MOCK-BAR Labor Answerkey

8/17/2019 MOCK-BAR Labor Answerkey

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FAR EASTERN UNIVERSITY INSTITUTE OF LAW

LABOR LAWMOCK BAR 2015

I.

Krizzy Abunda was employed by Chena College as a grade schoolteacher. She was found guilty of leaking a copy of a quiz given toGrade students. As a result! the school terminated heremployment. Abunda then pleaded that she instead besuspended and allowed to "nish the school year and thereaftershe will voluntarily resign. #he school acceded to her request.

After the school year! however! the respondent "led a case of illegal dismissal against the school. She argues that the situationshe was put through amounts to constructive dismissal. $ore sothat under Chena College %aculty $anual! leaking and selling of test questions is classi"ed as a grave o&ense punishable bydismissal'termination. #he school gave due investigation and therespondent was given a chance to defend herself! hence hertermination is proper. (as Abunda constructively dismissed)

SUGGESTED ANSWER:*o! Abunda was not constructively dismissed.

#he Supreme Court held that academic dishonesty is the worsto&ense a teacher can make because teachers caught committingacademic dishonesty lose their credibility as educators and ceaseto be role models for their students. #he school should not bepunished for being compassionate and granting respondent+srequest for a lower penalty. ,CHIANG KAI SHEK COLLEGE andCARMELITA ESINO !". ROSALINDA M. TORRES# G.R. N$.1%&'5(# A)*+, 2# 201'# -. */

II.

-istinguish the terms conciliation!/ mediation/ andarbitration/.


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SUGGESTED ANSWER:

#here is a -012 o3cial called a Conciliator $ediator/. 4e is

an o3cer of the *C$5 whose principal function is to assist in thesettlement and disposition of labor 6 management disputesthrough conciliation and preventive mediation. 4owever! he doesnot promulgate decisions that settle controversies about rights!which are demandable and enforceable. #he latter is calledarbitration and is the function of a labor arbiter or a voluntaryarbitrator.

ALTERNATIVE ANSWER:C0*C717A#70* is the process of dispute management whereby

parties in dispute are brought together for the purpose of8 ,9:amicably settling the case upon a fair compromise; ,


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7n this Durisdiction! compulsory arbitration in labor disputesare submitted to a labor arbiter! whose powers and functions areclearly de"ned under Article


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SHGG2S#2- A*S(2?8

#he company policy is valid. 4owever! it does not apply to

-ingdong. As -ingdong and $aryan are not yet married! norelationship by consanguinity or a3nity eists between them. #hecase of 'uncan &. /lao ellco*e ,>= SC?A =>= B: doesnot apply in the present case. 2010 BAR EAM# 34&

V.

(hat are the requisites of a Lalid Apprenticeship)

SUGGESTED ANSWER:

9. #he quali"cations of apprenticeship are met;. Apprenticeship program duly approved by the Secretary of

1abor; otherwise! the apprentice shall be deemed as aregular employee;

. Ieriod of apprenticeship not to eceed months.

VI.

-iscuss the 1imited Iortability ?ule.

SUGGESTED ANSWER:

A covered worker who transfers employment from one sector toanother ,i.e. from SSS to GSIS) or is employed on both sectors!shall have a creditable services or contributions on both Systemscredited to his service or contribution record in each of theSystems and shall be totalied for purposes of old6age!disability! survivorship and other bene"ts in either or bothSystems. ,Sec. =! ?A E@@:


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All the contributions paid by such member personally! and thosethat were paid by his employers to both Systems shall beconsidered in the processing of bene"ts which he can claim from

either or both Systems. ,Sec. >! ?A E@@:

#he "ortailit provisions of ?A E@@ allow the transfer of fundsfor the account and bene"t of the worker who transfers from onesystem to another.

VII.

0n the "rst day of collective bargaining negotiations between

rank6and6"le Hnion A and 5 5us Company! the former proposed aI>'day increase. #he company insisted that ground rules fornegotiations should "rst be established! to which the unionagreed. After agreeing on ground rules on the second day! theunion representatives reiterated their proposal for a wageincrease. (hen company representatives suggested a discussionof political provisions in the Collective 5argaining Agreement asstipulated in the ground rules! union members went on massleave the net day to participate in a whole6day prayer rally in

front of the company building.

