labor law bar exams

TRUE OR FALSE. Explain your answer briefly.

1. Deeds of release, waivers and quitclaims are always valid and binding. (2%)

2. The relations between employer and employee are purely contractual in nature. (2%)

3. As a general rule, direct hiring of Overseas Filipino Workers(OFWs) is not allowed. (2%)

1. False. Deeds of release, waivers and quitclaims may be contrary to law depending on the attendant circumstances.

2. False. It is imbued with public interest and is constitutionally and statutorily protected.

A. Distinguish the terms “conciliation,” “mediation” and“arbitration.” (3%)

B. Differentiate “surface bargaining” from “blue-sky bargaining.” (2%)

xxx...CONCILIATION – is a process wherein a disinterested third party cools tempers and aid the disputing parties in reaching an agreement

MEDIATION – is a process wherein a disinterested party gives suggestion to the disputing parties so that they may come to an agreement.

ARBITRATION - a process wherein the parties submit their case to a third party who shall adjudicate based on the evidence submitted to him. The decision in arbitration shall be final and binding upon the parties...xxx

SURFACE BARGAINING - it is a term used by the NLRC if it finds that an employer has failed to bargain in good faith with a union. The employer in this case will go through the motions of negotiating without any legal intent to reach an agreement.

BLUE SKY BARGAINING - bargaining whereby the parties make exaggerated or unreasonable proposals in the cba. (e.g., union asked for salaries to be quadrupled and for each employee to have 6 months vacation a year; or if management requires everyone to work 20 hours, 7 days a week, live at the plant, etc.)

A, single, has been an active member of the Social Security System for the past 20 months. She became pregnant out of wedlock and on her 7th month of pregnancy, she was informed that she would have to deliver the baby through caesarean section because of some complications. Can A claim maternity benefits?If yes, how many days can she go on maternity leave? If not, why is she not entitled? (3%)

Ans. Yes, she is entitled; provided that she must have paid at least 3 monthly contributions in the 12-month period immediately proceeding the semester of her childbirth in order to be entitled to a maternity benefit equivalent to 100% of her average salary credit for 6she 0 days or 78 days in case of caesarean.

Provided further, that she has given the required notification of her pregnancy through her employer if employed, or to the SSS if separated, voluntary or self-employed member.

A, a worker at ABC Company, was on leave with pay on March 31, 2010. He reported for work on April 1 and 2, Maundy Thursday and Good Friday, respectively, both regular holidays. Is A entitled to holiday pay for the two successive holidays? Explain. (3%)

Yes. The implementing rules on successive holiday pay as promulgated by DOLE expressly provides that when an employee is on leave with pay on the day prior to the successive holidays, the employee shall be entitled to a pay on the succeeding holidays.

Thus, A is entitled to the pay of the two succeeding holidays.

Company XYZ has two recognized labor unions, one for its rank-and-file employees (RFLU), and one for supervisory employees (SELU). Of late, the company instituted a restructuring program by virtue of which A, a rank-and-file employee and officer of RFLU, was promoted to a supervisory position along with four (4) other colleagues, also active union members and/or officers. Labor Union KMJ, a rival labor unionseeking recognition as the rank-and-file bargaining agent, filed a petition for the cancellation of the registration of RFLU on the ground that A and her colleagues have remained to be members of RFLU. Is the petition meritorious? Explain. (3%)

The petition has no merit. The latest amendment to the Labor Code brought about by R.A. 9481 has reduced the grounds for cancellation of union registration to 3, which do not include the one cited by KMJ. In addition, the same amendment now automatically excludes all ineligible employees from the membership list of a union. In other words, A and his 4 colleagues need not even renounce their RFLU membership because the law had already done so upon their promotion.

A is a member of the labor union duly recognized as the sole bargaining representative of his company. Due to a bargaining deadlock, 245 members of the 500-strong union voted on March 13, 2010 to stage a strike. A notice of strike was submitted to the National Conciliation and Mediation Board on March 16, 2010. Seven days later or on March 23, 2010, the workers staged a strike in the course of which A had to leave and go to the hospital where his wife had just delivered a baby. The union members later intimidated and barred other employees from entering the work premises, thus paralyzing the business operations of the company.A was dismissed from employment as a consequence of the strike.

A. Was the strike legal? Explain. (3%)B. Was A’s dismissal valid? Why or why not? (3%)

A. The strike is illegal. For strikes based on bargaining deadlock, the Labor Code requires observance of a 30-day cooling-off period, which was not followed here. The Supreme Court has consistently held that observance of the 15/30 cooling-off and 7-day hiatus before strike are all mandatory periods. Ergo, non-observance, as in this case, makes the strike illegal.

B. No, A's dismissal was not valid. A is an ordinary union member and, under the Labor Code, only those who actually participate in unlawful or prohibited acts are deemed to have lost their employment status. The facts clearly state that A was in the hospital when the prohibited acts were committed by the strikers.

A was an able seaman contracted by ABC Recruitment Agency for its foreign principal, Seaworthy Shipping Company (SSC). His employment contract provided that he would serve on board the Almieda II for eight (8) months with a monthly salary of US$450. In connection with his employment, he signed an undertaking to observe the drug and alcohol policy which bans possession or use of all alcoholic beverages, prohibited substances and un-prescribed drugs on board the ship.The undertaking provided that: (1) disciplinary action including dismissal would be taken against anyone in possession of the prohibited substances or who is impaired by the use of any of these substances, and (2) to enforce the policy, random test sampling would be done on all those on board the ship.

On his third month of service while the Almieda II was docked at a foreign port, a random drug test was conducted on all members of the crew and A tested positive for marijuana. He was given a copy of the drug test result. In compliance with the company’s directive, he submitted his written explanation which the company did not find satisfactory. A month later, he was repatriated to the Philippines.

Upon arrival in the Philippines, A filed with the National Labor Relations Commission (NLRC) a complaint against the agency and the principal for illegal dismissal with a claim for salaries for the unexpired portion of his contract.

A. Was A’s dismissal valid? Explain. (3%)

B. Is his claim for salaries for the unexpired portion of his contract tenable? Explain. (3%)

A. A’s dismissal was valid.

The routine test administered to the crew is considered a valid exercise of management prerogative in order to enforce the drug and alcohol policy of SSC. Since A had voluntary agree also to such policy, he is, therefore, bound by the same. Consequently, his failure to comply thereof constitutes serious misconduct which is a just cause for termination under the law.

B. No. His claim is untenable because only those seafarers whose dismissal is considered invalid can claim their salaries for the unexpired portion of his contract.

ABC company and U labor union have been negotiating for a new Collective Bargaining Agreement (CBA) but failed to agree on certain economic provisions of the existing agreement. In the meantime, the existing CBA expired. The company thereafter refused to pay the employees their midyear bonus, saying that the CBA which provided for the grant of midyear bonus to all company employees had already expired. Are the employees entitled to be paid their midyear bonus? Explain your answer. (3%)

Yes, the employees are entitled to receive the bonus. The duty to bargain includes the duty to respect an existing CBA and maintain the status quo until a new one is negotiated. This is the so-called Automatic

Renewal rule expressed in Art. 253 and implied in Art. 253-A. Thus, ABC is obliged to continue to give the mid-year bonus.

A was working as a medical representative of RX pharmaceutical company when he met and fell in love with B, a marketing strategist for Delta Drug Company, a competitor of RX. On several occasions, the management of RX called A’s attention to the stipulation in his employment contract that requires him to disclose any relationship by consanguinity or affinity with co- employees or employees of competing companies in light of a possible conflict of interest. A seeks your advice on the validity of the company policy. What would be your advice? (3%)

I will advise A to disclose his relationship with B. The Supreme Court has already settled this issue in the Duncan Case when it upheld as reasonable a company policy prohibiting employees from marrying anyone working for a competing firm. According to the Court, a reasonable business interest is sufficient to justify dismissal pursuant to such policies. If termination could even be upheld on this ground, with more reason for a policy that simply requires disclosure of relationships that present conflict of interest.

A, an employee of XYZ Cooperative, owns 500 shares in the cooperative. He has been asked to join the XYZ Cooperative Employees Association. He seeks your advice on whether he can join the association. What advice will you give him? (3%)

He can join the association unless the purpose of which is for bargaining purpose/s. As a shareholder and part-owner of the cooperative, he cannot join a labor union. As held in one case, a cooperative member-employee cannot bargain against himself .

Because of continuing financial constraints, XYZ, Inc. gave its employees the option to voluntarily resign from the company. A was one of those who availed of the option.On October 5, 2007, he was paid separation benefits equivalent to seven (7) months pay for his six (6) years and seven (7) months of service with the company and he executed a waiver and quitclaim.

A week later, A filed against XYZ, Inc. a complaint for illegal dismissal. While he admitted that he was not forced to sign the quitclaim, he contended that he agreed to tender his voluntary resignation on the belief that XYZ, Inc. was closing down its business. XYZ, Inc., however, continued its business under a different company name, he claimed.

Rule on whether the quitclaim executed by A is valid or not. Explain. (3%)

The quit claim is valid. There was no fraudulent inducement here or anything that vitiated consent. By his own admission, A said as much -- that he was not forced to tender his resignation.

That the company continued the business under a different name is of no moment. To be sure, XYZ Inc. could fold up under stress or not and its shareholders could just as easily put up an identical company without violating any law. In both situations, the Doctrine of Piercing the Veil of Corporate Identity could not be applied because the facts do not clearly show that the successor was established to defeat public convenience, justify a wrong, or defend a crime.

Unless acts vitiating consent are clearly proven, the general rule that quit claims are valid and enforceable must be upheld.

On December 12, 2008, A signed a contract to be part of the crew of ABC Cruises, Inc. through its Philippine manning agency XYZ. Under the standard employment contract of the Philippine Overseas Employment Administration (POEA), his employment was to commence upon his actual departure from the port in the point of hire, Manila, from where he would take a flight to the USA to join the cruise ship “MS Carnegie.”However, more than three months after A secured his exit clearance from the POEA for his supposed departure on January 15, 2009, XYZ still had not deployed him for no valid reason.

Yes, A is entitled to relief. There is breach of contract here and, under the Migrant Workers and Overseas Filipinos Act as amended, A is entitled to receive the unexpired portion of his employment contract or rather, in this case, his salary for the entire contract period.

While it is true that the pro-forma contract expressly stipulates that employment relationship shall only commence after A has left Manila, this fact is immaterial. His cause of action is breach of contract, which renders moot all issues related to his employment status. Under the aforecited law, A can sue the recruitment agency, which is solidarily liable with the principal, before the appropriate regional arbitration branch of the NLRC.

A is employed by XYZ Company where XYZ Employees Union (XYZ-EU) is the recognized exclusive bargaining agent. Although A is a member of rival union XYR-MU, he receives the benefits under the CBA that XYZ-EU had negotiated with the company.

XYZ-EU assessed A a fee equivalent to the dues and other fees paid by its members but A insists that he has no obligation to pay said dues and fees because he is not a member of XYZ–EU and he has not issued an authorization to allow the collection. Explain whether his claim is meritorious. (3%)

A's claim is not meritorious.

Employees of an appropriate collective bargaining unit who are not members of the recognized collective bargaining agent may be assessed reasonable fees equivalent to the dues and other fees paid by the members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective bargaining agreement. No requirement of written authorization from the non-union employees is necessary if the non-union employees accept the benefits resulting from the CBA.

