BARQ&A

FOR THE PAST 10 YEARS

LABOR LAW
BENEDICT GUIREY KATO
Labor Arbiter
NCR

Member
UP Law Center Panel of Experts in Labor Law

Law Professor
Currently: UST, UE, TSU & PUP
Formerly: UM, SLU, UC & UB

Bar Reviewer & Pre-Week Lecturer

(in the order invited)
ABRC, ChanRobles Online Bar Review
Magnificus Juris
Villasis Law Center, Great Minds Review Center
UST Bar Review, New Era Bar Review, SBU Bar Review
PUP Bar Review, TSU Bar Review,
Legal Edge Bar Review Center, UA&P Bar Review

Author
Survival Notes in Labor Law, Bar Questions and Answers in
Labor Law, Bar Syllabus-Based Reviewer in Labor Law,
Labor Standards Law, A Remunerative and Protective Law &
Labor Relations Law: An Organizational and Tenurial Law

2020 Edition
 Philippines Copyright 2020

By
TABLE OF CONTENTS
BENEDICT GUIREY KATO ~!
PAGE

ALL RIGHTS RESERVED 2008 BAR EXAMINATIONS

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 TABLE OF CONTENTS TABLE OF CONTENTS

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 TABLE OF CONTENTS TABLE OF CONTENTS

2017 BAR EXAMINATIONS 2019 BAR EXAMINATIONS

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A.7 ........................................................................ 213
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2018 BAR EXAMINATIONS

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 2008 BAR EXAMINATIONS

l.

a. Explain the automatic renewal clause of collec-

tive bargaining agreements. (3%)
b. Explain the extent of the workers right to parti-
cipate in policy and decision-making process as provi-
ded under Article XIII, Section 3 of the Philippine Cons-
titution. Does it include membership in the Board of
Directors of a corporation? (3%)

Answers:

(a) Automatic Renewal Clause

When the political life of a collective bargaining agree-
ment (CBA) expires, all provisions will continue to be effec-
tive until a new CBA is concluded. This rule applies to both
original and renegotiated or extended CBAs.
(b) Right to Participate
The right to participate, as enshrined in Sec. 3, Art. XIII
of the Constitution, is the right to be part of the deliberative
and adoptive phases of policy and decision-making on mat-
ters affecting workers' rights, benefits and welfare. This right
does not cover purely business decisions (PAL v. NLRC, et
al., G.R. No. 85985, 13 August 1993) and the determina-
tion of retention criteria in retrenchment (FASAP v. PAL,
G.R. Na. 178083, 13 March 2018).
Board membership is not included in the right to parti-
cipate. The participation provision does not provide a
shortcut to board membership which is by election only.
However, by concession, the employer may permit wor-
kers' representation in its seat of governance, e.g., by way
of trade-off to get the union to agree to a bargaining mo-
1
2 BARQ&A
FOR THE PAST 10 YEARS
ratorium arrangement (Rivera, et al. v. Espiritu, et al.,
G.R. No. 135547, 23 January 2002).
H voluntary arbitration body rr.iay be brought for resolution to
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 juris-
diction of the Labor Arbiter be submitted to voluntary
arbitration? Why or why not? (3%)
c. Cari a dispute falling within the jurisdiction of a
voluntary arbitrator be submitted to compulsory arbit-
ration? Why or why not? (3%)
Answers:
(a) The following may be brought to voluntary arbit-
ration:
In the exercise of traditional jurisdiction, (a) all un-
resolved disputes arising from CBA interpretation or imple-
mentation; and (b) all unresolved dispuje& arising from the
implementation or enforcement of company personnel poli-
cy (Art. 274, Labor Code); and
In the exercise of jurisdiction by stipulation, all dis-
putes as may be agreed upon by the parties to a CBA or
similar agreement to be brought to voluntary arbitration
(Art. 275, Labor Code).
(b) Yes.
A dispute pending before the Labor Arbiter may be
brought to voluntary arbitration in observance of the consti-
tutional stricture on preferential use of voluntary modes of
dispute resolution. By agreement of the disputants, there-
fore, their issues may be brought out of the compulsory ar-
bitration process (Art. 224, Labor Code) for resolution by
2008 BAR EXAMINATIONS 3
a third party mutually chosen by them (Arts. 274 and 275,
Labor Code).
(c) Yes, a dispute originally taken cognizance of by a
a compulsory arbitration body.
In an assumed case, the Secretary of Labor exercises
discretionary, preemptive, incidental and plenary power;
hence, owing to the plenary nature of assumption power,
all issues between the same parties pending elsewhere, in-
cluding those being heard by a voluntary arbitrator, shall
be subsumed to the assumed case for simultaneous reso-
lution.
Ill
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 cus-
tomers, were SOS uniforms, report at specified hours,
and are subject to SOS workplace rules and regula-
tions. Those who refuse the 5-month employment con-
tract are not hired.
The day after expiration of her 5-month engage-
ment, Lina wore her SOS 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 SOS.
Soon thereafter, other employees whose 5-month term
had also elapsed, joined Lina's hunger strike.
(a) Lina and 20 other sales ladies filed a complaint
for illegal dismissal, contending that they are SOS re-
gular employees as they performed activities usually
necessary or desirable in the usual business or trade
of SOS and thus, their constitutional right to security
4 BARQ&A
FOR THE PAST 10 YEARS
of tenure was violated when they were dismissed with-
out valid, just or authorized cause. SOS, in defense,
argued that Lina, et al. agreed - prior to engagement -
to a fixed period employment and thus waived their
right to a full-term tenure. Decide the dispute. (4%)
(b) The owner of SOS considered the hunger
strike staged by Lina, et al., an eyesore and disruptive
of SOS business. He wrote the Secretary of Labor a
letter asking him to assume jurisdiction over the dis-
pute 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 a labor inspector of the Re-
gional Office of the Labor Code's security of tenure
provisions and recommended to the Regional Director
the issuance a compliance order. The Regional Direc-
tor adopted the recommendation and issued a com-
pliance order. Is the compliance order valid? Explain
your answer. (3%)
Answer:
(a) I will give the employees a favorable resolution.
The act of SOS in denying Lina et al. entry into its pre-
mises is an overt act of dismissal. The fixed-term employ-
ment contracts that expired on them are contracts of ad-
hesion; hence, being imposed on them in violation of tenu-
rial security, they cannot be allowed to produce any legal
effect. Consequently, given the nature of their work as one
that is usually desirable or necessary in the usual trade of
SOS, Lina et al. attained tenure and could only be disso-
ciated for a just or authorized cause. Since the ground re-
lied upon by SOS, viz., expiration of contract, is not a listed
cause then their dissociation constitutes illegal dismissal.
2008 BAR EXAMINATIONS 5
(b) I will decline ..
The business engaged in by SOS is not of national in-
terest (NI) character. Based on jurisprudence, the following
are NI industriss: hospitals, energy production, air traffic
33control, transportation, water production, export, tire pro-
duction, banking, education, ·drugs and pharmaceuticals,
production of roofing materials and 5-star hotels. Under
DOLE D.O. 40-H-13, which has shortened the foregoing NI
list, only the following are NI industries: water production,
hospitals, energy production, air traffic control and such
other industries as the National Tripartite Industrial Com-
mission (NTIC) may certify as NI. Under either list, SOS'
business is devoid of NI character.
Hence, as Secretary o.J Labor, I will deny the petition
since there is no ·national interest to protect thru my as-
sumption.
(c) The Regional Director cannot issue such Com-
pliance Order for want of jurisdiction. ,
Neither visitorial/enforcement power (Art. 128, Labor
Code) nor adjudicatory power (Art.129, Labor Code) of the
Regional Director permits him to resolve the tenurial issue. If
ever, the only tenurial issue he can resolve is one involving
an apprentice (Art.65, Labor Code), kasambahay (Sec. 37,
R.A. 10361) or talent (DOLE Advisory 4, s. 2016). Here,
where none of said workers is involved, the issue is for the
Labor Arbiter to resolve (Art. 224, Labor Code). Therefore,
the order is not valid.
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
6 BAR Q&A
FOR THE PAST 10 YEARS
than 10 years. He is also called upon to work on week-
ends, on holidays and when there are big affairs at the
hotel.
What is Pedro's status as an employee under the
Labor Code? Why? Explain your answer fully. (6%)
Answer:
Pedro is a regular employee.
One who performs work which is usually necessary or
desirable in the usual trade of his employer is conferred
regular employment status by force of law (Arl. 295, Labor
Code). Here, the work pool to which Pedro belongs is a
pool of emergency workers whose services are vital, indis-
pensable and necessary and without which the hotel can-
not rest assured of its ability to run its business with just
the help of its non-pool employees.
V cognitive significance; hence, if it exists within the contem-
The Pizza Corporation (PizCoi:p).and Ready Sup-
ply Cooperative (RSC) entered into a "service agree-
ment" where RSC in consideration of service fees to
be paid by PizCorp's will exclusively supply PizCorp
with a group of RSC motorcycle-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 impose
disciplinary sanctions on, including the power to dis•
miss, the erring RSC member/s.
2008 BAR EXAMINATIONS 7
(a) Is the contractual stipulation that there is no
employer-employee relationship binding on labor offi.
cials? Why? Explain fully. (3%)
(b) Based on the testis for employer-employee re-
lationship, 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" con-
tracti~g, permissible job contracting, or simply recruit-
ment? (3%)
Answer:
(a) No.
The stipulation against employer-employee relation-
ship is not valid for these reasons: (1) employer-employee
relationship is a question of law; and (2) it is a question of
fact. As a question of law, controlling case law supplies its
plation of the Four-fold Test then it exists ·1n law. As a
question of fact, actual work circumstances determine
whether its legal meaning has factual representation in the
affair between two persons; hence, if the control element is
actualized in said affair then employer-employee relation•
ship exists as a fact. •
For the for~going reasons, parties to contracts cannot
stipulate against the existence of employer-employee rela-
tionship.
(b) PizCorp is the employer of the RSC members.
Since PizCorp exercises labor law concept of control •
or control over means and methods of performance as dis•
tlnct from other types of control, e.g., editorial right, built•in
control in insurance, sound business practice, and post
production control - then it is the actual employer of the
supplied manpower.
8 BAR Q&A
FOR THE PAST 10 YEARS
The exercise by PizCorp of disciplinary powers does
not evidence its right to dismiss only. It also manifests its
right of control because the grounds for its exercise cover
an unspecified number of infractions, foremost of which is
non-observance of directives and orders on how the con-
tractor-supplied employees should perform their assigned
tasks.
(c) RSC is engaged in labor-only contracting.
RSC's paid-up capital of P1 ,000,000.00 falls short of
the contracting financial capacity of P5,000,000.00 pres-
cribed by D.O. 174. Moreover, not only does it lack subs-
tantial capital; its manpower is also controlled by its princi-
pal as to means and methods of performing its work.
In sum, the illegal status of RSC is evidenced by its
having both the essential and confirming elements of a
labor-only contractor.
VI
On the day that the Union could validly declare a
strike, the Secretary of Labor - is-sued 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 assumption order was served nor on the
next day; instead, they held a continuing protest 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
2008 BAR EXAMINATIONS 9
so. On the 3rd day, the workers reported for work, clai-
ming that they do so in compliance with the Secreta-
ry's return-to-work order that binds them as well as the
Company. The Company, however, refused to admit
them back since they had violated the Secretary's re-
turn-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 there was no strike
but a protest rally which is a valid exercise of the wor-
kers 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 redness of their grie-
vances? (3%)
(c) What are the consequences, if any, of the
acts of the employees? (3%)
Answer:
(a) Yes, there was a strike.
The elements of a strike are (a) temporary stoppage
of work; (b) concerted activity; and (c) labor dispute. As to
the first, the continuing rally means self-removal from the
employees' actual workplace to participate in the union
activity; hence, it was a temporary stoppage of work. As to
the second, the activity was at the hands of not just a few
but of all, except those who wanted to report for work but
were barred. And, as to the third, the ULP complained of
signals a labor dispute bet-ween the union and the com-
pany.
10 BAR Q&A
FOR THE PAST 10 YEARS
(b) No.
It is the substance and not the appearances of a con-
certed activity which determines the fact of a strike (Manila
Public Schools Teachers Assoc. v. Laguio, Jr., G.R.
No. 95445, 6 August 1991). Where the activity is substan-
tially a strike, the invocation of preferred freedoms must
fail. In such case, strike rules will control.
(c) The strike is illegal for being violative of an in-
junction; hence, the strikers must be held answerable. An
assumption of jurisdiction order (AJO), whether it expressly
directs return to work or not, has an injunctive effect;
hence, it must be immediately complied with by the union
upon proper service thereof.
As to union members who have committed illegalities
in the course of participating in the illegal strike and the
union officers who had notice of the assumption of juris-
diction order (AJO) and knowingly consented to the staging
of the strike, they can be dismissed for serious misconduct
( Toyota Motors Workers Assoc. v. NLRC, G.R. Nos.
158786-89, 19 October 2007). And since the ground for
their dismissal is such, they are not-entitled to financial
assistance (id).
Vil
Tito Paciencioso 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%)
2008 BAR EXAMINATIONS 11
Answer:
I would not grant Tito's request.
SSS contribution is compulsory for both covered em-
ployer and covered employee. The purpose of the law is to
compel contribution from the salary of an employee while
he is productive in order to establish a contingency fund
from which he or his dependents can draw for income re-
placement in the event of retirement, sickness, disability,
maternity, or death resulting in loss of income or financial
burden (Sec. 2, R.A. 8282).
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 a.m. and end
at 5 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%)
Answer:
The compensation claim will proper.
Carol's death is occupational under the Continuing
Act Rule. Unless her death resulted from unreasonable
departure or unreasonable diversion, her act of leaving her
home to go to her workplace and her act of leaving her
workplace to get back home are continuing acts. Neither
exception obtains; hence, her death is subject to compen-
sation.
12 BARQ&A.
FOR THE PAST 10 YEARS
IX
Assume that in Problem 5, Mario, an RSC member
disgusted with the non-payment of his night shift diffe-
rential 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 get-
ting his correct differential and overtime pay and that
he was not declared an SSS member (so that no pre-
miums 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 overdue SSS premiums.
Who has the obligation to report the RSC mem-
bers for membership with the SSS, with the concomi-
tant obligation to remit SSS premiums? Why? (6%)
Answer:
PizCorp has the obligation to .report all the RSC
members for SSS coverage and to remit the concomitant
SSS contributions.
The obligation to report another for SSS coverage
and to remit the corresponding contributions arises from
one's being an employer. Under Sec. 8 of R.A. 8282, such
status attaches when one uses the services of another and
controls the latter's means and methods of performance.
Since, based on control, the locus of employer-employee
relationship is the affair between Pizcorp and the RSC
members then the obligation in question should be im-
posed on PizCorp as employer.
2008 BAR EXAMINATIONS 13
X
Pepe Santos was an international flight steward of
Flysafe Airlines. Under FSA's Cabin Crew Administra-
tion Manual, Santos must maintain, given his height
and body frame, 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 in several weight reduction programs. He
consistently 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 stan-
dards 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 explana-
tion did not satisfy FSA and so it decided to terminate
Santos's service for violation of company standards.
Santos filed a complaint for illegal dismissal, arguing
that the company's weight requirement policy is un-
reasonable and that his case is not a disciplinary but a
medical issue (as one gets 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 di-
ligence 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
Labor 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%)
14 BAR Q&A
FOR THE PAST 10 YEARS
Answer:
The Labor Arbiter is not correct.
In Yrasuegi v. PAL, G.R. No. 168081, 17 October
2008, the Supreme Court held that the setting of a weight
standard by an airline company for safety reasons was a
reasonable exercise of management prerogative.
Despite the 1-year period given him to bring down his
weight to acceptable levels, not to mention his 6-month
grace period, Santos came back heavier despite being en-
rolled in several weight management programs. Thus, his
non-compliance with the weight standard, wh'1ch served a
legitimate public safety purpose, amounted to gross and
habitual neglect of duty and wilful disobedience.
XI
Complainants had worked five (5) years as wait-
resses in a cocktail lounge owned by the respondent.
They did not receive any salary directly from the res-
pondent but shared in all service charges collected for
food and drinks to the extent of 15%. With respon-
dent's prior permission, they could sit with and enter-
tain guests inside the establishment and appropriate
for themselves the tips given by guests. After five (5)
years, the complaints' individual shares in the collec-
ted service charges dipped to below minimum wage
level as a consequence of the lounge's marked busi-
ness decline. Thereupon, complainants asked respon-
dent to increase their share in the collected service
charges to 85% or the minimun wage level, whichever
is higher.
Respondent terminated the services of the com-
plainants who countered by filing a consolidated com-
plaint for unlawful dismissal, with prayer for 85% of
the collected service charges or the minimum wage for
2008 BAR EXAMINATIONS 15
the appropriate periods, whichever is higher. Decide.
(6%)
Answer:
Respondent exercised substantial control over the
complainants; hence, purslJant to Art. 138 of the Labor
Code, the latter were its employees. Moreover, on account
of the nature of their work as necessary, vital and indispen-
sable to respondent's business, complainants could only
be dismissed under the ·Labor Code for a just cause (Art.
297) or authorized cause (Arl. 298) because they were
tenured already per Art. 295. Since their dismissal was not
for either cause, there dismissal was illegal.
As to entitlement to service charges, the new law re-
quires complete and equal distribution of services charges
to all employees, except managers (R.A. 11360). Hence,
not only should the respondent give 85% thereof to the
complainants but 100% since the new law has done away
with the 85%-15% distribution requirement under Art. 96 of
the Labar Code.
XU
Arnaldo, President of "Bisig" Union in Femwear
Company, readied himself to leave exactly at 5:00 p.m.
which was the end of his normal shift to be able to
send off his wife who was scheduled to leave for over-
seas. 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 off his wife who was
leaving to work abroad. The company dismissed
Arnaldo for insubordination. He filed a case for illegal
dismissal. Decide (6%)
 f
16 BARQ&A
FOR THE PAST 10 YEARS
I 2008 BAR EXAMINATIONS
Answer:
Arnaldo was illegally dismissed. ' pay for a fair day's work" rule.
Insubordination, the ground relied upon by the com-
pany, has legal meaning; it has elements; and it has con-
trolling case authority. On the overall, it obtains when an
employee wilfully violates a reasonable directive pertaining
to his work and his violation is characterized by wrongful
and perverse attitude. Here, the inability of Arnaldo .to ren-
der work as requested by the General Manager has a valid
excuse. In other words, responsible discharge of marital or
familial duty can never be wrong or perverse. This cancels
out the element of wrongful and perverse attitude. Being
insufficient in law, therefore, the company's ground cannot
justify the dismissal.
XIII
The rank-and-file union staged a strike in the com-
pany premises which caused the disruption of busi-
ness 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 faultles:s,
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 supervisor? Decide
(6%)
Answer:
No.
The company may not be held liable for the Rayment
of the salaries claimed by the supervisors for the following
reasons: first, it did not unlawfully withhold subject salaries
as to be liable under Art. 116 of the Labor Code; and se-
17
cond, no-work justifies no-pay pursuant to the "fair day's
As to the second, the supervisors' inability to supply
personal services was by reason of the company's tem-
porary inability to supply work to them owing to the strike of
the rank-and-filers over which it had no control. Being fault-
less, the company cannot he made answerable for the
consequent loss of the salaries at issue.
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. 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 va-
lidly 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%)
Answer:
The argument of Pwersa is not tenable.
Although allowed by Arts 268 and 269 of the Labor
Code to petition for a certification election on behalf of a
member it has chartered, a federation cannot arrogate un-
to itself the right to collectively bargain. In all respects, a fe-
deration is just an agent. If the certification election initia-
ted by its petition is held resulting in the selection and certi-
fication of its principal, Art. 267 of the Labor Code clearly
vests in said principal as the. sole and exclusive bargaining
18 BARQ&A
FOR THE PAST 10 YEARS

representative, to the exclusion of all else, the right to rep- 2009 BAR EXAMINATIONS
resent the workers for purposes of collective bargaining.
PARTI
Hence, if the principal dissolves itself in accordance
with Art. 248 of the Labor Code resulting in the cancella-
TRUE or FALSE. Answer TRUE if the statement is
tion of its certificate of registration then it loses its legal
true, or FALSE if the statement is false. Explain your
personality to demand for the crafting of a plant law. In
answer in not more than two (2) sentences. (5%)
such case, its agent cannot demand to discharge the func-
tion it has abandoned. · (a) An employment contract prohibiting em-
ployment 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 substitu-
tionary doctrine prohibits a new collective bargaining
agent from repudiating an existing collective bargai•
ning agreement
(e) The visitorial and enforcement powers of
the DOLE Regional Director to order and enforce com-
pliance with labor standard laws can be exercised
even when the individual claim exceeds PS,000.00.

Answer:
(a) True
It is valid provided it is limited as to time, space, and
trade. If ,the general effect is involuntary servitude or res-
traint of .trade; or its specific effect is perpetual prohibition,
relocatiqn to another country in order to be employed, or
prohibition to seek employment even in a trade the emplo-
yer is not actually engaged in then the non-compete clause
would be void. (see Daisy B. Tiu v. Platinum Plans Phi/s.,
Inc., G.R. No. 163512, 28 February 2007).

19
20 BARQ&A
FOR THE PAST 10 YEARS
(b) True
Confidential employees, by force of the Principle of
Necessary Implication, are like managers who are expres-
sly disqualified by Art. 255 of the Labor Code. One p,osses-
ses confidential employee status if a party to a fiduciary re-
lationship in which he assists or reports to another in pos-
session of a labor-management information; provided, he
has access to said information and his access thereto is
inherent in his position.
(c) False
Not all business relocations constitute prohibited run-
away. It ls only when the n1loqation serves anti-union pur-
poses that it becomes unlawful. Hence, if the employer's
purpose ls to make impossible or extremely difftcu!t to tie
struck against then the relocation of its shop ls an unfair
labor practice because 1t violates its workers' right to self-
organization which includes the shadow right to strike.
(d) True
The CBA is intended to stabilize- relations within the
plant; hence. a company that has a GBA with its workers is
deemed organized, Where the incumbentcollectlve bargar-
ning agreement is dislodged thru the mass resignation of
its members resulting i.n its substrtutlon by another Lffiion,
the remedy the law gives the latter is the opportunity to ne-
gotiate over the shortening of the period of the CBA and
nothing else more. Before then, it must honor that CBA.
(e) True
The P5,000.00 jurisdictional threshold does not apply
to rectification cases under Art. 128 of the Labor Code. It
only applies to recovery cases under Art. 129 of the Code.
2009 BAR EXAMINATIONS 21
II
t a. Enumerate at least four (4) policies enshrined
I in Section 3, Article XIII of the Constitution that are not
!
1.
covered by Article 3 of the Labor Code on declaration
of basic policy. (2%)
b. Clarito, an employee of Juan, was dismissed
I
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 ap-
peal, the NLRC reversed the Labor Arbiter holding that
Article 4 applies only when the doubt involves "imple-
mentation and interpretation" of the Labor Code pro-
visions. 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 Evi-
dence, not the Labor Code. Is the NLRC correct? Rea-
sons. (3%)
Answer:
(a) The following are the policies enshrined in Sec.
3, Art. XIII of the Constitution but not covered by Art.3 of
the Labor Code.
(1) participation;
(2) shared-responsibility;
(3) preferential use of voluntary modes of settling dis-
putes; and
I (4) just share in the fruits of production.
II (b) The NLRC is not correct.
The Liberal Interpretation Rule under Art. 4 of the
Labor Code has an expanded coverage. Not only does it
require pro-labor resolution of doubts and ambiguities ari-
22 BAR Q&A
FOR THE PAST 10 YEARS
sing from provisions of the Labor Code and its ORILC but
also from labor contracts (Alt. 1702, New Civil Code) and
evidence in labor proceedings (Hocheng Philippines
Corp. v. Antonio M. Farra/es, G.R. No. 211497, 18
March 2018).
Ill
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 con-
tract 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:
The Labor Arbiter has no jurisdiction over the
case; (2%)
Because Richie was not able to leave for Qatar, no
employer-employee relationship was established bet-
ween them; (2%) and
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.
2009 BAR EXAMINATIONS
23
Answer:
(a) The Labor Arbiter has jurisdiction.
Sec. 7, R.A. 10022 confers jurisdiction on the Labor
Arbiter over the money claims, including damages, of
OFWs arising from employer-employee relationship, con-
tract, or law.
(b) Actual deployment of an OFW signals the birth
of employer-employee relationship between him and his
foreign employer (Paul v. Santiago v. CF Sharp Crew
Management, Inc., G.R. No. 162419, 10 July 2007). Ne-
vertheless, an undeployed OFW can litigate before the La-
bor Arbiter- over money claims arising from his perfected
employment contract.
(c) The "lesser amount rule" in Sec. 7, R.A. 10022
has been declared as unconstitutional for violating the Due
Process Clause and the Equal Protection Clause (Sameer
Overseas Placement Agency v. Joy Cabiles, G.R. No.
170139, 5 August 2014). Hence, MRA and SR are liable for
the payment of 2 years of salaries.
IV
Diosdado, a carpenter, was hired by Building In-
dustries Corporation (BIC) and assigned to build a
small house in Alabang. His contract of employment
specifically referred to him as a "project employee" al-
though it did not provide any particular date of com-
pletion 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%)