#he company "led a petition for assumption of Durisdiction withthe Secretary of 1abor and 2mployment. #he Hnion opposed thepetition! arguing that it did not intend to stage a strike. Should thepetition be granted) 2plain.

SUGGESTED ANSWER:

Nes! there was a strike. (hat the union engaged in was actually awork stoppage/ in the guise of a protest rally.

Article


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employees to describe their common course of action isinconsequential. (hat is controlling is the substance of thesituation! and not its appearance. #he term Ostrike/ encompassesnot only concerted work stoppages! but also slowdowns! mass

leaves! sit6downs! attempts to damage! destroy or sabotage plantequipment and facilities! and similar activities ,Santa ?osa Coca6Cola Ilant 2mployees Hnion! -onrico v. Sebastian! et al. v. Coca6Cola 5ottlers Ihils.! 7nc.! 9< SC?A >=E B


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4owever! -umbo had already been employed for two ,


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.

Atty. Laldemort! a CIA6lawyer and $anaging Iartner of an

accounting "rm! conducted the orientation seminar for newly6hired employees of the "rm! among them! $iss Kiray. After theseminar! Laldemort requested Kiray to stay! purportedly todiscuss some work assignment. 1eft alone in the training room!Laldemort asked Kiray to go out with him for dinner and ballroomdancing. #hereafter! he persuaded her to accompany him to themountain highway in Antipolo for sight6seeing. -uring all these!Laldemort told Kiray that most! if not all! of the lady supervisors inthe "rm are where they are now! in very productive and lucrativeposts! because of his favorable endorsement.

-id Laldemort commit acts of seual harassment in a work6related or employment environment) ?easons. ,=M:

SUGGESTED ANSWER:

Nes! Atty. Laldemort is guilty of seual harassment. #hisconclusion is predicated upon the following consideration8

Atty. Laldemort has authority! inJuence or moral ascendancyover $iss Kiray;

(hile the law calls for a demand! request or requirement of aseual favor! it is not necessary that the demand! request orrequirement of a seual favor be articulated in a categorical oralor written statement. 7t may be discerned! with equal certitudefrom the acts of the o&ender. ('o*in4o &s. Raala, 56 SCRA#0 200$8)<

#he acts of Atty. Laldemort towards $iss Kiray resound withdeafening clarity the unspoken request for a seual favor!regardless of whether it is accepted or not by $iss Kiray.

7n seual harassment! it is not essential that the demand! requestor requirement be made as a condition for continued employment


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or promotion to a higher position. 7t is enough that Atty.Laldemort+s act result in creating an intimidating! hostile oro&ensive environment for $iss Kiray. ,200& BAR EAM# 341

I.

Iopoy was dismissed by management for serious misconduct. 4e"led suit for illegal dismissal! alleging that although there may be

Dust cause! he was not a&orded due process by management priorto his termination. 4e demands reinstatement with fullbackwages.

(hat are the twin6requirements of due process which the

employer must observe in terminating or dismissing anemployee) 2plain.

SUGGESTED ANSWER:

#he twin requirements of due process are notice and hearing tobe given to the worker. #here is likewise a two6 noticerequirement rule! with the "rst notice pertaining to speci"ccauses or grounds for termination and a directive to submit a

written eplanation within a reasonable period. #he secondnotice pertains to notice of termination. Iursuant to Pere &.P%ili""ine =ele4ra"% and =ele"%one Co*"an (/.R. No.15206$, 7 A"ril 200#)! the Court held that a hearing orconference is not mandatory! as long as the employee is givenample opportunity to be heard/! i.e. any meaningful opportunity,verbal or written: to answer the charges against him or her andsubmit evidence in support of the defense! whether in a hearing!conference! or some other fair! Dust and equitable way. 200&BAR EAM# 3416

II.

5ea 5inaenae is the secretary of the proprietor of an autodealership in Puezon City. She resides in Caloocan City. 4er o3ce


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hours start at a.m. and end at p.m. 0n Quly =F!


