2018 Q and A BAR EXAMINATIONS IN LABOR LAW
22.5 days salary, exclusive of leave conversion benefits.
I xxx
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.
Is Narciso entitled to retirement benefits? (2.5%)
SUGGESTED ANSWER:
Yes, Narciso is entitled to retirement benefits. A part-
time lecturer, with a fixed-term employment, who did
not attain permanent status, is entitled to retirement
pay. This was ruled by the Supreme Court in De La Salle
Araneta University v. Bernardo, G. R. No. 190809,
February 13, 2017 as follows: Republic Act No. 7641
states that "any employee may be retired upon reaching
the retirement age x x x;" and "[i]n case of retirement,
the employee shall be entitled to receive such retirement
benefits as he may have earned under existing laws and
any collective bargaining agreement and other
agreements." The Implementing Rules provide that
Republic Act No. 7641 applies to "all employees in the
private sector, regardless of their position, designation
or status and irrespective of the method by which their
wages are paid, except to those specifically exempted x
x x." And Secretary Quisumbing' s Labor Advisory further
clarifies that the employees covered by Republic Act No.
7641 shall "include part-time employees, employees of
service and other job contractors and domestic helpers
or persons in the personal service of another."
NOTE: The foregoing answer can be found in pages
921-924 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018, by Atty. Voltaire T.
Duano. This was the first time that this question was
asked in the bar examinations.
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:  constitution and by-laws or amendments thereto, the
For purposes of computing compulsory sand optional
retirement benefits and to align the current retirement
plan with the minimum standards of Art. 287 of the
Labor Code, as amended by R.A. 7641, and Sec. 5 (5.2)
of its implementing rules, “1/2 month salary” means
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: The foregoing answer can be found in pages
924-925 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018, by Atty. Voltaire T.
Duano. Questions involving the same subject matter
were given during the 2011 and 2001 Bar Examinations.
II
Nayon Federation issued a charter certificate creating a
rank-and-file Neuman Employees Union. On the same
day, New Neuman Employees filed a petition for
certification election with the Department of Labor and
Employment (DOLE) Regional Office, attaching the
appropriate charter certificate.
a) The employer, Neuman Corporation, filed a
motion to dismiss the petition for lack of legal
personality on the part of the petitioner union.
Should the motion be granted? (2.5%)
SUGGESTED ANSWER:
The motion should be denied. For purposes of filing a
petition for certification election, New Neuman
Employees has legal personality from the time it was
issued with a charter certificate. This clear under the
Labor Code, which provides, The chapter shall acquire
legal personality only for purposes of filing a petition for
certification election from the date it was issued a
charter certificate. (Article 241 [234-A], As inserted by
Section 2, Republic Act No. 9481 which lapsed into law
on May 25, 2007 and became effective on June 14,
2007)
NOTE: The foregoing answer can be found in page 218
of the book entitled Principles and Cases Labor
Relations, Second Edition 2018, by Atty. Voltaire T.
Duano. This was the first time that this question was
asked in the bar 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
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
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2018 Q and A BAR EXAMINATIONS IN LABOR LAW
election of officers, and the list of voters;
(c) Voluntary dissolution by the members.
Unless the employer can prove that any of the foregoing
grounds are present the petition for cancellation will not
prosper.
NOTE: The foregoing answer can be found in page 223
of the book entitled Principles and Cases Labor
Relations, Second Edition 2018, by Atty. Voltaire T.
Duano. This was the first time that this question was
asked in the bar examiantions.
III
Due to his employer’s dire financial situation, Nicanor
was prevailed upon by his employer to voluntarily resign.
In exchange, he demanded payment of salary
differentials, 13th month pay, and financial assistance,
as promised by his employer. Management promised to
pay him as soon as it is able to pay off all retrenched
rank-and-file employees. Five years later, and before
management was able to pay Nicanor the amount
promised to him, Nicanor died of a heart attack. His
widow, Norie, filed a money claim against the company
before the National Labor Relations Commission (NLRC),
including interest on the amount of the unpaid claim.
She also claimed additional damages arguing that the
supposed resignation letter was obtained from her
spouse through undue pressure and influence. The
employer filed a motion to dismiss on the ground that
(A) the NLRC did not have jurisdiction over money
claims, and (B) the action has prescribed.
(a) Does the NLRC have jurisdiction to award
money claims including interest on the amount
unpaid? (2.5%)
SUGGESTED ANSWER:
Jurisdiction will depend on the amount being claimed by
Nicanor’s surviving spouse. If the amount exceeds Five
Thousand Pesos (PhP5,000.00) as provided in Article
224 (a [6]) of the Labor Code then jurisdiction belongs
to the Arbitration Branch of the NLRC. However, if the
amount did not exceed Five Thousand Pesos
(PhP5,000.00) and then jurisdiction belongs to the
Regional Director under Article 129 of the Labor Code
involving recovery of wages, simple money claims and
other benefits. Either of the said quasi-judicial body can
award interest in the concept of actual and
compensatory damages in accordance. The award of
interest in money claim was explained in Limlingan v.
Asian Institute Management, Inc., G.R. No. 220481,
February 17, 2016, that the rate of interest in the
concept of actual and compensatory damages as well as
its accrual are as follows:
1. When the obligation is breached, and it consists in the
payment of a sum of money, i.e., a loan or forbearance
of money, the interest due should be that which may
have been stipulated in writing. Furthermore, the
interest due shall itself earn legal interest from the time
it is judicially demanded. In the absence of stipulation,
the rate of interest shall be 6% per annum to be
computed from default, i.e., from judicial or extrajudicial
demand under and subject to the provisions of Article
1169 of the Civil Code.
2. When an obligation, not constituting a loan or
forbearance of money, is breached, an interest on the
amount of damages awarded may be imposed at the
discretion of the court at the rate of 6% per annum. No
interest, however, shall be adjudged on unliquidated
claims or damages, except when or until the demand
can be established with reasonable certainty.
Accordingly, where the demand is established with
reasonable certainty, the interest shall begin to run from
the time the claim is made judicially or extrajudicially
(Art. 1169, Civil Code), but when such certainty cannot
be so reasonably established at the time the demand is
made, the interest shall begin to run only from the date
the judgment of the court is made (at which time the
quantification of damages may be deemed to have been
reasonably ascertained). The actual base for the
computation of legal interest shall, in any case, be on
the amount finally adjudged.
3. When the judgment of the court awarding a sum of
money becomes final and executory, the rate of legal
interest, whether the case falls under paragraph 1 or
paragraph 2, above, shall be 6% per annum from such
finality until its satisfaction, this interim period being
deemed to be by then an equivalent to a forbearance of
credit.
NOTE: The foregoing answer can be found in page 26 of
the book entitled Principles and Cases Labor Relations,
Second Edition 2018, by Atty. Voltaire T. Duano and in
pages 589-590 of the book entitled Principles and Cases
Labor Standards and Social Legislation, Second Edition
2018, by Atty. Voltaire T. Duano. Questions involving the
same subject matter were given during the 2011 and
2016 (on award of interest in money claim) Bar
Examinations.
(b) Assuming that the NLRC has jurisdiction, has
the action prescribed? (2.5%)
SUGGESTED ANSWER:
The action has not prescribed. This is because Nicanor’s
surviving spouse’s cause of action will accrue upon the
categorical denial of the claim. In this case, there was
demand for its payment, however, the management had
promsied to pay as soon as it is able to pay off all
retrenched rank-and-file employees. However, it is was
only after five (5) years that the management was able
to pay. Moreover, there was no denial of the claim.