24 BARQ&A
FOR THE PAST 10 YEARS
Answer:
Yes, the completion of the house is a valid ground for
terminating Diosdado. Although the date of completion is
not predetermined by stipulation, it is still determinable
(Art. 295, Labor Code).
Termination based on completion of project has no
due process ritual because the project employee is not
being dismissed based on fault. However, the law requires
the employer to report the completed project and submit a
list of all affected workers to the DOLE Regional Director
(P.I. No. 19); otherwise, the project employment would be
in serious doubt (Maraguinot, et al. v, NLRC, et al., G.R.
No. 120969, 22 January 1998).
V (b)
a. Baldo was dismissed from employment for
having been absent without leave (AWOL) for eight (8)
months. It turned out that the reason for his absence
was his incarceration after he was mistaken as his
neighbor's killer. Eventually acqujtted and released
from jail, Baldo returned to his employer and deman-
ded reinstatement and full backwages. Is Baldo en-
titled to reinstatement and backwages? Explain your
answer. (3%)
b. Domingo, a bus conductor of San Juan Trans-
portation 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 emplo-
yee and, therefore, cannot be dismissed from the ser-
vice for breach of trust. Is Domingo correct? Reasons.
(2%)
,.
I'
.
j 2009 BAR EXAMINATIONS 25
1 Answer:
(a) No, Baldo is not entitled to both reinstatement
and backwages. When a dismissal is grounded on an ap-
I parent abandonment of work, which turns out to be lacking
in both elements later on, the dismissal is a "good faith"
dismissal; hence, the employer incurs no liability. However,
since there is no abandonment of work because the re-
quired unjustifiable refusal to work is contradicted by a
wrongful detention, the employee must be ordered re-
turned to his work.
Therefore, Baldo is entitled to reinstatement without
backwages. ·
No, Domingo is not correct. His dismissal is
valid because: (1) he occupies a position of trust and con-
fidence; (2) he breached his employer's trust knowingly, in-
tentionally, and purposely; and (3) his employer's loss of
trust has factual basis; hence, it is not simulated only.
VI
Albert, a 40~year old employer, asked his domes-
tic helper, lnday, to give him a private massage. When
lnday refused, Albert showed her Article 141 of the
Labor Code, which says that one of the duties of a do-
ii mestic helper is to minister to the employer's personal
comfort and convenience.
Il a. Is lnday's refusal tenable? Explain. (3%)
b. Distinguish briefly, but clearly, a "househelper"
from a "homeworker." (2%)
'l Answer:
(a) lnday's refusal is tenable. Art. 141 does not
contemplate the rendition by a domestic helper of indecent
services. At any rate, the provisions of the Labor Code on
26 BARQ&A
FOR THE PAST 10 YEARS
domestic helpers have been supplanted by R.A. 10361, or
the Kasambahay Act. Under said law, a kasambahay is
entitled to humane treatment by the members of the
household she ministers to (Sec.5).
(b) The two may be distinguished from each other
as follows:
(1) A domestic helper (kasambahay) ministers to the
personal comfort and convenience of the members of a
household; in contrast, a homeworker processes or fabri-
cates raw materials into finished products;
(2) A domestic helper (kasambahay) works at the
house of the household served; in contrast, a homeworker
works at home or about the premises of his home; and
(3) The terms and conditions of employment of a do-
mestic helper (kasambahay) are regulated by R.A. 10361;
in contrast, those of a homeworker are regulated by P.D.
442.
VII
Johnny is the duly elected President and principal
union organizer of the Nagkakaisang Manggagawang
Manila Restaurant (NMMR), a legitimate labor organi-
zation. He was unceremoniously dismissed by ma-
nagement for spending virtually 95% of his working
hours in union activities. On the same day Johnny re-
ceived 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
2009 BAR EXAMINATIONS
27
(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%}
Answer:
(a) The company's contention is meritorious. Ob-
servance of the applicable cooling-off period is mandatory;
hence, being part of prescribed pre-strike procedure, its
non-observance renders the strike illegal.
(b) The voting requirement is equally mandatory.
Its purpose is the protection of the union numbers against
unscrupulous union officers. In fact, the voting result is
required to be submitted to the NCMB in furtherance of the
I
same purpose, giving the NCMB 7 days to look into the
regularity of the voting (Art. 279-f, Labor Code)
!
; (c) No. The Labor Arbiter's decision finding ULP is
a prerequisite for the institution of the criminal action; how-
f ever, it is non-prejudicial. Such finding is based on sub-
~! stantial evidence; hence, although final, it cannot deter-
mine the outcome of the criminal case because a convic-
I
tion for ULP as a crime must be upon proof beyond reaso-
nable doubt. "Criminal and labor proceedings involving an
employee arising from the same infraction are separate
and distinct from one another and should not arrest any
I
J
I
judgment from one to the other." (St. Luke's Medical Cen-
ter, Inc. v. Ma. Theresa \I. Sanchez, G.R. No. 212054, 11
March 2015).
i
28 BARQ&A
FORTHEPAST10YEARS
VIII
Alexander, a security guard of Jaguar Security
Agency (JSA), could not be given any assignment be-
cause 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 imme-
diately reinstate Alexander. JSA appealed the decision
to the NLRC. Alexander sought immediate enforcement
of the reinstatement order while the appeal was pen-
ding.
JSA hires you as lawyer, and seeks your advice
on the following:
(a) Because JSA has no client who would ac,.
cept Alexander, can it stm be compe.lled to. reinstate
him pending appeal even if it has posted an appeal
bond? (2%)
(b) Can the order of reinstatement be imme-
diately enforced in the absence -of ·a motion for the
issuance of a writ of execution? (2%)
(c) If the order of reinstatement is being en-
forced, what should JSA do in order to prevent reins-
tatement? (2%)
Explain your answers.
Answer:
(a) Yes. The posting of an appeal bond does no
stay the execution of a reinstatement order which, by force
of Art. 229, Labor Code is immediately executory even
pending appeal.
(b) No. Since the reinstatement was ordered by a
first-level tribunal, as distinguished from one ordered on
2009 BAR EXAMlNATIONS 29
appeal, there is no need for a writ of execution to effect it
because it is immediately executory as a police power
measure. Once the reinstatement order is duly served on
the employer, it has ten (10) calendar days to manifest to
the Labor Arbiter its compliance therewith.
(c) Reinstatement cannot be prevented. However,
an employer is given three options in effecting it. If it does
not desire actual reinstatement to either former position or
to an equivalent position, it may opt to restore the dis-
missed employee to its payroll only.
IX
a. What is wage distortion? Can a labor union in-
voke wage distortion as a valid ground to go on
strike? Explain. (2%)
b. What procedural remedies are open to wor-
kers who seek correction •::>f wage distortion? (2%)
Answer:
(a) A wage distortion is the elimination or serious
contraction of the wage gap advantage enjoyed by one
wage group over another as to destroy the hierarchy of po-
sitions and corresponding pay rates adopted by the em-
ployer based on rational considerations, i.e., as long as the
obliteration of the wage gap is by reason of a wage law,
wage order, merger of companies, or CSA renegotiation.
A wage dist-ortion dispute is non-strikable. The allo-
wable strike grounds are bargaining deadlock and ULP to
the exclusion of all others, e.g., inter-union dispute, intra-
union dispute, and labor standards disputes, like one ari-
sing from a wage distortion.
(b) Workers who seek correction of a wage distor-
tion have the following procedural remedies:
30 BARQ&A
FOR THE PAST 10 YEARS
If the establishment is organized, they may bring the
issue to the Grievance Machinery. If unresolved at that
level, they may elevate it to voluntary arbitration.
If the establishment is unorganized, their remedy is to
bring the issue to the NCMB which has ten (10) calendar
days to resolve it; otherwise, it shall refer it to the Labor
Arbiter.
X years on board the same vessel are regular emplo-
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%)
Answer:
(a) The compulsory coverage of the GSIS is as
follows:
(I) All government employees,..appointive or elective;
r
(II) Who are not more than 65 years old; and
(Ill) they receive basic salary.
The following are excluded:
(I) government employees who are paid honoraria;
(11) government employees who are paid per diem;
(b) Yes. A cooperative member whose personal
services are utilized by the cooperative and whose means
and methods of performing his work are controlled by i.t is a
cooperative employee (Sec. 8, R.A. 8282). Hence, being
an employee, he has compulsory SSS coverage.
2009 BAR EXAMINATIONS 31
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)
yees.
(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 autho-
rization signed by the worker concerned.
Answer:
'(a) FALSE
Per case law, seafarers are contractual employees;
hence, their length of service does not confer on them regu-
lar employment status (Mil/ares v. NLRC, G.R. No. 122827,
29 March 1999).
(b) FALSE
Art. 137 of the Labor Code permits the employment
of children who are below 15 under the conditions therein
set, viz., (i) they work directly under the sole responsibility
of their parents or guardians; (ii) their co-employees are
 r
32 BARQ&A 2009 BAR EXAMINATIONS 33
FOR THE PAST 10 YEARS

family members; and (iii) their employment does not in any The constitutionality of the two (2) laws is chal-
way interfere with their schooling. lenged in court. As judge, how will you rule? (5%)

(c) FALSE Answer:

While the right to organize is guaranteed to govern- Tenurial Security is a constitutional guarantee (Sec.
ment employees and said right includes their right to en- 3, Art. XIII, Constitution). Therefore, the first innovative
gage in concerted activity, law can withhold said penum-
bra! right. As to them, E.O. 180 withholds that right; hence,
until restored, they cannot exercise it.
i measure which derogates right to security of tenure is
unconsti-tutional.
As to the second innovative measure, the Alviado
(d) TRUE. ruling (A/viado, et al., v. Proctor & Gamble , G.R. No.
The character of statutory benefits, like overtime pay, 160506, 6 June 2011) permits the outsourcing of both core
is that they are mandatory benefits; hence, their waiver is and non-core services. In this regard, congressional act
contrary to law. cannot undo case law as the only means of undoing it is
thru a contrary ruling laid down by the full Court (Sec. 4,
(e) FALSE. Art. VIII, Constitution).
A written authorization is not required for the deduc-
tion of agency fees from the wages of non-union members. XIII
The fees are legal obligations imposed on said employees
as correlative money obligations in exchange for receiving Atty. Renan, a CPA-lawyer and Managing Partner
the benefits negotiated by the contracting union. of an accounting firm, conducted the orientation semi-
nar for newly-hired employees of the firm, among
XII them, Miss Maganda. After the seminar, Renan reques-
. , ted Maganda to stay, purportedly to discuss some
In her State of the Nation Address, the President work assignment. Left alone in the training room,
stressed the need to provide an investor-friendly
business environment so that the country can com-
pete in the global economy that now suffers from a
I 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
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 con-
tractualization in all areas needed in the employer's
Il 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 lucra-
tive posts, because of his favorable endorsement.
(a) Did Renan commit acts of sexual harassment
business operations. However, to soften the impact of
these new measures, the law requires that all emplo-
t in a work- related or employment environment? Reasons.
(3%}
yers shall obtain mandatory unemployment insurance
coverage for all their employees. ·
t
I
'
34 BAR Q&A
FOR THE PAST 10 YEARS
(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%)
Answer:
(a) No, Renan did not commit acts of sexual haras-
sment.
The gravamen of the offense of sexual harassment is
abuse of authority (Phil. Aeolus Automotive United
Corp. v. NLRC, G.R. No. 124617, 2,8 April 2000), In turn,
abuse of authority lies in the use of one's influence or as-
cendancy as a means of getting sexual favor. The offender
induces the delivery of said favor thru a promise of employ-
ment, continuing employment or reemployment. Here, Atty.
Renan promised none of these to Maganda and expected
no sexual favor from her. If ris conduct requires censure, it
can only be under the Safe Spaces Act of 2019 as same
may be categorized as a misogynistic_aci.
(b) No, the case will not prosper for lack of jurisdic-
tion.
As the Managing Partner of the accounting firm, Atty.
Renan has free reign over this means of managing the
affairs of his firm. Since nooody exercises labor law con-
cept of control over him, he cannot be an employee of the
firm. Hence, applying the Reasonable Causal Connec-
tion Rule, the Labor Arbiter does not have the compe-
tence to hear and determine his complaint for illegal dis-
missal. The dispute, being intracorporate in character
should have been brought to the RTC as a special com-
mercial court. (R.A. 8799; A.M. No. 00-11-03-SC).
2009 BAR EXAMINATIONS 35
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 con-tractor registered with the Department of
Labor and Employment, to provide its restaurants the
necessary personnel, consisting of cashiers, motor-
cycle 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 Ule 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.
Is the Service Agreement between Jolli-Mac and
MMSI legal and valid? Why or why not? (3%)
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%)
Answer:
(a) No, the SA is not legal and valid for the following
reasons:
First, MMSI is an in-house contractor owing to the fact
that it is co-owned by Jolli-Mac which happens to be its
sole client;
36 BAR Q&A
FOR THE PAST 10 YEARS
Second, MMSI is not substantially capitalized since its
paid-up capital is below the required PSM capitalization;
and
Third, the workers supplied by MMSI to Jolli-Mac are
performing work directly related to the latter's trade.
(b) The unpaid workers can proceed against Jolli-
Mac for the payment of their salaries and mandatory
benefits since it is their actual employer. In labor-only con-
tracting, which obtains in the premises, the legal persona-
lity of the labor-only contractor mergers with that of its prin-
cipal. ·Hence, its violations of Labor Law will impose on its
principal the comprehensive solidary liability of rectifying
said violations thru payment.
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 con-
tending parties obtained the follo~if!g 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 con-
tending unions? Why or why not? (3%)
2009 BAR EXAMINATIONS 37
(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 offi-
cer in this case, what would you do to effectively
achieve the purpose of certification election procee-
dings? Discuss. (3%)
Answer:
(a) No, B cannot be certified as the exclusive
bargaining agent.
The winner in a certification election is the partici-
pant, including No Union, which garners majority vote
based on the valid votes cast. Hence, since all 400 emplo-
yees cast their ballots - except 4 spoiled ones; hence,
invalid - the valid votes are 396. Since the majority thereof
is 198+1 (199), then Union B did not win the election
because it garnered 71 votes only.
(b) No.
Based on the total number of votes cast for union rep-
resentation, i.e., 222, which is more than the 180 workers
who favor non-representation, the clear desire of the plura-
lity is to hold a certification election.
(c) I will conduct a run-off election between Union
A and Union B for the following reasons:
(i) the CE is valid because it is not barred and
majority of the eligible voters cast their votes;
(ii) there are three or more participants, including
No Union;
38 BAR Q&A
FOR THE PAST 10 YEARS
(iii) none of the participants got majority vote based
on the valid votes;
(iv) the total votes given by the workers to the parti-
cipating unions, excluding No Union, is at least 50% of the
number of ballots they cast; and
(v) there is no election contest that can materially
alter the no-winner result of the CE.
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 signifi-
cant improvements in wages and other benefits ob-
tained by the Union were:
1) Salary increases of P1 ,000 and P1 ,200 month-
ly, effective January 1, 2006 and January 1, 2007, res-
pectively;
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. . barred petition because the freedom period for filing one is
As early as October 2007, the Company and the
Union started negotiations t~ renew the CBA. Despite
mutual good faith and earnest efforts, they could not
agr.ee. However, no union filed a petition for certifica-
2009 BAR EXAMINATIONS
39
tion- election during the freedom period. On March 30,
200.8, 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, manage-
ment 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 wjthdrawn 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%)
I (d) . If you were the lawyer for the union, what
i legal recourse or action would you advise? Reasons.
(3%)
I
f Answer:
l (a) The freedom period is the last 60 days of the
I
f
political life of the CSA which, in the problem, starts on 31
October 2007 or thereabouts.
(b) After 3 April 2008, a CE petition would be a
the last 60 days before the expiration of the CBA (Art. 268,
Labor Code)
(c) Yes. Owing to the expiration of the CSA, the
fringe benefits can be withheld for two reasons: first, the
l
40 ~RQ~
FORTHEPAST10YEARS
Principle of Non-Diminution of Benefits (Art. 100, Labor
Code) applies only to benefits enjoyed before the promulga-
tion of the Labor Code and second, the right of collective
bargaining includes the right to suspend it. (Insular Hotel
Employees Union-HFL v. Waterfront Insular Hotel
Davao, G.R. Nos. 174040-41, 22 Sept. 2010)
(d) As lawyer for the union, I will advise the filing of
a notice of preventive mediation with the NCMB. If the
company agree to the mediation of the dispute, I would
see to the signing by both parties of a submission agree-
ment to vest jurisdiction on the voluntary arbitrator. If the
company refuses to sign, I would advise the service of a
notice to arbitrate so that the voluntary arbitrator could still
get to hear and resolve the dispute (Insular Hotel, supra;
Tabigue v. JNTERCO, G.R. No. 18335, 23 Dec. 2009)
XVII
Alfredo was dismissed by management for se-
rious misconduct. He filed suit for illegal dismissal, al-
leging that although there may be. jYst cause, he was
not afforded due process by management prior to his
termination. He demands reinstatement with full back-
wages.
What are the twin requirements of due process
which the employer must observe in terminating or
dismissing an employee? Explain. (3%)
Is Alfredo entitled to reinstatement and full back-
wages? Why or why not? (3%)
Answer:
(a) The twin requirements of statutory due process
are meaningful notice and ample opportunity to be heard.
The required notice is basically a charge sheet particula-
rizing the ground/s for disciplinary action so that the
2009 BAR EXAMINATIONS 41
employee would know what exactly to explain. Ample
opportunity to be heard is any effective means thru which
the employee can ventilate his defense/s.
(b) No.
Alfredo, who does not question the ground for his dis-
missal, takes issue with the denial unto him of due pro-
cess. Based on said violation, he claims that his dismissal
is illegal. However, violation of pretermination procedure
does not make a dismissal illegal. For the reason that his
dismissal is for a just cause, hence valid, he cannot be gi-
ven a reinstatement and awarded full backwages. ·
XVIII
Cite four (4) instances when an illegally dismissed
employee may be· awarded separation pay in lieu of
reinstatement. (3%)
Explain the impact of the union security clause to
the employees' right to seturity of tenure. (2%)
Answer:
(a) Separation pay may be awarded an illegally dis-
missed employee in lieu of reinstatement when tr,ere is a
valid reinstatement bar such as any of the following:
i. strained relations;
ii the position involved is one of trust and confidence;
iii. the employee has already reached mandatory
retirement age; and
iv. reinstatement is detrimental to the interest of both
parties.
(b) The impact of the union security clause is that it
limits the employees' right to security of tenure. It is an ins-
42 BARQ&A
FOR THE PAST 10 YEARS

trument to strengthen and ensure the viability of the con- 2010 BAR EXAMINATIONS
tracting union. Hence, subject to the requirements of due
process, the union can demand for the dismissal of an em- PART!
ployee based on refusal to join the union, or failure to
maintain his membership in the union. I
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 emplo-
yee are purely contractual in nature. (2%)
3. As a general rule, direct hiring of Overseas
Filipino Workers (OFWs) is not allowed. (2%)

Answer:
1. FALSE
Public policy frowns upon deeds of release, waivers
and quitclaims owing to the asymmetrical relationship bet-
ween employers and employees, especially when they do
not represent a fair and reasonable compromise and they
- are not supported with substantial consideration.

2. FALSE
Art. 1700 of the New Civil Code characterizes em-
ployer-employee relationship as impressed with public inte-
rest; hence, it is not purely contractual. For this reason,
Art. 1701 ·institutes the Non-Oppression Rule to protect
that interest.