Therefore, it is clear that A is obligated to pay said fees to XYZ-EU; otherwise, he would be unjustly enriching himself by benefiting from employment conditions negotiation by XYZ-EU.///////////////

I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

[a] An employment contract prohibiting employment in a competing company within one year from

separation is valid.

[b] All confidential employees are disqualified to unionize for the purpose of collective bargaining.

[c] A runaway shop is an act constituting unfair labor practice.

[d] In the law on labor relations, the substitutionary doctrine prohibits a new collective bargaining agent from repudiating an existing collective bargaining agreement.

[e] The visitorial and enforcement powers of the DOLE Regional Director to order and enforce compliance with labor standard laws can be exercised even when the individual claim exceeds P5,000.00.

a) true..the contract is valid so as to protect the former employer's interest. furthermore the terms of the contract is reasonable, the prohibition is to a specified competing firm and not to all kinds of employment, and the period is only for one year.b) true. confidential employees are treated as similar to managerial employees because of the nature of their work, which requires the utmost trust and confidence of the employer.c)false. runaway shop will only be an of ulp if the management transferred its business to discriminate the former company's union activities or to avoid their obligation towards the employees in the old firm, otherwise, such act is valid.d) true. but the new bargaining unit may only negotiate to shorten the existing cba because they can only negotiate for a new cba during the freedom period.e)true. under the labor code, (the same lang ang explaination sa answer)

II

[a] Enumerate at least four (4) policies enshrined in Section 3, Article XIII of the Constitution that are not covered by Article 3 of the Labor Code on declaration of basic policy. (2%)

[b] Clarito, an employee of Juan, was dismissed for allegedly stealing Juan’s wristwatch. In the illegal dismissal case instituted by Clarito, the Labor Arbiter, citing Article 4 of the Labor Code, ruled in favor of Clarito upon finding Juan’s testimony doubtful. On appeal, the NLRC reversed the Labor Arbiter holding that Article 4 applies only when the doubt involves “implementation and interpretation” of the Labor Code provisions. The NLRC explained that the doubt may not necessarily be resolved in favor of labor since this case involves the application of the Rules on Evidence, not the Labor Code. Is the NLRC correct? Reasons. (3%)

The 4 policies are:

1. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. 2. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. 3. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.- Yes, the NLRC is correct, with respect to its contention that Article 4 is not applicable in this case. Instead, the provision in the Labor Code which states that Labor Arbiter shall use every and reasonable means to ascertain the facts in the case will apply.

However, the NLRC erred in reversing the decision of the Labor Arbiter since it is well-settled that in a dismissal case, it is the employer who has the burden of proving the legality of the dismissal of the employee. In this case, there is no showing that Juan was able to discharge this burden. Thus, Clarito’s dismissal, in the absence of other clear and convincing proof, is illegal.

Richie, a driver-mechanic, was recruited by Supreme Recruiters (SR) and its principal, Mideast Recruitment Agency (MRA), to work in Qatar for a period of two (2) years. However, soon after the contract was approved by POEA, MRA advised SR to forego Richie’s deployment because it had already hired another Filipino driver-mechanic, who had just completed his contract in Qatar. Aggrieved, Richie filed with the NLRC a complaint against SR and MRA for damages corresponding to his two years’ salary under the POEA-approved contract.

SR and MRA traversed Richie’s complaint, raising the following arguments:

[a] The Labor Arbiter has no jurisdiction over the case; (2%)

[b] Because Richie was not able to leave for Qatar, no employer-employee relationship was established between them; (2%) and

[c] Even assuming that they are liable, their liability would, at most, be equivalent to Richie’s salary for only six (6) months, not two years. (3%).

Rule on the validity of the foregoing arguments with reasons.A. - The Labor Arbiter has newly acquired jurisdiction over monetary claims arising out of by virtue of any

law or contract involving FILIPINO WOKRKERS FOR OVERSEAS DEPLOYMENT, including claims for actual, moral, exemplary and other forms of damages.

B. B.

- The contention is of no moment. The deployment period already commenced from the moment the contract was already approved by the POEA. In other words, SR and MRA are already solidarily bound by the deployment of Richie, in breach thereof, they become liable to Richie.

IV

Diosdado, a carpenter, was hired by Building Industries Corporation (BIC), and assigned to build a small house in Alabang. His contract of employment specifically referred to him as a “project employee,” although it did not provide any particular date of completion of the project.

Is the completion of the house a valid cause for the termination of Diosdado’s employment? If so, what are the due process requirements that the BIC must satisfy? If not, why not? (3%)The services of a project employees are co-terminus with the project and may be terminated upon the end or completion of the project for which they were hired. No prior notice of termination is required if the termination is brought about by completion of the contract or phase thereof for which the worker has been engaged. This is because completion of the work or project automatically terminates the employment. (Cioco vs. C.E. Construction Corporation, G.R. No. 156748, Sept. 8, 2004). Diosdado being a project employee whose

nature of employment was fully informed about at the time of his engagement, his employment legally ends upon completion of said project.

V

[a] Baldo was dismissed from employment for having beenabsent without leave (AWOL) for eight (8) months. It turned outthat the reason for his absence was his incarceration after he was mistaken as his neighbor’s killer. Eventually acquitted and released from jail, Baldo returned to his employer and demanded reinstatement and full backwages. Is Baldo entitled to reinstatement and backwages? Explain your answer. (3%)

[b] Domingo, a bus conductor of San Juan Transportation Company, intentionally did not issue a ticket to a female passenger, Kim, his long-time crush. As a result, Domingo was dismissed from employment for fraud or willful breach of trust. Domingo contests his dismissal, claiming that he is not a confidential employee and, therefore, cannot be dismissed from the service for breach of trust. Is Domingo correct? Reasons. (2%)

A.

- Yes, Baldo’s absence cannot be deemed as abandonment. Abandonment as a just ground for dismissal requires clear, willful, deliberate, and unjustified refusal of the employee to resume his employment. Mere absence or failure to report for work, even after notice to return, is not tantamount to abandonment.

B.

- No, he is wrong. A confidential employee is one entrusted with confidence on delicate matters, or with the custody, handling, or care and protection of the employer’s property. Here, Domingo is entrusted with the custody of the tickets.

Albert, a 40-year old employer, asked his domestic helper, Inday, to give him a private massage. When Inday refused, Albert showed her Article 141 of the Labor Code, which says that one of the duties of a domestic helper is to minister to the employer’s personal comfort and convenience.

[a] Is Inday’s refusal tenable? Explain. (3%)

[b] Distinguish briefly, but clearly, a “househelper” from a “homeworker.” (2%)Yes, the term personal comfort in the provision means those which are usually necessary or desirable for the maintenance and enjoyment of the employer’s home. Giving an employer’s a massage is not considered necessary for the maintenance and enjoyment of thereof.

VII

Johnny is the duly elected President and principal union organizer of the Nagkakaisang Manggagawa ng Manila Restaurant (NMMR), a legitimate labor organization. He was unceremoniously dismissed by management for spending virtually 95% of his working hours in union activities. On the same day Johnny received the notice of termination, the labor union went on strike.

Management filed an action to declare the strike illegal, contending that:

[a] The union did not observe the “cooling-off period” mandated by the Labor Code; (2%) and

[b] The union went on strike without complying with the strike-vote requirement under the Labor Code. (2%)

Rule on the foregoing contentions with reasons.

[c] The Labor Arbiter found management guilty of unfair labor practice for the unlawful dismissal of Johnny. The decision became final. Thereafter, the NMMR filed a criminal case against the Manager of Manila Restaurant. Would the Labor Arbiter’s finding be sufficient to secure the Manager’s conviction? Why or why not? (2%)The company's contention would be correct. the requirement of cooling-off period is required before a strike to be held. There is no union busting in this case because only the elected president was terminated and the termination did not affect other elected members of the union. there is no union busting as the existence of the union is not threatened. Therefore, the requirement of notice and consent to strike vote and cooling period should be followed by the union to have a valid strike.c.) Decision of the labor arbiter in unlawful dismissal cases is a condition precedent for the filing of ULP in the regular courts. However, the deicision of the arbiter is not sufficient to convict the manager because it requires proof beyond reasonable doubt. In labor cases, substantial evidence is sufficient.

VIII

Alexander, a security guard of Jaguar Security Agency (JSA), could not be given any assignment because no client would accept him. He had a face only a mother could love. After six (6) months of being on “floating” status, Alexander sued JSA for constructive dismissal. The Labor Arbiter upheld Alexander’s claim of constructive dismissal and ordered JSA to immediately reinstate Alexander. JSA appealed the decision to the NLRC. Alexander sought immediate enforcement of the reinstatement order while the appeal was pending.

JSA hires you as lawyer, and seeks your advice on the following:

[a] Because JSA has no client who would accept Alexander, can it still be compelled to reinstate him pending appeal even if it has posted an appeal bond? (2%)

[b] Can the order of reinstatement be immediately enforced in the absence of a motion for the issuance of a writ of execution? (2%)

[c] If the order of reinstatement is being enforced, what should JSA do in order to prevent reinstatement? (2%)

Explain your answers.a. No. It would be grossly arbitrary in this case to require JSA to reinstate Alexander in view of the fact

that no client wold ever accept him. Principle of non-oppression between management and labor applies in this case.

b. No. An order of reinstatement is not self-executing. Thus, it needs to be carried out by the issuance of a writ of execution in order for it to become effective and enforceable.

c. JSA, in this case, may opt to incorporate Alexander into its payroll if it finds that reinstatement to work at conditions prevailing prior to his dismissal is not feasible. This is one of the options granted to an employer.

IX

[a] What is wage distortion? Can a labor union invoke wage distortion as a valid ground to go on strike? Explain. (2%)

[b] What procedural remedies are open to workers who seek correction of wage distortion? (2%)Ans. a.) "Wage distortion" is a situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of service, or other logical bases of differentiation. Under Republic Act No. 6727 otherwise known as the Wage Rationalization Act, a strike is illegal if based on alleged salary distortion. The legislative intent that solution to the problem of wage distortions shall be sought by voluntary negotiation or arbitration, and not by strikes, lockouts or other concerted activities of the employees or management, is made clear in the rules implementing Republic Act No. 6727 issued by the Secretary of Labor and Employment pursuant to the authority granted by Section 13 of the said law.

b.) Under Article 124 of the LC, any dispute arising from wage distortion shall be resolved thru the grievance procedure under the CBA and if it remains unresolved, thru voluntary arbitration. Unless otherwise agreed by the parties in writing, such dispute shall be decided by voluntary arbitrators within 10 calendar days from the time said dispute was referred to voluntary arbitration. In cases, where there are no CBA or organized labor unions, the employers and workers shall endeavor to correct such distortions. Any dispute arising therefrom shall be settled thru NCMB and, if it remains unresolved after 10 calendar days of conciliation, it shall be referred to the appropriate branch of NLRC.