Therefore, prescription did not set in. In the Degamo v.
Avantgarde Shipping Corp., G.R. No. 154460, November
22, 2005 and Serrano v. Court of Appeals, G.R. No.
139420, August 15, 2001, following cases, the Supreme
Court explained the accrual of a cause of action under
Article 306 [291].
NOTE: The foregoing answer can be found in pages
943-946 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018, by Atty. Voltaire T.
Duano. Questions involving the same subject matter was
given during the 2010 Bar Examination.
(c) May Nicanor’s spouse successfully claim
additional damages as a result of the alleged
undue pressure and influence? (2.5%)
SUGGESTED ANSWER:
Yes, Nicanor’s spouse can successfully claim additional
damages as a result of the alleged undue pressure and
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2018 Q and A BAR EXAMINATIONS IN LABOR LAW
influence. This is provided under Article 224 (a [4] of the
Labor Code which provides for claims for actual, moral,
exemplary and other forms of damages arising from
employer-employee relationship within the jurisdictional
authority of the Arbitration Branch of the NLRC.
In the alternative, it can be argued that Nicanor’s spouse
cannot successfully claim additional damages because it
is the jurisdictional authority of the Arbitration Branch of
the NLRC. The employer-employee relationship is only
incidental and the cause of action arises from other
sources like torts and damages. Therefore, jurisdiction
belongs to the regular courts.
NOTE: The foregoing answer can be found in pages 26,
32-38 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018, by Atty. Voltaire T.
Duano. Questions involving the same subject matter
were given during the 2016, 199 and 1995 Bar
Examinations.
IV
Natasha Shoe Company adopted an organizational
streamlining program that resulted in the retrenchment
of 550 employees in its main plant. After having been
paid their separation benefits, the retrenched workers
demanded payment of retirement benefits under a CBA
between their union and management Natasha Shoe
Company denied the workers’ demand.
(a) What is the most procedurally peaceful means
to resolve this dispute? (2.5%)
SUGGESTED ANSWER:
Since this is a money claim involving the interpretation
and implementation of the CBA, the retrenched workers
can refer the matter to the grievance machinery and if it
remained unresolved within seven (7) days from the
date of its submission the same shall be automatically
referred to the voluntary arbitration prescribed in the
CBA.
In the alternative it can be argued, that since this is a
dispute between the retrenched workers and the
employer the same cannot be a subject matter of
grievance and voluntary arbitration. This is because only
disputes between the union and the company as ruled in
Tabique v. International Copra Export Corporation, G. R.
No. 183335, December 23, 2009, shall be referred to
grievance machinery or voluntary arbitrators. Thus, the
dispute should be resolved by way of mandatory
conciliation-mediation in accordance with Article 234 of
the Labor Code.
NOTE: The foregoing answer can be found in pages
193-195, 436, 433-442 of the book entitled Principles
and Cases Labor Relations, Second Edition 2018, by
Atty. Voltaire T. Duano. Questions involving the same
subject matter were given during the 2017, 2010, 2008,
2001, 1997 and 1995 Bar Examinations.
(b) Can the workers claim both separation pay
and retirement benefits. (2.5%)
SUGGESTED ANSWER:
Yes, the workers can claim both separation pay and
retirement benefits. This was settled rule in the case of
Goodyear v. Marina Angus, G.R. No. 185499, 14
November 2014 where it was ruled that in the absence
of an express or implied prohibition against it, collection
of both retirement benefits and separation pay upon
severance from employment is allowed. This is grounded
on the social justice policy that doubts should always be
resolved in favor of labor rights. (Aquino v. National
Labor Relations Commission, G.R. No. 87653, February
11, 1992)
V
Nelda worked as a chambermaid in Hotel Neverland with
a basic wage of PhP560.00 for an eight-hour workday.
On Good Friday, she worked for one (1) hour from
10:00 PM to 11:00 PM. Her employer paid her only
PhP480 for each 8-hour workday, and PhP70.00 for work
done on Good Friday. She sued for underpayment of
wages and non-payment of holiday pay and night shit
differential for working on a Good Friday. Hotel
Neverland denied the alleged underpayment, arguing
that based on long-standing unwritten tradition, food
and lodging costs were partially shouldered by the
employer and partially paid for by the employee through
salary deduction. According to the employer, such valid
deduction caused the payment of Nelda’s wage to be
below the prescribed minim m. The hotel also claimed
that she was not entitled to holiday pay and night shift
differential pay hotel workers have to work on holidays
and may be be assigned to work at night.
(a) Does the hotel have valid legal grounds to
deduct food and lodging costs from Nelda's basis
salary? (2.5%)
SUGGESTED ANSWER:
As held in Mabeza v. National Labor Relations
Commission, G.R. No. 118506, April 18, 1997: Granting
that meals and lodging were provided and indeed
constituted facilities, such facilities could not be
deducted without the employer complying first with
certain legal requirements. Without satisfying these
requirements, the employer simply cannot deduct the
value from the employee’s wages. First, proof must be
shown that such facilities are customarily furnished by
the trade. Second, the provision of deductible facilities
must be voluntarily accepted in writing by the employee.
Finally, facilities must be charged at fair and reasonable
value. (Labor Code, Art. 97 [f])
Applying the above, unless the hotel can comply with
the legal requirements it has no valid legal grounds to
deduct food and lodging costs from Nelda's basis salary.
NOTE: The foregoing answer can be found in page 502
of the book entitled Principles and Cases Labor
Standards and Social Legislation, Second Edition 2018,
by Atty. Voltaire T. Duano. Questions involving the same
subject matter were given during the 2013 and 2010 Bar
Examinations.
(b) Applying labor standards law, how much
should Nelda be paid for work done Good Friday?
Show the computation in your test booklet and encircle
your final answer. (2.5%)
SUGGESTED ANSWER:
It can be argued:
The rule in order to be paid regular holiday like two
successive holidays provides as follows, Where there are
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2018 Q and A BAR EXAMINATIONS IN LABOR LAW
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.
However, on the assumption that she complied with the
rules Nelda should be paid as follows: P560 x
200%=P1,120.00 or since he only worked for one hour
the pay should be as follows: 70 x 200% = P140.00
NOTE: The foregoing answer can be found in page 453
of the book entitled Principles and Cases Labor
Standards and Social Legislation, Second Edition 2018,
by Atty. Voltaire T. Duano. Questions involving the same
subject matter was given during the 2013 and 2010 Bar
Examinations.
VI
A certification election was conducted in Nation
Manufacturing Corporation, whereby 55% of eligible
voters in the bargaining unit cast their votes. The results
were as follows:
Union Nana : 45 votes
Union Nada : 40 votes  Nico is a medical representative engaged in the
Union Nara : 30 votes  promotion of Pharmaceutical products and medical
No Union : 80 votes
Union Nana moved to be declared as the winner of the
certification election.
a) Can Union Nana be declared as the winner?
(2.5%)
SUGGESTED ANSWER:
Union Nana cannot be declared as the winner. This is
because the said union did not obtain the majority of the
valid votes casts as provided under Article 268 of the
Labor Code.
NOTE: The foregoing answer can be found in pages
416-417 and 419of the book entitled Principles and
Cases Labor Relations, Second Edition 2018, by Atty.
