2021 BAR EXAMINATIONS TRIAL

LABOR LAW AND SOCIAL LEGISLATION

(November 7, 2021)

LEGAL EDGE BAR REVIEW CENTER

legaledge8@gmail.com
0942-949-9176 / 0917-894-5356

QUESTION NO. 1

A was a bus conductor of B Company and was dismissed from employment on the ground of serious
misconduct, due to a discrepancy of PhP200.00 between the amount he remitted and bus receipts tally.
As his lawyer, how will you use the concept of social justice to strengthen A’s case for illegal dismissal
against B Company. (5 points)

SUGGESTED ANSWER

A’s dismissal from employees is not justifiable.

Our laws on labor, foremost of which is the Labor Code, are pieces of social legislation, adopted
pursuant to the constitutional recognition of "labor as a primary social economic force" and to the
constitutional mandates for the state to "protect the rights of workers and promote their welfare.

The social justice suppositions underlying labor laws require that the statutory grounds justifying
termination of employment should not be read to justify the view that bus conductors should, in all
cases, be free from any kind of error. Not every improper act should be taken to justify the termination
of employment.

Here, absent any other supporting evidence, the error in a single ticket issued by A can hardly be used
to justify the inference that he has committed serious misconduct to warrant dismissal from
employment.

Hence, dismissal of A by B Company should be considered illegal.

(SOURCE: Rivera vs. Genesis Transport Service, Inc., 764 SCRA 653, G.R. No. 215568 August 3,
2015, Leonen, J.)

QUESTION NO. 2

A, without a license, recruited B for the amount PhP100,000.00, promising B that he will be deployed
to Vanuatu as a fruit picker. A convinced B by showing him testimonials and pictures of other people
she has supposedly helped to get employment. Despite paying the full amount, A failed to send B to
Vanuatu. B filed two (2) cases: one for simple illegal recruitment and another for estafa by means of
deceit under Article 315(2)(a) of the Revised Penal Code. May A be charged and convicted separately
of both crimes? (5 points)

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SUGGESTED ANSWER

Yes, A may be charged and convicted separately of simple illegal recruitment and estafa by means of
deceit under Article 315 (2) (a) of the Revised Penal Code.

Conviction for offenses under the Labor Code does not bar conviction for offenses punishable by other
laws. Conversely, conviction for estafa under par. 2(a) of Art. 315 of the Revised Penal Code does not
bar a conviction for illegal recruitment under the Labor Code. It follows that one's acquittal of the crime
of estafa will not necessarily result in his acquittal of the crime of illegal recruitment in large scale, and
vice versa.

Here, A engaged in illegal recruitment activities when without a license, A promised B employment to
Vanuatu in exchange for a consideration. A is also liable for estafa by means of deceit because 1. She
misrepresented her qualifications and authority to send B abroad; 2. Her false representation was made
prior to or simultaneous to the commission of the fraud; 3. B relied on A’s representation and 4. A’s
misrepresentation resulted in damage to B.

Therefore, A may be charged and convicted for both crimes.

QUESTION NO. 3

Republic Act No. 10022 reinstated the clause in Republic Act No. 8042, which provides that in case of
termination of overseas employment without just, valid, or authorized cause, the worker shall be
entitled, among others, to his salaries for the unexpired portion of his employment contract or for three
(3) months for every year of the unexpired term, whichever is less. Is the reinstated clause
constitutional? (5 points)

SUGGESTED ANSWER

No, the reinstated clause is unconstitutional.

A law is void for infringing the equal protection of the law only if classifications are made arbitrarily. The
reinstated clause does not satisfy the requirement of reasonable classification. Pursuant to this clause,
illegally dismissed overseas workers whose employment contracts had a term of less than one year
will be granted the amount equivalent to the unexpired portion of their employment contracts while
illegally dismissed overseas workers with employment terms of at least a year will be granted a cap
equivalent to three months of their salary for the unexpired portions of their contracts. These
classifications do not rest on any real or substantial distinctions that would justify different treatments
in terms of the computation of money claims resulting from illegal termination. Also, the classifications
are not relevant to the purpose of the law, which is to "establish a higher standard of protection and
promotion of the welfare of migrant workers, their families and overseas Filipinos in distress, and for
other purposes.

QUESTION NO. 4

State the policy sought to be achieved by the Universal Health Care Act and the coverage of the
National Health Insurance Program. (5 points)
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SUGGESTED ANSWER

The Universal Health Care Act seeks to achieve the policy of the State to protect and promote the right
to health of all Filipinos and instill health consciousness among them. Every Filipino citizen shall be
automatically included into the National Health Insurance Program.

QUESTION NO. 5

During A’s labor, her spouse died due to cardiac arrest. As such, she is left alone with the responsibility
of parenthood. How many days of maternity leave is she entitled to receive? (5 points)

SUGGESTED ANSWER

A is entitled to 120 days of maternity benefit.