3. TRUE
Art. 18 of the Labor Code bans direct hiring. Art. 16,
on the other hand, limits hiring of OFWs thru State agen-
cies but subject to Art. 25 under which the private sector
may be allowed participation under very stringent condi-
tions for the full protection of recruits.
43
44 BAR Q&A
FOR THE PAST 10 YEARS
II
a. Distinguish the terms "conciliation," "media-
tion" and "arbitration." (3%)
b. Differentiate "surface bargaining" from "blue-
sky bargaining." (2%)
Answer:
(a) Employer-employee relationship is an inter-par-
ty relationship, which means that the parties thereto get to
determine the course of their affairs with minimum State
interference. Regardless, third-party mechanisms for dis-
pute resolution are allowed. Third party participation is:
Conciliation if the third party helps the disputants
meet and talk. He does not receive evidence from them,
much less render a judgmen: binding _on them.
Mediation if the third party, who does not also render
a judgment upon evidence presented to him, helps the
disputants identify their issue and proposes solutions on
"take it" or "leave it" basis.
Arbitration if the third party is a judge who receives
the disputants evidence and renders a judgment binding
on them. It is voluntary if he has been pre-selected con-
tractually by the disputants; and it is compulsory if it ·1s law
which confers on him the power to hear and resolve their
dispute.
(b.) The distinction lies in the following:
Surface Bargaining is a bargaining attitude whereby
one goes thru motions of i1egotiating a CBA without an
honest intent to perfect it and be bound to its provisions.
Bluesky Bargaining is a bargaining attitude manifes-
ting uncompromising bargaining position thru unreaso-
nable, unrealistic, impossible or difficult proposals.
2010 BAR EXAMINATIONS 45
Ill
A, single, has been an active member of the
Social Security System for the past 20 months. She be-
came 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 Aclaim maternity benefits? If
yes, how many days can she go on maternity leave? If
not, why is she not entitled? (3%)
Answer:
Yes ..
Although single, A can claim maternity benefits under
the system because social security law is morality-free and
non-discriminatory, i.e., as long as she has complied with
the reportorial requirements and has paid at least 3 month-
ly contributions during the 12-month period immediately
preceding her caesarian section.
Pursuant to R.A. 11210, known as the Expanded Ma-
ternity Leave Act of 2019, her maternity benefits will con-
sist of 60 paid days of leave, plus 15 paid days if she quali-
fies as a solo parent. If the leave period is not enough, she
is allowed 30 more days but without pay.
IV
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, respec-
tively, both regular holidays. Is A entitled to holiday
pay for the two successive holidays? Explain. (3%)
46 ~R~A
FORTHEPAST10YEARS
Answer:
Yes.
For having been on leave with pay on the day
immediately preceding the two regular holidays, A enjoys
the benefit of the "no work with pay" effect of a regular
holiday. Therefore, he is entitled to 200% of his basic· sala-
ry (Sec. 6, Rule IV, Book Ill, OR/LC).
V was dismissed from employment as a consequence of
Company XYZ has two recognized labor unions,
one for its rank-and-file employees (RFLU), and one
for super-visory 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 supervi-sory position along
with four (4) other colleagues, also ac-tive · union
members and/or officers. Labor Union KMJ, a rival
labor union seeking 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 col-leagues have remained to· be members of
RFLU. Is the pe-tition meritorious? Explain. (3%)
Answer:
No, the petition for cancellation is not meritorious.
The ground invoked, viz., mixed-union membership, is
not a ground for cancellation under R.A. 9481 (Art. 256,
Labor Code, as renumbered). Its consequence is limited
to the automatic removal of non-members from the union.
VI
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-
2010 BAR EXAMINATIONS 47
strong union voted on March 13, 2010 to stage a strike.
A notice of strike was submitted to the National Conci-
liation 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 hospitai 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
the strike.
a. Was the strike legal? Explain. (3%)
b. Was A's dismissal valid? Why or why not? (3%)
Answer:
(a) No, the strike was not legal.
Under the Means Test, a strike that is otherwise law-
ful is rendered illegal by the commission of illegalities in the
course of its staging, e.g., blocking of ingress and igress.
Likewise, under the Procedure Test, the union is required
to observe the applicable cooling-off period and see to the
approval of the intended strike by a majority of its mem-
bers.
Since the union blocked the company ingress not
observe the 30-day cooling-off period, not to mention that it
staged the strike upon the vote of less than 251, the
majority of 500, it staged an illegal strike.
(b) A's dismissal was not valid.
When a strike is declared as illegal, union officers
who knowingly participated in straggling it can be dis-
missed. As to union members, their participation must be
coupled with acts of illegality in order to have a ground for
dismissing them.
48 BARQ&A
FOR THE PAST 10 YEARS
Since A, a union member only, did not commit any
illegality then his dismissal was not violated.
VII
A was an able seaman contracted by ABC Recruit-
ment Agency for its foreign principal, Seaworthy Ship-
ping Company (SSC). His employment contract pro-
vided 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 un-
dertaking to observe the drug and alcohol policy
which bans possession or use of all alcoholic beve-
rages, 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 sub-
stances 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 com-
plaint 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%)
2010 BAR EXAMINATIONS 49
b. Is his claim for salaries for the unexpired
portion of his contract tenable? Explain. (3%)
Answer:
(a) No, A's dismissal was not valid.
It was not enough that A tested positive for Marijuana
during the random screening test. The company should
have proceeded to conduct a confirmatory test (DOH D.O.
No. 53-03) without a confirmatory test result, there is no
just cause for dismissing A.
(b) Yes, his money claim is tenable.
The illegal dismissal of a seafarer is governed by Sec.
7, R.A. 10022. Pursuant thereto, but as clarified by the
Supreme Court in SAMEER Overseas Placement Agen-
cy v. Joy Cabiles, G.R. No. 5 August 2014, A is entitled
to all salaries he would have earned had his contract not
been illegally preterminated.
VIII
ABC company and U labor union have been nego-
tiating for a new Collective Bargaining Agreement
(CBA) but failed to agree on certain economic provi-
sions 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%)
Answer:
Yes.
The Hold-Over Doctrine allows continuity in regard
the expired economic provision of a CBA just as the Auto-
50 BARQ&A
FOR THE PAST 10 YEARS
matic Renewal Clause allows the continuity of expired poli-
tical provisions. Until a new CBA, with both sets of pro-
visions, is concluded, the entire CSA between ABC ·com-
pany and U labor union will continue to be effective; hence,
the employees can claim their contractual benefits, inclu-
ding midyear bonus.
IX
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 manage-
ment 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-em-
ployees or employees of competing companies in light
of a possible conflict o_f interest. A seeks your advice
on the validity of the company policy. What would be
your advice? (3%)
Answer:
I would advise A that the policy is a valid "no couples"
policy because it serves a legitimate business purpose,
viz., the protection of his employer against unfair competi-
tion. Therefore, he should consider the possibility of losing
his job if he decides to marry B.
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%)
2010 BAR EXAMINATIONS 51
Answer:
l will advise A not to join the association.
Cooperative members who are members at the same
time suffer a disqualification under organizational law due
to conflict of interest. At the end of the day, the association
will demand to bargain with the cooperative; hence, A
would be placed in a situation wherein he would be bargai-
ning with himself because he co-owns the cooperative,
therefore, he must be disqualified.
XI
'
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.
week later, A filed against XYZ, Inc. a complaint
j for illegal dismissal. While he admitted that he was not
! forced to sign the quitclaim, he contended that he
l agreed to tender his voluntary resignation on the belief
! that XYZ, Inc. was closing down its business. XYZ,
r Inc., however, continued its business under a different
company name, he claimed.
I
!
Rule on whether the quitclaim executed by A is
valid or not. Explain. (3%)
l
Answer:
The quitclaim is not valid.
When XYZ, Inc. intentionally withheld the information
that it would reorganize and continue doing business, it de-
nied A his right to make an informed decision over his live-
li
52 BARQ&A
FORTHE PAST 10 YEARS
lihood. Thus, his consent was not an informed consent as
to put in doubt the voluntariness of his wavier and quit-
claim.
To be valid, the person executing the waiver must
have a full understanding thereof (Francisco Soriano, Jr.
v. NLRC, et.al., G.R. No. 165594, 23 April 2007). It is not
a fair waiver if secured thru machination or manipulation.
XII
On December 12, 2008, A signed a contract to be
part of the crew of ABC Cruises, Inc. through its Philip-
pine manning agency XYZ. Under the standard em-
ployment contract of the Philippine Overseas Employ-
ment 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 depar-
ture on January 15, 2009, XYZ still had not deployed
him for no valid reason. Is A entitled to relief? Explain.
(3%)
Answer:
Yes.
The perfection of A's contract has created enfor-
ceable rights, just as it has imposed correlative deman-
dable obligations. Hence, its unjustifiable breach entitles A
to relief. Under Sec. 7, R.A. 10022, he can file a money
complaint with the Labor Arbiter for the purpose, among
others, of seeking payment of the salaries he would have
earned had he been deployed.
2010 BAR EXAMINATIONS
53
XIII
A is employed by XYZ Company where XYZ
Employees Union (XYZ-EU) is the recognized exclu-
sive 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 obli-
gation to pay said dues and fees because he is not a
member of XYZ-EU and he has not issued an authori-
zation to allow the collection. Explain whether his
claim is meritorious. (3%)
Answer:
A's claim is not meritorious.
It is the duty of A to pay the required agency fee in
exchange for enjoying the benefits secured by XYZ-EU not
only for its members but for all the members of the CSU it
represents, including himself.
PART II
XIV
After working from 10 a.m. to 5 p.m. on a
Thursday as one of 5,000 employees in a beer factory,
A hurried home to catch the early evening news and
hav~ dinner with his family. At around 10 p.m. o.f the
same day, the plant manager called and ordered A to
fill iri for C who missed the second shift.
· May A validly refuse the plant manager's
directive? Explain. (2%)
Assuming that A was made to work from 11 p.m.
on Thursday until 2 a.m. on Friday, may the company
argue that, since he was two hours late in coming to
54 BARQ&A
FOR THE PAST 10 YEARS
work on Thursday morning, he should only be paid for
work rendered from 1 a.m. to 2 a.m.? Explain? (3%)
Answer:
(a) Yes, A may validly refuse to fill in for C.
Outside the emergencies situations mentioned in Art.
89 of the Labor Code, an employee may not be required
to work beyond his normal hours of work. Since the failure
C to report for work did not create an emergency, the plant
manager's directive is unreasonable; hence, has no duty to
comply therewith.
(b) Yes.
The company is not required to compensate the 2
hours which were unworked hours without violating the
law. Although Art. 88 of the Labor Code prohibits the off-
setting of undertime with overtime, this provision applies
only when there are at least two days involved.
xv
Samahang Manggagawang Terracota, a union of
supervisory employees at Terracota Inc., recently ad-
mitted a member of the company's managerial staff, A,
into the union ranks.
a. Should A be a member of the supervisory
union? Explain. (2%)
b. Assuming that A is ineligible to join the union,
should the registration of Samahang Manggagawang
Terracota be cancelled? Explain. (3%)
Answer:
(a) Unlike Labor Standards Law. under which a mem-
ber of the managerial staff has no labor standards cove-
rage (Art. 82, Labor Code), Labor Relations Law does not
2010 BAR EXAMINATIONS 55
disqualify said employee unless his actual functions make
him a real manager who is disqualified (Arl. 255, Labor
Code), or he assists or report~ to another possessed with
labor-management information and he has access thereto
as a necessary consequence of his occupation of his
position.
(b) No.
Mixed-union membership is outside the limited list of
cancellation grounds under R.A 9481. The only grounds
now are voluntary dissolution of the union upon a 2/3
votes, misrepresentation, fraud, false statement relative to
the adoption of the Constitution and by-laws, and similar
acts relative to the election of union officers.
In the event if mixed-membership, the non-member is
simply automatically removed for the union (R.A. 9481).
XVI
On the first day of collective bargaining negotia-
tions between rank-and-file Union A and B Bus Com-
pany, the former proposed a P45/day increase. The
company insisted that ground rules for negotiations
should first be established, to which the union agreed.
After agreeing on ground rules on the second day, the
union representatives reiterated their proposal for a
wage increase. When company representatives sug-
gested a discussion of political provisions in the Col-
lective Bargaining Agreement as stipulated in the
ground rules, union members went on mass leave the
next day to participate in a whole-day prayer rally in
front of the company building.
a. The company filed a petition for assumption
of jurisdiction wit'1 the Secretary of Labor and Employ-
ment. The Union opposed the petition, arguing that it
56 BARQ&A
FOR THE PAST 10 YEARS
did not intend to stage a strike. Should the petition be
granted? Explain. (2%)
b. The Union contended that assuming that the
mass leave will be considered as a strike, the same
was valid because of the refusal of the company to
discuss the economic provisions of the CBA. Rule on
the contention. (2%)
c. Union member AA, a pastor who h.eaded the
prayer rally, was served a not.ice of termination by
management after it filed the petition for assumption
of jurisdiction. May the company validly terminate AA?
Explain. (2%)
Answer:
(a) Yes, the petition should be granted for the follo-
wing reasons:
1. The company is engaged in the transportation busi-
ness which is impressed with national or public interest;
2. The concerted activity was a strike because: it was
a temporary stoppage of work; it was carried out thru con-
certed activity; and it arose out of a labor dispute; and
3. Assumption of jurisdiction will allow the secretary to
exercise preemptive power to protect public interest.
(b) The union's contention is misplaced.
Ground rules were agreed upon and same prioritized
political provisions over economic provisions. Since the
company was just observing the pre-agreed order of nego-
tiations, it cannot be in commission of any unfair labor
practice under Art. 259 of the Labor Code. Absent refusal
or evasion to collectively bargain, the strike is groundless;
hence, it is illegal. Moreover, the union did not comply with
prescribed pre-strike proced,ure.
2010 BAR EXAMINATIONS
57
(c) No, the company cannot validly terminate AA at
that point.
Being a union member, AA can be validly dismissed
only after it has been determined by a forum of competent
jurisdiction that the strike he participated in was illegal and
the committed illegalities in the course thereof.
XVII
I A was hired to work in a sugar plantation perfor-
ming such tasks as weeding, cutting and loading
I
canes, planting cane points, fertilizing and cleaning
the drafnage. Because his daily presence in the field
was not required, A also worked as a houseboy at the
house of the plantation owner. For the next planting
season, the owner decided not to hire A as a planta-
t' tion worker but as a houseboy instead. Furious, A filed
l
a case for illegal dismissal against the plantation ow-
ner. Decide with reason. (3%)
f<
Answer:
The positional downgrade from agricultural employee
status to kasambahay status is an overt act of dismissal,
more specifically constructive dismissal. The consequen-
ces thereof are as follows: (1) as a kasambahay, A has be-
came a contractual employee; hence, he has been de-
prived of regular employment status; (2) in the event he
was illegally dismissed, he would not be given reinstate-
ment and backwages but earned salaries and indemnity
only; and (3) unless given a written employment contract
over his compensation, he would be entitled to rural rate
under R.A. 10361 only.
58 BAR Q&A
FOR THE PAST 10 YEARS
XVIII
Flight attendant A, five feet and six inches tall,
weighing 170 pounds ended up weighing 220 pounds
in two years. Pursuant to the long standing Cabin and
Crew Administration Manual of the employer airline
that set a 147-pound limit for A's height, management
sent Aa notice to "shape up or ship out" within 60
days. At the end of the 60-day period, A reduced her
weight to 205 pounds. The company finally served her
a Notice of Administration Charge for violation of com-
pany standards on weight requirements. Should A be
dismissed? Explain. (3%)
Answer:
The company's weight standard is a bona fide occu-
pational qualification given the fact it is a ·common carrier
required to observe extraordinary diligence over passenger
safety (Yrasuegi v. PAL, G.R. No. 168081, 17 October
2008). However, a cannot be indiscriminately dismissed for
her failure to lose those pounds is harsh as to violate the
Principle of Proportionality. At most, she should have been
suspended only.
XIX
Several employees and members of Union A were
terminated by Western Phone Co. on the ground of re-
dundancy. After complying with the necessary require-
ments, the Union staged a strike and picketed the pre-
mises of the company. The management then filed a
petition for the Secretary of Labor and Employment to
assume jurisdiction over the dispute. Without the be-
nefit of a hearing, the Secretary issued an Order to as-
sume jurisdiction and for the parties to revert to the
status quo ante litem.
2010 BAR EXAMINATIONS 59
a. Was the order to assume jurisdiction legal?
Explain. (2%)
b. Under the same set o.f facts the Secretary
instead issued an Order directing all striking workers
to return to work within 24 hours, except those who
were terminated due to redundancy. Was the Order
legal? Explain. (3%)
Answer:
(a) The assumption of jurisdiction order (AJO) is
legal for the following reasons:
(1) National interest is involved in telecommunica-
tions;
(2) Assumption of jurisdiction is a protective measure
which Art. 278 (g) gives to the State, not to the parties;
(3) Assumption of jurisdiction has no due process re-
quirement; hence, even absent petition and hearing the
secretary can exercise his discretionary power;
(4) Assumption of jurisdiction is both extraordinary
and preemptive; hence, the Secretary can hardly commit
grave abuse of discretion unless there is clear and convin-
cing evidence of such abuse.
(b) Yes, the order was legal.
The injunctive effect of a return to work order compels
the strikers to go back to work immediately upon due ser-
vice thereof. Likewise, it compels the employer to admit the
strikers back to work under the same terms and conditions
which means actual admission. As exception, however,
where the employment status of a striker is at issue then
he cannot demand admission. Hence, strikers dismissed
for a just or authorized cause must contest their dismissal
and procure a reinstatement order first. After all, a return to
work order is different from a reinstatement order.
60 BARQ&A
FOR THE PAST 10 YEARS
xx
A, a driver for a bus company, sued his employer
for non-payment of commutable service incentive
leave credits upon his resignation after five years of
employment. The bus company argued that A was not
entitled to service incentive leave since he was consi-
dered a field personnel and was paid on commission
basis and that, in any event, his claim had prescribed.
If you were the Labor Arbiter, how would you rule? Ex-
plain. (6%)
Answer:
The company's twin grounds for contesting the SIL
claim are both misplaced.
First, a passenger bus driver is not a field personnel
(Auto Bus v. Bautista, G.R. No. 156367, 16 May 2005).
Second, SIL is a curios animal, i.e., it prescribes in 3
years but not in the same manner other benefits prescribe.
Where, as here, the employee's choice is to commute his SIL
then the 3-year prescriptive period is-reckoned from date of
separation, i.e., thru resignation, retirement or termination
(Rodriguez v. Park-n-Ride, 222980, 20 March 2017).
Since A immediately filed his money complaint upon
his resignation, his claims was timely filed.
XXI
A was approached for possible overseas deploy-
ment to Dubai by X, an interviewer of job applicants for
Alpha Personnel Services, Inc., an overseas recruit-
ment agency. X required A to submit certain docu-
ments (passport, NBI clearance, medical certificate)
and to pay P25,000 as processing fee. Upon payment
of the said amount to the agency cashier, A was ad-
2010 BAR EXAMINATIONS 61
vised to wait for his visa. After five months, A visited
the office of Alpha Personnel Services, Inc. during
which X told him that he could no longer be deployed
for employment abroad. A•was informed ~y the Philip-
pine Overseas Employment Administration (POEA)
that while Alpha Personnel Services, Inc. was a
licensed agency, X was not registered as its employee,
contrary to POEA Rules and Regulations. Under POEA
Rules and· Regulations, the obligation to register per-
sonnel with the POEA belongs to the officers of a re-
cruitment agency.
a. May X be held criminally liable for illegal
recruitment? Explain. (2%)
b. May the officers having control, management
or direction .of Alpha Personnel Services, Inc. be held
criminally liable for illegal recruitment? Explain. (3%)
Answer:
(a) No, X may not be criminally held liable for illegal
recruitment for the following reasons:
(1) Employee status is a defense; provided, the em-
ployee did not take part in the recruitment activity; and
(2) It was not the duty of X to register himself with the
POEA as a personnel of Alpha Personnel Services, Inc.
That obligation is imposed on the corporate officers of re-
cruitment companies.
(b) Yes
Failureto deploy within a reasonable time, as long as
the recruitis not at fault, is a prohibited act (Sec. 6, R.A.
10022). Hence, since it was not A's fault that no deploy-
ment ensued after paying the required placement fee, the
corporate officers are criminally liable for illegal recruit-
ment.
62 BARQ&A
FOR THE PAST 10 YEARS
XXII
A was recruited to work abroad by Speedy Re-
cruitment Agency as a technician for a Saudi Arabian
construction firm, with a monthly salary of $650.00.
When she got to the construction site, the employer
compelled her to sign another contract that referred
her to another employer for a salary of $350.00. She
worked for the second employer and was paid $350.00
until her two-year contract expired. Upon her return to
the Philippines, she filed a case against the agency
and the two employers. May the agency validly raise
the defense that it was not privy to the transfer of A to
the second employer? Explain. (3%)
Answer:
No, the defense is untenable.
POEA rule provide that the solidary liability of a recrui-
ter arises from the violation of the terms and conditions of
the POEA-approved employment contract (Sec. 1, Rule II,
POEA Rules and Regulations). When A's first employer
referred him to his second employer it violated exactly
those terms as it preterminated A's contract without justifi-
cation.
Sec. 7, R.A. 10022, imposes on Speedy Recruitment
Agency solidary liability for the consequences of its princi-
pal's contractual breach; hence, it cannot evade that liabili-
ty on the pretext that it was not privy to the transfer.
XXIII
A worked as a roomboy in La Mallorca Hotel. He
sued for underpayment of wages before the NLRC, al-
leging that he was paid below the minimum wage. The
employer denied any underpayment, arguing that
based on long standing, unwritten policy, the Hotel
2010 BAR EXAMINATIONS 63
provided food and lodging to its housekeeping em-
ployees, the costs of which were partly shouldered by
it and the balance was charged to the employees. The
employees' corresponding share in the costs was thus
deducted from their wages. The employer concluded
that such valid deduction naturally resulted in the pay-
ment of wages below the prescribed minimum. If you
were the Labor Arbiter, how would you rule? Explain.
(3%)
Answer:
I will disregard, the hotel's defense.
Even assuming facility status as regards the items
provided, the hotel cannot 'proceed to deduct their cost
from A's wages sans a facility evaluation permit. Said per-
mit will only be issued by the DOLE-RD if applied for and
when he is satisfied of the following:
(1) the cost is reasonable;
(2) the items are customarily provided and are
accepted by the employees; and
(3) the employees have given their written consent
for the salary deduction.
. Since the hotel does not have the required permit to
deduct, its defense must fail.
XXIV
Rank-and-file workers from Peacock Feathers, a
company with 120 employees, registered their inde-
pendent labor organization with the Department of
Labor and Employment (DOLE) Regional Office. Ma-
nagement countered with a petition to cancel the
union's registration on the ground that the minutes of
ratification of the union constitution and by-laws sub-
64 BARQ&A
FOR THE PAST 10 YEARS
mitted to the DOLE were fraudulent. Specifically, ma•
nagement presented affidavits of ten (10) out of forty
(40) individuals named in the list of union members
who participated in the ratification, alleging that they
were not present at the supposed January 1, 2010
meeting held for the purpose. The union argued that
the stated date of the meeting should have read "Ja-
nuary 11, 2010," instead of "January 1, 2010," and that,
at any rate, the other thirty (30) union members were
enough to register a union. Decide with reason. (3%)
Answer:
The petition must be dismissed for being groundless.
First, the alleged fraudulent statement is an innocent
typographical error.
Second, even assuming the date to be true and the
10 witnesses were not present at the meeting, the 20%
requirement is not affected because even without them
only 24 members needed to be listed as union members.
Without them, the registrant would still have 30 which is in
excess of 20% of 120.
XXV
Company C, a toy manufacturer, decided to ban
the use of cell phones in the factory premises. In the
pertinent Memorandum, management explained that
too much texting and phone-calling by employees dis-
rupted company operations. Two employees-members
of Union X were terminated from employment due to
violation of the memorandum-policy. The union coun-
tered with a prohibitory injunction case (with prayer
for the issuance of a temporary restraining order) filed
with the Regional Trial Court, challenging the validity
and constitutionality of the cell phone ban. The com-
pany filed a motion to dismiss, arguing that the case
2010 BAR EXAMINATIONS
65
should be referred to the grievance machinery pur-
suant to an existing Collective Bargaining Agreement
with Union X, and eventually to Voluntary Arbitration.
Is the company correct? Explain. (3%)
Answer:
No.
Labor jurisdiction is determined with two basic rules,
viz., the Reasonable Causal Connection Rule and the
Sole Reference To Labor Law Rule. The first requires
that the dispute brought for adjudication be connected to
employer-employee relationship; whereas, the second re-
quires that the core issue/s arising from such dispute be
resolvable thru the application solely of Labor Law.
As to the second rule, the constitutional issue cannot
be resolved thru the application solely of the Labor Code,
other statutes, CBA, or labor contract. On the contrary, it is
resolvable by reference also to the 1987 constitution and
interpretative case authority.
Hence, the RTC has jurisdiction.
j
l
r
I