Voltaire T. Duano. Questions involving the same subject
matter were given during the 2014, 2009 Bar
Examinations.
b) Assume that the eligibility of 30 voters was
challenged during pre-election conference. The ballots of
the 30 challenged voters were placed inside an envelope
sealed by the DOLE Election Office. Considering the said
envelope remains sealed, what should be the next
course of action with respect to the said
challenged votes? (2.5%)
SUGGESTED ANSWER:
The procedure in the Challenge of Votes provides as
follows:
The ballot of the voter who has been property
challenged during the Pre-Election conferences, shall be
placed in an envelope which shall be sealed by the
Election Officer in the presence of the voter and the
representatives of the contending unions. The election
Officer shall indicate on the envelope the voter’s name,
the union challenging the voter, and the ground for the
challenged. The sealed envelope shall then be signed by
the Election Officer and the representatives of the
contending unions. The Election Officer shall note all
challenges in the minutes of the election proceedings
and shall have custody of all envelops containing the
challenged votes. The envelopes shall be opened and
the question of eligibility shall be passed upon by the
Mediator-Arbiter only if the number of segregated votes
will materially alter the results of the election. (Section
11, Rule IX, Book V, Rules to Implement the Labor
Code, as amended by Department Order No. 40-F-03,
Series of 2008 and renumbered by Department Order
No. 40-I-15, Series of 2015)
Applying the said procedure, if the number of
segregated votes will materially alter the results of the
election the next course of action with respect to the
said challenged votes is to open the said envelopes and
the question of eligibility shall be passed upon by the
Mediator-Arbiter.
NOTE: The foregoing answer can be found in page 402
of the book entitled Principles and Cases Labor
Relations, Second Edition 2018, by Atty. Voltaire T.
Duano. This is the first time that this type if question
was asked in the Bar Examinations.
VII
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
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2018 Q and A BAR EXAMINATIONS IN LABOR LAW
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.  ii. The place of work and terms and conditions governing
Applying the above rule, the productivity allowance
cannot be included.
NOTE: The foregoing answer can be found in page 492
of the book entitled Principles and Cases Labor
Standards and Social Legislation, Second Edition 2018.
Question involving the same subject matter was given
during the 2011 Bar Examination. An alternative answer
can be given by stating that it will depend as to whether
the productivity bonus form part of the salary. In fine,
whether or not the productivity bonus forms part of the
basic salary depends upon the circumstances or
conditions for its payment, which indubitably are factual
in nature. If the productivity bonuses were because they
were generally tied to the productivity, or capacity for
revenue production it will not form part of the salary.
However, if has a clear direct or necessary relation to
the amount of work actually done by each individual
employee then it form part of the salary. This was the
distinction given by the case of Reyes v. NLRC, G.R. No.
160233, August 8, 2007 citing the cases of Phil
Duplicators, Inc. v. NLRC, G.R. No. 110068, November
11, 1993 and monetary value initially assigned to each
unit of work rendered by a salesman. On the other
hand, in Boie-Takeda Chemicals, Inc. v. De la Serna,
G.R. Nos. 92174 and 102552, December 10, 1993.
VIII
Nathaniel has been a salesman assigned by Newmark
Enterprises (Newmark) for nearly two years at the
Manila office of Nutrition City, Inc. (Nutrition City). He
was deployed pursuant to a service agreement between
Newmark and Nutrition City, the salient provisions of
which were as follows:
a) the Contractor (Newmark) agrees to perform and
provide the Client (Nutrition City), on a non-exclusive
basis, such tasks or activities that are considered
contractible under existing laws, as may be needed by
the Client from time to time;
b) the Contractor shall employ the necessary personnel
like helpers, salesmen, and drivers who are determined
by the Contractor to be efficiently trained;
c) the Client may request replacement of the
Contractor’s personnel if quality of the desired result is
not achieved;
d) the Contractors personnel will comply with the Client's
policies, rules, and regulations; and
e) the Contractor’s two service vehicles and necessary
equipment will be utilized in carrying out the provisions
of this Agreement.
When Newmark fired Nathaniel, he filed an illegal
dismissal case against the wealthier company, Nutrition
City, Inc., alleging that he was a regular employee of the
same. Is Nathaniel correct? (2.5%)
SUGGESTED ANSWER:
Nathaniel is correct in so far as the existence of
employer-employee relationship between him and the
principal.
The rules requires that the Service Agreement between
the principal and the contractor shall include the
following:
i. The specific description of the job or work being
subcontracted, including its term or duration.
the contracting arrangement, to include the agreed
amount of the contracted job or work as well as the
standard administrative fee of not less than ten percent
(10%) of the total contract cost; and
iii. A provision on the issuance of the bond/s defined
under Section 3(a) renewable every year. (Section 11,
D.O. No. 174, Series of 2017) 
On the other hand, a finding of violation of 11 shall
render the principal the direct employer of the
employees of the contractor or subcontractor, pursuant
to Article 109 of the Labor Code, as amended. (Section
12, D.O. No. 174, Series of 2017) 
Applying the above rules, since Newmark and Nutrition
City violated the required terms to be stated in the
Service Agreement then Nutrition City is the direct
employer of Nathaniel. 
As to whether Nathaniel is a regular employee of
Nutrition City, the rules are as follows:
Regular employees are further classified into: (1) regular
employees by nature of work; and (2) regular
employees by years of service. (E. Ganzon, Inc. vs.
National Labor Relations Commission, G.R. No. 123769,
22 December 1999, 321 SCRA 434, 440) The former
refers to those employees who perform a particular
activity which is necessary or desirable in the usual
business or trade of the employer, regardless of their
length of service; while the latter refers to those
employees who have been performing the job,
regardless of the nature thereof, for at least a year.
(Pangilinan vs. General Milling Corporation, G.R. No.
149329, 12 July 2004) 
Tested from the nature of his work and the activity of
the principal Nathaniel could be a regular employee
while if it is tested on the length of service then
Nathaniel is a regular employee as he has been
employed with the principal for a least a year. In fact he
was employed for nearly two years.
NOTE: The foregoing answer can be found in page 561
of the book entitled Principles and Cases Labor
Standards and Social Legislation, Second Edition 2018,
and page 676 of the book entitled Principles and Cases
Labor Relations, Second Edition 2018, by Atty. Voltaire
T. Duano. Questions involving the same subject matter
were given during the 2009 (on terms of Service
Agreement) and 22013 and 2008 (on regular
employees) Bar Examinations. An alternative answer can
be given by characterizing the relationship of the
principal with the contractor as to whether it is a job
contracting or LOC. Then as to who would be the direct
employer and extent of liability can be determined or
concluded.
IX
Sgt. Nemesis was a detachment non-commissioned
officer of the Armed Forces of the Philippines in Nueva
Ecija. He and some other members of his detachment
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2018 Q and A BAR EXAMINATIONS IN LABOR LAW
sought permission from their Company Commander for
an overnight pass to Nueva Vizcaya to settle some
important matters. The Company Commander orally
approved their request and allowed them to carry their
firearms as the place they were going to was classified
as a “critical place.” They arrived at the place past
midnight; and as they were alighting from a tricycle, one
of his companions accidentally dropped his rifle, which
fired a single shot, and in the process hit Sgt. Nemesis
fatally. The shooting was purely accidental. At the time
of his death, he was still legally married_to Nelda but
had been separated de facto from her for 17 years. For
the last 15 years of his life, he was living in with Narda,
with whom he has two minor children. Since Narda
works as a kasambahay, the two children lived with their
grandparents, who provided their daily- support. Sgt.