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A. -iscuss the principle of codetermination)

SUGGESTED ANSWER:

#he principle of codetermination is one which grants to theworkers the right to participate in policy and decision6makingprocesses a&ecting their rights and bene"ts. A*7. 255# La8$*C$dALTERNATIVE ANSWERS:

A. 5y the principle of codetermination! the workers have a rightto participate in the decision making process of employerson matters a&ecting their rights and bene"ts! throughcollective bargaining agreements! grievance machineries!

voluntary modes of settling disputes and conciliationproceedings mediated by government.

B.Codetermination is a term identi"ed with workers+participation in the determination of business policy. Hnderthe German model! the most common form of codetermination! employees of some "rms are allocatedcontrol rights by law! in the form of board seats. 7t is basedon the conviction that democratic legitimacy cannot be

con"ned to government but must apply to all sectors of society. 5esides corporate control rights! the German systemdeals with dual channels of representation of employees byunions ,at the industry6wide! and macroeconomic level: andworks councils ,at the "rm level:. 2006 BAR EAM# 341

5. (hat! if any! is the basis under the Constitution for adopting it)

SUGGESTED ANSWER:

Art. R777! Sec. = of the Constitution guarantees labor their right toparticipate in decision and policy6making processes a&ecting theirrights! duties and welfare.

ALTERNATIVE ANSWER:


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#he adoption of codetermination is based on the police power of the state and the constitutional mandate to the State topromote! the principle of shared responsibility between theworkers and the employers./ #he Constitution epressly provides

that8 7t shall guarantee the rights of all workers to collectivebargaining and negotiations! . #hey shall be entitled tosecurity of tenure! humane conditions of work! and a living wage.

#hey shall also participate in policy and decision6makingprocesses a&ecting their rights and bene"ts as may be providedby law./ (Art. ?@@@, Sec. 3, 1#$7 Constitution) 2006 BAREAM# 341

IV.

-iscuss in full the Durisdiction over the civil and criminal aspectsof a case involving an unfair labor practice for which a charge ispending with the -epartment of 1abor and 2mployment.

SUGGESTED ANSWER:

Hnfair labor practices are not only violations of the civil rights of both labor and management but are also criminal o&enses

against the State. #he civil aspect of all cases involving unfair labor practices! whichmay include claims for actual! moral! eemplary and other formsof damages! attorney+s fee and other a3rmative relief! shall beunder the Durisdiction of the 1abor Arbiters.4owever! no criminal prosecution shall be instituted without a"nal Dudgment! "nding that an unfair labor practice wascommitted! having been "rst obtained in the administrativeproceeding. -uring the pendency of such administrativeproceeding! the running of the period for prescription of thecriminal o&ense herein penalized shall be interrupted. #he "nal

Dudgment in the administrative proceeding shall not be binding inthe criminal case nor be considered as evidence of guilt butmerely as proof of compliance of the requirements set forth bylaw. (Article 267, Laor Code.) 2006 BAR EAM# 34%


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V.

-iscuss the legal requirements of a valid strike.

SUGGESTED ANSWER:

#he legal requirements of a valid strike are as follows89. *o labor union may strike on grounds involving inter6union

and intra6union disputes.. 7n every case! the union shall furnish the -epartment of 1abor and 2mployment the voting at least seven days beforethe intended strike subDect to the cooling6o& period hereinprovided.

. *o labor organization shall declare a strike without "rsthaving bargained collectively; without "rst having "led thenotice required or without the necessary strike vote "rsthaving been obtained and reported to the -epartment of 1abor and 2mployment.

. *o strike shall be declared after assumption of Durisdiction bythe Iresident or the Secretary or after certi"cation orsubmission of the dispute to compulsory or voluntary


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arbitration or during the pendency of cases involving thesame grounds for the strike.

E. 7n a strike no person engaged in picketing should commitany act of violence! coercion or intimidation or obstruct the

free ingress to or egress from the employer+s premises forlawful purposes! or obstruct public thoroughfares.