2012 BAR EXAMINATIONS
a. Distinguish Labor-Only contracting and Job-
Only contracting. (5%)
b. A deadlock in the negotiations for the collec-
tive bargaining agreement between College X and the
Union prompted the latter, after duly notifying the
DOLE, to declare a strike on November 5. The strike to-
tally paralyzed the operations of the school. The Labor
Secretary immediately assumed jurisdiction over the
dispute and issued on the same day (November 5) a
return to work order. Upon receipt of the order, the
striking union officers and members, on November 1,
filed a Motion for Reconsideration thereof questioning
the Labor Secretary's assumption of jurisdiction, and
continued with the strike during the pendency of their
motion. On November 30, the Labor Secretary denied
the reconsideration of his return to work order and fur-
ther noting the strikers' failure to immediately return to
work, terminated their employment.- In assailing the
Labor Secretary's decision, the Union contends that:
c. The Labor Secretary erroneously assumed ju-
risdiction over the dispute since College X could not
be considered an industry indispensable to national
interest;
d. The strikers were under no obligation to im-
mediately comply with the November 5 return to work
order because of their then pending Motion for Recon•
sideration of such order; and
e. The strike being legal, the employment of the
striking Union officers and members cannot be termi-
nated. Rule on these contentions. Explain. (5%)
66
2012 BAR EXAMINATIONS 67
Answer:
(a) In labor-only contracting:
1. The contractor is not substantially capitalized or
possessed with the investment in the form of tools, equip-
ment machineries or work premises and, in confirmation of
its labor-only contractor status, he does not exercise con-
trol over the means and methods of performance of the
workers it supplies to its principal, or said workers perform
work directly related to the latter's trade;
2. The contractor is a mere agent who recruits wor-
kers for its principal; hence, pursuant to the Principle of
Merger of Legal Personalities, its violations of Labor Law
and Social Legislation are attributable to its principal.
In job contracting:
1. The contractor is issued a certificate of registration
to protect public interest, the secretary of Labor can exer-
cise his discretionary power to assume jurisdiction over the
dispute.
2. The strikers' pending motion for reconsideration
does not affect the immediate character of the Secretary's
Return to Work Order. In fact, said order has an injunctive
effect; hence, immediately upon valid service thereof on
the union (University of the Immaculate Conception v.
Sec. of Labor, G.R. No 151379, 14 Jan. 2005)
3. Non-compliance with the Return to Work Order
amounts to non-compliance with an injunction. Hence, pur-
suant to the Injunction Test, the union's defiance thereof
renders its strike illegal. Being illegal, the union officers can
be dismissed. As to the union members, they cannot be
dismissed unless they have committed acts of illegality in
the course of the strike.
68 BAR Q&A
FOR THE PAST 10 YEARS
II
In the Collective Bargaining Agreement (CBA) bet-
ween Dana Films and its rank-and-file Union (which is
directly affiliated with MMFF, a national federation), a
provision on the maintenance of membership express-
ly provides that the Union can demand the dismissal
of any member employee who commits acts of dislo-
yalty to the Union as provided for in its Constitution
and By-Laws. The same provision contains an under-·
taking by the Union (MMFF) to hold Dana Films free
from any and all claims of any employee dismissed.
During the term of the ·cBA, MMFF discovered that cer-
tain employee-members were initiating a move to dis-
affiliate from MMFF and join a rival federation, FAMAS.
Forthwith, MMFF sought the dismissal of its employee-
members initiating the disaffiliation movement from
MMFF to FAMAS. Dana Films, relying on the provision
of the aforementioned CBA, complied with MMFF's re-
quest and dismissed the employees identified by
MMFF as disloyal to it.
a. Will an action for illegal dismissal against
Dana Films and MMFF prosper or not? Why? (5%))
b. What are the liabilities of Dana Films and
MMFF to the dismissed employees, if any? (5%)
Answer:
(a) Yes.
An action for illegal dismissal against Dana Films will
prosper. As to MMFF, the action should be unfair labor
practice (Art. 260, Labor Code).
As to the company, it could not dismiss the allegedly
disloyal employees because it did not verify the validity qf
their expulsion. This is a due process requirement and its
non-observance amounts to lack of just cause to dismiss.
2012 BAR EXAMINATIONS 69
The requisites of a valid dismissal under a union security
clause are as follows: (a) the union security clause applies
to the concerned employees; (b) a request to dismiss is
made by the contracting union; and (c) the employer veri-
fies the ground for expulsion.
(b) The liabilities of Dana Films to the dismissed em-
ployees are as follows: (i) to immediately reinstate them to
their former position without loss of seniority rights and
other privileges; and (ii) to pay their full backwages (Art.
294, Labor Code).
As to MMFF, should the expulsion be found to be
baseless as to make the dismissal an unfair labor practice
under Art. 260 of the Labor Code, it shall be civilly.and cri-
minally liable.
Ill
a. On August 01, 2008, Y, a corporation engaged
in the manufacture of textile garments, entered into a
collective bargaining agreement with Union X in repre-
i sentation of the rank and-file employees of the corpo-
ration. The CBA was effective up to June 20, 2011. The
I' contract had an automatic renewal clause which would
lI allow the agreement after its expiry date to still apply
until both parties would have been able to execute a
new agreement. On May 10, 2011, Union X submitted
to Y's managernent their proposals for the negotiation
of a new C.BA. The next day, Y suspended negotiations
with Union X since Y had entered into a merger with Z,
a corporation also engaged in the manufacture of tex-
tile garment$. Z assumed all the assets and liabilities
ofY. Union X filed a complaint with the Regional Trial
Court for specific performance and damages with a
prayer for ,preliminary injunction against Y and Zand Z
filed a Motion to Dismiss based on lack of jurisdiction.
Rule on the Motion to Dismiss. (5%)
70 BARQ&A
FOR THE PAST 10 YEARS
b. · X was one of more than one hundred (100)
employees who were terminated from employment.due
to the closure of Construction Corporation A. The Cruz
family owned Construction Company A. Upon the clo-
sure of Construction Company A, the Cruzes estab-
lished Construction Company B. Both corporations
had the same president, the same board of directors,
the same corporate officers, and all the same subs-
cribers. From the General Information Sheet filed by
both companies, it also showed that they shared -the
same address and/or premises .. Both companies also
hired the same accountant who prepared the books for
both companies.
X and his co-employees amended their Complaint
with the Labor Arbiter to hold Construction Corpora-
tion B jointly and severally liable with Construction
Company A for illegal dismissal, backwages ,sind sepa-
ration pay. Construction Company B interposed a Mo-
tion to Dismiss contending that they are juridical
entities with distinct and separate personalities from
Construction Corporation A and therefore, they cannot
be held jointly and severally liable· for the money
claims of workers who are not their employees. Rule
on the Motion to Dismiss. Should it be granted or de-
nied? Why? (5%)
Answer:
(a) The motion to dismiss should be granted.
The RTC has no jurisdiction. The issue brought to
court is a labor issue because it arose from an organizatio-
nal dispute (Art. 219, Labor Code). Despite the inclusion
of Construction Company B, it is not a stranger owing to
the merger the effect of which was its automatic absorption
of the obligations of Construction Company A: One of the
assumed obligations is the duty to collectively bargain with
the union.
2012 BAR EXAMINATIONS
71
(b) T.he motion to dismiss should be granted.
The dispute between Union X and Y and Z is outside
the competence of the Regional Trial Court to hear and
resolve. It is a labor dispute in contemplation of Art. 219 of
the l 9bor Cod~ because lt arose from employer-employee
affair e;1nd the performance issue is resolvable thru the a.p-
p!icatton solely of Labor Law, more specifically Art. 259 of
the Labor Code,
IV
a. Juicy Bar and Night Club allowed by tolerance
fifty (50) Guest Relations Officers (GROs) to work with-
out compensation in its establishment under the direct
supervision of its Manager from 8:00 P.M. To 4:00 A.M.
everyday, including Sundays and holidays. The GROs,
however, were free to pl.y their trade elsewhere at any-
time, but one~ they enter the premlses Qf the night
ch.ib, (hey Were required to stay up to closing time,
The .GROs eame.d their keep exclusively from com~
missions for food and drinks, and tips from generous
customers. In time, the GROs formed the Solar Ugna-
yan ng mga Kababaihang lnaapi (SUKI), a labor union
duly registered with DOLE. Subsequently, SUKI filed a
petition for Certification Election in order to be recog-
nized as the exclusive bargaining agent of its mem-
bers. Juicy Bar and Night Club opposed the petition
for Certification Election on the singular ground of ab-
sence of employer-employee relationship between the
GROs on one hand and the night club on the other
hand. May the GROs form SUKI as a labor organization
for purposes of collective bargaining? Explain briefly.
(5%)
b. A spinster school teacher took pity on one of
her pupils, ·~ rob1.1st and precocious 12-year old boy
whose poor family could barely afford the cost of his
72 BARQ&A
FOR THE PAST 10 YEARS
schooling. She lives alone at her house near the
School after her housemaid had left. In the afternoor:t,
she lets the boy do various chores as cJeaning,
fetching water and all kinds of errands after school
hours. She gives him rice and P100.00 before the boy
goes home at 7:00 every night. The school principal
learned about it and charged her with violating the law
which prohibits the employment of children below 15
years of age. In her defense, the teacher stated that the
work performed by her pupil is not hazardous. Is her
defense tenable? Why? {5%)
Answer:
(a) No.
The GRO's are employees without a definite emplo-
yer; hence, they cannot organized for purposes of "collec-
tive bargaining" or "dealing" with the Juicy Bar and Night
Club over terms and conditions of employment. Art. 253 of
the Labor Code allows them to organize for the limited
purpose of "mutual aid and protection" only. Since, the ulti-
mate purpose of a certification electio!} i~ collective bargai-
ning, they are impliedly without the legal personality to peti-
tion for the conduct of one.
(b) No.
The defense is misplaced. Under the Labor Code, a
minor aged below 15 cannot be employed except under
sole of responsibility of his parents or guardian and in a
business where only family members are employed. Hence,
the teacher's defense might be meritorious if she is the
guardian of the pupil. However, she is not.
Likewise, under R.A. 9231, minors of like age can be
employed by any person in essential public entertainment
or information through media. Certainly, the tasks per-
formed by the pupil are outside the letter of R.A.- 9231.
2012 BAR EXAMINATIONS 73
V
'
The weekly work schedule of a driver is as
follows: Monday, Wednesday, Friday - drive the family
car to bring and fetch ·the children to and from school.
Tuesday, Thursday, Saturday - drive the family van to
fetch merchandise from suppliers and deliver the
same to a boutique in a mall owned by the family.
a. Is the driver a house helper? (5%)
b. The same driver claims that for work per-
formed on Tuesday, Thursday and Saturday, he should
be paid the minimum daily wage of a driver of a com-
mercial establishment. Is the claim of the driver valid?
(5%)
Answer:
(a) Under R.A. 10361, or the Kasambahay Act a fa-
mily driver is not a domestic worker or kasambahay - with
more reason if required to perform tasks directly related to
the business of his employer. .
(b) The driver's claim is valid. In fact, he can claim
the same commercial pay rate for his work on Monday,
Wednesday and Friday because he no longer works as a
domestic on said days pursuant to R.A. 10361.
VI
a. For humanitarian reasons, a bank hired se-
veral handicapped workers to count and sort out cur-
rencies. The handicapped workers knew that the con-
tract was only for a period of six-months and the same
period was provided in their employment contracts.
After six months, the bank terminated their employ-
ment on the ground that their contract has expired.
This prompted the workers to file with the Labor
74 BARQ&A
FOR THE PAST 10 YEARS
Arbiter a complaint for illegal dismissal. Will their ac-
tion ·prosper? Why or why not? (5%)
b. Mam-manu Aviation Company (Mam-manu) is
a new airline company recruiting flight attendants for
its domestic flights. It requires that the applicant be
single, not more than 24 years old, attractive, and
familiar with three (3) dialects, viz: llonggo, Cebuano
and Kapampanga~. lngga, 23 years old, was accepted
as she possesses all the qualifications. After passing
the probationary period, lngga disclosed that she got
married when she was 18 years old but the marriage
was already in the process of being annulled on the
ground that her husband was afflicted with a sexually
transmissible disease at the time of the celebration of
their marriage. As a result of this revelation, lngga was
not hired as a regular flight attendant. Consequently,
she filed a complaint against Mam-manu alleging that
the pre-employment qualifications violate relevant pro-
visions of the Labor Code and are against public
policy. Is the contention of lngga tenable? Why? (5%)
Answer:
(a) Yes.
The special law to apply is Sec. 5 of the Magna Carta
for Persons with Disability which guarantees to disabled
workers the rights of able-bodied workers, one of which is
the right to regularization by reason of the nature of work
performed. Since sorting out and co1:1nting of coins is a job
that is usually necessary and desirable in the usual trade
of the bank then the complainants are regular employees;
hence, they can only be dismissed for a just of authorized
cause (Art. 294, Labor Co!ie). Since expiration of contract
is not a listed cause, their dissociation can be challenged
via a complaint for illegal dismissal.
2012 BAR EXAMINATIONS
75
(b) Yes.
The company's pre-employment policy is not a bona
fide occupational qualification for the following reasons:
(I) it does not serve a legitimate business purpose;
(II) it is not specific to the occupation at issue; and
(111) it does not reflect an inherent quality that would
reasonably guaranteed work efficiency.
VII
lnggu, an electronics technician, worked within
the premises of Pit Stop, an auto accessory shop. He
filed a Complaint for illegal dismissal, overtime pay
and other benefits against Pit Stop. Pit Stop refused to
pay his claims on the ground that lnggu was not its
employee but was an independent contractor . It was
common practice for shops like Pit Stop to collect the
service fees from customers and pay the same to the
independent contractors at the end of each week. The
auto shop explained that lnggu was like a partner who
worked within its premises, using parts provided by
the shop, but otherwise lnggu was free to render ser-
vice in the other auto shops. On the other hand, lnggu
insisted that he still was entitled to the benefits be-
cause he was loyal to Pit Stop, it being a fact that he
did not perform work for anyone else. Is lnggu cor-
rect? Explain briefly. (5%)
The modes of determining an exclusive bargai-
ning agreement are:
1. voluntary recognition
2. certification election
3. consent election
76 BARQ&A
FOR THE PAST 10 YEARS
Explain briefly how they differ from one another.
(5%)
Answer:
(a) No.
lnggu is not correct. Pit Stop did not exercise labor
law concept of control over him; hence, under the Control
Test, it cannot be safety concluded that he was the
employee of Pit Stop. Although likened to a partner, the
name of the defence is not conclusive. Its substance, viz.,
lnggu was a freelancer, controls. Thus, being such worker,
he has no employer but himself (Ushio Marketing v.
NLRC, G.R. No. 124551, 28 Aug. 1998)
(b) The three can be differentiated as follows:
(1) Voluntary recognition is not a mode of selec-
tion; whereas, certification election and election are modes
of selection;
(2) Voluntary recognition has a replacement, viz.,
SEBA request; whereas, certification election and consent
election have no substitutes; - ·
(3) Certification election is a statutory mode of
selection is a contractual mode of selection.
VIII
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.
a. As counsel for the corporation, what steps
will you take prior to its closure? (3%)
2012 BAR EXAMINATIONS 77
b. Are the employees entitled to separation pay?
{2%)
c. If the reason for the closure is due to old age
of the brothers and sisters:
d. Is the closure allowed by law? {2%)
e. Are the employees entitled to separation
benefits? (3%)
Answer:
(a) As counsel, I will see to the strict observance of
the 30-day of notice rule and presentation of evidence of
the good faith character of the closure.
(b) No. Since the closute is due to serious business
losses, the company is not under obligation to pay separa-
tion pay (Art. 298, Labor Code).
(c) If the reason for the closure is old age, it is still
allowed by law. One of the almost absolute prerogatives of
an employer, next to hiring is the right to close shop for any
reason, save that its exercise requires good faith.
(d) Yes, the employees are entitled to separation
benefits because the closure if not grounded on serious
business losses his time.
IX
Dennis was a taxi ·driver who was being paid on
the "boundary" system basis. He worked tirelessly for
Cabrera Transport Inc. for fourteen (14) years until he
was eligible for retirement. He was entitled to retire•
ment benefits. During the entire duration of his se-
rvice, Dennis was not given his 13th month pay or his
service incentive leave pay.
78 BAR Q&A 2012 BAR EXAMINATIONS 79
FOR THE PAST 10 YEARS

a. Is Dennis entitled to 13th month pay and ser-
vice leave incentive pay? Explain. (5%) • etc. Is the Labor Arbiter's ruling valid? Explain. (5%)
b. Since he was not given his 13th month pay and
service incentive leave pay, should Dennis be paid
upon retirement, in addition to the salary equivalent to
fifteen (15) days for every year of service, the additio-
nal 2.5 days representing one-twelfth (1/12) of the 13th
month pay as well as the five (5} days representing the
service incentive leave for a total of 22.5 days? Ex-
plain. (5%)
Answer:
(a) No.
Being pald on boundary basis, Dennis fs a worker
paid on task basl~ (R&.1= Tram,port, Inc,, v. Latag1 ClR.
No. 155214, 13 FetJ. 2®4, As such, his .(7mployer is
exempt from the coverage of P.D. 851, /RR of P.D. 851).
As to service incentive leave, Dennis is not entitled
because he is a worker paid on task and a field personnel
at the same time (Ejusdem Generis).:. _
(b) No. Since Dennis is not entitled to both 13th
month pay and service incentive leave, his retirement be-
nefits shall be computed based on 15 days only.
able to prove that it had invested in tools, equipment,
b. Does the performance by a contractual emplo-
yee, ~uppUed by a legitimate contractor, of activities
directly related to the main business of the principal
make him a regular employee of the principal? Explain.
(5%}
Answer:
(a) Yes. With a capital of less than Three Million
Pesos, XYZ is a labor-only contractor, (O.O. 174). On top
of this, it has no investment in the form of tools, equipment,
machineries and work premises. Lacking in net financial
contracting capacity, it cannot overcome the presumption
that it is a labor-only contractor.
(b) No. When the contractor, who is substantially
capitalized or possessed with investment, carries on a
business independent of its principal's, it does not matter if
its workers are performing tasks directly related to the busi-
ness of said principal as lor:ig as the latter does not control
their means and methods of performance.

a. XYZ Manpower Services (XYZ) was sued by

its employees together with its client, ABC Polyester
Manufacturing Company (ABC). ABC is one of the
many clients of XYZ. During the proceedings before
the Labor Arbiter, XYZ was able to prove that it had
substantial capital of Three Million Pesos. The Labor
Arbiter ruled in favor of the employees because it
deemed XYZ as a labor only contractor. XYZ was not

2013 BAR EXAMINATIONS
Jose and Erica, former sweethearts, both worked
as sales representatives for Magna, a multinational
firm engaged in the manufacture and sale of pharma-
ceutical products. Although the couple had already
broken off their relationship, Jose continued to have
special feelings for Erica.
One afternoon, Jose chanced upon Erica riding in
the car of Paolo, a co-employee and Erica's ardent
suitor; the two were on their way back to the office
from a sales call on Silver Drug, a major drug retailer.
In a fit of extreme jealousy, Jose rammed Paolo's car,
causing severe injuries to Paolo and Erica. Jose's flare
up also caused heavy damage to the two company-
owned cars they were driving.
a. As lawyer for Magna, advise the company on
whether just and valid grounds exist to dismiss Jose.
(4%)
b. Assuming this time that Magna dismissed
Jose from employment for cause and you are the
lawyer of Jose, how would you argue the position that
Jose's dismissal was illegal? (4%)
Answer:
(a) I will apprise the company of Jose's unfitness for
continued employment based on his serious misconduct.
His act was committed within both time and space limits of
his employment as a sales representative and within the
same limits of his victim's employment; hence, it is work-
related infraction. Such workplace misconduct is serious be-
cause it was attended by criminal intent as to bar all pos-
sibilities that it was born of mere error in judgment only.
80
2013 BAR EXAMINATIONS 81
(b) I would argue that while Paolo may have been
at work, Jose was not, i.e., at the time of incident. Hence,
the nature of his conduct as a workplace infraction is in
doubt. Pursuant to the Liberal Interpretation Rule, there-
fore, the doubt must be resolved in his favor. Since, he is
not entirely faultless, however, the appropriate penalty is
suspension only.
II
Gamma Company pays its regular employees
P350.00 a day, and houses them in a dormitory inside
its factory compound in Manila. Gamma Company also
provides them with three full meals a day.
In the course of a routine inspection, a Depart-
ment of Labor and Employment (DOLE) Inspector no-
ted that the workers' pay is below the prescribed mini-
mum wage of P426.00 plus P30.00 allowance, and thus
required Gamma Company to pay wage differentials.
Gamma Company denies any liability, explaining
that after the market value of the company-provided
board and lodging are added to the employees' P350
cash daily wage, the employees' effective daily rate
would be way above the minimum pay required by law.
The company counsel further points out that the em-
ployees are aware that their food and lodging form
part of their salary, and have long accepted the
arrangement.
Is the company's position legally correct? (8%)
Answer:
No. Even assuming the board and lodging qualify as
facilities, their value cannot automatically be deducted from
the prescribed pay rate. The d~duction must be authorized.
by the DOLE Regional Director by issuing the correspon-
82 BARQ&A
FOR THE PAST 10 YEARS
ding permit which must be applied for and granted upon
satisfaction that the items are customarily provided; they
are accepted by the workers; their value is reasonable; and
the salary deduction is authorized in writing.
Ill
Inter-Garments Co. manufactures garments for
export and requires Its employees to render overtime
work ranging from two to three hours a day to meet its
clients' deadlines. Since 2009, it has been paying its
employees on overtime an additional 35% of their
hourly rate for work rendered in excess of their regular
eight working hours.
Due to the slowdown of Its export business in
2012, Inter-Garments had to reduce its overtime work;
at the same time, it adjusted the overtime rates so that
those who worked overtime were only paid an additio-
nal 25%instead of the previous 35%. To replace the
workers' overtime rate loss, the company granted a
one-time 5% across-the-board wag~ i~crease.
Vigilant Union, the rank-and-file bargaining agent,
charged the company with Unfair Labor Practice on
the ground that (1) no consultations had been made on
who would render overtime work; and (2) the unilateral
overtime pay rate reduction is a violation of Article 100
(entitled Prohibition Against Elimination or Diminution
of Benefits) of the Labor Code.
Is the union position meritorious? (8%)
Answer:
No.
The charge of unfair labor practice (ULP) is grounded
on (1) non-consultation on who should render overtime
work; and (2) violation of Art. 100 of the Labor Code.
2013 BAR EXAMINATIONS 83
ULP is a violation of the workers' right to self-organi-
zation (Cu/iii v. Eastern Telecommunications, G.R. No.
165381, 9 Feb. 2011). Hence, since both of the specific
acts complained of do not pertain to organizational right
then they cannot support the charge.
Taken separately from the charge of ULP, the as-
sailed selection pertains to management prerogative.
Since its exercise is not attended by bad faith, the com-
pany cannot be held liable as to those it does not require
to do overtime work. And as regards the diminution com-
plained of, Art. 100 pertains only to pre-promulgation bene-
fits. The provision prohibits the Labor Code from dimini-
shing them. (Insular Hotel Employees Union-NFL v.
Waterfront Insular Hotel Davao, G.R. Nos. 174040-41,
22 Sept. 2010). H$nce, the invocation of the provision by
the union is rni~Placed. It should have invoked the
Principle of Grants instead.
IV
Bobby, who was assigned as company branch
accountant in Tarlac where his family also lives, was
dismissed by Theta Company after anomalies in the
company's accounts were discovered in the .branch
Bobby filed a complaint and was ordered reinstated
with full backwages after the Labor Arbiter found that
he had been denied due process because no investi-
gation actually toQk place.
Theta Company appealed to the National Labor
Relations Commission (NLRC} and at the same time
wrote Bobby, advising him to report to the main
company office in Makati where he would be reinstated
pending appeal Bobby refused to comply with his new
assignment because Makati is very far from Tarlac and
he cannot bring his family to live with him due to the
higher cost of living in Makati.
84 BARQ&A
FOR THE PAST 10 YEARS
a. Is Bobby's reinstatement pending appeal le-
gally correct? (4%)
b. Advise Bobby on the best course of action to
take under the circumstances. (4%)
Answer:
(a) No, the reinstatement of Bobby to a position in
Makati is contrary to Arts. 229 and 294 of the Labor Code
which requires immediate reinstatement of an illegally dis-
missed employee to his former position, in this case,
Bobby's former position in Tarlac.
A reinstatement order cannot be frustrated with the
exercise of the management prerogative to transfer. Cer-
tainly, Arts. 229 and 294 are a limitation to said preroga-
tive. ·
(b) Bobby's best course of action is to move that
Theta Company be cited for contempt for defying the Labor
Arbiter's reinstatement order, not to ·tile a complaint for
constructive dismissal.
V VI
Cris filed a complaint for illegal dismissal against
Baker Company. The Labor Arbiter dismissed the com-
plaint but awarded Cris financial assistance. Only the
company appealed from the Labor Arbiter's ruling. It
confined its appeal solely to _the question of whether
financial assistance could be awarded. The NLRC, in-
stead of ruling solely on the appealed issue, fully re-
versed the Labor Arbiter's decision; it found Baker
Company liable for illegal dismissal and ordered the
payment of separation pay and full backwages.
Through a petition for certiorari under Rule 65 of
the Rules of Court, Baker Company challenged the va-
'
2013 BAR F.XAMINATIONS 85
lidity of the NLRC ruling. It argued that the NLRC acted
with grave abuse of discretion when it ruled on the
illegal dismissal issue, when the only issue brought on
appeal was the legal propriety of the financial assis-
tance award.
Cris countered that under Article 218(c) of the
Labor Code, the NLRC has the authority to "correct,
amend, or waive any error, defect or irregularity whe-
ther in substance or in form" in the exercise of its ap-
pellate jurisdiction.
Dec_ide the c~se. (8%)
Answer:
The NLRC exceeded its appellate jurisdiction.
Art. 225 (c) of the Labor Code unlike under old
interpretation rulings, does not permit the NLRC to resolve
issues not raised on appeal for lack of appellate jurisdic-
tion over unbrought issues (Sec. 4 (d), Rule VI, 2011
NLRC Rules of Procedure, as amended).
Because of the stress in caring for her four (4)
growing children, Tammy suffered a miscarriage late
in her pregnancy and had to undergo an operation. In
the course of the operation, her obstetrician further
discovered a suspicious-looking mass that required
the subsequent removal of her uterus (hysterectomy).
After surgery, her physician advised Tammy to be on
full bed rest for six (6) weeks. Meanwhile, the biopsy of
the sample tissue taken from the mass in Tammy's
uterus showed a beginning malignancy that required
an immediate series of chemotherapy once a week for
four (4) weeks.
86 BARQ&A
FOR THE PAST 10 YEARS
a. What benefits can Tammy claim under exis-
ting social legislation? (4%)
b. What can Roger-Tammy's 2nd husband and
the father of her two (2) younger children -claim as be-
nefits under the circumstances? (4%)
Answer:
(a) On the assumption that Tammy has an employer,
she can avail of gynaecological leave under R.A. 9710, or
the Magna Carta for Women, as to be entitled to two full
month salaries. Moreover, for her miscarriage, she can
avail of the 60-day maternity 'leave guaranteed by R.A.
11210, or the Expanded Maternity Leave Act. Should the
period be insufficient, she can avail of additional 15 days
leave with pay if she happens to be a solo parent and
another 30 days without pay.
.(b) Roger has two leave benefits, viz., 7-day leave
with pay under the Paternity Leave Act conditioned on his
being the legitimate spouse of Tammy and cohabitation
with her and 7-day leave with pay ynder the Expanded
Maternity Leave Act.
VII
Philippine Electric Company is engaged in electric
power generation and distribution. It is a unionized
company with KilusangMakatao as the union represen-
ting its rank-and-file employees. During the negotia-
tions for their expired collective bargaining agreement
(CBA), the parties duly served their proposals and
counter-proposals on one another. The parties, how-
ever, failed to discuss the merits of their proposals
and counter-proposals in any formal negotiation mee-
ting because their talks already bogged down on the
negotiation ground rules, i.e., on the question of how
2013 BAR EXAMINATIONS 87
they would conduct their negotiations, particularly on
whether to consider retirement as a negotiable issue.
Because of the continued impasse, the union
went on strike. The Secretary of Labor and Employ-
ment immediately assumed jurisdiction over the dis-
pute to avert widespread el~ctric power interruption in
the country. After extensive discussions and the filing
of position papers (before the National Conciliation
and Mediation Board and before the Secretary himself)
on the validity of the union's strike and on the wage
and other economic issues (including the retirement
issue), the DOLE Secretary ruled on the validity of the
strike and on the disputed CBA issues, and ordered
the parties to execute a CBA based on his rulings.
Did the Secretary of Labor exceed his jurisdiction
when he proceeded to rule on the parties' CBA posi-
tions even though the parties did not fully negotiate on
their own? (8%)
Answer:
No. Assumption power is plenary, discretionary, extra-
ordinary and incidental. Being plenary, the Secretary of
Labor and Employment can resolve any and all issues in-
volving the parties before him, including those brought to
other labor tribunals, for simultaneous resolution. He can
also resolve incidental issues so as to leave nothing unde-
termined or unresolved between the disputants.
Vlfl
After thirty (30) years of service, Beta Company
compulsorily retired Albert at age 65 pursuant to the
comJ.»1-;lilY"i ijffiJ:rernent Plan. Albert was duly paid his
full te;tirernent. benefits of one (1) month pay for every
y-earof service tinde:rt~e,'Pfan. Thereafter, out of com-
passion, the company allowed Albert to continue wor-
88 BAR Q&A
FOR THE PAST 10 YEARS
king and paid him his old monthly salary rate, but with-
out the allowances that he used to enjoy.
After five (5) years under this arrangement, the
company finally severed all employment relations with
Albert; he was declared fully retired in a fitting ceremo-
ny but the company did not give him any further
retirement benefits. Albert thought this treatment un-
fair as he had rendered full service at his usual hours
in the past five (5) years. Thus, he filed a complaint for
the allowances that were not paid to him, and for
retirement benefits for his additional five (5) working
years, based either on the company's Retirement Plan
or the Retirement Pay Law, whichever is applicable.
a. After Albert's retirement at age 65, should he
be considered a regular employee entitled to all his
previous salaries and benefits when the company
allowed him to continue working? (4%)
b. Is he entitled to additional retirement benefits
for the additional service he rendered after age 65?
(4%)
,.,_
Answer:
(a) Upon reaching the age of 65, Albert's emplo-
yability was severed by law (Art. 302, Labor Code). How-
ever, the Expanded Senior Citizens Act guarantees him
right to employment (Sec. 4). For this reason, he could be
hired as a contractual employee with no right to retire the
second time and to a second retirement package; other-
wise, no employer would engage the services of compul-
sorily retired employees contrary to the guarantee of the
Expanded Senior Citizens Act.
(b) No. An employee compulsorily retired by opera-
tion of contract cannot retire again by operation of law.
When Albert agreed to the terms of the company's retire-
ment plan and received retirement pay under it, he agreed
2013 BAR EXAMINATIONS 89
to give up his right to retire under the law_ Hence, regard-
less of the five (5) additional years of service he rendered
for the same company, he cannot retire the second time
again.
IX
Pablo works as a driver at the National Tire Com-
pany (NTC). He is a member of the Malayang Sama-
hanng Manggagawasa NTC, the exclusive rank-and-file
collective bargaining representative in the company.
The union has a CBA with NTC which contains a union
security and a check-off clause. The union security
clause -contains a maintenance of membership pro-
vision that requires all members of the bargaining unit
to maintain their membership in good standing with
the union during the term ,of the CBA under pain of
dismissal. The check-off clause on the other hand au-
thorizes the company to deduct from union members'
salaries defined amounts of union dues and other
fees. Pablo refused to issue an authorization to the
company for the check-off of his dues, maintaining
that he will personally remit his dues to the union.
Would the NTC management commit unfair labor
practice if it desists from checking off Pablo's union
dues for lack of individual authorization from Pablo?
(4%)
Can the union charge Pablo with disloyalty for re-
fusing to allow the check off of his union dues and, on
this basis, ask the company to dismiss him from em-
ployment? (4%)
Answer:
(a) For a violation of a CBA to amount to unfair labor
practice (ULP), it must be of an economic provision; provi-
ded, the employer's violation is gross and flagrant. A
90 BAR Q&A
FOR THE PAST 10 YEARS
check"off clause is a political provision because it is a me"
chanism, similar to the union security clause, to ensure the
contracting union's political viability. For this reason, the
company's failure to deduct and remit Pablo's union dues
would not constitute ULP.
(b) Actually, Art. 113 of the Labor Code does not re-
quire written authorization in regard the deduction of union
dues. Hence, as long as the company fulfils its contractual
duty to deduct and remit, Pablo's refusal is inconsequen-
tial. Hence, his conduct cannot amount to disloyalty for
which he can be disciplined with an expulsion and eventual
dismissal.
X of total permanent disability benefits against the agen-
For ten (10) separate but consecutive yearly con-
tracts, Cesar has been deployed as an able-bodied
seaman by Meritt Shipping, through its local agent,
Ace Maritime Services (agency), in accordance with
the 2000 Philippine Overseas Employment Administra-
tion Standard Employment Contra~t (2000 POEA-SEC).
Cesar's employment was also covered by a CBA bet-
ween the union, AMOSI.JP, and Meritt Shipping. Both
the 2000 POEA-SEC and the CBA commonly provide
the same mode and procedures for claiming disability
benefits. Cesar's last contract (for nine months) ex-
pired on July 15, 2013.
Cesar disembarked from the vessel MN Seven
Seas on July 16, 2013 as a seaman on "finished con-
tract". He immediately reported to the agency and
complained that he had been experiencing spells of
dizziness, nausea, general weakness, and difficulty in
breathing. The agency referred him to Dr. Sales, a car-
dio-pulmonary specialist, who examined and treated
him; advised him to take a complete rest for a while;
2013 BAR EXAMINATIONS
91
gave him medications; and declared him fit to resume
work as a seaman.
After a month, Cesar went back to the agency to
ask for re-deployment. The agency rejected his appli-
cation. Cesar responded by demanding total disability
benefits based on the ailments that he developed and
suffered while on board Meritt Shipping vessels. The
claim was based on the certification of his physician
(internist Dr. Reyes) that he could no longer undertake
sea duties because of the hypertension and diabetes
that afflicted him while serving on Meritt Shipping ves•
sels in the last 1O years. Rejected once again, Cesar
filed a complaint for illegal dismissal and the payment
cy and its principal.
Assume that you are the Labor Arbiter deciding
the case. Identify the facts and issues you would con•
sider material in resolving the illegal dismissal and di-
sability complaint. Explain your choices and their ma-
teriality, and resolve the case. (8%)
Answer:
As to the tenurial issue, the facts and issues of conse-
quence are as follows:
(1) Whether or not Cesar was tenured employee;
(2) Whether or not his '10-year service affects the
contractual nature of his employment; and
(3) Whether or not he can be dissociated on the
ground of contract expiration.
As to the remunerative issue, the facts and issues to
consider are as follows:
(1) Whether or not Cesar's disability is by reason of a
disease that is bothwork connected and contracted during
the term of his employment contract.
92 BARQ&A
FOR THE PAST 10 YEARS
(2) Whether or not Cesar complied with the 3-day
reporting requirement;
(3) Whether or not the company-designated physi-
cian made a final, categorical and definitive assessment
within 120/240 days.
(4) Whether or not Cesar disclosed the medical as-
sessment of his physician of choice;
(5) Whether or not a third physician was selected
prior to the filing of Cesar's complaint.
In resolution of the issues , I will rule as follows:
As to the tenurial issue, Cesar is a contractual
employee (Mlllares v. NLRC, G.R. No. 110524, 29 July
2002) As such, his separation upon the expiration of the
last contract is not a case of dismissal. Moreover, his non-
deployment is covered by the Principle of Freedom of
Contracts (Art. 1306, New Civil Code). Hence it is not
productive of illegal dismissal.
As to the remunative issue, Cesar's disability com-
pensation claims must be dismissed- far lack of cause of
action. By not disclosing the medical opinion of his phy-
sician of choice, he deprived his employer of the
opportunity to initiate the selection of a third physician. In
effect, at the time of the filing of his complaint, he had no
medical basis. (Philippine Hammonia Ship Agency v.
Fulogio Dumadag, G.R. No. 194362, 26 June 2013)
2014 BAR EXAMINATIONS
Linda was employed by Sectarian University (SU)
to cook for the members of a religious order who teach
and live inside the campus. While performing her as-
signed task, Linda accidentally burned herself. Be-
cause of the extent of her injuries, she went on medi-
cal leave. Meanwhile, SU engaged a replacement cook.
Linda filed a complaint for illegal dismissal, but her
employer SU contended that Linda was not a regular
employee but a domestic househelp. Decide. (4%)
Answer:
Linda is a regular emplotee.
SU's contention that Linda is a domestic helper is
without basis because the latter did not minister to the per-
sonal comfort of the members of any household as contem-
plated by the Kasambahay Act (R.A. 10361). Although a
cook, hence listed, she cannot be classified as a kasam-
bahay because she rendered services for resident religious
teachers in a university which was not a household.
II
Lucy was one of approximately 500 call center
agents at Hambergis, Inc. She was hired as a contrac-
tual employee four years ago. Her contracts would be
for a duration of five (5) months at a time, usually after
a one- month interval. Her re-hiring: was contingent on
her performance for the immediately preeedfng con-
tract. Six (6) months after the expiration of her last
contract, Lucy went to Hambergis personnel depart-
ment to inquire why she was not yet being recalled to
work. She was told that her performance during her
93
•
94 BARQ&A
FOR THE PAST 10 YEARS 2014 BAR EXAMINATIONS 95