Nemesis and Narda only sent money to them every year
to them for their school tuition.
Nelda and Narda, both for themselves and the latter,
also on behalf of her minor children, separately filed
claims for compensation as a result of the death of Sgt.
Nemesis. The Line of Duty Board of the AFP declared
Sgt. Nemesis’ death to have been “in line of duty’, and
recommended that all benefits due to Sgt. Nemesis be
given to his dependents. However, the claims were
denied by GSIS because Sgt. Nemesis was not in his
workplace nor performing his duty as a soldier of the
Philippine Army when he died.
(a) Are the dependents of Sgt. Nemesis entitled
to compensation as a result of his death? (2.5%)
SUGGESTED ANSWER:
The death of Sgt. Nemesis is compensable because it is
work-connected. However, in so far as entitlement of
the dependents of Sgt. Nemesis for compensation as a
result of his death the dependent spouse cannot claim
compensation. The law requires that the dependent
spouse should be a legitimate spouse living with the
employee. (Article 173 [i], Labor Code).
In this case, the legitimate spouse Nelda is not entitled
because she is not living with Sgt. Nemesis while Narda
will not qualify as dependent spouses as she is not a
legitimate spouse of Sgt. Nemesis although she is living
with the latter. On the other hand, in so far as the
dependent child the law requires that the dependent
child be legitimate, legitimated, legally adopted or xxx,
who is unmarried, not gainfully employed, not over 21
years of age provided he is incapacitated and incapable
of self-support due to physical or mental defect which is
congenital or acquired during minority. The two minor
children are therefore qualified as dependent children.
Hence, entitled to compensation.
NOTE: The foregoing answer can be found in pages 835
and 857-860 of the book entitled Principles and Cases
Labor Standards and Social Legislation, Second Edition
2018, by Atty. Voltaire T. Duano. Question involving the
same subject matter was given during the 2005 and
1996 Bar Examinations.
(b) As between Nelda and Narda, who should be
entitled to the benefits? (2.5%)
SUGGESTED ANSWER:
Nelda and Narda are not entitled to the benefits because
they failed to qualify within the definition (Article 173 [i],
Labor Code) of dependent spouse.
NOTE: The foregoing answer can be found in pages 835
and 857-860 of the book entitled Principles and Cases
Labor Standards and Social Legislation, Second Edition
2018, by Atty. Voltaire T. Duano. Question involving the
same subject matter was given during the 2005 and
1996 Bar Examinations.
X
Nonato had been continuously employed and deployed
as a seaman who performed services that were
necessary and desirable to the business of N-Train
hipping, through its local agent, Narita Maritime Services
(Agency), in accordance with the 2010 Philippine
Overseas Employment Administration Standard
Employment Contract (2010 POEA-SEC). Nonato's last
contract (for ye months) expired on November 15, 2016.
Nonato was then repatriated due to "finished contract."
He immediately reported to the Agency and complained
that e had been experiencing dizziness, weakness, and
difficulty in breathing. The agency referred him to Dr.
Neri, who examined, treated, and prescribed him with
medications. After a few months of treatment and
consultations, Nonato was declared fit to resume work
as a seaman. Nonato went back to the Agency to ask for
re-deployment but the Agency rejected his application.
Nonato filed an illegal dismissal case against the Agency
and its principal, with a claim for total disability benefits
based on the ailments that he developed on board N-
Train hipping-vessels. The claim was based on the
certification of his own physician, Dr. Nunez, that he was
unfit for sea duties because of his hypertension and
diabetes.
a) Was Nonato a regular employee of N-Train
Shipping? (2.5%)
SUGGESTED ANSWER:
Nonato is not a regular employee of N-Train Shipping.
The fact that seafarers are not regular employees is
already a settled rule. 
In Petroleum Shipping Limited (formerly Esso
International Shipping (Bahamas) Co., Ltd.) v. NLRC,
G.R. No. 148130, June 16,2006, the Supreme Court said
that the issue on whether seafarers are regular
employees is already a settled matter. Thus, the High
Court said:
It was in Ravago v. Esso Eastern Marine, Ltd., G.R. No.
158324, 14 March 2005, 453 SCRA 381 where the
Honorable Supreme Court traced its ruling in a number
of cases that seafarers are contractual, not regular,
employees. Thus, in Brent School, Inc. v. Zamora, G.R.
No. 48494, 5 February 1990, 181 SCRA 702 the
Supreme Court cited overseas employment contract as
an example of contracts where the concept of regular
employment does not apply, whatever the nature of the
engagement and despite the provisions of Article 280 of
the Labor Code. In Coyoca v. NLRC, G.R. No. 113658
March 31, 1995, the Supreme Court held that the
agency is liable for payment of a seaman’s medical and
disability benefits in the event that the principal fails or
refuses to pay the benefits or wages due the seaman
although the seaman may not be a regular employee of
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2018 Q and A BAR EXAMINATIONS IN LABOR LAW
the agency.  On this point, Section 20(B)(3) of the POEA-SEC
The Supreme Court squarely passed upon the issue in
Millares v. NLRC, G.R. No. 110524, July 29, 2002, where
one of the issues raised was whether seafarers are
regular or contractual employees whose employment are
terminated every time their contracts of employment
expire. The Supreme Court explained:
[I]t is clear that seafarers are considered contractual
employees. They can not be considered as regular
employees under Article 280 of the Labor Code. Their
employment is governed by the contracts they sign
everytime they are rehired and their employment is
terminated when the contract expires. Their employment
is contractually fixed for a certain period of time. They
fall under the exception of Article 280 whose
employment has been fixed for a specific project or
undertaking the completion or termination of which has
been determined at the time of engagement of the
employee or where the work or services to be performed
is seasonal in nature and the employment is for the
duration of the season. We need not depart from the
rulings of the Court in the two aforementioned cases
which indeed constitute stare decisis with respect to the
employment status of seafarers.
NOTE: The foregoing answer can be found in pages
721-723 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018, by Atty. Voltaire T.
Duano. Questions involving the same subject matter
were given during the 2017, 2014 and 2002 Bar
Examinations.
b) Can Nonato successfully claim disability
benefits against N-Train Shipping and its agent
Narita Maritime Services? (2.5%)
SUGGESTED ANSWER:
The claim for disability benefits of Nonato against N-
Train Shipping and its agent Narita Maritime Services will
not prosper for prematurity.  Contract of Engagement should embody the terms and
The Supreme Court laid down the procedures for filing
disability benefits and its effect in case of failure to
comply with the procedures in Daraug v. KGJS Fleet
Management Manila, G.R. No. 211211, January 14,
2015. Thus, in denying the claim for disability benefits
due to prematurity the Supreme Court ruled:
Petitioner Did Not Comply With The Procedures  State? (2.5%)
In Vergara v. Hammonia Maritime Services, Inc.31
(Vergara), it was stated that the Department of Labor
and Employment (DOLE), through the POEA, has
simplified the determination of liability for work-related
death, illness or injury in the case of Filipino seamen
working on foreign oceangoing vessels. Every seaman
and the vessel owner (directly or represented by a local
manning agency) are required to execute the POEA
Standard Employment Contract (POEA-SEC) as a
condition sine qua non prior to the deployment of the
seaman for overseas work. The POEA-SEC is
supplemented by the Collective Bargaining Agreement
(CBA) between the owner of the vessel and the covered
seaman. In this case, the parties entered in to a contract
of employment in accordance with the POEA-SEC and
they agreed to be bound by the CBA.  (Section 2, Article I, Republic Act No. 10361)
Thus, in resolving petitioner’s claim for disability
compensation, the Court will be guided by the
procedures laid down in the POEA-SEC and in the CBA.
provides: 
Upon sign-off from the vessel for medical treatment, the
seafarer is entitled to sickness allowance equivalent to
his basic wage until he is declared fit to work or the
degree of permanent disability has been assessed by the
company-designated physician but in no case shall this
period exceed one hundred twenty (120) days. 