X

[a] State briefly the compulsory coverage of the Government Service Insurance Act. (2%)

[b] Can a member of a cooperative be deemed an employee for purposes of compulsory coverage under the Social Security Act? Explain. (2%)

a.) Membership in the GSIS shall be compulsory for all employees receiving compensation who have not reached the compulsory retirement age, irrespective of employment status, except members of the Armed Forces and Phil. National Police, subject to the condition that they must settle first their financial obligation with GSIS, and contractuals who have no employer and employee relationship with the agency they serve.

b.) No, member of the cooperative is not deemed an employee for purposes of compulsory coverage under SSS. Cooperative organized under RA 6938, otherwise known as "The Cooperative COde of the Phils" are composed of members. Consequently, members thereof are not considered employees and outside the compulsory coverage of SSS.

PART II

XI

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

[a] Seafarers who have worked for twenty (20) years on board the same vessel are regular employees.

[b] Employment of children below fifteen (15) years of age in any public or private establishment is absolutely prohibited.

[c] Government employees have the right to organize and join concerted mass actions without incurring administrative liability.

[d] A waiver of the right to claim overtime pay is contrary to law.

[e] Agency fees cannot be collected from a non-union member in the absence of a written authorization signed by the worker concerned.- False, seafarers are considered contractual employees and cannot be considered as regular employees under the Labor Code. Their employment is governed by the contracts they sign every time they are rehired and their employment is terminated when the contract expires.- False, As a rule children below fifteen (15) years of age cannot be employed except: (1) When a child works directly under the sole responsibility of his parents or legal guardian and where only members of the employer's family are employed or (2) When a child's employment or participation in public & entertainment or information through cinema, theater, radio or television is essentialFalse. Government employees are prohibited from striking because their employment is fixed by law. Any violation thereof, will be a ground for administrative liability under Civil Service Law.

False, Where it is shown that the person making the waiver did so voluntarily, with full understanding of what he was doing, and the consideration for the quitclaim is credible and reasonable, the waiver must be recognized as a valid and binding undertaking.

False, No requirement of written authorization from the non-union employee is imposed. The employee's acceptance of benefits resulting from a collective bargaining agreement justifies the deduction of agency fees from his pay and the union's entitlement thereto.XII

In her State of the Nation Address, the President stressed the need to provide an investor-friendly business environment so that the country can compete in the global economy that now suffers from a crisis bordering on recession. Responding to the call, Congress passed two innovative legislative measures, namely: (1) a law abolishing the security of tenure clause in the Labor Code; and (2) a law allowing contractualization in all areas needed in the employer’s business operations. However, to soften the impact of these new measures, the law requires that all employers shall obtain mandatory unemployment insurance coverage for all their employees.

The constitutionality of the two (2) laws is challenged in court. As judge, how will you rule? (5%)

Unconstitutional.

Congress cannot alter constitutionally protected rights through a legislation as this will result to an indirect amendment of the constitution, which can only be done through a consitutional convention, constituent assembly or people's initiative.XIII

Atty. Renan, a CPA-lawyer and Managing Partner of an accounting firm, conducted the orientation seminar for newly-hired employees of the firm, among them, Miss Maganda. After the seminar, Renan requested Maganda to stay, purportedly to discuss

some work assignment. Left alone in the training room, Renan asked Maganda to go out with him for dinner and ballroom dancing. Thereafter, he persuaded her to accompany him to the mountain highway in Antipolo for sight-seeing. During all these, Renan told Maganda that most, if not all, of the lady supervisors in the firm are where they are now, in very productive and lucrative posts, because of his favorable endorsement.

[a] Did Renan commit acts of sexual harassment in a work- related or employment environment? Reasons. (3%)

[b] The lady supervisors in the firm, slighted by Renan’s revelations about them, succeeded in having him expelled from the firm. Renan then filed with the Arbitration Branch of the NLRC an illegal dismissal case with claims for damages against the firm. Will the case prosper? Reasons. (2%)hi!i'm sorry i had to use the word "accepted" in a general sense to describe the fact that there was no sexual harassment because the act/request/favor did not result in an intimidating, hostile or offensive environment.by the way, here are the elements of SH in a work-related or employment environment.

(a) In a work-related or employment environment, sexual harassment is committed when: (1) The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in a way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee;(2) The above acts would impair the employee’s rights or privileges under existing labor laws; or(3) The above acts would result in an intimidating, hostile, or offensive environment for the employee.

applying this to the facts above, it will be gleaned that the request for accompaniment was accepted in three instances. on the same occasions the attorney was hinting/implying that he has the power to influence/expedite promotion. but after all these the woman did not raise hell. borrowing from the SC:

"Yet still, by her claim, Mariquit danced on the same occasion with Go, albeit allegedly thru force, during which he pressed her close to him and moved his hand across her back to feel her body. Any woman in her right mind, whose vagina had earlier been “poked” several times without her consent and against her will, would, after liberating herself from the clutches of the person who offended her, raise hell. But Mariquit did not." digitel vs. soriano G.R. No. 166039

XIV

Jolli-Mac Restaurant Company (Jolli-Mac) owns and operates the largest food chain in the country. It engaged Matiyaga Manpower Services, Inc. (MMSI), a job contractor registered with the Department of Labor and Employment, to provide its restaurants the necessary personnel, consisting of cashiers, motorcycle delivery boys and food servers, in its operations. The Service Agreement warrants, among others, that MMSI has a paid- up capital of P2,000,000.00; that it would train and determine the qualification and fitness of all personnel to be assigned to Jolli- Mac; that it would provide these personnel with proper Jolli-Mac uniforms; and that it is exclusively responsible to these personnel for their respective salaries and all other mandatory statutory benefits.

After the contract was signed, it was revealed, based on research conducted, that MMSI had no other clients except Jolli- Mac, and one of its major owners was a member of the Board of Directors of Jolli-Mac.

[a] Is the Service Agreement between Jolli-Mac and MMSI legal and valid? Why or why not? (3%)

[b] If the cashiers, delivery boys and food servers are not paid their lawful salaries, including overtime pay, holiday pay, 13th

month pay, and service incentive leave pay, against whom may these workers file their claims? Explain. (2%)A.

-No, it is a labor-only contracting because MMSI is merely perrforming activities which are directly related to the main business of the Jolli-Mac. Further, 2,000,000 pesos is not a substantial capital to supply enough qualified and trained personnel for Jolli-Mac’s restaurants which is the largest food chain in the country.

B.

- They should file their claim against Jolli-Mac because the employer-employee relationship exists between them, and not with MMSI, which is considered by law as a mere agent of Jolli-Mac.

XV

Among the 400 regular rank-and-file workers of MNO Company, a certification election was ordered conducted by the Med-Arbiter of the Region. The contending parties obtained the following votes:

1. Union A – 70

2. Union B – 71

3. Union C – 42

4. Union D – 33

5. No union – 180

6. Spoiled votes – 4

There were no objections or challenges raised by any party on the results of the election.

[a] Can Union B be certified as the sole and exclusive collective bargaining agent among the rank-and-file workers of MNO Company considering that it garnered the highest number of votes among the contending unions? Why or why not? (3%)

[b] May the management or lawyer of MNO Company legally ask for the absolute termination of the certification election proceedings because 180 of the workers — a clear plurality of the voters — have chosen not to be represented by any union? Reasons. (3%)

[c] If you were the duly designated election officer in this case, what would you do to effectively achieve the purpose of certification election proceedings? Discuss. (3%)

a) No, Union B cannot be certified as the sole and exclusive collective bargaining agent among the rank-and-file workers of MNO Company. ART. 256 of the labor code as amended, states that The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. In the case at bar, although Union B garnered the highest number of votes among the contending unions, it did not received the majority of the valid votes casted in the election. Hence, Union B failing to receive the majority votes of the valid votes casted failed to qualify to be certified as the sole and exclusive bargaining agent of the employees, as mandated in the above mentioned provision of law.

b) No, the management or lawyer of MNO Company cannot legally ask for the absolute termination of the certification election proceedings. While it is true that 180 of the workers — a clear plurality of the voters — have chosen not to be represented by any union, the remaining votes casted in favor of the contending union in sum have clearly shown that the majority of the employees wanted to be represented by a union. Hence, to terminate the proceedings would clearly disenfranchise the employees by denying them their choice to be represented by a union.

c) As the duly designated election officer in this case, I would conduct a run-off election. Under Art 256, labor code as amended, it is stated that : When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between the labor unions receiving the two highest number of votes: Provided, that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. A run-off election is in order when these requisites concur: - there was a valid election; - that said election provides for 3 or more choices; - that none among the choices received a majority of the valid votes casted; and - that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes casted.

The facts of the case show that all the requisites are present- hence, a run-off election is in order. Therefore, as the officer-in-charge, I would call for the run-off election in consonance with Art 256, LC as amended.

XVI

The Company and Triple-X Union, the certified bargaining agent of rank-and-file employees, entered into a Collective Bargaining Agreement (CBA) effective for the period January 1, 2002 to December 31, 2007.

For the 4th and 5th years of the CBA, the significant

improvements in wages and other benefits obtained by the Union were:

1) Salary increases of P1,000 and P1,200 monthly, effective January 1, 2006 and January 1, 2007, respectively;

2) Vacation Leave and Sick Leave were adjusted from 12 days to 15 days annually for each employee;

3) Medical subsidy of P3,000 per year for the purchase of medicines and hospitalization assistance of P10,000 per year for actual hospital confinement;

4) Rice Subsidy of P600 per month, provided the employee has worked for at least 20 days within the particular month; and

5) Birthday Leave with Pay and Birthday Gift of P1,500.

As early as October 2007, the Company and the Union started negotiations to renew the CBA. Despite mutual good faith and earnest efforts, they could not agree. However, no union filed a petition for certification election during the freedom period. On March 30, 2008, no CBA had been concluded. Management learned that the Union would declare a bargaining deadlock on the next scheduled bargaining meeting.

As expected, on April 3, 2008, the Union declared a deadlock. In the afternoon of the same day, management issued a formal announcement in writing, posted on the bulletin board, that due to the CBA expiration on December 31, 2007, all fringe benefits contained therein are considered withdrawn and can no longer be implemented, effective immediately.

[a] When was the “freedom period” referred to in the foregoing narration of facts? Explain. (2%)

[b] After April 3, 2008, will a petition for certification election filed by another legitimate labor union representing the rank-and-file employees legally prosper? Reasons. (3%)

[c] Is management’s withdrawal of the fringe benefits valid? Reasons. (2%)

[d] If you were the lawyer for the union, what legal recourse or action would you advise? Reasons. (3%)[a] When was the “freedom period” referred to in the foregoing narration of facts? Explain. (2%)

- November 2007 or 60 days prior to the expiry date of the CBA, which is December 31, 2007.

[b] After April 3, 2008, will a petition for certification election filed by another legitimate labor union representing the rank-and-file employees legally prosper? Reasons. (3%)

- No, it will not prosper as it is filed outside the freedom period. Moreover, there is pending bargaining dead lock, thus, it is barred under the dead lock –bar rule.

[c] Is management’s withdrawal of the fringe benefits valid? Reasons. (2%)

- No, Under the Hold-over principle, the CBA still exist until one has been entered into. Thus, the benefits under the said CBA continues until a new CBA is created.

[d] If you were the lawyer for the union, what legal recourse or action would you advise? Reasons. (3%)

- As a lawyer, I would advised the union to hold a strike and then seek for an improved offer balloting.

XVII

Alfredo was dismissed by management for serious misconduct. He filed suit for illegal dismissal, alleging that although there may be just cause, he was not afforded due process by management prior to his termination. He demands reinstatement with full backwages.