last contract was "below average." Lucy seeks your

d. No, because it is a fringe benefit that has al-
legal advice about her chances of getting her job back.
ready ripened into a demandable right.
What will your advice be? (4%)
Answer:
Answer:
(D) "No, because it is a fringe benefit that has already
I will advise Lucy to file a complaint for constructive ripened into a demandable right."
dismissal, with prayer for reinstatement, because her
floating status has exceeded six (6) months. Explanation:
By virtue of the nature of her job, Lucy attained tenure
Not (A) because the losses do not appear to be
on the first day of her employment. As a regular employee, substantial losses.
therefore, she could only be dismissed for a just or autho-
rized cause. Expiration of her last contract was neither a Not (B) because management prerogative cannot be
just nor authorized cause. Hence, she was illegally dis- the source of a unilateral benefit at one point and the very
missed. Moreqver, her term employment ~ontracts were justification for its taking away at another.
contracts of adhesion; hence" they should be.taken against
Not {C) because Article 100 of the Labor Code
Hambergis Inc. because of its obvious intE1nt to use the applies only to benefits enjoyed before or at the time of the
periods to bar her regularization. effectivity of the Code (Waterlront ruling, 22 Sept. 2010,
CJ Peralta).
Ill
IV
Lolong Law Firm (LLF), which..employs around 50
lawyers and 100 regular staff, suffered losses for the
Linis Manpower, Inc. (LMI) had provided janitorial
first time in its history. The management informed its
services to the Philippine Overseas Employment Ad-
employees that it could no longer afford to provide
ministration (POEA) since March 2009. Its service con-
them free lunch. Consequently, it announced that a
tract was renewed every three months. However, in the
nominal fee would henceforth be charged. Was LLF
bidding held in June 2012, LMI was disqualified and
justified in withdrawing this benefit which it had
excluded. In 2013, six janitors of LMI formerly as-
unilaterally been providing to its employees? (1%)
signed at POEA filed a complaint for underpayment of
a. Yes, because it is suffering losses for the first \IW,lges. Both LMI ~ndPOSA were impieaded as respon-
time. dents. Should POEA, a government agency subject to
budgetary appropriations from Congress, be held
b. Yes, because this is a management preroga-
liable solidarity with LMI for the payment of salary dif-
tive which is not due to any legal or contractual obli-
gation. ferentials due the complainant? Cite the legal basis of
your answer. (4%)
c. No, because this amounts to a diminution of
benefits which is prohibited by the Labor Code.
96 BARQ&A
FORTHEPAST10YEARS
Answer:
Yes.
The POEA, although a government agency, is a statu-
tory employer by operation of Article 106 of the Labor
Code, as implemented by D.O. 18-A (now D.O. 174). As
such, it can be held solidarity liable for salary differentials
resulting from its job contractor's underpayment of salaries
due its workers (Mera/co Industrial Eng'g Corp. v.
NLRC, et al., G.R. No. 145402, 14 March 2008).
V not a barred election and majority of the eligible voters cast
Liwayway Glass had 600 rank-and-file employees.
Three rival unions - A, B, and C participated in the
certification elections ordered by the Med-Arbiter. 500
employees voted. The unions obtained the following
votes: A-200; B-150; C-50; 90 employees voted "no
union"; and 10 were segregated votes. Out of the seg-
regated votes, four (4) were cast by probationary em-
ployees and six (6) were cast by dismissed employees
whose respective cases are still on.appeal. (10%)
(A) Should the votes of the probationary and dis-
missed employees be counted in the total votes cast for
the purpose of determining the winning labor union?
(B) Was there a valid election?
(C) Should Union A be declared the winner?
(D) Suppose the election is declared invalid,
which of the contending unions should represent the
rank-and-file employees?
(E) Suppose that in the election, the unions ob-
tained the following votes: A-250; B-150; C-50; 40 vo-
ted "no union"; and 10 were segregated votes. Should
Union A be certified as the bargaining representative?
2014 BAR EXAMINATIONS 97
Answer:
(A). Yes. The segregated votes should be counted as
valid votes. Probationary employees are not among the
employees who are ineligible to vote. Likewise, the pen-
dency of the appeal of the six dismissed employees indi-
cates that they have contested their dismissal before a
forum of appropriate jurisdiction; hence, they continue to
be employees for purposes of voting in a certification elec-
tion (D.O. 40-03).
(B) Yes. The certification election is valid because it is
their votes.
(C). No. Union A should not be declared the winner
because it failed to garner majority of the valid votes. The
majority of 500 votes, representing valid votes, is 251
votes. Since Union A received 200 votes only, it did not win
the election.
(D) None of the participating unions can represent the
rank-and-file employees for purposes of collective bargai-
ning because none of them enjoys majority representative
status.
(E) If the 10 votes were segregated on the same
grounds, Union A cannot still be certified as the bargaining
representative because its vote of 250 is still short of the
majority vote of 251. However, if the 10 votes were validly
segregated, majority vote would be 246 votes. Since Union
A received more than majority vote then it won the elec-
tion.
VI
l,,i.na ha$ been working as a steward with a Miami.,
U.S,A...b~sed.Lqyateruise· un,es.for the past 15·years.
Sh61 was te.crOit~d by a.J~~f irlan'r:dng agency, Macapa ..
gal Shipping. and was made to sign a 10-month em~
98 BARQ&A
FOR THE PAST 10 YEARS
ployment contract everytime she left for Miami. Maca-
pagal Shipping paid for Lina's round-trip travel expen-
ses from Manila to Miami. Because of a food poisoning
incident which happened during her last cruise assign-
ment, Lina was not re-hired. Lina claims she has been
illegally terminated and seeks separation pay. If you
were the Labor Arbiter handling the case, how would
you decide? (4%)
Answer:
I will dismiss the complaint for illegal dismissal.
Lina is a seafarer. As such, she is a contractual
employee who cannot require her employer to enter into
another contract of employment with her under the Prin-
ciple of Freedom of Contracts. In effect, Lina cannot be
awarded separation pay. As an alternative relief, separa-
tion pay is proper only when there is a finding of illegal dis-
missal.
VII
- "
Non-lawyers can appear before the Labor Arbiter
if: (1%)
A. they represent themselves
B. they are properly authorized to represent their
legitimate labor organization or member thereof
C. they are duly-accredited members of the legal
aid office recognized by the DOJ or IBP
D they appear in cases involving an amount of
less than PhpS,000
Answer:
(A). "They represent themselves."
2014 BAR EXAMINATIONS
99
Explanation:
Not (8) because it restricts the term "organizations" to
legitimate labor organizations.
Not (C) because the DOJ is not an accrediting
agency. R. A. 9999 Jimits its power to accredit to lawyers
or professional partnerships to render free assistance to
the indigent.
\
Not (D) because the "not exceeding Php 5,000" is a
jurisdictional rule, not a rule on law practice.
VIII
As a result of a bargaining deadlock between
Lazo Corporation and Lazo Employees Union, the lat-
ter staged a strike. During the strike, several emplo-
yees committed illegal acts. Eventually, its members
informed the company of their intention to return to
work. (6%)
a. Can Lazo Corporation refuse to admit the
strikers?
b. Assuming the company admits the strikers,
can it later on dismiss those employees who commit-
ted illegal acts?
c. If due to prolonged strike, Lazo Corporation
hired replacements, can it refuse to admit the replaced
strikers?
Answer:
(A) No. A strike is a temporary stoppage of work only.
Therefore, strikers can go back to, their work in the event of
a voluntary abandonment of their strike because their
positions are legally unoccupied.
(8) After admission, the ,company can hold the stri-
kers behind the ii'legalities accountable for their acts. If
100 BAR Q&A
FOR THE PAST 10 YEARS
found to have committed acts justifying a dismissal, said
employees can be terminated after due process.
(C) No. The positions left behind by strikers are
deemed legally unoccupied. Moreover, the hiring of rep-
lacement workers does not terminate employer-employee
relationship because a strike is a temporary stoppage of
work only. Finally, replacement workers are deemed to
have accepted their engagement subject to the outcome of
the strike.
IX
Luisa Court is a popular chain of motels. It
employs over 30 chambermaids who, among others,
help clean and maintain the rooms. These chamber-
maids are part of the union rank-and-file employees
which has an existing collective bargaining agreement
(CBA) with the company. While the CBA was in force,
L1,1isa Court decided to abolish the position of cham-
bermaids and outsource the cleaning of the rooms to
Malinis Janitorial Services, a bona fide independent
contractor which has invested i-n substantial equip-
ment and sufficient manpower. The chambermaids
filed a case of illegal dismissal against Luisa Court. In
response, the company argued that the decision to
outsource resulted from the new management's direc-
tive to streamline operations and save on costs. If you
were the Labor Arbiter assigned to the case, how
would you decide? (4%)
Answer:
I would declare the chambermaids to have been ille-
gally dismissed.
The chambermaids are regular employees for perfor-
ming work necessary or desirable in the main trade of the
Luisa Court. As such, they enjoy security of tenure. The job
2014 BAR EXAMINATIONS 101
contracting arrangement between Luisa Court and Malinis
Janitorial Services is prohibited by D.O. 174 because it
has the effect of introducing workers to displace Luisa
Court's regular workers.
X
Luisa was hired as a secretary by the Asia.n Deve-
opment Bank (ADB) in Manila. Luisa's first boss was a
Japanese national whom she got along with. But after
two years, the latter was replaced by an arrogant
Indian national who did not believe her work output
was in accordance with international standards. One
day, Luisa submitted a draft report filled with typogra-
phical errors to her boss. The latter scolded her, but
Luisa verbally fought back. The Indian boss decided to
terminate her services right then and there. Luisa filed
a case for illegal dismissal with the labor Arbiter clai-
ming arbitrariness and denial of due process. If you
were the labor Arbiter, now would you decide the
case? (4%)
Answer:
I will dismiss the complaint for illegal dismissal.
Luisa committed serious misconduct. Her Indian boss,
regardless of his arrogant nature, had the clear right to re-
primand her for her poor performance. Absent justification
for verbally fighting back, Luisa's act amounted to serious
misconduct. Therefore, her dismissal was valid. However,
she was not accorded statutory elue process. For this rea-
son, I will award her nominal damages of Php 30,000.
XI
Lionel, an American citizen whose parents mig-
rated to the U.S. from the Philippines, was hired by JP
102 BARQ&A
FOR THE PAST 10 YEARS
Morgan in New York as a call center specialist. Hearing
about the phenomenal growth of the call center indus-
try in his parents' native land, Lionel sought and was
granted a transfer as a call center manager for JP
Morgan's operations in Taguig City. Lionel's employ-
ment contract did not specify a period for his stay in
the Philippines. After three years of working in the Phi-
lippines, Lionel was advised that he was being recalled
to New York and being promoted to the position of
director of international call center operations. How-
ever, because of certain "family reasons," Lionel ad-
vised the company of his preference to stay in the
Philippines. He was dismissed by the company. Lionel
now seeks your legal advice on: (6%)
a. whether he has a cause of action
b. whether he can file a case in the Philippines
c. what are his chances of winning
Answer:
(A) Lionel has a cause of action. He has the right to
be secure in his job; his employer tias the correlative
obligation to respect that right; his dismissal constitutes a
violation of his tenurial right; and said violation caused him
legal injury.
(B) Lionel can file an illegal dismissal case in the
Philippines. Being a resident corporation, JP Morgan is
subject to Philippine Labor Laws. And, although hired ab-
road, Lionel's place of work is Tagu'ig. Hence, he can lodge
his complaint with the NLRC-NCR which has territorial
jurisdiction over his workplace (Sec. 1, Rule IV, NLRC
Rules of Procedure, as amended).
(C) Lionel has reasonable chances of winning. His
recall to the USA was not a lawful lateral transfer that he
could not refuse. On the contrary, it was a scalar transfer
amounting to a promotion which he could validly refuse.
2014 BAR EXAMINATIONS 103
Absent willful disobedience, therefore, his termination is
groundless.
XII
Which of the following groups does not enjoy the
right to self- organization? (1 %)
A. those who work in a non-profit charitable
institution
B. those who are paid on a piece-rate basis
C. those who work in a corporation with less
than 10 employees
D. those who work as legal secretaries
Answer:
(D). "Those who work as legal secretaries". Legal sec-
retaries are confidential employees.
Explanation:
Not (A) because, under Article 243 of the Labor
Code, employees of charitable, religious, educational and
medical institutions are· covered employees.
Not (B) because piece-raters do not suffer any dis-
qualification.
Not (C) because the "less than 10 rule" in the Labor
Code ,affects right to labor standards benefits, in particular
holiday pay and service incentive leave (Articles 94 and
95), not right to self-organization.
XIII
Don Luis, a widower, lived alone in a house with a
large garden. One day, he noticed that the plants in his
garden· needed trimming. He remembered that Lando,
 BARQ&A
104
FOR THE PAST 10 YEARS
a 17-year old out-of-school youth, had contacted him
in church the other day looking for work. He contacted
Lando who immediately attended to Don Luis's garden
and finished the job in three days. (4%)
a. Is there an employer-employee relationship
between Don Luis and Lando?
b. Does Don Luis need to register Lando with
the Social Security System (SSS)?
Answer:
(A) There is employer-employee relationship bet-
ween Don Luis and Lando. Firstly, Lando who was looking
for work finally rendered personal -services for Don Luis.
Secondly, Lando could not have been the master of his
time, means and methods under the circumstances (Sec.
8, RA 8282).
(8) Don Luis does not need to register Lando with
the SSS because he is a purely casual employee, hence
outside SSS coverage (RA-8282). Neither should he report
Lando for SSS coverage under the Kasambahay Act be-
cause, although a gardener, he is an-occasional if not spo-
radic employee. Therefore, he is not a kasambahay who is
entitled to SSS coverage (RA 10361).
XIV
Luisito has been wor1dng with Lima Land for 20
years. Wanting to work in the public sector, Luisito
applied with and was offered a job at Livecor. Before
accepting the offer, he wanted to consult you whether
the payments that he and Lima Land had made to the
Social Security System (SSS) can be transferred or
credited to the Government Service Insurance System
(GSIS). What would you advice? (4%)
2014 BAR EXAMINATIONS 105
Answer:
J would tell Luisito that, under the Limited Portability
Law, he will carry with him his creditable service and paid
contributions as he moves from one system to the other.
Hence, he may accept the job offer without fearing that he
would lose his years of service in the private sector.
Actually, they can be totalized with his years of service in
the public sector in the event that he would not be able to
qualify for benefits due solely to insufficiency of creditable
service.
xv
Our Lady of Peace Catholic School Teachers and
Employees Labor Union (OLPCS-TELU) is a legitimate
labor organization composed of vice- principals, de-
partment heads, coordinators, teachers, and non-tea-
ching personnel of Our Lady of Peace Catholic School
(OLPCS).
OLPCS-TELU subsequently filed a petition forcer-
tification election among the teaching and non-tea-
ching personnel of OLPCS before the Bureau of Labor
Relations (BLR) of the Department of Labor and Em-
ployment (DOLE). The Med-Arbiter subsequently gran-
ted the petition and ordered the conduct of a joint cer-
tification election for the teaching and non-teaching
personnel of OLPCS.
May OLPCS-TELU be considered a legitimate
labor organization? (5%)
Answer:
Yes, OLPCS-TELU is a legitimate labor organization.
Its mixed-membership which includes supervisors and
rank-and-filers does not affect its legitimacy. The only ef-
fect of such membership is that the supervisors in the per-
106 BAR Q&A
FOR THE PAST 10 YEARS
sons of vice-principals and department heads are deemed
automatically removed from the union membership. (RA
9481).
XVI
Samahang East Gate Enterprises (SEGE) is a
labor organization composed of the rank-and-file em-
ployees of East Gate Enterprises (E~E), the leading
manufacturer of all types of·gloves and aprons.
EGE was later requested by SEGE to bargain col-
lectively for better terms and conditions of employ-
ment of all the rank-and-file employees of EGE. Conse-
quently, EGE filed a petition for certification election
before the Bureau of Labor Relations (BLR).
During the proceedings, EGE insisted that it
should participate in the certification process. EGE
reasoned that since it was the one who filed the peti-
tion and considering that the employees concerned
were its own rank• and-file employees, it should be al-
lowed to take an active part in tbe .codification pro-
cess.
Is the contention of EGE proper? Explain. (5%)
Answer:
EGE could file the petition for certification election be-
cause it was requested to collectively bargain and it could
not do so because SEGE was not the EBR. After it filed the
petition, however, it reverted to its standby status. There-
fore, it could not interfere with the selection process which
was the exclusive prerogative of its workers. It could only
participate in the inclusion-exclusion proceedings, and no-
where else.
2014 BAR EXAMINATIONS 107
XVII
Philhealth is a government-owned and controlled
corporation employing thousands of Filipinos. Be-
cause of the desire of the employees of Philhealth to
obtain better terms and conditions of employment
from the government, they formed the Philhealth Em-
ployees Association (PEA) and demanded Philhealth
to enter into negotiations with PEA regarding terms
and conditions of employment which are not fixed by
law. (4%)
a. Are the employees of Philhealth allowed to
self-organize and form PEA and thereafter demand
Philhealth to enter into negotiations with PEA for bet-
ter terms and conditions of employment?
b. In case of unresolved grievances, can PEA re-
sort to strikes, walkouts, and other temporary work
stoppages to pressure the government to accede to
their demands?
Answer:
(A) Under E.O. 180, Philhealth employees can or-
ganize. Thru their organization, they can negotiate with
Philhealth over terms and conditions of employment not
fixed by its charter, Civil Service Law, or applicable salary
standardiz~tion law. ·
(B) No. Although the right to organize implies the
right to strike, law may withhold sard right. E.O. 180 is that
I-aw which withholds from government employees the right
to strike. Hence, they ca11not resort to strikes and similar
concerted activities to compel concessions from the go-
vernment.
108 BARQ&A
FOR THE PAST 10 YEARS
XVIII
The procedural requirements of a valid strike
include: (1%)
(a) a claim of either unfair labor practice or
deadlock in collective bargaining.
(b) . notice of strike filed at least 15 days before
a ULP-grounded strike or at least-30 days prior to the
deadlock in a bargaining-grounded strike.
(c) majority of the union membership must
have voted to stage the strike with notice thereon
furnished to the National Conciliation and Mediation
Board (NCMB) at least 24 hours before the strike vote
is taken.
(d) strike vote results must be furnished to the
NCMB at least seven (7) days before the intended
strike.
Answer:
(A). "A claim of either unfair labot p-ractice or deadlock
in collective bargaining."
Explanation:
Options "B", "C" and "D" refer to strike procedures.
"B" refers to the cooling-off period; "C" to the strike vote;
and "D" to the strike ban. What is not expressly referred to
in these options is notice of strike. It is this procedural re-
quirement which includes ULP or bargaining deadlock
which are the only strike grounds. Hence, it is correct to
say that "the procedural requirements of a valid strike in-
clude" (see MCQ stem) "a claim for ULP or deadlock in
collective bargaining" (Option "A"). In other words, the pro-
cedural requirements of a valid strike are notice, cooling-off
2014 BAR EXAMINATIONS 109
period, strike vote, and strike ban. It is in the notice that
ULP and deadlock in Collective Bargaining are included.
XIX
Lincoln was in the business of trading broadcast
equipment used by television and radio networks. He
employed Lionel as his agent. Subsequently, Lincoln
set up Liberty Communications to formally engage in
the·same business. He requested Lionel to be one of
the incorporators and assigned to him 100 Liberty
shares. Lionel was also given the title Assistant Vice-
President for Sales and Head of Technical Coordina-
tion. After several months, there were allegations that
Lionel was engaged in "under the table dealings" and
received "confidential commissions" from Liberty's
clients and suppliers. He was, therefore, charged with
serious misconduct and willful breach of trust, and
was given 48 hours to present his explanation on the
charges. Lionel was unable to comply with the 48-hour
deadline and was subsequently barred from entering
company premises. Lionel then filed a complaint with
the Labor Arbiter claiming constructive dismissal.
Among others, the company sought the dismissal of
the complaint alleging that the case involved an intra-
corporate controversy which was within the jurisdic-
tion of the Regional Trial Court (RTC).
If you were the Labor Arbiter assigned to the
case, how would you rule on the company's motion to
dismiss? (5%)
Answer:
I will deny the motion to dismiss.
Lionel is not a corporate officer but a corporate em-
ployee only because: (a) his office is not a creation of the
Corporation Code; (b) it is not shown that his office is a
110 BARQ&A
FOR THE PAST 10 YEARS
corporate position under Liberty's Articles of Incorporation;
and (c} it is not shown that there is a board resolution in-
vesting his position with the status of a corporate office,
much less appointing him thereto
Absent intra-corporate controversy, the Office of the
Labor Arbiter has jurisdiction to hear and resolve Lionel's
complaint for illegal dismissal.
xx
Lito was anticipating the bonus he would receive
for 2013. Aside from the 13th month pay, the company
has been awarding him and his other co-employees a
two to three months bonus for the last 1O years. How-
ever, because of poor over-all sales performance for
the year, the company unilaterally decided to pay only
a one month bonus in 2013. Is Lito's employer legally
allowed to reduce the bonus? (4%)
Answer:
Yes.
Bonuses enjoyed even for 1O years may be reduced
for economic reasons. Article 100 of the Labor Code will
not be violated because it applies only to benefits enjoyed
before or at the time of the effectivity of the Labor Code
(Waterfront ruling). As to whether the Principle of Grants
will be violated, the reduction will not also amount to a viola-
tion because benefits given to workers are not raw materials
but the product of business success. This policy of balan-
cing employer-employee interests is one of the pillars of
labor relations (Prof. C. Azucena).
2014 BAR EXAMINATIONS 111
XXI
An accidental fire gutted the JKL factory in Caloo-
can. JKL decided to suspend operations and reques-
ted its employees to stop reporting for work. After six
(6) months, JKL resumed operations but hired a new
set of ,employees. The old set of employees filed a
case for illegal dismissal. If you were the Labor Ar-
biter, how would you decide the case? (4%)
Answer:
-
I will decide in favor of the employees.
The fire has not resulted in complete destruction of
employer-employee relationship. Said relationship has
temporarily ceased only. When JKL resumed operations,
therefore, it became its obligation to recall its old emplo-
yees instead of replacing them with new employees.
Withholding of work beyond six (6) months amounts
to constructive dismissal. Hence, I will order JKL to pay the
complainants' full backwages, separation pay because
their positions are occupied already, nominal damages for
non-observance by JKL of prescribed pre-termination pro-
cedure, as well as moral and exemplary damages for its
bad faith (Lynvil Fishing Enterprises, Inc., et al. vs.
Ariola, et al., G.R. No. 181974, 1 February 2012), and
10% attorney's fees for compelling its employees to
litigate·_againstit (Art. 111, LC).
XXII
Despite a reinstatement order, an employer may
choose not to reinstate an employee if:
(a) there is a strained employer-employee rela-
tionship
(b) the position of the employee no longer exists
112 BARQ&A
FOR THE PAST 10 YEARS
(c) the employer's business has been closed
(d) the employee does not wish to be reinstated.
Answer:
(A). "There is strained employer-employee relation-
ship."
Explanation:
Not (B} because the stem implies that the employer
has a choice between reinstatement and non-reinstate-
ment. Here, he has no option at all because the position in
question no longer exists.
Not (C) because the employer has no option due to
the closure of his business.
Not (D) because the employer cannot choose not to
reinstate due to his employee's decision not to be re-
instated.
XXIII
Luningning Foods engaged the services of Lami-
tan Manpower, Inc., a bona fide independent contrac-
tor, to provide "tasters" that will check on food quality.
Subsequently, these "tasters" joined the union of rank-
a nd-file employees of Luningning and demanded that
they be made regular employees of the latter as they
are performing functions necessary and desirable to
operate the company's business. Luningning rejected
the demand for regularization. On behalf of the
"tasters", the union then filed a notice of strike with
the Department of Labor and Employment (DOLE). In
response, Luningning sought a restraining order from
the Regional Trial Court (RTC) arguing that the DOLE
does not have jurisdiction over the case since it does
not have an employer-employee relationshi,p with the
2014 BAR EXAMINATIONS 113
employees of an independent contractor. If you were
the RTC judge, would you issue a restraining order
against the union? (4%)
Answer:
I will not issue a TRO.
The dispute brought to the RTC is a labor dispute
despite the fact that the disputants may not stand in the
proximate relation of employer and employee (Art. 212,
LC). Moreover, the issue of regularization is resolvable
thru the application solely of labor laws. Under both Rea-
sonable Causal Connection Rule and Sole Reference
to Labor Law Rule, the dispute is for labor tribunals to
resolve.
For lack of jurisdiction, therefore, I will dismiss the case.
XXIV
Lanz was a strict and unpopular Vice-President
for Sales of Lobinsons La1'1d. One day, Lanz shouted
invectives against Lee, a poor performing sales asso-
ciate, calling him, among others, a "brown monkey."
Hurt, Lee decided to file a criminal complaint for grave
defamation against Lanz. The prosecutor found pro-
bable cause and filed an information in court. Lobin-
sons decided to terminate Lanz for committing a po-
tential crime and other illegal acts prejudicial to busi-
ness. Can Lanz be legally terminated by the company
on these grounds? (4%) ·
Answer:
As to the first ground, crime to b.e a just cause for dis-
missal must be against the employer, members of his im-
mediate family or representative (Article 297, LC, as re-
numbered). Since the potential crime of Lanz is not against
114 BARQ&A
FOR THE PAST 10 YEARS
Lobinsons or its duly authorized representatives, it cannot
of itself justify his termination.
As to the second ground, Lanz's dysfunctional con-
duct has made the work environment at Lobinsons hostile
as to adversely affect other employees, like Lee. There-
fore, he can be dismissed on the ground of serious mis-
conduct and loss of trust and confidence.
Alternative Answer:
As to the first ground, crime to be a just cause for
dismissal must be against the employer, members of his
immediate family or representative (Article 297, LC, as re-
numbered). Since the potential crime of Lanz is not against
Lobinsons or its duly authorized representatives, it cannot
of itself justify his termination. However, it can be treated
as a cause analogous to serious misconduct or loss of
trust and confidence. Therefore, Lanz can be dismissed on
this ground.
As to the second ground, Lanz's dysfunctional beha-
vior has made the work environment at Lobinsons hostile
as to adversely affect other employees, like Lee. There-
fore, he can be dismissed also on the ground of serious
misconduct and loss of trust and confidence.
XXV
Lizzy Lu is a sales associate for Luna Properties.
The latter is looking to retrench Lizzy and five other
sales associates due to financial losses. Aside from a
basic monthly salary, Lizzy and her colleagues receive
commissions on the sales they make as well as cost of
living and representation allowances. In computing
Lizzy's separation pay, Luna Properties should consi-
der her: (1%)
a. monthly salary only
2014 BAR EXAMINATIONS 115
b. monthly salary plus sales commissions
c. monthly salary plus sales commissions, plus
cost of living allowance
d. monthly salary plus sales commissions, plus
cost of living allowance and representation allowance
Answer:
(A). "Monthly salary only."
Explanation:
Not (B) because the basis of separation pay under
Art. 298 (renumbered), LC, is monthly salary only.
Not (C) because monthly salary means basis salary
which excludes commissions and allowances.
Not (0) because monthly salary excludes commis-
sions and allowances.
XXVI
Liwanag Corporation is engaged in the power
generation business. A stalemate was reached during
the collective bargaining negotiations between its ma•
nagement and the union. After following all the re-
quisites provided by law, the union decided to stage a
strike. The management sought the assistance of the
Secretary of Labor and Employment, who assumed
jurisdiction over the strike and issued a return-to-work
order. The union defied the latter and continued the
strike. Without providing any notice, Liwanag Corpora•
tion declared everyone whp participated in the strike
as having lost their employment. (4%)
a. Was Liwanag Corporation's action valid?
b. If, before the DOLE Secretary assumed juris-
diction, the striking union members communicated in
writing their desire to return to work, which offer
116 BAR Q&A
FOR THE PAST 10 YEARS
2014 BAR EXAMINATIONS 117