For this purpose, the seafarer shall submit himself to a
post-employment medical examination by a company-
designated physician within three working days upon his
return except when he is physically incapacitated to so,
in which case, a written notice to the agency within the
same period is deemed a compliance. Failure of the
seafarer to comply with the mandatory reporting
requirement shall result in his forfeiture of the right to
claim the above benefits. 
If a doctor appointed by the seafarer disagrees with the
assessment, a third doctor may be agreed jointly
between the Employer and the seafarer. The third
doctor’s decision shall be final and binding on both
parties.
NOTE: The foregoing answer can be found in pages
917-921 of the book entitled Principles and Cases Labor
Standards and Social Legislation, Second Edition 2018,
by Atty. Voltaire T. Duano. Question involving the same
subject matter was given during the 2013 Bar
Examination.
Xl
Your favorite relative, Tita Nilda, approaches you and
seeks your advice n her treatment of her kasambahay,
Noray. Tita Nilda shows you a document called a
“Contract of Engagement” for your review. Under the
Contract of Engagement, Noray shall be entitled to a
rest day every week, provided that she may be
requested to work on a rest day if Tita Nilda should need
her services that day. Tita Nilda also claims that this
conditions of Noray’s work as the engagement of a
kasambahay is a private matter and should not be
regulated by the State.
a) Is Tita Nilda correct in saying that this is a
private matter and should not be regulated by the
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.
NOTE: The foregoing answer can be found in page 759
of the book entitled Principles and Cases Labor
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2018 Q and A BAR EXAMINATIONS IN LABOR LAW
Standards and Social Legislation, Second Edition 2018.
This is the first time that this type of question was asked
in the Bar Examination.
b) is the stipulation that she may be requested to
work on a rest day legal? (2.5%)
SUGGESTED ANSWER:
The stipulation that Noray may be requested to work on
a rest day is legal. The law provides that, “ Nothing in
this provision shall deprive the domestic worker and the
employer from agreeing to the following:
(a) Offsetting a day of absence with a particular rest
day;
(b) Waiving a particular rest day in return for an
equivalent daily rate of pay;
(c) Accumulating rest days not exceeding five (5) days;
or
(d) Other similar arrangements. (Section 21, Article IV,
Republic Act No. 10361)
NOTE: The foregoing answer can be found in page 778
of the book entitled Principles and Cases Labor
Standards and Social Legislation, Second Edition 2018.
This is the first time that this type of question was asked
in the Bar Examination.
c) Are stay-in family drivers included under the
Kasambahay Law? (2.5%)
SUGGESTED ANSWER:
Stay-in family drivers are not included under the
Kasambahay Law. This was very clear in the Rules
Implementing the Kasambahay Law providing as
follows:
The following are not covered:
(a) Service providers;
(b) Family drivers;
(c) Children under foster family arrangement; and
(d) Any other person who performs work occasionally or
sporadically and not on an occupational basis. (Section
2, Rule I, Implementing Rules and Regulations of
Republic Act 10361)
NOTE: The foregoing answer can be found in page 761
of the book entitled Principles and Cases Labor
Standards and Social Legislation, Second Edition 2018.
Questions involving the same subject matter were given
during the 2012 and 1998 Bar Examinations.
XII
Nena worked as an Executive Assistant for Nesting, CEO
of Now Corporation. One day, Nesting called Nena into
his office and showed her lewd pictures of women in
seductive poses which Nena found offensive. Nena
complained before the General Manager who, in turn,
investigated the matter and recommended the dismissal
of Nesting to the Board of Directors. Before the Board of
Directors, Nesting argued, that-since the Anti-Sexual
Harassment Law requires the existence of “sexual
favors,” he should not be dismissed from the service
since he did not ask for any-sexual favor from Nena. Is
Nesting correct? (2.5%)
SUGGESTED ANSWER:
Nesting is not correct.
The law penalizing sexual harassment in our jurisdiction
is RA 7877. Section 3 thereof defines work-related
sexual harassment in this wise:
Sec. 3. Work, Education or Training-related Sexual
Harassment Defined.—Work, education or training-
related sexual harassment is committed by an employer,
manager, supervisor, agent of the employer, teacher,
instructor, professor, coach, trainor, or any other person
who, having authority, influence or moral ascendancy
over another in a work or training or education
environment, demands, requests or otherwise requires
any sexual favor from the other, regardless of whether
the demand, request or requirement for submission is
accepted by the object of said Act.
(a) In a work-related or employment environment,
sexual harassment is committed when: xxx (3) The
above acts would result in an intimidating, hostile, or
offensive environment for the employee.
Contrary to Nesting’s claim, it is enough that his acts
result in creating an intimidating, hostile or offensive
environment for the employee.
NOTE: The foregoing answer can be found in page 696
of the book entitled Principles and Cases Labor
Standards and Social Legislation, Second Edition 2018.
Questions involving the same subject matter were given
during the 2011, 2009, 2006, 2005, 2004, 2003 and
2000 Bar Examinations.
XIII
Nicodemus was employed as a computer programmer by
Network Corporation, a telecommunications firm. He has
been coming to work in shorts and sneakers, in violation
of the “prescribed uniform policy” based on company
rules and regulations. The company human resources
manager wrote him a letter, giving him 10 days to
comply with the company uniform policy. Nicodemus
asserted that wearing shorts and sneakers made him
more productive, and cited his above-average output.
When he came to work still in violation of the uniform
policy, the company sent him a letter of termination of
employment. Nicodemus filed an illegal dismissal case.
The Labor Arbiter ruled in favor of Nicodemus and
ordered his reinstatement with backwages. Network
Corporation, however, refused to reinstate him. The
NLRC 1st Division sustained the Labor Arbiter’s
judgment. Network Corporation still refused to reinstate
Nicodemus. Eventually, the Court of Appeals reversed
the decision of the NLRC and ruled that the dismissal
was valid. Despite the reversal, Nicodemus still filed a
motion for execution with respect to his accrued
backwages.
(a) Were there valid legal grounds to dismiss
Nicodemus from his employment? (2.5%)
SUGGESTED ANSWER:
Yes, Nicodemus can be dismissed on based on willful
disobedience to the lawful order under Article 297 (a) of
the Labor Code and the “prescribed uniform policy” of
the company.
The basis is the case of St. Luke’s v. Sanchez, G.R. No.
212054, March 11, 2015 were it was ruled: At the same
time, the employee has the corollary duty to obey all
reasonable rules, orders, and instructions of the
employer; and willful or intentional disobedience thereto,
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2018 Q and A BAR EXAMINATIONS IN LABOR LAW
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: The foregoing answer can be found in page 786
of the book entitled Principles and Cases Labor
Relations, Second Edition 2018. Questions involving the
same subject matter were given during the 2008, 2003
and 1995 Bar Examinations.