ALTERNATIVE ANSWERS:

A.*otice of strike "led by the bargaining agent ,if collectivebargaining deadlock: or a registered union in the a&ectedbargaining unit ,if unfair labor practice:; *otice of strike "ledwith the *C$5; *otice of strike "led at least hours priorto taking a strike vote by secret balloting! informing said

o3ce of the decision to conduct a strike vote! and the date!place! and time thereof; Strike vote where maDority of unionmembers approve the strike; Strike vote report should besubmitted to the *C$5 at least E days before the intendeddate of strike; 2cept in cases of union busting! the cooling6o& period prescribed ,9 days! unfair labor practice; =F days!collective bargaining deadlock: should be fully observed;E6day waiting period or strike bans after submission of thestrike vote report to *C$5 should be fully observed; *ot on

grounds of H1I in violation of no6strike clause in C5A; *otvisited with widespread violence; *ot in de"ance of theSecretary+s assumption of Durisdiction order; *ot prohibitedby law ,such as unions in the banking industry:.

B.A valid strike requires compliance of both substantial andprocedural grounds. Substantially! a valid strike has to begrounded on either unfair labor practice or deadlock incollective bargaining. Irocedurally! the same must complywith the requirements of8 ,9: notice of strike to "led at least9 days before the intended H1I grounded strike or at least=F days prior to the deadlock in bargaining grounded strike;,


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strike vote is taken; and ,=: the strike vote results must befurnished to the *C$5 at least E days before the intendedstrike. #he dismissal of a duly elected o3cer ecuses!however! the union from the 9'=F days cooling o&

requirement in Art. : essential elements are present89. An eisting hierarchy of positions with corresponding salary

rates;


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SUGGESTED ANSWER:

A run6o&+ or second election occurs when an election which

provides for three ,=: or more choices results in no choicereceiving a maDority of the valid votes cast! and no obDections orchallenges have been presented which! if sustained! canmaterially change the results; the election o3cer shall mot%

proprio conduct a run6o& election within ,9F: calendar days fromthe close of the election proceedings between the labor unionsreceiving the ,


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is cohabiting (Section 2, RA1$7). Sandra is Cesars legitimatespouse with whom he is cohabiting. #he fact that Sandra is hissecond wife and that Cesar had > children with his "rst wife isbeside the point. #he important fact is that this is the "rst child of

Sandra with Cesar. #he law did not distinguish and we shouldtherefore not distinguish.

#he paternity leave was intended to enable the husband toe&ectively lend support to his wife in her period of recoveryand'or in the nursing of the newly born child (Sec. 3, RA $1$7).

#o deny Cesar this bene"t would be to defeat the rationale for thelaw.

ALTERNATIVE ANSWER:

#he 4?- manager is correct. Since it is conceded that Cesarearlier availed of four ,>: paternity leaves when his "rst wife gavebirth to their four ,>: children! he clearly Oalready used up hisentitlement under the lawO. 4is new wifes giving birth for the "rsttime would not! matter as the bene"t given by. Section < of ?.A.9E is an ehaustible bene"t granted to a father Ofor the "rstfour ,>: deliveries of the legitimate spouse with whom he iscohabitingO.

2. 7s Sandra entitled to maternity leave bene"ts)

SUGGESTED ANSWER:

Nes! if Sandra! as a female employee! has paid at least three ,=:monthly contributions in the twelve6month period immediatelypreceding the semester of her childbirth ,Sec! 9>6A! ?.A. 999! asamended:; otherwise; she is not entitled to the bene"t. 2005BAR EAM# 345

I.

9. (hat is the *o Strike *o 1ock6out Clause/) -iscuss.


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SUGGESTED ANSWER:

*o Strike *o 1ockout Clause/ is a provision in a collectivebargaining agreement in which the union promises that during the

life of the C5A! the employees will not engage in strikes; and theemployer will not declare a lock6out. A union often agrees to suchclause in echange for a grievance arbitration provision.

Although the 1abor Code grants employees the right to strike! not all stries are "rotected . 7f a collective bargaining agreementcontains no strike no lock6out clause! a strike during the life of thecontract would not be protected. #he strikers could be terminated.

adDusted the overtime rates so that those who worked overtime

were only paid an additional


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replace the workers overtime rate loss! the company granted a

one6time M across6the6board wage increase.