Liwanag Corporation refused to accept, what remedy,

relations where the aggregate money claim of each
if any, does the union have?
does not exceed five thousand pesos (PhpS,000).
Answer: c. original jurisdiction to act as a compulsory
arbitration body ov'er labor disputes certified to it by
(A) Yes, the action of Liwanag Corporation is Vc:Jlid. the Regional Directors.
The DOLE Secretary can assume jurisdiction in the d. power to issue a labor injunction.
event of a labor dispute likely to result in a strike in an
industry indispensable to the national interest, like energy Answer:
production (Art. 278(g),· D.O. 40-H-13). His AJO, once duly
served on the union, will produce an injunctive effect. (C). Regional Directors do not have assumption
Hence, if ignored, the union's strike would be illegal even if power; hence, they cannot certify cases to the NLRC.
it may have complied with pre-strike procedure. As a con-
sequence, Liwanag Corporation may declare all the
strikers as having lost their employment as a consequence
of their intransigence (Sarmiento v. Tuico, 27 June
1988). . .
(B) The union may file a complaint for illegal lockout,
with prayer for immediate reinstatement. The refusal of
Liwanag Corporation to admit the strikers back is an illegal
lockout because it is not preceded by compliance with
prescribed pre-lockout procedure. I}- the lockout is unrea-
sonably prolonged, the complaint may be amended to
charge constructive dismissal.

XXVII

The jurisdiction of the National Labor Relations

Commission does not include: (1%)
a. exclusive appellate jurisdiction over all cases
decided by the Labor Arbiter.
b. exclusive appellate jurisdiction over all cases
decided by Regional Directors or hearing officers in-
volving the recovery of wages and other monetary
claims and benefits arising from employer-employee