(b) Should Nicodemus’ motion for execution be
granted? (2.5%)
SUGGESTED ANSWER:
Yes, Nicodemus’ motion for execution should be
granted. He is entitled to his accrued salary.
The accrued wages/salaries (reinstatement
wages/salaries) is the consequence of the reinstatement
aspect of the decision of the Labor Arbiter referred in
paragraph 3, Article 229 [223] of the Labor Code. This
means that a dismissed employee whose case was
favorably decided by the Labor Arbiter is entitled to
receive wages pending appeal upon reinstatement,
which is immediately executory. In other words, it refers
to the wages or salaries which automatically accrued to
a dismissed employee from the notice of the Labor
Arbiter’s order of reinstatement until its ultimate reversal
by the higher court, which could be the NLRC, the Court
of Appeals or the Supreme Court. The entitlement to
accrued wages/salaries (reinstatement wages/salaries )
of a dismissed employee was discussed in the cases of
Roquero v. Philippine Airlines, G.R. No. 152329, 449 Phil.
437 (2003), Garcia v. Philippine Airlines, G.R. No.
164856, January 20, 2009, 576 SCRA 479, Islriz Trading
v. Capada, G.R. No. 168501, January 31, 2011, Pfizer
Inc. v. Velasco, G.R. No. 177467, March 9, 2011 and
Wenphil Corporation v. Abing, G.R. No. 207983, April 7,
2014.
In resolving the rule on entitlement to accrued wages
between the period where the Labor Arbiter’s order of
reinstatement is pending appeal and the NLRC
Resolution overturning that of the Labor Arbiter, the
case of Garcia v. Philippine Airlines, Inc., G.R. No.
164856, January 20, 2009, 576 SCRA 479, is in point.
The Supreme Court examined its conflicting rulings with
respect to the application of paragraph 3 of Article 223
of the Labor Code, viz:
The core of the seeming divergence is the application of
paragraph 3 of Article 223 of the Labor Code which
reads:
‘In any event, the decision of the Labor Arbiter
reinstating a dismissed or separated employee, insofar
as the reinstatement aspect is concerned, shall
immediately be executory, pending appeal. The
employee shall either be admitted back to work under
the same terms and conditions prevailing prior to his
dismissal or separation or, at the option of the employer,
merely reinstated in the payroll. The posting of a bond
by the employer shall not stay the execution for
reinstatement provided herein.’
The view as maintained in a number of cases is that:
‘x x x [E]ven if the order of reinstatement of the Labor
Arbiter is reversed on appeal, it is obligatory on the part
of the employer to reinstate and pay the wages of the
dismissed employee during the period of appeal until
reversal by the higher court. On the other hand, if the
employee has been reinstated during the appeal period
and such reinstatement order is reversed with finality,
the employee is not required to reimburse whatever
salary he received for he is entitled to such, more so if
he actually rendered services during the period.
In other words, a dismissed employee whose case was
favorably decided by the Labor Arbiter is entitled to
receive wages pending appeal upon reinstatement,
which is immediately executory. Unless there is a
restraining order, it is ministerial upon the Labor Arbiter
to implement the order of reinstatement and it is
mandatory on the employer to comply therewith.
NOTE: The foregoing answer can be found in pages
143-145 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018. Question involving the
same subject matter was given during the 2009 Bar
Examination.
XIV
Nelson complained before the DOLE Regional Office
about Needy Corporation's failure to pay his wage
increase amounting to PhP5,000.00 as mandated in a
Wage Order issued by the Regional Tripartite Wages and
Productivity Board. Consequently, Nelson-asked the
DOLE to immediately issue an Order sustaining his
money claim. To his surprise, he received a notice from
the DOLE to appear before the Regional Director for
purposes of conciliating the dispute between him and
Needy Corporation. When conciliation before the
Regional Director the latter proceeded to direct both
parties to submit their respective position papers in
relation to the dispute. Needy Corporation argued, that
since Nelson was willing to settle for 75% of his money
claim during conciliation proceedings, only a maximum
of 75% of the said money claim may be awarded to him.
(a) Was DOLE’s action to conduct mandatory
conciliation in light of Nelson’s complaint valid?
(2.5%)
SUGGESTED ANSWER:
Yes, the DOLE’s action to conduct mandatory conciliation
is valid. This is mandated by Article 234 of the Labor
Code, except as provided in Title VII-A, Book V of this
Code, as amended, or as may be excepted by the
Secretary of Labor and Employment, all issues arising
from labor and employment shall be subject to
mandatory conciliation-mediation.
NOTE: The foregoing answer can be found in pages
193-195 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018. This was the first time
that a question of this nature was asked in the Bar
Examinations.
(b) Should the Regional Director sustain Needy
Corporation’s argument? (2.5%)
SUGGESTED ANSWER:
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2018 Q and A BAR EXAMINATIONS IN LABOR LAW
The Regional Director should not sustain Needy
Corporation’s argument. This is because under Article
239 of the Labor Cod, information and statements made
at conciliation proceedings shall be treated as privileged
communication and shall not be used as evidence in the
Commission. Conciliators and similar officials shall not
testify in any court or body regarding any matters taken
up at conciliation proceedings conducted by them. Thus,
Needy Corporation cannot raise the argument that
Nelson was willing to settle for 75% of his money claim
during conciliation proceedings.
NOTE: The foregoing answer can be found in pages 239
of the book entitled Principles and Cases Labor
Relations, Second Edition 2018. Question involving the
same subject matter was given during the 2007 Bar
Examination.
XV
Nexturn Corporation employed Nini and Nono, whose
tasks involved directing and supervising rank-and-file
employees engaged in company operations. Nini and
Nono are required to ensure that such employees obey
company rules and regulations, and recommend to the
company's Human Resources Department any required
disciplinary action against erring employees. In Nexturn
Corporation, there are independent unions, representing
rank- and-file and supervisory employees, respectively.
a) May Nini and Nono join a union? (2.5%)
SUGGESTED ANSWER:
Yes, Nini and Nono can join a union. This is clearly
allowed under Article 255 of the Labor Code which
provides in substance that supervisory employees may
join, assist or form separate collective bargaining units
and/or legitimate labor organizations of their own.
NOTE: The foregoing answer can be found in page 264
of the book entitled Principles and Cases Labor
Relations, Second Edition 2018. Question involving the
same subject matter was given during the 2017, 2010,
2004 and 1994 Bar Examinations.
b) May the two unions be affiliated with the same
Union Federation? (2.5%)  silent on the terms and conditions of employment in
SUGGESTED ANSWER:
Yes, the two unions can be affiliated with the same
Union Federation. This is clearly allowed under Article
255 of the Labor Code which provides in substance that
the rank-and-file union and the supervisors’ union
operating within the same establishment may join the
same federation or national union.
NOTE: The foregoing answer can be found in page 264
of the book entitled Principles and Cases Labor
Relations, Second Edition 2018. Question involving the
same subject matter was given during the 2017, 2010,
2004 and 1994 Bar Examinations.
XVI
Nagrab Union and Nagrab Corporation have an existing
CBA which contains the following provision:
“New_employees within the coverage of the bargaining
unit who may be regularly employed shall become
members of Nagrab Union. Membership in good
standing with the Nagrab Union is a requirement for
continued employment with Nagrab Corporation.”
Nagrab Corporation subsequently acquired all the assets
and rights of Nuber Corporation and absorbed all of the
latter’s employees. Nagrab Union immediately
demanded enforcement of the above-stated CBA
provision with respect to the absorbed employees.
