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.
///////////////

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. 

[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. 

[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 essential
False. 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
//////////////////

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-stock
corporation. 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.

(See discussion here)

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.
(See discussion here)

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.

(See discussion here)

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.

(See discussion here)

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.

(See discussion here)

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.
(See discussion here)

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

(See discussion here)

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.

(See discussion here)

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%)

(See discussion here)

_________________
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%) 

(See discussion here) 

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.
(6%) 

(See discussion here) 

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 Constitution

for 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.

(See discussion here)

VII.
(5 POINTS)

7. a) May the NLRC or the courts take jurisdictional

cognizance over compromise agreements/
settlements involving labor matters?

b) How sacrosanct are statements/data made at

conciliation proceedings in the Department of
Labor and Employment? What is the philosophy
behind your answer?
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.

(See discussion here)

X.
(5 POINTS)

Discuss briefly the instances when non-compliance by

the employer with a reinstatement order of an illegally
dismissed 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

(See discussion here)

XII.
(5 POINTS)

12. a) How do you execute a labor judgment which, on

appeal, had become final and executory? Discuss
fully.

b) Cite two instances when an order of execution

may 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

(See discussion here)

XIII.
5 POINTS

May a decision of the Labor Arbiter which has become

final and executory be novated through a compromise
agreement of the parties?
yes, compromise agreements are favored by law..it can be applied anytime..

(See discussion here)

XIV.
5 POINTS

AB, single and living-in with CD (a married man), is

pregnant with her fifth child. She applied for maternity leave
but her employer refused the application because she is not
married. 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.

(See discussion here)

XV.
(5 POINTS)

Some officers and rank-and-file members of the union

staged an illegal strike. Their employer wants all the strikers
dismissed. As the lawyer, what will you advise the
employer? Discuss fully.

(See discussion here)

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 her
assigned task, she slipped and hit her back on a stone.Unable to continue with her work, she was permitted to
go
leave 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 Philippine

Overseas Employment Administration (POEA) against
overseas 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

(See discussion here)

XX.
(5 POINTS)

AB, a non-resident American, seeks entry to the

country to work as Vice-President of a local
telecommunications company. You are with the Department
of Labor and Employment (DOLE). What permit, if any, can
the DOLE issue so that AB can assume as Vice-President in
the 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.

(See discussion here)

/////////////////
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 of
his 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 travel

agency 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 find
employment 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 only
travel 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 of
the 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 Regulations
Governing the Recruitment and Employment of Seafarers [May
23, 2003]).
-III-

Can an overseas worker refuse to remit his earnings to his

dependents and deposit the same in the country where he works to
gain 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 accordance
22006 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 the
country’s economic development program. Non-compliance with the laws
and 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 mandatory
remittance 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; Section
2, 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 handicapped

workers 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 to
speak of.
Under the law, it does not necessarily follow that where the duties
of the employee consist of activities usually necessary or desirable in the
usual business of the employer, the parties are forbidden from agreeing on
a period of time for the performance of such activities. There is thus
nothing 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, the
parties are prohibited to enter into any stipulation which may result in the
reduction of any employee benefits. In the instant case, the reduction by
the 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, et
al., 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 certainly
redounds 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 Republic
Act 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 Arbitration
Proceedings [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 Regional
Tripartite 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 Implementing
Republic 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 on
Minimum 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 concerted
activities 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 Labor
Arbiter 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 in
terminating 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 ever
complied with the foregoing procedural due process requisites. The said
notices 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. Deputy
Minister 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 only
in case there is only one (1) legitimate labor organization existing and
operating in an unorganized establishment. It cannot be extended in case
there 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 by
Department 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 an
62006 Bar Examinations in Labor Law Suggested Answers Prof. Joselito Guianan Chan
appropriate bargaining unit for purposes of collective bargaining or
negotiation. 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 by
Department 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 the
process 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 and
exclusive 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 certification
election 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 collective
bargaining unit is vested in the labor union “designated or selected” for
such 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 the
corporation. 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 the
following reasons:
1. He cannot own forest land. Forest land is an inalienable public
domain. It is owned by the State. (Section 2, Article XII, 1987
Constitution).
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 the
general 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 supervision
over 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 associations
at 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 been
asked 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 last
five (5) years, they decided to close the business.
1. As counsel for the corporation, what steps will you take prior to its
closure? 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 separate
notices to the employees to be terminated and to the Department of Labor
and 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 operation
or 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 a
desire 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, 186
SCRA 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 losses
and 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 at
least 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 the
payment of wages and other benefits, from the date of actual refusal until
the workers are re-admitted. (No. 24, Guidelines Governing Labor
Relations).
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 moot
and academic, the issue of the legality of the strike. The employer may still
pursue the declaration of the illegality of the strike and secure the
dismissal 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 comply
fully 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 the

employer during the strike may not be permanently employed. The
employer is duty-bound to discharge them when the strikers are reinstated
to 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 to
resume 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 walked
out. The supervisor shouted at them to go home and never to report
back to work. Later, the personnel manager required them to explain
why 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 in
shouting 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 expiration
thereof 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 were
fired 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 time
they 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, I
will 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 to
their 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 claims
against 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 the
concomitant 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 not
want 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 unions

receiving the two (2) highest number of votes in a certification or consent
election 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 prohibited

from 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, work
which, by its nature or the circumstances in which it is carried out, is
hazardous 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 entertainment
or 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 the
approval 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 engaging
such 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 minor
such 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 casino
because 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 or
demeans 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 personnel
manager, 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. She
hires 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 the
following 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 of
employment 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 sexual
142006 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 the
resolution 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 the
Anti-Sexual Harassment Act (Republic Act No. 7877) against the
Personnel 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 informed
of such acts by the offended party and no immediate action is taken
thereon.
That the Personnel Manager is liable for sexual harassment
is 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 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
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 the
Personnel 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 guilty
of sexual harassment.
NOTHING FOLLOWS.
15