2015 BAR EXAMINATIONS
A. Rocket Corporation is a domestic corporation
registered with the SEC, with 30% of its authorized
capital stock owned by foreigners and 70% of its au-
thorized capital stock owned by Filipinos. Is Rocket
Corporation allowed to engage in the recruitment and
placement of workers, locally and overseas? Briefly
state the basis for your answer. (2%)
B. When does the recruitment of workers be-
come an act of economic sabotage? (2%)
Answer:
A. No. Foreign ownership of a corporation engaged in
recruitment, whether local or overseas, is limited to 25%
(Art. 27, Labor Code).
B. The recruitment of workers becomes economic
sabotage when:
(1) committed by a syndicate, i.e., by three or more
persons acting in conspiracy with one another; and
(2) committed in large scale i.e., against three or
more persons, whether dealt with individually or as a group
(Art. 38, Labor Code).
u brand that is a top seller. He employs a number of
LKG Garments Inc. makes baby clothes for ex-
port. As part of its measures to meet its orders, LKG
requires its employees to work beyond eight (8) hours
everyday, from Monday to Saturday. It pays its emplo-
yees an additional 35% of their regular hourly wage for
work rendered in excess of eight (8) hours per day.
Because of additional orders, LKG now requires two
118
2015 BAR EXAMINATIONS 119
(2) shifts of workers with both shifts working beyond
eight (8) hours but only up to a maximum of four (4)
hours. Carding is an employee who used to render up
to six (6) hours of overtime work before the change in
schedule. He complains that the change adversely af-
fected him because now he can only earn up to a
maximum of four (4) hours' worth of overtime pay.
Does Carding have a cause of action against the com-
pany? (4%)
Answer:
No.
Absent a right recognized by law or contract, Carding
has no cause of action against the company. There is no
law, contract or practice that guarantees to Carding the right
to render overtime work of not less than six hours daily. The
company can source workers from its own manpower to
man a second shift in order to meet its business target. This
is a management prerogative that has been exercised in
good faith by the company. As to the reduction of Carding's
overtime, it is not an unlawful diminution of benefits because
the lost 2-hour overtime compensation is not an accrued
right.
Ill
Benito is the owner of an eponymous clothing
male and female models who wear Benito's clothes in
promotional shoots and videos. His deal with the mo-
dels is that Benito will pay them with 3 sets of free
clothes per week. Is this arrangement allowed? (2%)
Answer:
No.
120 BARQ&A
FOR THE PAST 10 YEARS
The models are Benito's employees. As such, their
services require compensation in legal tender (Art. 102,
Labor Code). The three sets of clothes, regardless of
value, are in kind; hence, the farmer's compensation is not
in the form prescribed by law.
IV
Far East Bank (FEB) is one of the leading banks in
the country. Its compensation and bonus packages are
top of the industry. For the last 6 years, FEB had been
providing the following bonuses across-the-board to
all its employees:
(a) 13th month pay;
(b) 14th to18th month pay;
(c) Christmas basket worth : PG,000;
{d) Gift check worth: P4,000;and
(e) Productivity-based incentive ranging from a
20% to 40% increase in gross monthly salary for all
employees who would receive an -evaluation of "Excel-
lent" for 3 straight quarters in the same year.
Because of its poor performance over-all, FEB
decided to cut back on the bonuses this year and
limited itself to the following:
(a) 13thmonth pay;
(b) 14th month pay;
(c) Christmas basket worth 4,000; and
(d) Gift check worth P2,000
Katrina, an employee of FEB, who had gotten a
rating of "Excellent" for the last 3 quarters was looking
forward to the bonuses plus the productivity incentive
bonus. After learning that FEB had modified the bonus
2015 BAR EXAMINATIONS 121
scheme, she objected. Is. Katrina's objection justified?
Explain. (3%)
Answer:
Having enjoyed the across-the-board bonuses for six
years, Katrina's right to them has been vested already.
Hence, none of them can be withheld or reduced without
violating the Principle of Non-Diminution of Benefits.
Benefits can be reduced when the company is in the red,
i.e., its losses are substantial and duly established with
financial statements duly certified to by an independent
external auditor. In the problem, the company is in the
black only because it has not proven its alleged losses to
be substantial losses in accordance with law. Permitting
reduction of pay at the slightest indication of losses is
contrary to the policy of the State to afford full protection to
labor and promote full employment (Linton Commercial
Co. v. Hel/era, et al., 23 Feb. 2012).
. As to the withheld productivity-based bonuses, the
basis of payment is not the company's performance but
Katrina's. Therefore, Katrina is deemed to have earned
them because of her excellent performance ratings for
three quarters. On this basis, they cannot be withheld with-
out violating Art. 116 of the Labor Code because they are
wage-type.
V
Soledad, a widowed school teacher, takes under
her wing one of her students,Kiko,13 years old,who
was abandoned by his parents and has to do odd jobs
in order to study. She allows Kiko to live in her house,
provides him with clean clothes, food, and a daily allo-
wance of 200 pesos. In exchange, Kiko does routine
housework consisting of cleaning the house and doing
errands for Soledad. One day, a representative of the
DOLE and the DSWD came to Soledad's house and
122 BARQ&A
FOR THE PAST 10 YEARS
charged her with violating the law that prohibits work
by minors. Soledad objects and offers as a defense
that she was not requiring Kiko to work as the chores
were not hazardous. Further, she did not give him
chores regularly but only intermittently as the need
may arise. Is Soledad's defense meritorious? (4%)
Answer:
No.
Soledad's defense is not meritorious because the
work rendered by Kiko at her house is in the form of phy-
sical exertion requiring compensation. Hence, it is an em-
ployment which no person can contract with a minor below
15 years of age (Art. 137, Labor Cade). Her defense that
his occasional work did not expose him to hazardous con-
ditions cannot take the place of the defense allowed by
law, viz., the employer is either parent or guardian. She is
neither. Therefore, her defense must fail.
VI
Ador is a student working on his master's degree
in horticulture. To make ends meet, he takes on jobs to
come up with flower arrangements for friends. His
neighbor, Nico, is about to get married to Lucia and
needs a floral arranger. Ador offers his services and
Nico agrees. They shake hands on it, agreeing that
Nico will pay Ador P20, 000.00 for his services but that
Ador will take care of everything. As Ador sets about
to decorate the venue, Nico changes all of Ador's
plans and ends up designing the arrangements him-
self with Ador simply executing Nico's instructions.
a. Is there an employer-employee relationship
between Nico and Ador? (4%)
2015 BAR EXAMINATIONS 123
b. Will Nico need to register Ador with the Social
Security System (SSS)? (2%)
Answer:
(a) Ador is a worker paid on task basis; hence, ther~
is employer-employee relationship between him and Nico.
When the latter assumed the control of both result and man-
ner of performance from Ador, all vestiges of the initial inde-
pendent contractorship arrangement disappeared. What re-
placed it was employer-employee relationship.
(b) Ador is a purely casual employee; hence, Nico
need not report him for SSS coverage.
VII
Don Don is hired as a contractual employee of
CALL HELP, a call center. His contract is expressly for
a term of 4 months. Don Don is hired for 3 straight
contracts of 4 months each but at 2-week intervals
between contracts. After the third contract ended, Don
Don is told that he will no longer be given another
contract because of "poor performance." Don Don
files a suit for "regularization" and for illegal dismissal,
claiming that he is a regular employee of CALLHELP
and that he was dismissed without cause. You are the
Labor Arbiter. How would you decide the case? (4%)
Answer:
I will decide the case by applying the contract of ad-
hesion rule. Given the nature of Don Don's work , which is
usually necessary and desirable in the usual trade of
HELPCALL, as well as the short intervals between his
fixed-term contracts, there is no doubt that periods were
resorted to for purposes of circumventing the law on te-
nure. Therefore, since it was the company that prepared
the three contracts, with Don Don's participation being limi-
124 BARQ&A
FOR THE PAST 10 YEARS
ted to affixing his signature thereto only, the 4-month pe-
riods must be taken against it. Having attained tenure,
therefore, Don Don cannot be dismissed for poor perfor-
mance because said ground is neither a just nor an autho-
rized cause.
VIII
Star Crafts is a lantern maker based in Pampanga.
It supplies Christmas lanterns to stores in Luzon,
Metro Manila, and parts of Visayas, with the months of
August to November being the busiest months. Its fac-
tory employs a workforce of 2,000. workers who make
different lanterns daily for the whole year. Because of
increased demand, Star Crafts entered into a contrac-
tual arrangement with People Plus, a service contrac-
tor, to supply the former with 100 workers for only 4
months, August to November, at a rate different from
what they pay their regular employees. The contract
with People Plus stipulates that all equipment and raw
materials will be supplied by Star Crafts with the
express condition that the workecs cannot take any of
the designs home and must complete their tasks with-
in the premises of Star Crafts.
Is there an employer-employee relationship bet-
ween Star Crafts and the 100 workers from People
Plus? Explain.(4%)
Answer:
Yes.
People Plus is a labor-only-contractor because it is
not substantially capitalized. Neither does it carry on an in-
dependent business in which it actually and directly uses
its own investment in the form of tools, equipment, machi-
neries or work premises. Hence, it is just an agent or re-
cruiter of workers who perform work directly related to the
2015 BAR EXAMINATIONS 125
trade of Star Crafts. Since both essential element and con-
firming element of labor-only contracting are present, Star
Crafts as principal and the supplied workers are related as
employer and employees.
As principal, Star Crafts will always be an employer in
relation to the workers supplied by its contractor. Its status
as employer is either direct or indirect depending on the
latter's standing in law. Thus even if People Plus were a
legitimate job contractor, still Star Crafts will be treated as
a statutory employer for purposes of paying the workers'
unpaid wages and benefits (Art. 106, Labor Code; D.O.
18-A; D.O. 174).
IX
Din Din is a single mother with one child. She is
employed as a sales executive at a prominent super-
market. Sh~ and her child live in Quezon City and her
residence and workplace are a 15-minute drive apart.
One day, Din Din is informed by her boss that she is
being promoted to a managerial position but she is
now being transferred to the Visayas. Din Din does not
want to uproot her family' and refuses the offer. Her
boss is so humiliated by Din Din's refusal of the offer
that she gives Din Din successive unsatisfactory
evaluations that result in Din Din being removed from
the supermarket.
Din Din approaches you, as counsel, for legal
advice. What would you advise her? (4%)
Answer:
Din Din's transfer to the Visaya's is a scalar transfer
because it is a promotio_n. As such, it can be refused by her
especially because her compliance therewith will entail
hardship on her part as a single parent. Performance by her
126 BARQ&A
FOR THE PAST 10 YEARS
of the lawful act of refusing a promotion, therefore, should
not be punished with poor performance evaluations.
As a sales executive, Din Din's office entails perfor-
mance of work usually necessary and desirable in the
usual trade of the company. On this basis, she is tenured.
Hence, she cannot be dismissed on the ground of poor
performance which is neither a just nor authorized cause.
For this reason, she may file a complaint for illegal dis-
missal.
X
Karina Santos is a famous news anchor appearing
nightly in the country's most watched newscast. She
is surprised, after one newscast, to receive a notice of
hearing before the station's Vice-President for Human
Resources and calls the VP immediately to ask what
was wrong. Karina is told over the phone that one of
her crew filed a complaint against her for verbal abuse
and that management is duty- bound to investigate
and give her a chance to air her side. Karina objects
and denies that she had ever verbaily assaulted her
crew. The VP then informed her that pending the
investigation she will be placed on a 30-day preventive
suspension without pay and that she will not be
allowed to appear in the newscast during this time.
Is the preventive suspension of Karina valid?
Discuss the reasons for your answer. (4%)
Answer:
Yes.
Preventive suspension is justified where the emplo-
yee's continued employment poses serious and imminent
threat to the life or property of the employer or of the
employee's co-workers. It may be imposed in the course of
2015 BAR EXAMINATIONS 127
an investigation for a serious offense in order to prevent
him from causing harm or injury to the company or fellow
employees (Secs. 8 & 9, Rule XX/II, Bk \I, OR/LC; Mari-
ca/um Mining Corp. v. Decorion, G.R. No. 158673, 12
April 2006; Artificio v. NLRC, G.R. No. 172988, 26 July
2010). Given the physical proximity between Karina Santos
and the complaining crew, and the likelihood of a
disciplinary action, the latter must be protected from further
verbal abuse.
XI
Rico has a temper and, in his work as Division
Manager of Matatag Insurance, frequently loses his
temper with his staff. One day, he physically assaults
his staff member by slapping him. The staff member
sues him for physical injuries. Matatag Insurance de-
cides to terminate Rico, after notice and hearing, on
the ground of loss of trust and confidence. Rico claims
that he is entitled to the presumption of innocence be-
cause he has not yet been convicted. Comment on
Matatag's action in relation to Rico's argument.(4%)
Answer:
Matatag Insurance does not have to await the result
of the criminal case before exercising its prerogative to dis-
miss. Under the Three-fold Liability Rule, a single act
may result in three liabilities, two of which are criminal and
administrative. To establish these liabilties, the evidence of
the crime must amount to proof beyond reasonable doubt;
whereas, the evidence of the ground for dismissal is sub-
stantial evidence only. In this regard, the company has
some basis already for withhoJding the trust it has reposed
in ·;ts manager. Hence, Rico's conviction need not precede
the execution of his intended dismissal. Criminal and labor
cases involving an employee arising from the same infrac-
tion are separate and independent proceedings that should
128 BAR Q&A
FOR THE PAST 10 YEARS
,.
not arrest any judgment from one to the other (St. Luke's
Medical Center, Inc. v. Sanchez, G.R. No. 212054, 11
March 2015).
XII
Blank Garments, Inc. (BLANK), a clothing manu-
facturer, employs more than 200 employees in its ma-
nufacturing business. Because of its high overhead,
BLANK decided to sell its manufacturing business to
Bleach Garments,lnc. (BLEACH) lock, stock and barrel
which included goodwill, equipment, and personnel.
After taking on BLANK's business, BLEACH reduces
the workforce by not hiring half the wor~ers specifical-
ly the ones with seniority. BLANK and BLEACH are
still discerned to be sister companies with identical in-
corporators. The laid-off employees sue both BLANK
and BLEACH for unlawful termination.
a. How would you decide this case? (4%)
b. What is the "successor employer" doctrine?
(2%)
Answer:
(a) I will resolve the case by applying the Principle of
Total Insulation. Under this principle, BLANK and
BLEACH have distinct and separate legal personalities
regardless of the fact that they have common incorpo-
rators. Hence, unless BLEACH absorbs all the workers of
BLANK then it does not succeed as employer. Since it has
decided not to employ the complainants, BLEACH is totally
insulated from whatever liabilities BLANK may have
incurred by reason of its closure. There are no facts to
justify imposition of unaltered responsibility on BLEACH
since neither Principle of Piercing the Veil of Corporate
Fiction nor Instrumentality Rule can be applied based on
mere perception.
2015 BAR EXAMINATIONS 129
(b) The Successor Employer Doctrine rests on the
in personam character of employer-employee relationship.
A third party that. buys the business of the employer does
not become the new employer of the employees of the
selling employer. For this reason, it is totally insulated from
the liabilitfes of the latter in relation to its displaced emplo-
yees. By way of exception, when established facts justify
the application of the Principle of Piercing the Veil of
Corporate Fiction or Instrumentality Rule then the lia-
bility of the first corporation may be imposed on the second
in its original form pursuant to the Principle of Unaltered
Responsibility.
XIII
Lui$a is an unwed mother with 3 children from dif-
ferent fathers. In 2004, she became a member of the
Social Security System (SSS). That same year, she
suffered a miscarriage of a baby out of Wedlock from
the father of her third child. She wants to claim mater-
nity benefits under the SSS Act. Is she entitled to
claim? (3%)
Answer:
Yes.
Provided Luisa has reported to her employer her
pregnancy and date of expected delivery and paid at least
three monthly contributions during the 12-month period
immediately preceding her miscarriage then she is entitled
to maternity benefits up to four deliveries, i.e., under R.A.
8282. As to the fact that s·he got pregnant outside wedloc.k,
as in her past three pregnancies , this will not bar her claim
because the SSS is non-discriminatory. Likewise, the sys-
tem is morality-free; hence, the several men in her life are
immaterial. Incidentally, under the Expanded Maternity
130 BARQ&A
FOR THE PAST 10 YEARS
Leave Act of 2019 (R.A. 11210), the number of contingen-
cies is immaterial.
Therefore, regardless of non-marriage and lack of
morals, Luisa is entitled to maternity benefits under the
Social Security Act of 1997
XIV
Luis, a PNP officer, was off duty and resting at
home when he heard a scuffle outside his house. He
saw two of his neighbors fighting and he rushed out to
pacify them. One of the neighbors shot Luis by mis-
take, which resulted in Luis's death. Marian, Luis's wi-
dow, filed a claim with the GSIS seeking death bene-
fits. The GSIS denied the claim on the ground that the
death of Luis was not service-related as he was off
duty when the incident happened. Is the GSIS correct?
(3%)
Answer:
No.
--
The GSIS is not correct because Luis was just off-
duty. A policeman, just like a soldier, is covered by the 24-
Hour Duty Rule. He is deemed on round-the-clock duty
unless on official leave, in which case his death outside
performance of official peace-keeping mission will bar
death claim. In this case, Luis was not on official leave and
he died in the performance of a peace-keeping mission.
Therefore, his death is compensable.
xv
Victor was hired by a local manning agency as a
seafarer cook on board a luxury vessel for an eight-
month cruise. While on board, Vict9r complained .of
chronic coughing, intermittent fever, and joint pains.
2015 BAR EXAMINATIONS 131
He was advised by the ship's doctor to take complete
bed rest but was not given any other medication. His
condition persisted but the degree varied from day to
day. At the end of the cruise, Victor went home to lloilo
and there had himself examined. The examination re-
vealed that he had tuberculosis.
a. Victor sued for medical reimbursement, dama-
ges and attorney's fees, claiming that tuberculosis
was a compensable illness. Do you agree with Victor?
Why or why not? (2%)
b. Due to his prolonged illness, Victor was un-
able to work for more than 120 days. Will this entitle
him to claim total permanent disability benefits? (2%)
Answer:
(a) TB is listed under Sec. 32-A of the POEA-SEC;
hence, it is a work-related disease. It was also either con-
tracted or aggravated during the effectivity of Victor's con-
tract. Having shown its manifestations on board, Victor
should have been medically repatriated for further exami-
nation and treatment in the Philippines. This obligation was
entirely omitted in bad faith by the company when it waited
for his contract to expire on him before signing him off. On
this basis, Victor is entitled to medical reimbursement, da-
mages and attorney's fees.
(b) No. Victor's TB may be work-related and it may
have developed on board, thereby satisfying the twin-re-
quisites of compensability. However, despite his knowledge
of his medical condition, he failed to report to his manning
agent within three days from his arrival as required by Sec.
20-8(3) of the POEA-SEC. Since he already felt the mani-
festations of TB ~efore his sign-off, he should have submit-
ted to post-employment medical examination (Jebsens Ma-
ritime Inc. v. Enrique Undag, G.R. No. 191491, 14 De-
cember 2011). The effect of his omission is forfeiture by him
132 BARQ&A
FOR THE PAST 10 YEARS
of disability benefits (Coastal Safety Marine Services, Inc.
v. Elmer T. Esguerra, G.R. No. 185352, 10 August 2011).
In effect, the120-day rule has no application at all. ·
XVI
The Alliance of Independent Labor Unions (AILU)
is a legitimate labor federation which represents a
majority of the appropriate bargaining unit at the
Lumens Brewery (LB). While negotiations were
ongoing for a renewal of the collective bargaining
agreement (CBA), LB handed down a decision in a
disciplinary case that was pending which resulted in
the termination of the AILU's treasurer and two other
members for cause. AILU protested the decision,
claiming that LB acted in bad faith and asked that LB
reconsider. LB refused to reconsider. AILU then
walked out of the negotiation and declared a strike
without a notice of strike or a strike vote. AILU
members locked in the LB management panel by
barricading the doors and possible exits (including
windows and fire escapes). LB re(f-llested the DOLE to
assume jurisdiction over the dispute and to certify it
for compulsory arbitration.
The Secretary of Labor declined to assume juris-
diction, finding that the dispute ·was not one that
involved national interest. LB then proceeds to ter-
minate all of the members of the bargaining agent on
the ground that it was unlawful to: (1) barricade the
management panel in the building, and (2) participate
in an illegal strike.
.
a. Was AILU justified in declaring a strike with•
out a strike vote and a notice of strike? Why or why
not?(3%)
b. Was the Secretary of Labor correct in decli-
ning to assume jurisdiction over the dispute? (2%)
2015 BAR EXAMINATIONS 133
c. Was LB justified in terminating all those who
were members of AILU on the two grounds cited?(3%)
Answer:
(a) Since AILU did not fully observe prescribed pre-
strike procedure, it was not justified in declaring the strike.
The dismissal of a duly elected union officer, like a Treasu-
rer, is union busting if said dismissal threatens the exis-
tence of the union. Assuming such threat was present, the
union could not validly stage a strike without serving a
strike notice and conducting a strike vote (Art. 278, Labor
Code). Even if the cooling off period may have been zero
owing to perceived union busting, the required strike notice
and strike vote could not be dispensed with based alone
on the fact that the ground relied upon was union busting.
(b) The refusal of the Secretary to assume jurisdiction
is valid. Art. 278 (g) of the Labor Code leaves it to his
sound discretion to determine if national interest is involved.
Assumption power is plenary and discretionary (Philtranco
Se,vice Enterprises, Inc. v. Philtranco Workers Union-
AGLO, G.R. No. 180962, 26 February 2014). Thus, if in his
opinion national interest is not involved then the company
cannot insist that he assume jurisdiction.
(c) The company has to file a complaint for illegal
strike first. Once the strike is declared by final judgment to
be illegal, it can dismiss the union officers. As to members,
their dismissal must be based on their having committed il-
legalities on the occasion of their illegal strike. Since the
company prematurely and indiscriminately dismissed the
AILU members then their dismissal is illegal.
XVII
The Collective Bargaining Agreement (CBA) bet-
ween Libra Films and its union, Libra Films Emplo-
134 BARQ&A
FOR THE PAST 10 YEARS
yees' Union (LFEU), contains the following standard
clauses:
1. Maintenance of membership;
2. Check off or union dues and agency fees; and
3. No strike, no lock-out.
While Libra Films and LFEU are in re-negotiations
for an extension of the CBA, LFEU discovers that
some of its members have resigned from the union, ci-
ting their constitutional right to organize (which in-
cludes the right NOT to organize). LFEU demands that
Libra Films institute administrative proceedings to ter-
minate those union members who resigned in violation
of the CBA's maintenance of membership clause.
Libra Films refuses, citing its obligation to remain a
neutral party. As a result, LFEU declares a strike and
after filing a notice of strike and taking a strike vote,
goes on strike. The union claims that Libra Films
grossly violated the terms of the CBA and engaged in
unfair labor practice.
a. Are LFEU's claims correct? Explain.(4%)
b. Distinguish between a "closed shop" clause
and a "maintenance of membership" clause.(2%)
c. Distinguish between "union dues" and "agen-
cy fees." (2%)
Answer:
(a) LFEU's claim that Libra · Films committed ULP
based on its violation of the CBA is not correct. For viola-
tion of a CBA to constitute ULP, the violation must be a
violation of its economic provisions. Moreover, said viola-
tion must be gross and flagrant. Based on the allegation of
the union, what was violated was the maintenance of
membership clause which was a political provision; hence,
2015 BAR EXAMINATIONS
135
no ULP was committed (BPi Employees Union - Davao
City v. BPI, G.R. No. 174912, 24 July 2013).
(b) A Closed Shop clause requires an employer to
hire from the union membership only; on the other hand,
Maintenance of Membership clause requires as a condition
for continued employment continued membership in the
contracting union. Both are union security clauses.
(c) Union dues are assessed from members of the ex-
clusive bargaining representative (EBR) which has conclu-
ded a CBA with the company; whereas, agency fees are
collected from members of other unions or non-union in
exchange for being recipients of the same benefits se-
cured by the EBR thru collective bargaining.
XVIII
George is an American who is working as a con-
sultant for a local IT company; The company has a
union and George wants to support the union. How far
can George go in terms of his support for the union?
(3%)
Answer:
George is not an alien employee but an independent
contractor. The term "working" per se cannot be used as
an indicium of employer-employee relationship because a
worker is any member of the labor force, whether em-
ployed or not (Art. 13, Labor Code). As a consultant, he is
logically the master of his time, means and methods. What
he advises the company and how he does it are entirely
left to his discretion. Not being an employee, he cannot
assist the union by joining it.
Moreover, foreigners are prohibited from engaging in
trade union activities except when employed - subject,
136 BARQ&A
FOR THE PAST 10 YEARS
however, to possession of alien employment permits and
proof of reciprocity (Arts. 284 & 285, Labor Code).
XIX
What is the rule on the "equity of the incumbent"?
(2%)
Answer:
The Equity of the Incumbent rule has it that all exis-
ting federations or national unions, possessing all qualifica-
tions of an LLO and none of the grounds for CR cancella-
tion, shall continue to maintain their existing affiliates re-
gardless of their location or industry to which they belong
(Art. 249, Labor Code). In case of dissociation, affiliates
are not required to observe the one union-one industry rule
(E.O. 111).
xx
A. XYZ Company and Mr. AB, a terminated emplo-
yee who also happens to be the Pres1dent of XYZ Em-
ployees Union, agree in writing to submit Mr. AB's ille-
gal dismissal case to voluntary arbitr~tion. Is this ag-
reement a valid one? (3%)
B. XYZ Company and XYZ Employees Union
(XYZEU) reach a deadlock in their negotiation for a
new collective bargaining agreement (CBA). XYZEU
files a notice of strike; XYZ Company proposes to
XYZEU that the deadlock be submitted instead to vo-
luntary arbitration. If you are counsel for XYZEU, what
advice would you give the union as to the: (1) pro-
priety of the request of XYZ Company, and (2) the rela-
tive advantages/disadvantages between voluntary ar-
bitration and compulsory arbitration? (4%)
2015 BAR EXAMINATIONS
137
Answer:
A. The agreement is valid because the preferred
mode of settling labor disputes is thru voluntary modes,
like voluntary arbitration. The agreement is consistent with
Sec. 3, Art. XII/ of the Constitution. Moreover, it does not
violate any statute, offend morals, or defeat public policy.
B. (1) As counsel, I will advise the union to accede to
the request of the company. Besides being the constitutio-
nally preferred mode of dispute settlement, voluntary arbit-
ration is expected to assure the parties a more lasting in-
dustrial peace.
(2) The advantages of voluntary arbitration are:
(a) the parties' dispute is heard and resolved by a per-
son they both have chosen as their judge; hence, they are
self-assured of his impartiality; ·
(b) if both parties are willing to submit their dispute,
the decision is final and binding on them in general by rea-
son of their submission agreement; and
(c) in the event of a challenge, the decision is eleva-
ted to the CA and then to the SC, i.e., less one layer of ap-
peal.
Its disadvantages are:
(a) in case of ·appeal by the employer to the CA, the
monetary award will not be secured with an appeal bond
which Rule 43 of the Rules of Court does not require; and
(b) in case of enforcement of judgment, the Voluntary
Arbitra_tor has no sheriff to enforce it.
The advantages of compulsory arbitration are:
(a) subject to pre-litigation mediation, a case. can be
initiated thru the filing of a verified complaint by a union
member, unlike in voluntary arbitration where the Voluntary
Arbitrator acquires jurisdiction primarily thru a submission
138 BARQ&A
FOR THE PAST 10 YEARS
agreement. In a cast3 where the company is unwilling., the
EBR {and only the EBR) may serve a notice to arbitrate;
hence, a union member may be left out in the process if
the EBR does not serve that notice;
(b) a monetary award is secured with the employer's
appeal bond; and; (c) there is a system of restitution in
compulsory arbitration.
Its disadvantages are:
(a) State interference with the affairs of labor and
management is maximized, disregarding the inter-party
nature of the relationship; and
(b) The system of appeals entails a longer process.
XXI
Philippine News Network (PNN) engages the ser-
vices of Anya, a prominent news anchor from a rival
station, National News Network (NNN). NNN objects to
the transfer of Anya claiming that she is barred from
working in a competing company for a period of three
years from the expiration of her contract. Anya pro-
ceeds to sign with PNN which then asks her to anchor
their nightly newscast. NNN sues Anya and PNN be-
fore the National Labor Relations Commission (NLRC),
asking for a labor injunction. Anya and PNN object
claiming that it is a matter cognizable by a regular
court and not the NLRC.
a. Is NNN's remedy correct? Why or why not?
(3%)
b. What are the grounds for a labor injunction to
issue? (2%)
c. Distinguish the jurisdiction of a Labor Arbiter
from that of the NLRC (3%)
2015 BAR EXAMINATIONS 139
Answer:
(a) The NLRC has no jurisdiction.
As to PNN, there is no employer-employee relation-
ship between itself and NNN; hence, the NLRC cannot
hear and resolve their dispute (Reasonable Causal Con-
nection Rule). As to Anya, the injunctive power of the
NLRC is ancillary in nature; hence, it requires a principal
case which is absent. Besides, the dispute between her
and PNN is not resolvable thru the application solely of the
Labor Code, other labor statutes, CSA or employment con-
tract (Sole Reference to Labor Law Rule).
(b) The NLRC may issue an injunctive writ to enjoin
an illegal activity under Art. 279 of the Labor Code; as an
ancillary remedy to avoid irreparable injury to the rights of
a party in an ordinary labor dispute pursuant to Rule X,
2011 NLRC Rules of Procedure, as amended; and to
correct the Labor Arbiter's grave abuse of discretion pur-
suant to Rule XII of the 2011 NLRC Rules of Procedure,
as amended.
(c) As to jurisdiction, the LA can hear and resolve
cases under Art. 224 of the Labor Code, money claims un-
der Sec. 7 of R.A. 10022; and referred wage distortion dis-
putes in unorgcJnized establishments, as well as the en-
forcement of compromise agreements pursuant to the
2011 NLRC Rules of Procedure, as amended. On the
other hand, the NLRC reviews decisions rendered by the
LA; decisions or orders rendered by the RD under Art. 129
of the Labor Code; and conducts compulsory arbitration in
certified cases.
As to the power to issue a labor injunction, the NLRC
can issue an injunctive writ. On the other hand, the Labor
Arbiter cannot issue an injunctive writ.
140 BAR Q&A
2015 BAR EXAMINATIONS 141
FOR THE PAST 10 YEARS

XXII Carlo is not a corporate officer of the business organi-

zation involved, which is a corporation based on the fact
Mario comes from a family of coffee bean gro- that it was incorporated, declared dividends and issued
wers. Deciding to incorporate his fledgling coffee ven- shares of stock. Being the Chief Marketing Agent only, and
ture, he invites his best friend, Carlo, to join him. Carlo not the corporate president, treasurer or secretary, he is a
is hesitant because he does not have money to invest corporate employee. In fact, he was paid salaries and com-
but Mario suggests a scheme where Carlo can be the missions, plus bonuses, for his personal services.
Chief Marketing Agent of the company, earning a sala-
ry and commissions. Carlo agrees and the venture is . (b) Corporate officers are personally accountable only
formed. After one year, the business is so successful as provided by Sec. 31 of the Corporation Code (now
that they were able to declare dividends. Mario is so Sec. 30, Revised Corporation Code) and not solely
happy with Carlo's work that he assigns 100 shares of because they act in the interest of the company (Carag v.
stock to Carlo as part of the latter's bonus. NLRC, G.R. No. 147590, 2 April 2007). Hence, they have
to personally commit the illegality, or ratify it, or be guilty of
Much later on, it is discovered that Carlo had en- bad faith or gross neglect in order to be personally liable.
gaged in unethical conduct which caused embarrass-
ment to the company. Mario is forced to terminate
Carlo but he does so without giving Carlo the opportu-
nity to explain.
Carlo filed a case against Mario and the company
for illegal dismissal. Mario objected on the ground that
the Labor Arbiter had no jurisdiction over the. case as
it would properly be considered as an intra-corporate
controversy cognizable by the. RTC. Further, Mario
claimed that because Carlo's dismissal was a corpo-
rate act, he cannot be held personally liable.
a. As the Labor Arbiter assigned to this case, how
would you resolve the juris~iction question? (3%)
b. What is the rule on personal liability of corpo-
rate officers for a corporate act declared to be un-
lawful? (2%}

Answer:
(a) Carlo is an employee. Hence, as LA, I have the
power to hear and resolve his complaint.