[a] What are the twin requirements of due process which the employer must observe in terminating or dismissing an employee? Explain. (3%)

[b] Is Alfredo entitled to reinstatement and full backwages? Why or why not? (3%)a.) The employer must observe the twin due process requirements of notice and hearing. It means that

the employer should inform the employee of the nature and cause of the accusations against him and to accord him ample opportunity to rebut the claims against him by allowing him to present evidence on his behalf.

No. Although generally an illegally dismissed employee is entitled to reinstatement and full backwages the same does not apply in this case since the termination was for a just cause.

XVIII

[a] Cite four (4) instances when an illegally dismissed employee may be awarded separation pay in lieu of reinstatement. (3%)

[b] Explain the impact of the union security clause to the employees’ right to security of tenure. (2%)a) 1) If there already exists strained relationships

2) If the employee has found new employment 3) If employee refuses to be reinstated 4) If there is already a cessation of buiness

b) the Union Security Clause in a way provides or fortifies the employees' right to Security of Tenure

since automatic membership in a union would afford him protection against any employer harassment/ intimidations and threats

//////////////////

I

I

a) Explain the automatic renewal clause of collective bargaining agreements. (3%)

b) Explain the extent of workers' right to participate in policy and decision-making process as provided under Article XIII, Section 3 of the Philippine Constitution. Does it include membership in the Board of Directors of a corporation. (3%)

An automatic renewal clause, sometimes referred to as an "evergreen clause" purports to continue the terms of the contract or agreement indefinitely until the parties renegotiate and ratify a successor agreement. An automatic renewal clause is a cost item and it therefore does not bind the parties unless it has been ratified by the body.

In the absence of a binding automatic renewal clause, a CBA ends on its termination date. Once a CBA expires, while the parties continue to negotiate for a successor agreement, their obligations to one another are governed by the doctrine of maintaining the status quo. The principle of maintaining the status quo demands that all terms and conditions of employment remain the same during collective bargaining after a CBA has expired. This does not mean that the expired CBA continues in effect; rather, it means that the conditions under which the workers worked endure throughout the collective bargaining process.

The workers have the right to participate in policy and decision-making process on matters affecting their rights and benefits. This participation can be through collective bargaining, grievance machineries, voluntary modes of settling disputes, and conciliation proceedings mediated by government.

This right does not automatically include the right to membership in the Board of Directors of a corporation, insofar as Sec. 23 of the Corporation Code requires the directors to be owners of at least one share of stock in a stock corporation, and must be subsisting members in a non-stockcorporation. Cessation as stockholders or member, respectively, automatically disqualifies them as directors. Moreover, a majority of them must be Philippine residents.

(See discussion here)

II.

a) What issues or disputes may be the subject of voluntary arbitration under the Labor Code? (4%)

b) Can a dispute falling within the exclusive jurisdiction of the Labor Arbiter be submitted to voluntary arbitration? Why or why not? (3%)

c) Can a dispute falling within the jurisdiction of a voluntary arbitrator be submitted to compulsory arbitration? Why or why not? (3%)II. a)

Voluntary arbitrators of voluntary arbitration panels have original and exclusive jurisdictoin to hear and decide:

(a) all unresolved grievances, including termination cases, arising from the interpretation or implementation of the CBA, and those arising from the interpretaton or enforcement of company personnel policies submitted to the Grievance Machinery provided for the purpose in the CBA. All grievances unresolved within seven days from the date of its submission for resolution to the last step of the grievance machinery are automatically referred to voluntary arbitration;

(b) violations of a CBA, except those which are gros in character, such violations are no longer treated as unfair labor practices, but are resolved as grievances under the CBA;

(c) upon agreement of the parties, all other disputes including unfair labor practices and bargaining deadlocks.

c)

Yes, because to rule otherwise may be prejudicial, as in the case of minority employees who are not covered under the CBA or when both the union and the employer refuse to follow the grievance procedure. Another reason is that the case may not be properly cognizable by the voluntary arbitrator.

To illustrate, a religious objector or a minority union member may be affected by certain provisions of the CBA. As these employees are not union-members, they cannot avail of the normal grievance machineries provided for under the CBA since the same does not apply to them.

Another example: The parties to a CBA are the union and the company. Hence, only disputes involving the union and the company shall be referred to the grievance machinery and voluntary arbitrators (Sanyo vs. Canizares, 211 SCRA 361). Thus, if a single employee has a grievance against the company, the labor arbiter has jurisdiction.

These two instances are especially true if both the union and the employer refuse to follow the grievance procedure (Vivero vs. CA, G.R. No. 128938, Oct. 24, 2000).

b)

Yes. Although Article 217 of the Labor Code speaks of exclusive and original jurisdiction of Labor Arbiters, the cases enumerated thereto may be submitted to voluntary arbitration by agreement by the parties under Article 262. This is because the law prefers voluntary to compulsory arbitration.


III.

Savoy Department Store (SDS) adopted a policy of hiring salesladies on five-month cycles. At the end of a saleslady's five-month term, another person is hired as replacement. Salesladies attend to store customers, wear SDS uniforms, report at specified hours, and are subject to SDS workplace rules and regulations. Those who refuse the 5-month employment contract are not hired.

The day after the expiration of her 5-month engagement, Lina wore her SDS white and blue uniform and reported for work but was denied entry into the store premises. Agitated, she went on a hunger strike and stationed herself in front of one of the gates of SDS. Soon thereafter, other employees whose 5-month term had also elapsed, joined Lina's hunger strike.

a) Lina and 20 other salesladies filed a complaint for illegal dismissal, contending that they are SDS' regular employees as they performed activities usually necessary or desirable in the usual business or trade of SDS and thus, their constitutional right to security of tenure was violated when they were dismissed without valid, just or authorized cause. SDS, in defense, argued that Lina, et al. agreed - prior to engagement - to a fixed period of employment and thus waived their right to a full-term tenure. Decide the dispute. (4%)

b) The owner of the SDS considered the hunger strike staged by Lina, et al., an eyesore and disruptive of SDS' business. He wrote the Secretary of Labor a letter asking him to assume jurisdiction over the dispute and enjoin the hunger "strike". What answer will you give if you were the Secretary of Labor? (3%)

c) Assume that no fixed-term worker complained, yet in a routine inspection of a labor inspector of the Regional Office of the DOLE found the 5-month term policy of SDS violative of the Labor Code's security of tenure provisions and recommended to the Regional Director the issuance of a compliance order. The Regional Director adopted the recommendation and issued a compliance order. Is the compliance order valid? Explain your answer. (3%)

A. SDS defense must be sustained.

Lina, et al, are considered as a fixed term employee, under a fixed term employment, so long as the contract of employment was voluntarily agreed upon by the parties and the termination of employment was stated on its term, such contract is valid and shall operate as not to prejudice the security of tenure of an employee as well as their dismissal from employment.

B. As a secretary of labor, i refuse to assume jurisdiction, because there is no employer-employee relationship exist after the termination of the fixed-term employment contract.

The hunger strike should be construed as an exercise of freedom of expression by lina, et. al.

C. The compliance order is not valid being an ultra vires act by the Regional Director.

The visitorial power of labor inspector is limited only to inspect whether or not the department store poses a danger to the health and safety of their employees and not to scrutinize the employment contract.


IV.

Super Comfort Hotel employed a regular pool of "extra waiters" who are called or asked to report for duty when the Hotel's volume of business is beyond the capacity of the regularly employed waiters to undertake. Pedro has been an "extra waiter" for more than 10 years. He is also called upon to work on weekends, on holidays and when there are big affairs at the hotel.

What is Pedros' status as an employee under the Labor Code? Why? Explain your answer fully. (6%)Pedro is already considered a regular employee because his function does not fall with the category of contractual anymore because his services as that was 10 years already. If a contractual employee has been working more than the prescribed period as contractual employee without the intention of terminating his services, he is deemed a regular employee already.


V.

The Pizza Corporation (PizCorp) and Ready Supply Cooperative (RSC) entered into a "service agreement" wherein RSC, in consideration of service fees to be paid by PizCorp, will exclusively supply PizCorp with a group of RSC motorcyle-owning cooperative members who will henceforth perform PizCorp's pizza delivery service. RSC assumes --- under the agreement --- full obligation for the payment of the salaries and other statutory monetary benefits of its members deployed to PizCorp. The parties also stipulated that there shall be no employer-employee relationship between PizCorp and the RSC members. However, if PizCorp is materially prejudiced by any act of the delivery crew that violates PizCorp's directives and orders, PizCorp can directly impose disciplinary actions on, including the power to dismiss, the erring RSC member/s.

a) Is the contractual stipulation that there is no employer-employee relationship binding on labor officials? Why? Explain fully. (3%)

b) Based on the test/s for employer-employee relationship, determine the issue of who is the employer of the RSC members. (4%)

c) Assume that RSC has a paid-up capitalization of P1,000,000.00. Is RSC engaged in "labor only" contracting, permissible job contracting or simply, recruitment? (3%)1. the stipulation in the contract is not valid and binding because the existence of ee-er relation is determined not by the stipulation of the parties but by the facts and the law surrounding the case. in other words, it is the law that provides the basis of the existence of ee-er relation and not the parties.

2. pizcorp is the employer because the most important test to determine ee-er relation which is the power to control is present in the case. the fact that pizcorp can directly impose disciplinary actions upon the rsc members in case of departure of pizcorp's directives and orders reinforces even more the existence of ee-er relation.

3. assuming it has a paid up capital of 1M, pizcorp is considered engaged in permissible job contracting because it possesses substantial capital and investment in the form of tools, equipments and machineries. although the law mentions tools, equipments and machineries in order to be considered a job contractor, which fact is absent in the case, the existence of the substantial capital of 1M is more than a sufficient compliance with the requirement.


VI.

On the day that the union could validly declare a strike, the Secretary of Labor issued an order assuming jurisdiction over the dispute and enjoining the strike, or if one has commenced, ordering the striking workers to immediately return to work. The return-to-work order required the employees to return to work within twenty-four hours and was served at 8 a.m. of the day the strike was to start. The order at the same time directed the Company to accept all employees under the same terms and conditions of employment prior to the work stoppage. The Union members did not return to work on the day the Secretary's ssumption order was served, nor on the next day; instead, they held a continuing protest rally against the company's alleged unfair labor practices rally against the company's alleged unfair labor practices. Because of the accompanying picket, some of the employees who wanted to return to work failed to do so. On the 3rd day, the workers reported for work, claiming that they do so in compliance with the Secretary's return-to-work order that binds them as well as the Company. The Company, however, refused to admit them back since they have violated the Secretary's return-to-work order and are now considered to have lost their employment status.

The Union officers and members filed a complaint for illegal dismissal arguing that that there was no strike but a protest rally which is a valid exercise of the workers' constitutional right to peaceable assembly and freedom of expression. Hence, there was no basis for the termination of their employment.

You are the Labor Arbiter to whom the case was raffled. Decide, ruling on the following issues:

a) Was there a strike? (4%)

b) Were the employees simply exercising their constitutional right to petition for redress of their grievances? (3%)

c) What are the consequences, if any, of the acts of the employees? (3%)

VI.a

Yes, the refusal of the worker to return to work and their holding of continuing protest rally despite the order issued by the Secretary of Labor is in itself constitute a strike. Strike can be done in different modes; by reporting to work and not actually rendering work, by not reporting to work and conducting a protest rally or a mere act which would tend to sabotage the operation of the company. In this case, the manifest intent of staging strike is clearly shown by conducting protest rally accompanied by formation of picket line that prevents other workers who wanted to return to work.