Under the Expanded Maternity Leave Law, any pregnant female worker in the private sector shall be
granted a maternity leave of one hundred five (105) days with full pay, regardless of whether she gave
birth via caesarian section or natural delivery. In case the employee qualifies as a solo parent under
Republic Act No. 8972, or the "Solo Parents’ Welfare Act", the employee shall be paid an additional
maternity benefit of fifteen (15) days.

Here, A is entitled to a maternity leave of one hundred five (105) days regardless of whether she gave
birth via caesarian section or natural delivery. She is likewise entitled to an additional maternity benefit
of fifteen (15) days for being a solo parent under the Solo Parent Act.

Accordingly, A is entitled to a total of 120 days of maternity benefit.

QUESTION NO. 6

The President appointed Antonio Bonifacio to the NLRC as Commissioner. Alfonso del Pilar, a long-
time nemesis of Antonio, questioned his appointment on the ground that it was not submitted to the
Commission on Appointments for its confirmation. Is this contention of Alfonso tenable? (5 points)

SUGGESTED ANSWER

No, the contention of Alfonso is untenable.

The Chairman and Commissioners fall within the second sentence of Section 16, Article VII of the
Constitution, more specifically under the "third groups" i.e. those whom the President may be authorized
by law to appoint.

Undeniably, the Chairman and Members of the NLRC are not among the officers mentioned in the first
sentence of Section 16, Article VII whose appointments requires confirmation by the Commission on
Appointments.

(SOURCE: Calderon vs. Carale, April 23, 1992)

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QUESTION NO. 7

The Labor Code provides that in case of strikes and lockouts the union/management must observe the
cooling-off period and strike/lockout ban. State the legal purposes of these mandatory statutory
requirements for a valid strike or lockout. (5 points)

SUGGESTED ANSWER

The 15 to 30-day cooling-off period is designed to afford the parties the opportunity to amicably resolve
the dispute with the assistance of the NCMB conciliator/mediator. While the seven-day strike ban is
intended to give the DOLE an opportunity to verify whether the projected strike/lockout really carries
the imprimatur of the majority of the union members or members of the board of the management

(SOURCE: Phimco Industries vs. PILA, August 11, 2010)

QUESTION NO. 8

Maria filed his money claims for unpaid wages and other benefits in the Office of the Labor Arbiter, but
she is still employed with the respondent employer. The employer moved for the dismissal of the
complaint alleging that the Labor Arbiter has no jurisdiction, as the issues fall within the jurisdiction of
the Regional Director of the DOLE. If you were the Labor Arbiter how would you resolve the issue? (5
points)

SUGGESTED ANSWER:

As a Labor Arbiter I will conduct a mandatory conciliation proceeding under the Single Entry Approach.
While it is true that the jurisdiction in this issues belong to the DOLE Regional Director, yet the Labor
Code provides that the Labor Arbiter must not dismiss the case and instead proceed with the SEnA.

QUESTION NO. 9

The Samahan ng mga Manggagawa Sa Hotel (Union) is the certified bargaining agent of the rank-and-
file employees of Plaza Hotel (Hotel). The Union submitted its CBA negotiation proposals to the Hotel.
But, the Hotel management found the demand unreasonable, and the negotiations resulted to a
bargaining deadlock. The Union, on December 14, 2019, filed a Notice of Strike with the National
Conciliation and Mediation Board (NCMB). Consequently, the Union conducted a Strike Vote on
January 15, 2020, and submitted the votes approving the strike to the NCMB on January 16, 2020. On
January 17, 2020, the Union staged a picket outside the Hotel premises and prevented other workers
from entering the Hotel. The Union members blocked the ingress and egress of customers and
employees to the Hotel premises, which caused the Hotel severe lack of manpower and forced the
Hotel to temporarily cease operations resulting to substantial losses. On January 20, 2020, the Hotel
issued notices to Union members, preventively suspending them and charging them with the following
offenses: (1) illegal picket; (2) illegal strike; and (3) commission of illegal acts during the illegal strike.
The Hotel later terminated the Union officials and members, who participated in the strike. The Union
denied it engaged in an illegal strike and countered that the Hotel committed an unfair labor practice
(ULP) and a breach of the freedom of speech. Was the picketing legal? Was the mass action of the
Union officials and members an illegal strike? Explain. (5 points)
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SUGGESTED ANSWER:

The picketing was illegal.

Article 279(e) of the Labor Code provides that “No person engaged in picketing shall commit any act of
violence, coercion or intimidation or obstruct the free ingress to or egress from the employer's premises
for lawful purposes, or obstruct public thoroughfares.

When the Union staged a picket outside the Hotel premises and prevented other workers from entering
the Hotel, blocked the ingress and egress of customers and employees to the Hotel premises, which
caused the Hotel severe lack of manpower and forced the Hotel to temporarily cease operations
resulting to substantial losses, that was violative of the law.

The strike was also illegal as it was held without observing the seven day strike ban.