Nagrab Corporation refused on the ground that this
should not apply fo the absorbed employees who were
former employees of another corporation whose assets
and rights it had acquired.
(a) Was Nagrab Corporation correct in refusing to
enforce the CBA 4 provision with respect to the
absorbed employees? (2.5%)
SUGGESTED ANSWER:
Nagrab Corporation was not correct in refusing to
enforce the CBA provision with respect to the absorbed
employees. This is because it cannot invoke its merger
with another corporation as a valid ground to exempt its
absorbed employees from the coverage of a union shop
clause contained in its existing Collective Bargaining
Agreement (CBA) with its own certified labor union. In
BANK OF THE PHILIPPINE ISLANDS V. BPI EMPLOYEES
UNION-DAVAO CHAPTER-FEDERATION OF UNIONS IN
BPI UNIBANK, G.R. No. 164301, August 10, 2010, the
High Court resolved the question in this manner: At the
outset, we should call to mind the spirit and the letter of
the Labor Code provisions on union security clauses,
specifically Article 248 (e), which states, x 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
corporations or juridical entities.
NOTE: The foregoing answer can be found in page 305-
308 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018. Question involving the
same subject matter was given during the 2011 Bar
Examination.
(b) May a newly-regularized employee of Nagrab
Corporation (who is not-part of the absorbed
employees) refuse to join Nagrab Union? How
would you advise the human resources manager
of Nagrab Corporation to proceed? (2.5%)
SUGGESTED ANSWER:
The newly-regularized employee of Nagrab Corporation
(who is not-part of the absorbed employees) cannot
refuse to join Nagrab Union in view of the union security
clause provision of the CBA. While the right to join
includes the right not to join, however, the exception is
the UNION SECURITY CLAUSE where it imposes upon
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2018 Q and A BAR EXAMINATIONS IN LABOR LAW
employees the obligation to acquire or retain union
membership as a condition affecting employment. Thus,
I will advise the human resources manager of Nagrab
Corporation to comply with the provision of the CAB
stating that : “New_employees within the coverage of
the bargaining unit who may be regularly employed shall
become members of Nagrab Union.
NOTE: The foregoing answer can be found in page 299,
303-308 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018. Questions involving the
same subject matter were given during the 2005, 2011
and 1997 Bar Examinations.
XVII
Upon compliance with the legal requirements on the
conduct of a strike, Navarra Union staged a strike
against Newfound Corporation on account of a collective
bargaining deadlock. During the strike, some members
of Navarra Union broke the windows and punctured the
tires of the company-owned buses. he Secretary of
Labor and Employment assumed jurisdiction over the
dispute.
(a) Should all striking employees be admitted
back to work upon the assumption of jurisdiction
by the Secretary of Labor and Employment? Will
these include striking employees who damaged
company properties? (2.5%)
SUGGESTED ANSWER:
All striking employees be admitted back to work and
including striking employees who damaged company
properties. The effect of assumption of jurisdiction of
the Secretary of Labor is clear under Article 278 (g)
which provides in substance that such assumption shall
have the effect of automatically enjoining the intended
or impending strike or lockout as specified in the
assumption or certification order. If one has already
taken place at the time of assumption or certification, all
striking or locked out employees shall immediately
return-to-work and the employer shall immediately
resume operations and readmit all workers under the
same terms and conditions prevailing before the strike
or lockout.
NOTE: The foregoing answer can be found in page 478
of the book entitled Principles and Cases Labor
Relations, Second Edition 2018. Questions involving the
same subject matter were given during the 2003 and
1997 Bar Examinations.
(b) May the company, readmit strikers only by
restoring them to the payroll? 5%)
SUGGESTED ANSWER:
The company may not readmit strikers by restoring
them to the payroll. The phrase “under the same terms
and conditions” found in Article 278 (g) [263 (g)] of the
Labor Code was interpreted by the Supreme Court in the
case of the University of Immaculate Concepcion, Inc. v.
Secretary of Labor, G.R. No. 151379, January 14, 2005
as follows:
With respect to the Secretary’s Order allowing payroll
reinstatement instead of actual reinstatement for the
individual respondents herein, an amendment to the
previous Orders issued by her office, the same is usually
not allowed. Article 263(g) of the Labor Code
aforementioned states that all workers must immediately
return to work and all employers must readmit all of
them under the same terms and conditions prevailing
before the strike or lockout. The phrase “under the same
terms and conditions” makes it clear that the norm is
actual reinstatement. This is consistent with the idea
that any work stoppage or slowdown in that particular
industry can be detrimental to the national interest.
Clearly, reinstatement should be actual and not payroll
reinstatement.
NOTE: The foregoing answer can be found in page 496
of the book entitled Principles and Cases Labor
Relations, Second Edition 2018. This is the first time that
a question of this nature was asked in the Bar
Examinations.
XVIII
Nestor and Nadine have been living in for the last 10
years without the benefit of marriage. Their union has
produced four children. Nadine was three months
pregnant with her 5th child when Nestor left her for
another woman. When Nadine was eight months
pregnant with her 5th child, she applied for maternity
leave benefits. Her employer refused on the ground that
this was already her 5" pregnancy and that she was only
living in with the father of her child, who is now in a
relationship with another woman. When Nadine gave
birth, Nestor applied for paternity leave benefits. His
employer also denied the application on the same
grounds that Nadine’s employer denied her application.
(a) Can Nadine’s employer legally deny her claim
for maternity benefits? (2.5%)
SUGGESTED ANSWER:
Yes, Nadine’s employer can legally deny her claim for
maternity benefits. This is because the maternity
benefits shall be paid only for the first four (4) deliveries
or miscarriages. (See Section 14-A, RA 8282) In this
case, the said pregnancy was the 5th child of Nadine.
Thus, she already exhausted the limitations for
entitlement to maternity benefits under the law.
NOTE: The foregoing answer can be found in page 474
of the book entitled Principles and Cases Labor
Standards and Social Legislation, Second Edition 2018,
by Atty. Voltaire T. Duano. Questions involving this
subject matter were given during the 2015, 2012, 2010,
2005 and 2000 Bar Examinations.
(b) Can Nestor’s employer legally deny his claim
for paternity benefits? (2.5%)
SUGGESTED ANSWER:
Nestor’s employer can legally deny his claim for
paternity benefits for his failure to comply with the
conditions for entitlement to paternity benefits.
Under the law, a married male employee shall be
entitled to paternity benefits provided that: 
a. he is an employee at the time of delivery of his child; 
b. he is cohabiting with his spouse at the time she gives
birth or suffers a miscarriage. 
c. he has applied for paternity leave in accordance with
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2018 Q and A BAR EXAMINATIONS IN LABOR LAW
Section 4 hereof; and  the right should not be confused with the manner in
d. his wife has given birth or suffered a miscarriage.
(Section 3, Revised Implementing Rules and Regulations
of Republic Act No. 8187 for the Private Sector)
In this case, Nadine is not Nestor’s lawful wife to whom
he is cohabiting.
NOTE: The foregoing answer can be found in pages
470-471 of the book entitled Principles and Cases Labor
Standards and Social Legislation, Second Edition 2018,
by Atty. Voltaire T. Duano. Questions involving this
subject matter were given during the 2013, 2012, 2011,
2005 and 2002 Bar Examinations.