Ligilant Hnion! the rank6and6"le bargaining agent! charged the

company with Hnfair 1abor Iractice on the ground that ,9: noconsultations had been made on who would render overtime

work; and ,


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their talks already bogged down on the negotiation ground rules!

i.e.! on the question of how they would conduct their negotiations!

particularly on whether to consider retirement as a negotiable

issue.

5ecause of the continued impasse! the union went on strike. #he

Secretary of 1abor and 2mployment immediately assumed

Durisdiction over the dispute to avert widespread electric power

interruption in the country. After etensive discussions and the

"ling of position papers ,before the *ational Conciliation and

$ediation 5oard and before the Secretary himself: on the validity

of the unions strike and on the wage and other economic issues

,including the retirement issue:! the -012 Secretary ruled on thevalidity of the strike and on the disputed C5A issues! and ordered

the parties to eecute a C5A based on his rulings.

-id the Secretary of 1abor eceed his Durisdiction when heproceeded to rule on the parties C5A positions even though theparties did not fully negotiate on their own)

SUGGESTED ANSWER:

*o. #he power of the Secretary of 1abor under Article


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the eclusive rank6and6"le collective bargaining representative in

the company. #he union has a C5A with *#C which contains a

union security and a check6o& clause. #he union security clause

contains a maintenance of membership provision that requires all

members of the bargaining unit to maintain their membership ingood standing with the union during the term of the C5A under

pain of dismissal. #he check6o& clause on the other hand

authorizes the company to deduct from union members salaries

de"ned amounts of union dues and other fees. 5adong refused to

issue an authorization to the company for the check6o& of his

dues! maintaining that he will personally remit his dues to the

union.

9. (ould the *#C management commit unfair labor practice if

it desists from checking o& 5adongs union dues for lack of

individual authorization from 5adong)

SUGGESTED ANSWER:

*o. Hnder ?A @>9! violation of the Collective 5argaining

Agreement! to be an unfair labor practice! must be gross incharacter. 7t must be a Jagrant and malicious refusal to complywith the economic provisions of the C5A.

ALTERNATIVE ANSWER:*o. Check6o&s in truth impose an etra burden on the employer inthe form of additional administrative and bookkeeping costs. 7t isa burden assumed by management at the instance of the unionand for its bene"t! in order to facilitate the collection of duesnecessary for the latter+s life and sustenance. 5ut the obligationto pay union dues and agency fees obviously devolves not uponthe employer! but the individual employee. 7t is a personalobligation not demandable from the employer upon default orrefusal of the employee to consent to a check6o&. #he onlyobligation of the employer under a check6o& is to e&ect the


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deductions and remit the collections to the union. (:ol Cross of 'a&ao Colle4e &s. oa!uin, /R No. 110007< 1##)


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. #he power to control the employee+s conduct

#here was also no showing that Sergio has his own tools! orequipment so as to qualify him as an independent contractor.

ALTERNATIVE ANSWER:

*one. 1ando is an independent contractor for -on 1uis does noteercise control over 1ando+s means and method in tending to theformer+s garden.


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Hnder the -eadlock 5ar ?ule/! a certi"cation election cannot beheld if a bargaining deadlock to which an incumbent or certi"edbargaining agent is a party had been submitted to conciliation or

mediation or had become the subDect of a valid strike or lockout.(Sec. 3, Rule ?@, +oo V of t%e @*"le*entin4 Rules and Re4ulations of t%e Laor Code) 1&&& BAR EAM

V.

Celia was employed by Chenelyn State Hniversity ,CSH: to cookfor the members of a religious order who teach and live inside thecampus. (hile performing her assigned task! Celia accidentally

burned herself. 5ecause of the etent of her inDuries! she went onmedical leave. $eanwhile! CSH engaged a replacement cook.Celia "led a complaint for illegal dismissal! but her employer CSHcontended that Celia was not a regular employee but a domestichousehelp. -ecide.