VI.b

No, these constitutional rights do not mean to compliment the workers’ right against their employer. Employer and employee relation is governed by a distinct law on which procedures of settling disputes are clearly established. The workers right to peaceable assembly, freedom of expression and right to petition for redress of their grievances are not primarily framed to subvert any abuse, the employer may commit against its employees. The Constitution conferred these rights to all citizens for the purpose of neutralizing the acts of the different branches of the government responsible in running the affairs of the State. The workers cannot simply feign by their acquiescence making these rights as an excuse to justify their non compliance of the order of the Secretary of Labor.

VI.c

The consequence would warrant termination of their services. Once the Secretary of Labor assumes jurisdiction of the dispute, non compliance of his order constitute an undue disregard of his authority which the law provides a stiffer sanction.(See discussion here)

VII.

Tito Pacencioso is an employee of a foundry shop in Malabon, Metro Manila. He is barely able to make ends meet with his salary of P4,000.00 a month. One day, he asked his employer to stop deducting from his salary his SSS monthly contribution, reasoning out that he is waiving his social security coverage.

If you were Tito's employer, would you grant his request? Why? (6%)No. SSS monthly contributions are compulsory as per the SSS Act. As employer I may even be held liable for so granting the request.


VIII.

Carol de la Cruz is the secretary of the proprietor of an auto dealership in Quezon City. She resides in Caloocan City. Her office hours start at 8:00 a.m. and end at 5:00 p.m. On July 30, 2008, at 7 a.m. while waiting for public transport at Rizal Avenue Extension as has been her routine, she was sideswiped by a speeding taxicab resulting in her death. The father of Carol filed a claim for employee's compensation with the Social Security System. Will the claim prosper? Why? (6%)No, Carol's father cannot claim.

PD 626 (Benefits under the Employees Compensation Program) provides that death benefits is granted to the beneficiaries of employee (who must be a member of SSS)who dies as a result of illness or injury arising out of employment. When the employee on PTD status dies, his or her beneficiaries shall receive 80% of his or her monthly income benefits plus 10% for every dependent child but not exceeding five (5).

Here, the Carol (the employee) died due to an accident and not due to illness or injury arising out of employment (Permanent Total Disability). The death benefits paid to beneficiaries does not apply to her. Hence, Carol's father cannot claim death compensation.


IX.

Assume that in Problem 5, Mario, an RSC member disgusted with the non-payment of his night shift differential and overtime pay, filed a complaint with the DOLE Regional Office against RSC and PizCorp. After inspection, it was found that indeed Mario was not getting his correct differential and overtime pay and that he was not declared an SSS member (so that no premiums for SSS membership were ever remitted). On this basis, the Regional Director issued a compliance order holding PizCorp and RSC solidarily liable for the payment of the correct differential and overtime pay and ordering PizCorp to report Mario for membership with SSS and remit the overdue SSS premiums.

Who has the obligation to report the RSC members for membership with the SSS, with the concommitant obligation to remit SSS premiums? Why? (6%)RSC is considered the employer and thereby accountable to the SSS. RSC is the employer by Estoppel as per its arrangement as per related problem


X.

Pepe Santos was an international flight steward of FlySafe Airlines. Under FSA's Cabin Crew Administration Manual, Santos must maintain, given his height, a weight of 150 to 170 pounds.

After 5 years as a flight steward, Santos began struggling with his weight; he weighed 200 lbs. , 30 pounds over the prescribed maximum weight. The Airline gave him a one-year period to attain the prescribed weight, and enrolled him ins everal weight reduction programs. He consitently failed to meet his target. He was given a 6-month grace period, after which he still failed to meet the weight limit. FSC thus sent him a Notice of Administrative Charge for violation of company standards on weight requirements. He stated in his answer that, for medical reasons, he cannot have a rapid weight loss. A clarificatory hearing was held where Santos fully explained his predicament. The explanation did not satisfy FSA and so it decided to terminate Santos' service for violation of company standards.

Santos filed a complaint for illegal dismissal, arguing that the comapany's weight requirement policy is unreasonable and that his case is not a disciplinary but a medical issue (as one get older, the natural tendency is to grow heavier). FSA defended its policy as a valid exercise of management prerogative and from the point of view of passenger safety and extraordinary diligence required by law of common carriers; it also posited that Santos' failure to achieve his ideal weight constituted gross and habitual neglect of duty, as well as willful disobedience to lawful employer orders. The Labot Arbiter found the dismissal illegal for there was neither gross and habitual neglect of duty nor willful disobedience.

Is the Labor Arbiter correct? Why or why not? Explain fully. (6%)No, while it is true that the law should at all cost protect the security of tenure of the employees, this does not mean to deprive employer of its right to exercise management prerogative for the purpose of upholding the interest of business, especially if its operation requires the maintenance of public safety. Santos has not been

deprived of due process; he was given one-year-period to meet the standard of the company. Upon his failure, he was given again another period of six months. A notice was served to him and through a hearing duly accorded; he was given a chance to explain his side. After observing the procedural due process, only then the company finally decided to terminate his services. The failure therefore of Santos to meet company’s standard despite due notice obviously amount to gross and habitual neglect of duty. His total disregard of company’s policy on the belief that it is unreasonable constitute willful disobedience on his part by ignoring the facts that his company is a common carrier, thus, by a man of common understanding, he should have understand that his company can validly enforce such policy. The finding of Labor Arbiter therefore in this case is not correct.


XI.

Complainants had worked five (5) years as waitresses in a cocktail lounge owned by the respondent. They did not receive any salary directly from the respondent but shared in all service charges collected for food and drinks to the extend of 75%. With respondent's pripor permission, they could sit with and entertain guests inside the establishment and approrpiate for themselves the tips given by guests. After five (5) years, the complainants' individual shares in the collected service charges dipped to below minimum wage level asa consequence of the lounge's marked business decline. Thereupon, complainants asked respondent to increase their share in the collected service charges to 85%, or the minimum wage level, whichever is higher.

Respondent terminated the services of the complainants who countered by filing a consolidated complaint for unlawful dismissal, with prayer for 85% of the collected services or the minimum wage for the appropriate periods, whichever is higher. Decide. (6%)


_________________To live outside the law you must be honest - Bob Dylan XII.

Arnaldo, President of "Bisig" Union in feamwear Company, readied himself to leave exactly at 5:00 pm which was the end of his normal shift to be able to send off his wife who was scheduled to leave for overseas. However, the General Manager required him to render overtime work to meet the company's export quota. Arnaldo begged off, explaining to the General Manager that he had to see of his wife who was leaving to work abroad. The company dismissed Arnaldo for insubordination. He filed a case for illegal dismissal. Decide. (6%)


XIII.

The rank-and-file union staged a strike in the company premises which caused the disruption of business operations. The supervisors' union of the same company filed a money claim for unpaid salaries for the duration of the strike, arguing that the supervisors' failure to report for work was not attributable to them. The company contended that it was equally faultless, for the strike was not the direct consequence of any lockout or unfair labor practice. May the company be held liable for the salaries of the supervisors? Decide.

http://phbar.org/viewtopic.php?t=1380

(6%)


XIV.

"Puwersa", a labor federation, after having won in a certification election held in the company premises, sent a letter to respondent company reminding it of its obligation to recognize the local union the federation represents and enter into a CBA with the local union. Respondent company replied that though it is willing, the rank-and-file employees had already lost interest in joining the local union as they had dissolved it. "Puwersa" argued that since it won in a certification election, it can validly perform its function as a bargaining agent and represent the rank-and-file employees despite the union's dissolution.

Is the argument of "Puwersa" tenable? Decide with reasons. (6%) ////////////////////

I.(5 POINTS)

1. a) What is the principle of codetermination?

b) What, if any, is the basis under the Constitutionfor adopting it?1. The principle of co-determination provides that it is a joint and collective responsibility of the employer and the employee to establish terms and conditions of employment and to settle on the standards of working conditions based upon existing laws and regulations.

2. The basis of such principle is Par. 3 Sec. 3 of Art XIII of the Constitution which provides that the State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.


VII.(5 POINTS)

7. a) May the NLRC or the courts take jurisdictionalcognizance over compromise agreements/settlements involving labor matters?

b) How sacrosanct are statements/data made atconciliation proceedings in the Department ofLabor and Employment? What is the philosophybehind your answer?

http://phbar.org/forum/viewtopic.php?t=262

http://phbar.org/viewtopic.php?t=1381

a. Yes. ART. 227. Compromise agreements. - Any compromise settlement, including those involving labor standard laws, voluntarily agreed upon by the parties with the assistance of the Bureau or the regional office of the Department of Labor, shall be final and binding upon the parties. The National Labor Relations Commission or any court, shall not assume jurisdiction over issues involved therein except in case of non-compliance thereof or if there is prima facie evidence that the settlement was obtained through fraud, misrepresentation, or coercion.

b.Information and statements given at conciliation proceedings shall be treated as privileged communications. Conciliators and similar officials shall not testify in any court or body regarding any matter taken up at conciliation proceedings conducted by them. The philosophy is to ascertain the truth about the controversy which the parties may be afraid to divulge if the revelations can be utilized against them later on.


X.(5 POINTS)

Discuss briefly the instances when non-compliance bythe employer with a reinstatement order of an illegallydismissed employee is allowed.

one instance is the principle of strained relations..(See discussion here)

XI.(5 POINTS)

11. a) As a rule, when is retirement due?

b) When is retirement due for underground miners?a. mandatory = 65 yrs old..optional = 60

b mining, mandatory= 60 optional=50


XII.(5 POINTS)

12. a) How do you execute a labor judgment which, onappeal, had become final and executory? Discussfully.

b) Cite two instances when an order of executionmay be appealed.




motion for execution? or such motion which is in the NLRC procedures which has the same effect of the latter..

b. may be award for back wages and reinstatement


XIII.5 POINTS

May a decision of the Labor Arbiter which has becomefinal and executory be novated through a compromiseagreement of the parties?yes, compromise agreements are favored by law..it can be applied anytime..


XIV.5 POINTS

AB, single and living-in with CD (a married man), ispregnant with her fifth child. She applied for maternity leavebut her employer refused the application because she is notmarried. Who is right? Decide.

The employer is right in refusing to give maternity leave to AB but gave a wrong premise. AB has exhaused her Maternity Leave benefit ; such leave being allowed by law up to the 4th child only. Being married nor single is of no consequence when availing of maternity leave.


XV.(5 POINTS)

Some officers and rank-and-file members of the unionstaged an illegal strike. Their employer wants all the strikersdismissed. As the lawyer, what will you advise theemployer? Discuss fully.


XVI.(5 POINTS)

A carpenter is employed by a private university in





Manila. Is the carpenter a regular or a casual employee?Discuss fully.Casual..he does not render job that is necessary and desirable to the business or trade of the employer. He may become regular casual after 1 year of service but only to that kind of job as long as it still exists.

XVIII.(5 POINTS)

Inday was employed by mining company X to performlaundry service at its staffhouse. While attending to herassigned task, she slipped and hit her back on a stone.Unable to continue with her work, she was permitted to goleave for medication, but thereafter she was not allowed to return to work. She filed a complaint for illegal dismissalbut her employer X contended that Inday was not a regular employee but a mere househelp. Decide.