QUESTION NO. 10

Due to the current COVID-19 pandemic, ZYX Corporation temporarily suspended its operations with
the approval of the DOLE, from May 2020 to December 2020. In January 2021 Alice, one of the machine
operators filed a case for constructive dismissal alleging, among others, that the law only allows the
employer to put the employees on a floating status for a period not exceeding six months. Thus, she
and her co-workers should have been recalled back to work or, in the alternative, paid corresponding
separation pay. For its part, the employer contended that the DOLE has allowed it to suspend operation
beyond six months, due to the on-going covid crisis. If you were the Labor Arbiter, how would you
resolve this case? (5 points)

SUGGESTED ANSWER

I would rule in favor of Alice.

The Labor Code provides that the bona fide suspension of operation of a business or undertaking for
a period not exceeding six (6) months, or the fulfillment by the employee of a military or civic duty shall
not terminate employment.

Based on the facts, Al has been on a floating status for seven months which is already beyond the
period allowed by law.

Thus, the employer is now compelled to recall Al and other employees to back to work or pay them
appropriate separation pay.

QUESTION NO. 11

May the Court review a Waiver and Quitclaim already signed by the employee? (5 points)

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SUGGESTED ANSWER

Generally, no. A compromise entered into in good faith by workers and their employer to resolve a
pending controversy valid and binding on the agreeing parties, However, it does not bar employees
from filing labor complaints and demanding benefits to which they are legally entitled. They are
"ineffective in barring recovery of the full measure of a worker's rights, and the acceptance of benefits
therefrom does not amount to estoppel.”

(SOURCE: Aldovino vs. Gold and Green Manpower, June 19, 2019, Leonen)

QUESTION NO. 12

Explain the contract bar rule in a collective bargaining agreement. (5 points)

SUGGESTED ANSWER

The contract bar rule is a provision in the collective bargaining agreement that prevents the employer
and the contracting union from disturbing the existing valid collective bargaining agreement for five
years except during the freedom period. It also prohibits the Bureau of Labor Relations and/or the
Regional Director of the Department of Labor and Employment from entertaining any petition for
certification election while a valid collective bargaining agreement is existing in an industry provided the
CBA is registered with the BLR.

QUESTION NO. 13

Prof. Agaton is the Secretary of the Faculty Union of South Colleges. In one occasion, Dr. Quimson,
the College President called the attention of Prof. Agaton, due to his numerous absences, tardiness,
and the frequent complaints of his students for his rudeness and for collecting various amounts from
them for alleged charitable projects. Irked by this, Prof. Agaton shouted invectives and berated Dr.
Quimson. The latter initiated an administrative case against Prof. Agaton for serious misconduct and
after notice and hearing, Prof. Agaton was dismissed from his employment. Prof. Agaton filed a case
for illegal dismissal and unfair labor practice against South Colleges. Is the dismissal of Prof. Agaton,
an act of ULP? (5 points)

SUGGESTED ANSWER

No.

The dismissal of a union officer is not necessarily discriminatory, especially when that officer committed
an act of misconduct. In fact, union officers are held to higher standards.

While an act or decision of an employer may be unfair, certainly not every unfair act or decision
constitutes unfair labor practice (ULP) as defined and enumerated under Art. 258 of the Labor Code.

(SOURCE: Adamson Univ. Faculty Union vs. Adamson Univ., March 9, 2020)

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QUESTION NO. 14

Distinguish boulwarism from blue sky bargaining and surface bargaining. (5 points)

SUGGESTED ANSWER

Boulwarism is an offer or counter-offer that is not meant to be negotiated. This is a "take it or leave it"
strategy named after Lemuel Boulware a former vice president of General Electric. When faced with a
strike, Boulware is famous for telling the workers at the onset of negotiations that the company had
already evaluated the workers' needs and was putting forth its "first, last and best offer" on the table.
Due to its nature, boulwareism is prohibited in Philippine Labor laws because the parties – the employer
and the labor union are mandated to bargain in good faith.

Blue-sky bargaining is the act of making exaggerated or unreasonable proposals. On the other hand,
surface bargaining is defined as "going through the motions of negotiating" without any legal intent to
reach an agreement. It involves the question of whether an employer’s conduct demonstrates an
unwillingness to bargain in good faith or is merely hard bargaining.

(SOURCE: Standard Chartered Bank vs. Confesor, June16, 2004)

QUESTION NO. 15

Pilar, is teaching a grade school teacher in St. Martha Academy, a sectarian school, which maintains
a high standard of values and moral uprightness. Pilar has a live-in partner, and when she applied for
maternity leave the employer required her to present proof of legitimacy of her child, otherwise the
application will be denied. Pilar comes to you for advice. Explain the legal basis of your advice. (5
points)

SUGGESTED ANSWER

The employer cannot deny Pilar’s application for maternity leave as she is entitled to this benefit under
R.A. 11210, which provides that all covered female workers in government and the private sector,
including those in the informal economy, regardless of civil status or the legitimacy of her child, shall
be granted one hundred five (105) days maternity leave with full pay and an option to extend for an
additional thirty (30) days without pay.

-NOTHING FOLLOWS-

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