SUGGESTED ANSWER: #he employer+s argument that Celia was not a regular employeehas no merit. #he de"nition of domestic servant or househelper

contemplates one who is employed in the employer+s home tominister eclusively to the personal comfort and enDoyment of theemployer+s family. #he Supreme Court already held that the merefact that the househelper is working in relation or in connectionwith its business warrants the conclusion that such househelperor domestic servant is and should be considered as a regularemployee. (A"e 9inin4 Co. @nc &s. NLRC, /R No. #6#51, A"ril 22, 1##1. 4ere! Celia was hired not to minister to thepersonal comfort and enDoyment of her employer+s family but toattend to other employees who teach and live inside the campus.

ALTERNATIVE ANSWER:

#he complaint for illegal dismissal should be dismissed. #here wasno showing that in hiring the replacement cook! CSH severed itsemployer6employee relationship with Celia. 7n illegal dismissal


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cases! an employee must "rst establish! by substantial evidence!the fact of dismissal before shifting to the employer the burden of proving the validity of such dismissal. (/rand Asian S%i""in4Lines, @nc, -duardo P. Erancisco and illian :o &s.

lifred /al&e, et al. /R No. 17$1$6, anuar 2#, 2016).4ere! Celia+s dismissal was not clearly established. 201' BAREAM# 341

VI.

Starbecks Supervisory 2mployees+ Hnion "led a petition for theholding of a certi"cation election among the supervisoryemployees of Starbecks Company. #he company moved to

dismiss the petition on the ground that Hnion members were notperforming managerial functions and were not merely supervisoryemployees. #he company also alleged that a certi"ed bargainingunit eisted among its rank and "le employees which barred the"ling of the petition.

-oes the company have the standing to "le the motion todismiss) 2plain.

SUGGESTED ANSWER:

*o! the company has no standing to "le the motion to dismiss asthe employer has no right to interfere in a purely union matter orconcern. (P%ili""ine Eruits and Ve4etales @ndustries, @nc.&s. =orres, 211 SCRA #5, 1##2)

#he Court would wish to stress once more the rule which it hasconsistently pronounced in many earlier cases that a certi"cationelection is the sole concern of the workers and the employer isregarded as nothing more than a bystander with no right tointerfere at all in the election. 1&&( BAR EAM

VII.


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7n anticipation of the epiration of C5A between Shell and HnionGanda! the parties started negotiations for new C5A. #he unionrequested a Association &s Pili"inas S%ell Cor"oration, /.R. No. 170007, A"ril 7, 2016) ,A97a, 9a")nnd 8; 2015 Ba* C


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,a: #his is a case involving permissible Dob contracting. Antonioscharge of illegal dismissal against Nosi Cigarette %actory will notprosper. (agan Security Agency! an independent contractor! isAntonios direct employer. Nosi is only Antonios indirect employer

,Art. 9F@! 1abor Code:. 5y force of law! there is in reality noemployer6employee relationship between Nosi and Antonio.,b: Antonios claim for overtime and other bene"ts should be paidby Nosi Cigarette %actory. #he 1abor Code provides that in theevent that the contractor or subcontractor fails to pay the wagesof his employees! the employer shall be Dointly and severallyliable to the etent of the work performed under the contract inthe same manner and etent that he is liable to employeesdirectly employed by his contractor or subcontractor for anyviolation of any provision of the 1abor Code.

I.Among the >FF regular rank6and6"le workers of $*0 Company! acerti"cation election was ordered conducted by the $ed6Arbiter of the ?egion. #he contending parties obtained the following votes8

9. Hnion A 6 EF<

>. Hnion - 6 ==

. *o union 6 9F. Spoiled votes 6 >

#here were no obDections or challenges raised by any party on theresults of the election.$ay the management or lawyer of $*0 Company legally ask forthe absolute termination of the certi"cation election proceedingsbecause 9F of the workers T a clear plurality of the voters Thave chosen not to be represented by any union)SUGGESTED ANSWER:*o! because


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SUGGESTED ANSWER:According to the 1abor Code! in any establishment where there isno certi"ed bargaining agent! a certi"cation election shallautomatically be conducted by the $ed6Arbiter upon the "ling of

a petition by a legitimate labor organization. 7n the above6described situation! a certi"cation election is made mandatorybecause if there is no certi"ed bargaining agent as determined bya certi"cation election! there could be no collective bargaining inthe said unorganized establishment.

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