Inday is a regular employee, not a household employee. If household, she should be working for the family for its personal comfort and benefit which is contrary to the facts.(See discussion here)

XIX.(5 POINTS)

Cite five grounds for disciplinary action by the PhilippineOverseas Employment Administration (POEA) againstoverseas workers.POEA Rules, Rule III, Sec. 1: Pre-employment offenses: 1. Using, providing, or submitting false information or documents for purposes of job application or employment; 2. unjustified refusal to depart for the worksite after all employment and travel documents have been duly approved by the appropriate government agency/ies. Offenses during employment: 1. Commission of a felony or crime punishable by Phil. laws or by the laws of the host country; 2. unjustifiable breach of employment contract; 3. embezzlement of company funds or monies and/or properties of fellow worker entrusted 4. violation/s of the sacred practices of the host country


XX.(5 POINTS)

AB, a non-resident American, seeks entry to thecountry to work as Vice-President of a localtelecommunications company. You are with the Departmentof Labor and Employment (DOLE). What permit, if any, can



the DOLE issue so that AB can assume as Vice-President inthe telecommunications company? Discuss fully.The DOLE must be guided by the provisions of PD 442 on employment of nonresident aliens by domestic or foreign employer. Such that the employer must obtain a work permit from the DOLE (nearest regional office that covers the particular place). This work permit is what is called the ALIEN EMPLOYMENT PERMIT (AEP). The process is that the employer (domestic or foreign), before admitting this alien to be its employee, will have to file an application with DOLE for the issuance of AEP, submitting therein certain documents to justify that there is a need for the employment of such alien. There must be a determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired.


/////////////////BAR EXAMINATIONS 2006 LABOR AND SOCIAL LEGISLATION Suggested Answers By PROF. JOSELITO GUIANAN CHAN -----------oOo---------- -I- 1. What is the purpose of labor legislation? 2.5% Suggested Answer: Labor legislation refers to laws, statutes, rules, regulations and jurisprudence which set employment standards and govern the relations between capital and labor. Its purpose is to breathe life into the protection-to-labor clause of the Constitution (Section 3, Article XIII, 1987 Constitution) by affording protection to labor, promoting full employment, ensuring equal work opportunities regardless of sex, race or creed, regulating the relations between workers and employers and assuring that the rights of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work are amply protected. (Article 3, Labor Code).2. What is the concept of liberal approach in interpreting the Labor Code and its Implementing Rules and Regulations in favor of labor? 2.5% Suggested Answer: This concept of liberal approach is enshrined both in the Labor Code and the Civil Code. More specifically, the Labor Code declares that all doubts in the implementation and interpretation of the provisions of the Code, including its implementing rules and regulations, shall be resolved in favor of labor. The Civil Code likewise pronounces that “in case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer.” (See Article 4, Labor Code; Article


1702, Civil Code). This concept, however, should not apply where the pertinent provisions of the Labor Code leave no room for doubt either in their interpretation or application. (Bonifacio vs. Government Service Insurance System, 146 SCRA 276).3. What property right is conferred upon an employee once there is an employer-employee relationship? Discuss briefly. 5% Suggested Answer: Once an employer-employee relationship is established, such employment is treated, under our constitutional framework, as a property right. When a person has no property, his job may possibly be his only possession or means of livelihood and those of his dependents. When a 2006 Bar Examinations in Labor Law Suggested Answers Prof. Joselito Guianan Chan person loses his job, his dependents suffer as well. The worker should,therefore, be protected and insulated against any arbitrary deprivation ofhis job. (Philips Semiconductors [Phils.], Inc. vs. Fadriquela, G. R. No.141717, April 14, 2004; Philippine Geothermal, Inc. vs. NLRC, 189 SCRA 211 [1990]). -II- Wonder Travel and Tours Agency (WTTA) is a well known travelagency and an authorized sales agent of the Philippine Air Lines. Since majority of its passengers are overseas workers, WITA applied for a license for recruitment and placement activities. It stated in its application that its purpose is not for profit but to help Filipinos findemployment abroad. Should the application be approved? 5% Suggested Answer:The application should not be approved for the simple reason that the law categorically declares that travel agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment, whether for profit or not. (Article 26 of the Labor Code). It is, therefore, of no consequence that its purpose is not for profit but to help Filipinos find employment abroad. (Note: It must be stressed that the POEA Rules disqualify not onlytravel agencies and sales agencies of airline companies but also the following, to wit: a. Officers or members of the Board of any corporation or members in a partnership engaged in the business of a travel agency; and b. Corporations and partnerships, when any of its officers, members of the board or partners, is also an officer, member ofthe board or partner of a corporation or partnership engaged in

the business of a travel agency. (Section 2, Rule I, Part II, POEA Rules and Regulations Governing the Recruitment and Employment of Land-Based Overseas Workers [February 4, 2002]; Section 2, Rule I, Part II, POEA Rules and RegulationsGoverning the Recruitment and Employment of Seafarers [May 23, 2003]).-III- Can an overseas worker refuse to remit his earnings to hisdependents and deposit the same in the country where he works togain more interests? Explain. 5% Suggested Answer:No, such refusal to remit his earnings to his dependents is not allowed under the law which considers mandatory for all Filipino workers abroad to remit a portion of their foreign exchange earnings to their families, dependents, and/or beneficiaries in the country in accordance22006 Bar Examinations in Labor Law Suggested Answers Prof. Joselito Guianan Chan with rules and regulations prescribed by the Secretary of Labor. (Article 22 of the Labor Code)The reason for this mandatory requirement is to protect the welfare of families, dependents and beneficiaries and to ensure that the foreign exchange earnings of these workers are remitted through authorized financial institutions of the Philippine government in line with thecountry’s economic development program. Non-compliance with the lawsand regulations on remittance of foreign exchange earnings and recourse to the use of unauthorized and unofficial financing institutions had led to the detriment of the country’s balance of payments and economic development program. Consequently, it is imperative that the mandatoryremittance requirement be fully complied with by all concerned through the institution of appropriate remittance facilities and the imposition of effective sanctions. (“Whereas” clauses, Executive Order No. 857; Section2, Rule XIII, Book I, Rules to Implement the Labor Code; Section 1, Executive Order No. 857; Section 2, Rule III, Rules and Regulations Implementing Executive Order No. 857).-IV- For humanitarian reasons, a bank hired several handicappedworkers to count and sort out currencies. Their employment contract was for six (6) months. The bank terminated their employment on the ground that their contract has expired prompting them to file with the Labor Arbiter a complaint for illegal dismissal. Will their action prosper? 5% Suggested Answer:No, the complaint will not prosper because what they entered into was a valid fixed-term employment contract for six (6) months. Upon the

expiration of the contract, there is no more employment relationship tospeak of. Under the law, it does not necessarily follow that where the duties of the employee consist of activities usually necessary or desirable in theusual business of the employer, the parties are forbidden from agreeing ona period of time for the performance of such activities. There is thusnothing essentially contradictory between a definite period of employment and the nature of the employee’s duties. (Article 280, Labor Code;Pangilinan vs. General Milling Corporation, G. R. No. 149329, July 12, 2004; St. Theresa’s School of Novaliches Foundation vs. NLRC, G. R. No.122955, April 15, 1998).It must be stressed that the validity of fixed-term contracts will be upheld for as long as the fixed period of employment was knowingly and voluntarily agreed upon by the parties, without any force, duress or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent or it satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former on the latter. (Philips Semiconductors [Phils.], Inc. vs. Fadriquela, G. R. No. 141717, April 14, 2004; Medenilla vs. Philippine Veterans Bank, G. R. No. 127673, March 13, 2000).-V- 32006 Bar Examinations in Labor Law Suggested Answers Prof. Joselito Guianan Chan Can an employer and an employee enter into an agreement reducing or increasing the minimum percentage provided for night differential pay, overtime pay, and premium pay? 5% Suggested Answer:While as a general rule, the parties may enter into any kind of stipulation in a contract and the same shall be considered as the law between them, however, it must be emphasized that a labor contract is not an ordinary contract since it is impressed with public interest. Thus, theparties are prohibited to enter into any stipulation which may result in the reduction of any employee benefits. In the instant case, the reduction bythe employer, even with the consent of the employee, of the legallymandated minimum percentage of such benefits as night differential pay,overtime pay and premium pay, is not valid. (Article 100, Labor Code; See also Section 6, Rule II; Section 9, Rule III; Section 11, Rule IV; Section 6, Rule V; Section 6, Rule VI, Section 12, Rule XII; Section 20, Rule XIII; Section 15, Rule XIV, Book III, Rules to Implement the Labor Code;Republic Planters Bank, now known as PNB-Republic Bank, vs. NLRC, etal., G. R. No. 117460, Jan. 6, 1997; Davao Fruits Corporation vs.Associated Labor Union, G. R. No. 85073, Aug. 24, 1993, 225 SCRA 567).However, the same may not be said on the matter of increasing said benefits. The employer and the employee are not prohibited under the law to enter into an agreement for the increase of whatever benefit being

mandated by law for the simple reason that any such increase certainlyredounds to the benefit of the employee. Thus, the employer and the employee may legally and validly agree to increase the minimum percentage provided for night differential pay, overtime pay, and premium pay. -VI- 1. When is there a wage distortion? Suggested Answer:Under the law, there is wage distortion if there is a situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills,length of service, or other logical bases of differentiation. (Article 124, Labor Code; See also Item [p], Definition of Terms, Rules Implementing RepublicAct No. 6727; Section 4 [m], Rule I, Revised Rules of Procedure on Minimum Wage Fixing dated Nov. 29, 1995; Section 1[l], Rule II, NCMB Revised Procedural Guidelines in the Conduct of Voluntary ArbitrationProceedings [Oct. 15, 2004]).2. How should a wage distortion be settled? Suggested Answer:A wage distortion may be settled unilaterally by the employer or through voluntary negotiations or arbitration. (Associated Labor UnionsTUCP vs. NLRC, et al., G. R. No. 109328, Aug. 16, 1994, 235 SCRA 395).42006 Bar Examinations in Labor Law Suggested Answers Prof. Joselito Guianan Chan In organized establishments, where the application of any prescribed wage increase by virtue of a Wage Order issued by the RegionalTripartite Wages and Productivity Board results in distortions of the wage structure within an establishment, the employer and the union are required to negotiate to correct the distortions. Any dispute arising from wage distortions should be resolved through the grievance procedure under their collective bargaining agreement and, if it remains unresolved, through voluntary arbitration. Unless otherwise agreed by the parties in writing, such dispute shall be decided by the voluntary arbitrator or panel of voluntary arbitrators within ten (10) days from the time said dispute was referred to voluntary arbitration. (Paragraph 1, Section 1, Rule VII,Revised Rules of Procedure on Minimum Wage Fixing dated Nov. 29, 1995; Article 124, Labor Code; Section 7, Chapter III, Rules ImplementingRepublic Act No. 6727).The rule is different in unorganized establishments. In cases where there are no collective agreements or recognized labor unions, the employers and workers are required to endeavor to correct such distortions. Any dispute arising therefrom should be settled through the National Conciliation and Mediation Board (NCMB) and, if it remains unresolved after ten (10) days of conciliation, should be referred to the appropriate branch of the National Labor Relations Commission (NLRC).

