) x x x x
(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)