XIX
Northeast Airlines sent notices to transfer without
diminution in salary or rank, to 50 ground crew
personnel who were front-liners at Northeast Airlines
counters at the Ninoy Aquino International Airport
(NAIA). The 50 employees were informed that they
would be distributed to various airports in Mindanao to
anticipate robust passenger volume growth in the area.
Northeast Union representing rank-and-file employees,
filed unfair labor practice and illegal dismissal cases
before the NLRC, citing, among others, the
inconvenience of the 50 concerned employees and union
discrimination, as 8 of the 50 concerned round crew
personnel were union officers. Also, the Union argued
that Northeast Airlines could easily hire additional
employees from Mindanao to boost ground operations in
the Mindanao airports.
a) Will the transfer of the 50 ground crew
personnel amount to Illegal dismissal (5%)
SUGGESTED ANSWER:
The transfer of the 50 ground crew personnel does not
amount to Illegal dismissal. This is because their transfer
is a valid exercise of management prerogatives.
In Gemina, Jr. v. Bankwise, Inc. (Thrift Bank) G.R. No.
175365, October 23, 2013, it was held: The employer’s
right to conduct the affairs of its business, according to
its own discretion and judgment, is well-recognized. An
employer has a free reign and enjoys wide latitude of
discretion to regulate all aspects of employment and the
only criterion to guide the exercise of its management
prerogative is that the policies, rules and regulations on
work-related activities of the employees must always be
fair and reasonable. (The Coca-Cola Export Corporation
v. Gacayan, G.R. No. 149433, December 15, 2010, 638
SCRA 377, 398-399)
According to Endico v. Quantum Foods Distribution
Center, G.R. 161615, January 30,2009, “Managerial
prerogatives, however, are subject to limitations
provided by law, collective bargaining agreements, and
general principles of fair play and justice. The test for
determining the validity of the transfer of employees
was explained in the case of Blue Dairy Corporation v.
NLRC, G.R. No. 129843, 14 September 1999, 314 SCRA
401, 408-409 the Supreme Court explained the test for
determining the validity of the transfer of employees, as
follows:
But, like other rights, there are limits thereto. The
managerial prerogative to transfer personnel must be
exercised without grave abuse of discretion, bearing in
mind the basic elements of justice and fair play. Having
which that right is exercised. Thus, it cannot be used as
a subterfuge by the employer to rid himself of an
undesirable worker. In particular, the employer must be
able to show that the transfer is not unreasonable,
inconvenient or prejudicial to the employee; nor does it
involve a demotion in rank or a diminution of his
salaries, privileges and other benefits.
As their employer, Northeast Airlines has the right to
regulate, according to its discretion and best judgment,
work assignments, work methods, work supervision, and
work regulations, including the hiring, firing and
discipline of its employees. The Supreme Court upholds
these management prerogatives so long as they are
exercised in good faith for the advancement of the
employer’s interest and not for the purpose of defeating
or circumventing the rights of the employees under
special laws and valid agreements. (Challenge Socks
Corporation v. Court of Appeals, G.R. No. 165268,
November 8, 2005, 474 SCRA 356, 362-363)
In this case it does not show that Northeast Airlines
implemented the transfer for the purpose of defeating or
circumventing the rights of the said 50 ground crew
personnel.
NOTE: The foregoing answer can be found in pages 31-
32 of the book entitled Principles and Cases Labor
Standards and Social Legislation, Second Edition 2018,
by Atty. Voltaire T. Duano, and in pages 789-790of the
book entitled Principles and Cases Labor Relations,
Second Edition 2018, by Atty. Voltaire T. Duano.
Questions involving management prerogatives were
given during the 2000, 2001 and 1994 Bar Examinations.
b) Will the unfair labor practice case prosper?
(2.5%)
SUGGESTED ANSWER:
The unfair labor practice case will not prosper. This is
because the act did not constitute an act of interfering,
restraining or coercing the said employees in the
exercise of their right to self-organization under Article
259 [a] of the Labor Code.
In T & T Shoplifters Corporation/Gin Queen Corporation
v. T&T Shoplifters Corporation/Gin Queen Corporation
Workers Union, G.R. No. 191714, February 26, 2014
citing the case of Insular Life Assurance Co., Ltd.
Employees Association – NATU v. Insular Life Assurance
Co., Ltd., (147 Phil. 194 [1971]) the Supreme Court had
occasion to lay down the test of whether an employer
has interfered with and coerced employees in the
exercise of their right to self-organization, that is,
whether the employer has engaged in conduct which, it
may reasonably be said, tends to interfere with the free
exercise of employees’ rights; and that it is not
necessary that there be direct evidence that any
employee was in fact intimidated or coerced by
statements of threats of the employer if there is a
reasonable inference that anti-union conduct of the
employer does have an adverse effect on self-
organization and collective bargaining.
In the given facts, it does not show that the act of
Northern Airlines in sending notices of transfer relates to
the commission of acts that transgress their right to
organize or it was made to interfere, restrain or coerce
them with the exercise of their right to self-organization.
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2018 Q and A BAR EXAMINATIONS IN LABOR LAW

b) Assume the NLRC ruled in favor of the Union. The

NOTE: The foregoing answer can be found in page 282-
284 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018.
XX
In Northern Lights Corporation, union members Nad,
Ned and Nod sought permission from the company to
distribute flyers with respect to a weekend union
activity. The company HR manager granted the request
through a text message sent to another union member,
Norlyn. While Nad, Ned, and Nod re distributing the
flyers at the company assembly plant, a Company
supervisor barged in and demanded that they cease
from distributing the flyers, stating that the assembly
line employees were trying to beat a production deadline
and were thoroughly distracted. Norlyn tried to show the
HR manager's text message authorizing flyer distribution
during work hours, but the supervisor brushed it aside.
As a result, Nad, Ned, and Nod were suspended for
violating company rules on trespass and highly-limited
union activities during work hours. The Union filed an
unfair labor practice (ULP) case before the NLRC for
union discrimination.
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.

a) Will the ULP case filed by the Union prosper?

(2.5%)

SUGGESTED ANSWER:
The ULP case filed by the Union will not prosper. This is
because the act did not constitute an act of interfering,
restraining or coercing the said employees in the
exercise of their right to self-organization under Article
259 [a] of the Labor Code.
In T & T Shoplifters Corporation/Gin Queen Corporation
v. T&T Shoplifters Corporation/Gin Queen Corporation
Workers Union, G.R. No. 191714, February 26, 2014
citing the case of Insular Life Assurance Co., Ltd.
Employees Association – NATU v. Insular Life Assurance
Co., Ltd., (147 Phil. 194 [1971]) the Supreme Court had
occasion to lay down the test of whether an employer
has interfered with and coerced employees in the
exercise of their right to self-organization, that is,
whether the employer has engaged in conduct which, it
may reasonably be said, tends to interfere with the free
exercise of employees’ rights; and that it is not
necessary that there be direct evidence that any
employee was in fact intimidated or coerced by
statements of threats of the employer if there is a
reasonable inference that anti-union conduct of the
employer does have an adverse effect on self-
organization and collective bargaining.
In the given facts, it does not show that the act of the
company supervisor in barging in and demanding for
Nad, Ned, and Nod to cease from distributing the flyers
relates to the commission of acts that transgress their
right to organize or it was made to interfere, restrain or
coerce them with the exercise of their right to self-
organization.

NOTE: The foregoing answer can be found in page 282-

284 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018. . Questions involving the
same subject matter were given during the 2004 Bar
Examinations.

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