(Paragraph 2, Section 1, Rule VII, Revised Rules of Procedure onMinimum Wage Fixing dated Nov. 29, 1995; Article 124, Labor Code;Section 7, Chapter III, Rules Implementing Republic Act No. 6727).3. Can the issue of wage distortion be raised in a notice of strike? Explain. 10% Suggested Answer:No, a strike is illegal if based on alleged salary distortion. It is specifically provided in the law that “any issue involving wage distortion shall not be a ground for a strike/lockout.” (Republic Act No. 6727, otherwise known as the Wage Rationalization Act; See also Section 16, Chapter I, Implementing Rules of Republic Act No. 6727; Ilaw at Buklod ng Manggagawa [IBM] vs. NLRC, G. R. No. 91980, June 27, 1991).The reason for the prohibition is that it is the legislative intent that solution to the problem of wage distortions should be sought by voluntary negotiation or arbitration, and not by strikes, lockouts or other concertedactivities of the employees or management. -VII- Inday was employed by Herrera Home Improvements, 'Inc. (Herrera Home) as interior decorator. During the first year of her employment, she did not report for work fur one month. Hence, her employer dismissed her from the service. She filed with the LaborArbiter a complaint for illegal dismissal alleging she did not abandon her work and that in terminating her employment, Herrera Home deprived her of her right to due process. She thus prayed that she be reinstated to her position. Inday hired you as her counsel. In preparing the position paper to be submitted to the Labor Arbiter, explain the standards of due 52006 Bar Examinations in Labor Law Suggested Answers Prof. Joselito Guianan Chan process which should have been observed by Herrera Home interminating your client's employment. 5% Suggested Answer:As Inday’s counsel, I will cite the fact that she was not afforded due process. Settled is the rule that mere absence or failure to report for work is not tantamount to abandonment of work. (New Ever Marketing, Inc. vs. CA, G. R. No. 140555, July 14, 2005).For the ground of abandonment to be validly invoked, two (2)notices are required to be served on Inday, viz.: 1. first notice asking her to explain why she should not be declared as having abandoned her job; and 2. second notice to inform her of the employer’s decision to dismiss her on the ground of abandonment. In the instant case, there is no showing that Inday’s employer evercomplied with the foregoing procedural due process requisites. The saidnotices should have been sent to her last known address. It must be noted

that this notice requirement is not a mere technicality but a requirement of due process to which every employee is entitled to insure that the employer’s prerogative to dismiss or lay-off is not abused or exercised in an arbitrary manner. (Kingsize Manufacturing Corporation vs. NLRC, G. R. Nos. 110452-54, Nov. 24, 1994; Cebu Royal Plant [SMC] vs. DeputyMinister of Labor, Aug. 12, 1987).-VIII- The modes of determining an exclusive bargaining agreement are: a. voluntary recognition b. certification election c. consent election Explain briefly how they differ from one another. 5% Suggested Answer:a. “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. It is proper onlyin case there is only one (1) legitimate labor organization existing and operating in an unorganized establishment. It cannot be extended in casethere are two or more unions in contention. b. “Certification 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 conducted only upon the order of the Department of Labor and Employment. (Section 1 [h], Rule I, Book V, Rules to Implement the Labor Code, as amended byDepartment Order No. 40-03, Series of 2003, [Feb. 17, 2003]).c. “Consent Election” refers to the process of determining through secret ballot the sole and exclusive representative of the employees in an62006 Bar Examinations in Labor Law Suggested Answers Prof. Joselito Guianan Chan appropriate bargaining unit for purposes of collective bargaining ornegotiation. It is voluntarily agreed upon by the parties, with or without the intervention by the Department of Labor and Employment. (Section 1[h], Rule I, Book V, Rules to Implement the Labor Code, as amended byDepartment Order No. 40-03, Series of 2003, [Feb. 17, 2003]). Voluntary recognition differs from the two others in that the union which has been extended recognition voluntarily by the employer as the sole and exclusive bargaining agent does not have to go through theprocess of secret balloting and other procedural steps required in the conduct of certification election or consent election.To distinguish consent election and certification election, the former is an agreed one, its purpose being merely to determine the issue of majority representation of all the workers in the appropriate collective bargaining unit; while the latter is aimed at determining the sole andexclusive bargaining agent of all the employees in an appropriate bargaining unit for the purpose of collective bargaining. From their very

nature, the former is a separate and distinct process and has nothing to do with the import and effect of a certification election. Moreover, consent election is voluntarily agreed upon by the parties, with or without the intervention by the DOLE; while certificationelection is ordered by the DOLE. (Section 1 [h], Rule I, Book V, Rules to Implement the Labor Code, as amended by Department Order No. 40-03, Series of 2003, [Feb. 17, 2003]).By law, as a result of the consent election, the right to be the exclusive representative of all the employees in any appropriate collectivebargaining unit is vested in the labor union “designated or selected” forsuch purpose “by the majority of the employees” in the unit concerned.(United Restauror’s Employees and Labor Union-PAFLU vs. Torres, 26 SCRA 435 [1968]).-IX- Armstrong Corporation, a foreign corporation, intends to engage in the exploration of Philippine natural resources. Mr.Antonio Reyes offered the forest land he owns to the president of thecorporation. May Armstrong Corporation enter into a financial and technical assistance agreement (FTAA) with Mr. Reyes to explore, develop, and utilize the land? Explain. 5% Suggested Answer:No. Mr. Reyes cannot enter into a financial and technical assistance agreement (FTAA) with the foreign corporation for thefollowing reasons: 1. He cannot own forest land. Forest land is an inalienable public domain. It is owned by the State. (Section 2, Article XII, 1987Constitution).2. A private individual like him cannot enter into such agreement.It is only the President who is allowed under the Constitution to enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and 72006 Bar Examinations in Labor Law Suggested Answers Prof. Joselito Guianan Chan utilization of minerals, petroleum, and other mineral oils according to thegeneral terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. (Ibid.)3. It is only the State which has the full control and supervisionover the exploration, development and utilization of natural resources. Consequently, it is only the State which may directly undertake such activities, or it may enter into co-production, joint venture, or productionsharing agreements with Filipino citizens, or corporations or associationsat least sixty per centum of whose capital is owned by such citizens. It is noteworthy that there is not even a showing in this case that Armstrong Corporation has that permissible capital ownership. (Ibid.)(NOTE: It seems that this problem/question should have beenasked in Political Law and not in Labor Law, it being clear that it

carries no single principle which may be deemed germane to Labor Law). -X- ABC Tomato Corporation, owned and managed by three (3) elderly brothers and two (2) sisters, has been in business for 40 years. Due to serious business losses and financial reverses during the lastfive (5) years, they decided to close the business. 1. As counsel for the corporation, what steps will you take prior to itsclosure? 2.5% Suggested Answer:Prior to closure, it is imperative that my client should show good faith by first considering other less drastic means such as cost-reduction measures to avoid or minimize losses and consequently, to prevent closure. Closure should only be a measure of last resort when other less drastic means - e.g., reduction of both management and rank-and-file bonuses and salaries, going on reduced time, improving manufacturing efficiencies, trimming of marketing and advertising costs, etc. - have been tried and found to be wanting, inadequate or insufficient. If the foregoing cost-reduction measures failed and closure appears to be the only viable course to take, then, I will recommend to my client that the due process requirement be complied with by serving separatenotices to the employees to be terminated and to the Department of Laborand Employment (DOLE) at least one (1) month before the intended date of effectivity of the termination. (Catatista vs. NLRC, G. R. No. 102422, Aug. 03, 1995; Armed Forces of the Philippines Mutual Benefit Association vs. Armed Forces Mutual Benefit Association, Inc. Employees Union, 97 SCRA 723).2. Are the employees entitled to separation pay? 2.5% Suggested Answer:Since the closure of the business was “due to serious business losses and financial reverses during the last five (5) years”, the employees to be terminated are not entitled to any separation pay. Under the law, they are entitled to separation pay only if the closure is not due to 82006 Bar Examinations in Labor Law Suggested Answers Prof. Joselito Guianan Chan serious business losses and financial reverses. (Article 283, Labor Code;North Davao Mining Corporation vs. NLRC, [G. R. No. 112546, March 13, 1996]; See also Cama vs. Joni’s Food Services, Inc., [G. R. No. 153021, March 10, 2004]).If the reason for the closure is due to old age of the brothers and sisters: 1. Is the closure allowed by law? 2.5% Suggested Answer:Yes. A careful examination of Article 283 of the Labor Code indicates that closure or cessation of business operation as a valid and

authorized ground of terminating employment is not limited to those resulting from business losses or financial reverses. An employer may close or cease his business operations or undertaking even if he is not suffering from serious business losses or financial reverses, as long as he pays his employees their termination pay in the amount corresponding to their length of service. It would, indeed, be stretching the intent and spirit of the law if management’s prerogative to close or cease its business operations be unjustly interfered with just because said business operationor undertaking is not suffering from any loss. Said provision, in fact, provides for the payment of separation pay to employees terminated because of closure of business not due to losses, thus implying that termination of employees other than closure of business due to losses may be valid. (J.A.T. General Services vs. NLRC, G. R. No. 148340, Jan. 26, 2004; See also Industrial Timber Corporation vs. NLRC, 339 Phil. 395, 405 [1997]).It is only when it is manifest that the closure is motivated not by adesire to avoid further losses but to discourage the workers from organizing themselves into a union for more effective negotiations with management, that the State is bound to intervene and declare the closure as illegal. (Me-Shurn Corporation vs. Me-Shurn Workers Union – FSM, G. R. No. 156292, Jan. 11, 2005; Carmelcraft Corporation vs. NLRC, 186SCRA 393, June 6, 1990). 2. Are the employees entitled to separation benefits? 2.5% Suggested Answer:Since the ground invoked to justify the closure is “due to old age of the brothers and sisters”, hence, not due to serious business lossesand financial reverses, the employees are entitled to the payment of separation pay in the amount of one (1) month pay or at least one-half (½) month pay for every year of service, whichever is higher, a fraction of atleast six (6) months being considered as one (1) whole year. (Article 283,Labor Code; North Davao Mining Corporation vs. NLRC, [G. R. No.112546, March 13, 1996]; See also Cama vs. Joni’s Food Services, Inc., [G. R. No. 153021, March 10, 2004]).-XI- As a result of bargaining deadlock between ROSE Corporation and ROSE Employees Union, its members staged a strike. During the strike, several employees committed illegal acts. The company 92006 Bar Examinations in Labor Law Suggested Answers Prof. Joselito Guianan Chan refused to give in to the union's demands. Eventually, its members informed the company of their intention to return to work. 10% 1. Can ROSE Corporation refuse to admit all the strikers? Suggested Answer:No. An employer cannot refuse to re-admit strikers who want to return to work. An employer, in fact, is required under the law to provide

for the admission of all workers under the same terms and conditions prevailing before the strike. An employer who refuses to re-admit returning workers may be liable, upon filing of proper petition, for thepayment of wages and other benefits, from the date of actual refusal until the workers are re-admitted. (No. 24, Guidelines Governing LaborRelations).2. Assuming the company admits all the strikers, can it later on dismiss those employees who committed illegal acts? Suggested Answer:Yes. The re-admission by the employer of all the strikers who voluntarily returned to work does not have the effect of rendering as mootand academic, the issue of the legality of the strike. The employer may still pursue the declaration of the illegality of the strike and secure thedismissal of the union officers and union members who committed illegal acts during the strike. (Insurefco Pulp vs. Insurefco, 95 Phil. 761). [Note: In the 2004 case of Unlicensed Crews Employees Union– Associated Labor Unions [TASLI-ALU] vs. CA, [G. R. No. 145428, July 7, 2004], it was pronounced that an employer may be considered to have waived its right to proceed against the striking employees for alleged commission of illegal acts during the strike when, during a conference before the Chairman of the NLRC, it agreed to reinstate them and complyfully with the return-to-work order issued by the Secretary of Labor and Employment. (See also Reformist Union of R.B. Liner, Inc. vs. NLRC, 266 SCRA 713 [1997])].3. If due to the prolonged strike, ROSE Corporation hired replacements, can it refuse to admit the replaced strikers? Suggested Answer:It depends. The general rule is that mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike. (Article 264, Labor Code). Thus, in an unfair labor practice strike, replacements hired by theemployer during the strike may not be permanently employed. The employer is duty-bound to discharge them when the strikers are reinstatedto their former positions. (The Insular Life Assurance Co., Employees Association vs. Insular Life Assurance Co., 37 SCRA 244; Norton & Harrison Company and Jackbilt Concrete Blocks Co. Labor Union vs.Norton & Harrison Co. and Jackbilt Concrete Blocks Co., G. R. No. L-102006 Bar Examinations in Labor Law Suggested Answers Prof. Joselito Guianan Chan 18461, Feb. 10, 1967; Feati University vs. Bautista, G. R. No. L-21278,Dec. 27, 1966). In an economic strike, however, the hiring of replacements may be done on a permanent basis. And in the event that the strikers decide toresume their work, the employer is not duty-bound to dismiss said

permanent replacements. (Consolidated Labor Association of the Philippines vs. Marsman & Co., G. R. Nos. L-17038 and L-17057, July 31, 1964). -XII- During their probationary employment, eight (8) employees were berated and insulted by their supervisor. In protest, they walkedout. The supervisor shouted at them to go home and never to report back to work. Later, the personnel manager required them to explainwhy they should not be dismissed from employment for abandonment and failure to qualify for the positions applied for. They filed a complaint for illegal dismissal against their employer. As a Labor Arbiter, how will you resolve the case? 10% Suggested Answer: As Labor Arbiter, I will declare that the employees were dismissed illegally. Under the factual setting of this case, the act of the supervisor inshouting at them “to go home and never to report back to work” obviously amounts to dismissal. Hence, when the Personnel Manager later on asked them to explain their side, it was nothing but a fruitless attempt at giving a semblance of due process to the probationary employees. Due process certainly cannot be instituted belatedly after the employees were earlier effectively dismissed. As probationary employees, they enjoyed security of tenure during the period of probation, hence, they cannot be terminated during the period of probationary employment and before the expirationthereof except for cause or causes provided by law. As to the charge of abandonment, there is no question that the employees did not abandon their probationary employment. They werefired without any just cause and without due process. Moreover, the immediate filing of complaint for illegal dismissal by the employees praying for their reinstatement negates the finding of abandonment. They cannot, by any reasoning, be said to have abandoned their work. (See Unicorn Safety Glass, Inc. vs. Basarte, G. R. No. 154689, Nov. 25, 2004; Samarca vs. Arc-Men Industries, Inc., G.R. No. 146118, Oct. 8, 2003).As to the claim that they failed to qualify for their positions, it should be noted that they could not have failed to qualify since at the timethey were dismissed, they were still in a “trial period” or probationary period. It was because of their peremptory dismissal that they were not able to complete their probationary employment with no fault on their part. Consequently, because of the antagonism which caused severe strain in the relationship between the illegally dismissed employees and their employer, I shall not order their reinstatement but in lieu thereof, Iwill award separation pay equivalent to at least one month pay, or one 112006 Bar Examinations in Labor Law Suggested Answers Prof. Joselito Guianan Chan

month pay for every year of service, whichever is higher, in addition totheir full backwages, allowances and other benefits. (Note: The case squarely analogous to the facts of this case is Cebu Marine Beach Resort vs. NLRC, [G. R. No. 143252, October 23, 2003]. Here, the respondents-probationary employees, while undergoing special training in Japanese customs, traditions, discipline as well as hotel and resort services of the newly opened resort, were suddenly scolded by the Japanese conducting the training and hurled brooms, floor maps, iron trays, fire hoses and other things at them. In protest, respondents staged a walk-out and gathered in front of the resort. Immediately, the Japanese reacted by shouting at them to go home and never to report back to work. Heeding his directive, respondents left the premises. Eventually,they filed a complaint for illegal dismissal and other monetary claimsagainst petitioners. The ruling of the Supreme Court is the suggested answer above). -XIII- 1. Can a "no-union" win in a certification election? 2.5% Suggested Answer: Yes. “No Union” is always a choice in a certification election. This proceeds from the premise that the right to join a union carries with it theconcomitant right not to join a union. Hence, in a certification election, the voter is required to put a cross (x) or check (3) mark in the square opposite the name of the union of his choice or “No Union” if he does notwant to be represented by any union. Where majority of the valid votes cast results in “No Union” obtaining the majority, the Med-Arbiter shall declare such fact in the order. (Section 20, Rule IX, Book V, Rules to Implement the Labor Code, as amended by Department Order No. 40-03, Series of 2003, [Feb. 17, 2003]).2. When does a "run-off" election occur? 2.5% Suggested Answer: “Run-off election” refers to an election between the labor unionsreceiving the two (2) highest number of votes in a certification or consentelection with three (3) or more choices, where such a certification or consent election results in none of the three (3) or more choices receiving the majority of the valid votes cast; provided that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. (Section 1 [ss], Rule I, Book V, Rules to Implement the Labor Code, as amended by Department Order No. 40-03, Series of 2003, [Feb.17, 2003]).(Note: “No Union” shall not be a choice in the run-off election. See Section 1, Rule X, Book V, Ibid.).-XIV- Determine whether the following minors should be prohibitedfrom being hired and from performing their respective duties

indicated hereunder: 5% 122006 Bar Examinations in Labor Law Suggested Answers Prof. Joselito Guianan Chan 1. A 17-year old boy working as a miner at the Walwaldi Mining Corporation. Suggested Answer:Yes, he is prohibited from working as a miner. Under the law, workwhich, by its nature or the circumstances in which it is carried out, ishazardous or likely to be harmful to the health, safety or morals of children, such that it is performed underground, underwater or at dangerous heights, is considered a “worst form of child labor”. (R. A. No. 7610, as amended by R. A. No. 9231).2. An 11-year old boy who is an accomplished singer and performer in different parts of the country. Suggested Answer:No, he is not prohibited to work as an accomplished singer and performer since such employment or participation in public entertainmentor information (through cinema, theater, radio, television or other forms of media) appears to be essential. It is, however, required that the employment contract is concluded by the child's parents or legal guardian,with the express agreement of the child concerned, if possible, and theapproval of the Department of Labor and Employment. It is further required that the following in all instances be strictly complied with: (a) The employer shall ensure the protection, health, safety, morals and normal development of the child; (b) The employer shall institute measures to prevent the child's exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and (c) The employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skills acquisition of the child. Moreover, the employer is required to first secure, before engagingsuch child, a work permit from the Department of Labor and Employment which shall ensure observance of the above requirements. (Section 12, R.A. No. 7610).3. A 15-year old girl working as a library assistant in a girls' high school. Suggested Answer:Yes, she is not allowed to work as such. The law allows a minorsuch as this 15-year old girl to work only under the direct and sole responsibility of her parents or legal guardian and where only members of her family are employed. (Section 12, R. A. No. 7610).4. A 16-year old girl working as a model promoting alcoholic beverages. Suggested Answer:

132006 Bar Examinations in Labor Law Suggested Answers Prof. Joselito Guianan Chan Yes, she is prohibited under the law to work as a model promoting alcoholic beverages. This prohibition holds true whether the girl is directly or indirectly promoting alcoholic beverages. (Section 14, Article VIII,Republic Act No. 7610, as amended by Section 5, R. A. No. 9231). 5. A 17-year old boy working as a dealer in a casino. Suggested Answer:Yes, the boy is prohibited from working as a dealer in a casinobecause this type of work, by its nature and the circumstances in which it is carried out, is likely to be harmful to his morals. It is considered under the law as a “worst form of labor” because it debases, degrades ordemeans the intrinsic worth and dignity of the boy as a human being. Moreover, his work is highly stressful psychologically. (Section 12-D, R. A. No. 7610, as added by Section 3, R. A. No. 9231). -XV- As a condition for her employment, Josephine signed an agreement with her employer that she will not get married, otherwise, she will be considered resigned or separated from the service. Josephine got married. She asked Owen, the personnelmanager, if the company can reconsider the agreement. He told Josephine he can do something about it, insinuating some sexual favors. She complained to higher authorities but to no avail. Shehires you as her counsel. What action or actions will you take?Explain. 5% Suggested Answer:If I were Josephine’s counsel, I will recommend the taking of thefollowing actions: 1. Make representations with the employer regarding the unlawful stipulation against marriage in the employment contract. Under the law, it is unlawful for an employer to require as a condition ofemployment or continuation of employment that a woman employee shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage. (Article 136, Labor Code).If despite my representations with the employer, my client is dismissed based on said stipulation, I shall file a complaint for illegal dismissal with the Labor Arbiter and pray for such reliefs as reinstatement, full backwages, moral and exemplary damages and attorney’s fees. 2. File with the Committee on Decorum and Investigation of Sexual Harassment Cases of the employer, a complaint for sexual

harassment against the Personnel Manager for insinuating sexual142006 Bar Examinations in Labor Law Suggested Answers Prof. Joselito Guianan Chan favors from my client. Under the law, the employer is duty-bound to prevent or deter the commission of acts of sexual harassment by creating such Committee and by providing procedures for theresolution or prosecution of acts of sexual harassment. In case the employer failed to act on my client’s complaint, I shall initiate a criminal complaint for sexual harassment under theAnti-Sexual Harassment Act (Republic Act No. 7877) against thePersonnel Manager and an independent civil action for damages against both the Personnel Manager and the employer who, under the law, is solidarily liable with the former if the latter is informedof such acts by the offended party and no immediate action is taken thereon. That the Personnel Manager is liable for sexual harassmentis beyond cavil. In a work-related or employment environment, sexual harassment is committed when: 1. the sexual favor is made a condition in the hiring or in theemployment, re-employment or continued employment of said individual or in granting said individual favorable compensation, terms, conditions, promotions, orprivileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee; 2. the above acts would impair the employee’s rights or privileges under existing labor laws; or 3. the above acts would result in an intimidating, hostile, or offensive environment for the employee. (Section 3[a], Republic Act No. 7877).In this case, the sexual favor being insinuated by thePersonnel Manager was made a pre-condition to reconsidering the unlawful policy against marriage, it has impaired my client’s rights and privileges under the law and has resulted in an intimidating, hostile and offensive environment for my client. Clearly, he is guiltyof sexual harassment. NOTHING FOLLOWS. 15

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