2016 BAR EXAMINATIONS
What are the requisites of a valid quitclaim? (5%)
Answer:
The requisites of a valid quitclaim are as follows:
In general, a quitclaim is valid if: (a) it represents a fair
and reasonable compromise, and (b) it is supported with
substantial consideration (Periquet v. NLRC, G.R. No.
91298, 22 June 1990). As to the second requisite, the con-
sideration should not be below 50% of, the employee's
money claim (Catholic Vicariate of Baguio v. Hon. Patri-
cia A. Sto. Tomas, G.R. No. 167334, 7 March 2008).
In order to prevent disputes on the validity and enfor-
ceability of waivers and quitclaims, the following must be
stated in the quitclaim: (a) the fixed amount as full and final
settlement; (b) the benefits with corresponding amounts
which the employee is giving up; (c) the employer clearly
explained in English or Filipino, or dialect known to the em-
. ployee, that by signing the quitclaim he is relinquishing the
benefits due him under the law; and (d) the employee exe-
cuted the document voluntarily, freely and knowingly. It is
advisable for the quitclaim to be.signed by two witnesses
and notarized by a competent labor official (EDI-Staffbuil-
ders International, Inc. v. NLRC, et al., G.R. No. 145587,
26 October 2007).
u go into means and methods of performance but into result
Gregorio was hired as an insurance underwriter
by the Guaranteed Insurance· Corporation (Guaran-
teed). He does not receive any salary but solely relies
on commissions earned for every insurance policy ap-
proved by the company. He hires and pays his own
142
2016 BAR EXAMINATIONS 143
secretary but is provided free office space in the office
of the company. He is, however, required to meet a
monthly quota of twenty (20) insurance policies, other-
wise, he may be terminated. He was made to agree to a
Code of Conduct for underwriters and is supervised by
a Unit Manager.
a. Is Gregorio an employee of Guaranteed? Ex-
plain. (2.5%}
b. Suppose Gregorio is appointed as Unit Manager
and assigned to supervise several underwriters. He
holds office in the company premises, receives an
overriding commission on the commissions of his
underwriters, as well as a monthly allowance from the
company, and is supervised by a branch manager. He
is governed by the Code of Conduct for Unit Ma-
nagers. Is he an employee of Guaranteed? Explain.
(2.5%)
Answer:
(a) No. Gregorio is not an employee. He is an inde-
pendent contractor because the control exercised by the
insurance company over him is not the labor law concept
of control but a legally prescribed control device. In other
words, it is not pervasive control over means and methods
of performance. He sold insurance policies free from any
form of company prescriptions or proscriptions as to how to
sell. In fact, he employed his own manpower to be able to
sell insurance policies anywhere. As to his monthly quota
and acquiescence to the code of conduct, the same do not
of performance only (See Gregorio Tongko v. Manulife,
G.R. No. 167622, 25January 2011).
(b) No. The supervisory functions of Gregorio did not
invest him with employee status. As leading agent, it was
his duty to oversee the agents under him to ensure their
compliance with legally imposed rules on selling insurance
144 BARQ&A
FOR THE PAST 10 YEARS
policies. The attending system of control, including supervi-
sion over him by a branch manager, is inherent in insu-
rance agency. In fact, it is a legally prescribed control de-
vice (See Gregorio Tongko v. Manulife, G.R. No. 167
622, 25 January 2011).
Ill
lnggo is a drama talent hired on a per drama
"participation basis" by DJN Radio Company. He
worked from 8:00 a.m. until 5:00 p.m., six days a week,
on a gross rate of PS0.00 per script, earning an ave-
rage of P20,000.00 per month. lnggo filed a complaint
before the Department of Labor and· Employment
(DOLE) against DJN Radio for illegal deduction, non-
payment of service incentive leave and 13th month
pay, among others. On the basis of the complaint, the
DOLE conducted a plant level inspection.
The DOLE Regional Director issued an order ru-
ling that lnggo is an employee of DJN Radio, and that
lnggo is entitled to his monetary claims in the total
amount of P30,000.00. DJN Radio elevated the case to
the Secretary of Labor who affirmed the order. The
case was brought to the Court of Appeals. The radio
station contended that there is no employer-employee
relationship because it was the drama directors and
producers who paid, supervised, and disciplined him.
Moreover, it argued that the case falls under the juris-
diction of the NLRC and not the DOLE because lnggo's
claim exceeded PS,000.00.
a. May DOLE make a prima facie determination of
the existence of an employer-employee relationship in
the exercise of its visitorial and enforcement powers?
(2.5%)
b. If the DOLE finds that there is an employee-
employer relationship, does the case fall under the
2016 BAR EXAMINATIONS 145
jurisdiction of the Labor Arbiter considering that the
claim of lnggo is more than PS,000.00. Explain. (2.5%)
Answer:
(a) Yes. The Regional Director, exercising power co-
extensive with his visitorial power under Article 128 of the
Labor Code, can make a prima facie determination of em-
ployer-employee relationship (People's Broadcasting
Service v. Secretary of Labor, G.R. No. 179652, 6
March 2012).
(b) No. The P5K jurisdictional threshold applies only
to money claims brought by complaint under Article 129 of
the Labor Code. It does not apply to cases taken cogni-
zance of by the Regional Director exercising · visitorial
power under Art. 128 of the Labor Code.
IV
Hagibis Motors Corporation (Hagibis) has 500 re-
gular employees in its car assembly plant. Due to the
Asian financial crisis, Hagibis experienced very low
car sales resulting to huge financial losses. It imple-
mented several cost-cutting measures such as cost re-
duc.tion on use of office supplies, employment hiring
freeze, prohibition on representation and travel expen-
ses, separation of casuals and reduced work week. As
counsel of Haglbis, what are the measures the compa-
ny should undertake to implement a valid retrench-
ment? Explain. (5%)
Answer:
I will advise the following measures:
1) Notify the DOLE-RD and the concerned employees
in writing of the intended retrenchment 30 days before
actual termination;
146 BARQ&A
FOR THE PAST 10 YEARS
2) Establish the substantial losses incurred during: 3
years of operation with financial statements duly certified
by an independent external auditor;
3) Employ fair and reasonable criteria on the selection
of employees to be separated;
4) Pay separation pay; and
5) Observe good faith.
V
Asia Union (Union) is the certified bargaining
agent of the rank-and-file employees of Asia Pacific
Hotel (Hotel).
The Union submitted its Collective Bargaining Ag-
reement (CBA) negotiation proposals to the Hotel. Due
to the bargaining deadlock, the Union, on December
20, 2014, filed a Notice of Strike with the National Cc_m-
ciliation and Mediation Board (NCMB). Consequently,
the Union conducted a Strike Vote on January 14,
2015, when it was approved.
The next day, waiters who are members of the
Union came out of the Union office sporting closely
cropped hair or cleanly shaven heads. The next day,
all the male Union members came to work sporting the
same hair style. The Hotel prevente(i these workers
from entering the premises, claiming that they violated
the company rule on Grooming Standards.
On January 16, 2015, the Union subsequently
j~'
staged a picket outside the Hotel premises and pre-
vented 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 resul-
ting to substantial losses.
2016 BAR EXAMINATIONS 147
On January 20, 2015, the Hotel issued notices to
Union members, preventively suspending them and
charging them with the following offenses: (1) illegal
picket; (2) violation of the company rule on Grooming
Standards; (3) illegal strike; and (4) commission of ille-
gal acts during the illegal strike. The Hotel later termi-
nated the Union officials and members who partici-
pated 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 free-
dom of speech.
a. Was the picketing legal? Was the mass action
of the Union officials and members an illegal strike?
Explain. (2.5%)
b. Rule on the allegations of ULP and violation of
freedom of speech. Explain'. (2.5%)
Answer:
(a) Given the substance of the activity, which was
carried out by blocking ingress and egress, it was not a
picket. A picket is limited to harmless marching to and fro
by employees who carry placards or use speech to attract
the public to their cause. Based on substance, the activity
was a strike because: (a) there was temporary stoppage of
work; (b) it was carried out thru concerted activity; and (c)
there was a labor dispute between the union and the com-
pany arising from a bargaining deadlock (See Philippine
Blooming Mills Employment Organization, et al. v.
Philippine Blooming Mills, et al., G.R. No. L-31195, 5
June 1973).
(b) The union's allegation of ULP and violation of free-
dom of speech is baseless. As to the first, the dismissal
was for serious misconduct because the union staged an
economic strike on 16 January 2015, or on the 27th day
following service of its notice of strike on the NCMB on 20
December 2014. In effect, it did not observe the 30-day
148 BARQ&A
FOR THE PAST 10 YEARS
cooling-off period as to make- the strike illegal. In this con-
nection, an illegal strike amounts to serious misconduct
which is a just cause for foreclosing tenurial security.
As to the second, there was no violation of freedom of
speech. When the employees started blocking ingress and
egress in the course of staging a strike without prior com-
pliance with prescribed pre-strike procedure, their activity
was not protected preferred freedom. It was a strike made
doubly illegal by the union's violation of prescribed proce-
dure and employment of illegal means.
VI
Pedro, a bus driver of Biyahe sa Langit Transport,
was involved in a collision with a car, damaging the
bus. The manager accused him of being responsible
for the damage and was told to submit his written ex-
planation within 48 hours. Pedro submitted his expla-
nation within the period. The day after, Pedro received
a notice of termination stating that he is dismissed for
reckless driving resulting to damage to company
property, effective immediately. Pedro asks you, as his
counsel, if the company complied with the procedural
due process with respect to dismissal of employees.
a. Explain the twin notice and hearing rule. (2.5%)
b. Did the Biyahe sa Langit Transport comply with
the prior procedural requirements for dismissal?
(2.5%)
Answer:
(a) An employee sought to be dismissed has the sta-
tutory right to be accorded ample opportunity to be heard
(Art. 292, Labor Code). Said right translates to service
upon him of two written notices, viz., notice of intent to dis-
miss and notice of dismissal. The first serves the purpose
2016 BAR EXAMINATIONS 149
of apprising him of the employer's ground for the intended
dismissal. On the other hand, the second communicates
the employer's final decision to dismiss him. In between
said ·notices, he must be accorded all reasonable means
and assistance as might help him come to the defense of
his employment. If he requests for a formal hearing, the
same must be granted (See King of Kings Transport,
Inc. v. Mamac, G.R. No. 166208, 29 June 2009,· Citibank
v. Genuino, G.R. No. 142753-54, 4 December 2007; Pe-
rez v. PT&T, G.R. No. 152048, 7 April 2009).
(b) No. Biyahe sa Langit Transport transgressed the
rule that opportunity to be heard not be perfunctory, pro
forma or meaningless (See Genuino v. NLRC, G.R. No.
142732-33, 4 December 2007). Since it can only be pre-
sumed that the company simply received Pedro's explana-
tion and nothing else more then it is doubtful if he was
heard at all. The rule observed in this forum is that all
doubts arising from evidence in labor proceedings must be
resolved in favor of the workingman (See Hocheng Phil.
Corp. v. Farra/es, G.R. No. 211497, 18 March 2015).
VII
Forbes Country Club (Club) owns a golf course
and has 250 rank-and-file employees who are mem-
bers of the Forbes Country Club Union (Union). The
Club has a CBA with the l:lnion and one of the stipu-
lations is a Union Security Clause, which reads: "All
regular rank-and-file employees who are members of
the union shall keep their membership in good stan-
ding as a condition for their continued employment
during the lifetime of this agreement."
Peter, Paul and Mary were the Treasurer, Assis-
tant Treasurer, and Budget Officer of the Union, res-
pectively. They were expelled by the Board of Direc-
tors of the Union for malversation. The Union then de-
150 BARQ&A
FOR THE PAST 10 YEARS
man~ed that the Club dismiss said officials pursuant
to the Union Security Clause that required mainte-
nance of union membership. The Club required the
three officials to show cause in writing why they
should not be dismissed. Later, the Club called the
three Union officials for a conference regarding the
charges against them. After considering the evidence
submitted by the parties and their written explana-
tions, the Club dismissed the erring officials. The dis-
missed officials sued the .Club and the Union for illegat
dismissal because there was really no malversation
based on the documents presented and their dismissal
from the Union was due to the fact that they were
organizing another union.
a. Is the dismissal of Peter, Paul and Mary by the
Club valid? (2.5%)
b. If the expulsion by the Union was found by the
Labor Arbiter to be baseless, is the Club liable to
Peter, Paul and Mary? Explain. (2.5%)
Answer:
(a) Yes. A dismissal based on the contracting union's
request under the union security clause is a contractual ob-
ligation of the company. It is valid provided these requisites
are in attendance: (a) the union security clause is appli-
cable; (b) a request to dismiss on the ground of expulsion
is made; and (c) the employer verifies the ground for expul-
sion (See Alabang Country Club, Inc. v. NLRC, et al.,
G.R. No. 170287, 14 February 2008). All requisites are
present; hence, the dismissal is valid.
(b) Yes. If the requested dismissal is recklessly or
perfunctorily carried out on doubtful grounds and the Labor
Arbiter formally declares the expulsion as baseless, the
Club shall be liable to Peter, Paul and Mary. To free the
Club of liability is to leave the trio without means of
,.
reclaiming their jobs. The very means is a reinstatement
2016 BAR EXAMINATIONS
151
order issued in a termination case in which the Club must
be the party respondent (Art. 294, Labor Code).
VIII
Differentiate learnership from apprenticeship with
respect to the period of training, type of work, salary
and qualifications. (5%)
Answer:
Learnership differs from apprenticeship as follows:
As to period of training. In learners hip, the period shall
not exceed 3 months; whereas, in apprenticeship, the pe-
riod shall not exceed 6 months.
As to type of work. In learnership, the work is semi-
skilled; whereas, in apprenticeship, the work is highly tech-
nical;
As to salary. In learnership, the employer is permitted
to pay 75% of the applicable minimum wage. However, if
the learner is employed in piece or incentive rate jobs, he
must be paid in full. In apprenticeship, the employer is per-
mitted to pay a starting salary equivalent to 75% of the mi-
nimum wage, However, the .SOLE may authorize the hiring
of a.pJrentices without·eompensation if training on the JOb
ls tequlred:byt:ne school or is a requisite for graduation or
board· exah1i11a1lon.
As to qualifications. In learnership, the worker must
be able to perform training-on-the job work; whereas, in
apprenticeship, the worker must possess vocational apti-
tude and can comprehend and follow oral and written ins-
tructions.
152 BAR Q&A
FORTHEPAST10YEARS
IX
Zienna Corporation (Zienna) informed the Depart-
ment of Labor and Employment Regional Director of
the end of its operations. To carry out the cessation,
Zienna sent a Letter Request for Intervention to the
NLRC for permission and guidance in effecting pay-
ment of separation benefits for its fifty (50) terminated
employees.
Each of the terminated employees executed a
Quitclaim and Release before Labor Arbiter Nocomora,
to whom the case was assigned. After the erstwhile
employees received their separation pay, the Labor Ar-
biter declared the labor dispute dismissed with preju-
dice on the ground of settlement. Thereafter, Zienna
sold all of its assets to Zandra Company (Zandra),
which in turn hired its own employees.
Nelle, one of the fifty (50) terminated employees,
filed a case for illegal dismissal against Zienna. She ar-
gued that Zienna did not cease from operating since
the corporation subsists as Zandr!!, Nelle pointed out
that aside from the two companies having essentially
the same equipment, the managers and owners of
Zandra and Zienna are likewise one and the same.
For its part, Zienna countered that Nelle is barred
from filing a complaint for illegal dismissal against the
corporation in view of her prior acceptance of separa-
tion pay.
Is Nelle correct in claiming that she was illegally
dismissed? (5%)
Answer:
No. It cannot be lightly presumed that Zienna is the
same entity as Zandra based alone on identity of equip-
ment, managers and owners without violating the Prin-
2016 BAR EXAMINATIONS 153
ciple of Separate Legal Personalities. Absent substantial
evidence to warrant piercing of the corporate veil that se-
parates the two corporate entities, the argument of Nelle
must be disregarded.
Although payment of separation pay does not bar the
filing of a complaint for illegal dismissal, the settlement
ritual went beyond mere payment of separation pay. There
was a mediation proceeding before the NLRC at which
Nelle executed a quitclaim which represented a fair and
• reasonable compromise supported with substantial consi-
deration. Moreover, the mediation was formally closed and
terminated by the Labor Arbiter before whom the quitclaim
was executed. Upon these facts, not to mention the pre-
sumption of regularity of the mediation proceedings, the
settlement agreement is final and binding (See Sec. 9,
D.O. 147-15) to the point that the NLRC is not allowed to
assume jurisdiction (Art. 233, Labor Code).
X
Lazaro, an engineer, organized a union in Garanti-
sado Construction Corporation (Garantisado) which
has 200 employees. He immediately filed a Petition for
Certification Election, attaching thereto the signatures
of 70 employees. Garantisado vehemently opposed the
petition, alleging that 25 signatories are probationary
employees, while 5 are supervisors. It submitted the
contracts of the 25 probationary employees and the
job description of the supervisors. It argued that if 30
is deducted from 70, it gives a balance of 40 valid
signatures which is way below the minimum number
of 50 signatories needed to meet the alleged 25% re-
quirement. If you are the Director of Labor Relations,
will you approve the holding of a Certification Elec-
tion? Explain your answer. (5%)
154 BARQ&A
FOR THE PAST 10 YEARS
Answer:
I will grant the petition.
First, the establishment is unorganized absent a pre-
existing CBA. Therefore, I am required to grant the petition
automatically, provided it is sufficient in both form and
substance.
Second, the petition is sufficient in substance. The 25
probationary employees belong to the collective bargaining
unit (CBU) sought to be represented. Even if the 5 super-
visors were counted out, and rightly so, the remainder will
be 195 and 25% thereof is 49, more or less. Therefore,
since the support of 70 CBU members was obtained by the
petitioner then the minimum number of supporting sig-
natures was far exceeded.
XI
Dion is an Accounting Supervisor in a trading
company. He has rendered exemplary service to the
company for 20 years. His co-employee and kumpadte,
Mac, called him over the phone and ·requested him to
punch his (Mac's} daily time card as he (Mac) was
caught in a monstrous traffic jam. Dion acceded to
Mac's request but was later caught by the Personnel
Manager while punching Mac's time card. The com-
pany terminated the employment of Dion on the
ground of misconduct. Is the dismissal valid and just?
Explain. (5%)
Answer:
No. The dismissal of Dion for serious misconduct is
baseless. Serious misconduct is a dereliction of duty, or a
knowing, intentional and purposeful transgression of a
prescribed rule or norm of conduct. Hence, if the em-
ployee's conduct is attended by carelessness, heedless-
2016 BAR EXAMINATIONS 155
ness, inadvertence or thoughtlessness then it amounts to
mere error of judgment only. Likewise, if not attended by
corrupt or improper motive, it amounts to simple miscon-
duct only (See NLRC v. Bernadette Salgarino, G.R. No.
164376, 31 July 2006).
Dion is not guilty of serious misconduct because his
act is more trivial than it is of grave and aggravated charac-
ter. Given his length of service and the isolated nature of his
act, the Principle of Proportionality militates against the
imposition of the extreme penalty of dismissal. ln other
words, he should have been imposed a less drastic penalty.
In effect, therefore, he was illegally dismissed.
XII
Amaya was employed as a staff nurse by St.
Francis Hospital (SFH) on July 8, 2014 on a probatio-
nary st~tus for six (6) months. Her probationary con-
tract required, among others, strict compliance with
SFH's Code of Discipline.
On October 16, 2014, Dr.Ligaya, filed a Complaint
with the SFH Board of Trustees against Amaya for ut-
tering slanderous remarks against the former. At-
tached to the complaint was a letter of Minda, mother
of a patient, who confirmed the following remarks
again.st Dr.Ligaya:
"Bakit si Dr.Ligaya pa ang napili mong 'pedia' eh
ang tanda tanda na n'un? E makakalimutin na yun xxx
Alam mo ba, kahit wala naming diperensya yung baby,
ipinapa-isolate nya?"
The SFH President asks you, being the hospital's
counsel, which of these two (2) options is the legal and
proper way of terminating Amaya: a) terminate her for
a just cause under Article 282 (Art. 297) of the Labor
156 BARQ&A
FOR THE PAST 10 YEARS
Cod~ (Termination by Employer); or b) terminate her
for violating her probationary contract. Explain. (5%)
Answer:
Of the two remedies, the more defensible is the first,
i.e., dismissal for a just cause. The second may not pros-
per because it cannot be lightly assumed that the Code of
Discipline was made known to Amaya upon her engage-
ment. Hence, it is more difficult to justify her dismissal on
the ground of failure to qualify. In contrast, her act of
causing intrigue on the professional ability of Dr.Ligaya can
be used to prove serious misconduct. Dr. Ligaya is held
out by the hospital to the public as its employee, Hence,
Amaya's act of discrediting her is an act directed against
the hospital too.
Alternative Answer:
Amaya should be dismissed for failure to qualify,
albeit the company's standards for regularization have not
been communicated to her upon her engagement. Her po-
sition is self-descriptive. Even without such standards, the
nature of her position did not permit her to subjec;:t Dr.
Ligaya to uncalled for comment. Common sense required
her to keep to herself information hurtful to the professional
reputation of another, especially because Dr.Ligaya must
have had valid reasons which Amaya had no right to re-
view for managing her patients the way she did. Common
sense is a judicially recognized measure of human conduct
(Wal/em Maritime Services, Inc., et al. v. Donabelle
Pedrajas, G.R. No. 192993, 6 April 2015).
XIII
Matibay Shoe and Repair Store, as added service
to its customers, devoted a portion of its store to a
shoe shine stand. The shoe shine boys were tested for
2016 BAR EXAMINATIONS 157
their skill before being allowed to work and given ID
cards. They were told to be present from the opening
of the store up to closing time and were required to
follow the company rules on cleanliness and decorum.
They bought their own shoe shine boxes, polish, and
rags. The boys were paid by their customers for their
services but the payment is coursed through the
store's cashier, who pays, them before closing time.
They were not supervised in their work by any ma-
nagerial employee of the store but for a valid com-
plaint by a customer or for violation of any company
rule, they can be refused admission to the store·. Were
the boys employees of the store? Explain. (5%)
Answer:
No, the boys were not employees. They were free-
lance operators because they solicited work from the cus-
tomers of the store on their own initiative and rendered the
contracted services in strict accordance with their means
and methods of performance. Besides non-exercise of
control over their means and methods, the store had no
obligation to pay for their services. The obligation to pay
belonged to the customers who availed of their services.
Thus, under the Two-tier Test, they cannot be considered
as employees.
'
Alternative Answer:
Yes, the boys were employees. They rendered de-
sirable support services intended to make the shop rela-
tively a one-stop shop. The circumstances of their work are
indicative of the unitary nature of the services offered by
the store to the public. As to engagement, the boys were
not self-engaged. As to mode of payment, the store held
out to the public that the services paid for were its services.
As to power to dismiss, the prerogative to let the boys work
inside store premises implied the correlative right to disso-
158 BARQ&A
FOR THE PAST 10 YEARS
ciate them. And, as to control, their work did not require ac-
tual control because it was a simple manual work.
XIV
Tess, a seamstress at Marikit Clothing Factory,
became pregnant. Because of morning sickness, she
frequently absented herselffrom work and often came
to the factory only four (4) days a week. After two (2)
months, the personnel manager told her that her
habitual absences rendered her practically useless to
the company and, thus, asked her to resign. She
begged to be retained, citing her pregnancy as reason
for her absences. Tess asked for leave of absence but
her request was denied. She went on leave neverthe-
less. As a result, she was thus dismissed for going on
leave without permission of management.
Tess filed a complaint for illegal dismissal. The
company's defense: she was legally dismissed be-
cause of her numerous absences without leave and
not because of her pregnancy. On the other hand,
Tess argues that her dismissal was all act of discrimi-
nation, based as it was on her pregnancy which the
company treated as a disease. Whose position is
meritorious - the company's or Tess'? Explain. (5%)
Answer:
The position of Tess is meritorious. There is no doubt
that her absences were all pregnancy-related. That she
was dismissed on the basis of said absences constitutes
an act of discrimination against a woman by reason of
pregnancy which is prohibited by Art. 135 of the Labor
Code (See Del Monte Philippines v. Lolita Velasco,
G.R. No. 153477, 6 March 2007).
2016 BAR EXAMINATIONS 159
xv
Jim is the holder of a certificate of public conve-
nience for a jeepney. He entered into a contract of
lease with Nick, whereby they agreed that the lease
period is for one (1) year unless sooner terminated by
Jim for any of the causes laid down in the contract.
The rental is thirty thousand pesos (P30,000.00)
monthly. All the expenses for the repair of the jeepney,
together with expenses for diesel, oil and service, shall
be for the account of Nick. Nick is required to make a
deposit of three (3) months to answer for the restora-
tion of the vehicle to its good operating condition
when the contract ends. It is stipulated that Nick is not
an employee of Jim and he holds the latter free and
harmless from all suits or claims which may arise from
the implementation of the contract. Nick has the right
to use the jeepney at any hour of the day provided it is
operated on the approved li'lle of operation.
After five (5) months of the lease and payment of
the rentals, Nick became delinquent in the payment of
the rentals for two (2) months. Jim, as authorized by
the contract, sent a letter of demand rescinding the
contract and asked for the arrearages. Nick responded
by filing a complaint with the NLRC for illegal dismisM
sal, claiming that the contract is illegal and he was just
forced by Jim to sign it so he can drive. He claims he
is really a driver of Jim on a boundary system and the
reason he was removed is because he failed to pay the
complete daily boundary of one thousand (P1 ,000.00)
for 2 months due to the increase in the number of
tricycles.
a. Jim files a motion to dismiss the NLRC case on
the ground that the regular court has jurisdiction since
the agreement is a lease contract. Rule on the motion
and explain. (2.5%)
160 BARQ&A
FOR THE PAST 10 YEARS
b. Assuming that Nick is an employee of Jim, was
Nick validly dismissed?
Answer:
(a) I will deny the motion. The Labor Arbiter can hear
the parties' dispute because it has reasonable causal con-
nection to their relationship as employer and employee
(Reasonable Causal Connection Rule). Their lease con-
tract is void because it contravenes case law which recog-
nizes employer-employee relationship between the jeepney
owner and his driver under a boundary system. Moreover,
the issue of illegal dismissal is resolvable thru the applica-
tion solely of the Labor Code and case law on employment
termination (Sole Reference to Labor Law Rule).
(b) Yes. Nick was validly dismissed for gross and ha-
bitual neglect of duty. By neglecting to make remittances,
indicating his total disregard of the interest of Jim, he
committed gross neglect of duty. His intentional omission
to remit was habitual in character because it was done re-
peatedly.
- The basis of the 10% attorney's fees is the total monetary
XVI
In a case for illegal dismissal and non-payment of
benefits, with prayer for damages, Apollo was awarded
the following: 1) P200,000.00 as backwages; 2) P80,
000.00 as unpaid wages; 3} P20,000.00 as unpaid holi-
day pay; 4) P5,000.00 as unpaid service incentive leave
pay; 5) P50,000.00 as moral damages; and 6) P10,000.
00 as exemplary damages. Attorney's fees of ten per-
cent (10%) of all the amounts covered by items 1 to 6
inclusive, plus interests of 6% per annum from the
date the same were unlawfully withheld, were also
awarded.
2016 BAR EXAMINATIONS 16i
a. Robbie, the employer, contests the award of
attorney fees amounting to 10% on all the amounts
adjudged on the ground that Article 111 of the Labor
Code authorizes only 10% "of the amount of wages
recovered". Rule on the issue and explain. (2.5%)
b. Robbie likewise questions the imposition of in-
terests on the amounts in question because it was not
claimed by Apollo, and the Civil Code provision on in-
terests does not apply to a labor case. Rule on the
issue and explain.'(2.5%) ·
Answer:
(a) Attorney's fees can be assessed not only on the
basis of the employer's unlawful act of withholding wages
and benefits but also on some other lawful bases. When
an employer compels his employee to litigate against him
to protect his rights, necessitating legal representation and
expense, attorney's fees can be awarded. Likewise, based
on evidence of the employer's act of oppression, whim,
caprice or bad faith, he can be assessed attorney's fees.
award (See Session Delights Ice Cream & Fast Foods
v. CA, G.R. No. 172149, 8 February 2010).
(b) The entire monetary award shall earn legal inte-
rest of 12% (See Session Delights Ice Cream & Fast
Foods v. CA, G.R. Na. 172149, 8 February 2010). How-
ever, legal interest shall be 6% starting 1 July 2013 (See
Nacar v. Ga/lfery Frames, fS.R. No. 189871, 13 August
2013).
xvu
Baldo, a farm worker on
pakyaw basis, had been
working on Dencio's land by harvesting abaca and
coconut, processing copra, and clearing weeds from
year to year starting January 1993 up to his death in
162 BARQ&A
l
i
FOR THE PAST 10 YEARS
2007. He worked continuously in the sense that it was
done for more than one harvesting season.
a. Was Dencio required to report Baldo for com-
pulsory social security coverage under the SSS law?
Explain. (2.5%)
b. What are the liabilities of the employer who
fails to report his employee for social security cove-
rage? Explain. (2.5%)
Answer:
(a) Dencio was required to report his employee Baldo
for SSS coverage. Only the following are excluded from
SSS coverage: purely casual employees, Filipinos em-
ployed by foreign vessels while outside Philippine territory,
employees of foreign governments and international orga-
nizations unless covered by administrative agreements,
government employees, and other employees excluded by
the Social Security Commission. Baldo, a regular seasonal
employee, was not one of the excluded employees.
(b) The Social Security Act is a-penal law. Hence, an
employer who does not report his employee for SSS cove-
rage shall incur criminal liability. In addition, he shall pay
the benefit if the latter dies, becomes disabled, gets sick or
retires. He shall also pay all contributions, plus 3% penalty
per month.
XVIII
Empire Brands (Empire) contracted the services
of Style Corporation (Style) for the marketing and pro-
motion of its clothing line. Under the contract, Style
provided Empire wlth Trade Merchandising Represen-
tatives (TMRs) whose services began on September
15, 2004 and ended on June 6, 2007, when Empire ter-
minated the promotions contract with Style.
2016 BAR EXAMINATIONS 163
Empire then entered into an agreement for man-
power supply with Wave Human Resources (Wave). -
Wave provided the supervisors who supervised the
TMRs, who, in tum, received orders from the Marketi11g
Director of Empire. In their agreement, the parties sti-
pulated that Wave shall be liable for the wages and
salaries of its employees or workers, including bene-
fits, and protection due them, as well as remittance to
the proper government entities of all withholding
taxes, Social Security Service, and Philhealth pre-
miums, in accordance with relevant laws.
As the TMRs wanted to continue working at
Empire; they submitted job applications as TMRs with
Wave. Consequently, Wave hired them for a term of
five (5) months, or from June 7, 2007 to November 6,
2007, specifically to promote Empire's products.
When the TMRs' 5-month contracts with Wave
were about to expire, they sought renewal thereof, but
were refused. Their contracts with Wave were no
longer renewed as Empire hired another agency. This
prompted them to file complaints for illegal dismissal,
regularization, non-payment of service incentive leave
and 13th month pay against Empire and Wave.
a. Are the TMRs employees of Empire? (2.5%)
b. Were the TMRs illegally dismissed by Wave?
(2.5%)
Answer:
(a) Empire is the employer of the TMRs. When it en-
tered into a contracting arrangement with Style, an appa-
rent labor-only contractor for want of substantial capital or
investment, it became the TMR's employer pursuant to the
Principle of Merger of Legal Personalities (Coca-Co/a
Bottlers Phil., me. v. Ricky E. de/a Cruz, et al., 7 De-
cember 2009). Albeit Wave was a legitimate job contrac-
tor, the service contract between them did not novate the
164 BARQ&A
FOR THE PAST 10 YEARS
legal obligations imposed by the first contract on Empire,
Hence, it continued to be the employer of the TMRs be-
yond the date of termination of its contract with Style. As a
result, it can be ordered to pay the withheld benefits.
(b) Yes. The TMRs' fixed-term employment contracts
are void. First, employer-employee relationship is a ques-
tion of law. Since it existed as early as the time the TMRs
were supplied by Style to Empire, its- continuing existence
cannot be stipulated against in the fixed-term employment
contracts subsequently given the former. Setting aside the
pre-existence of the relationship, the service agreement
between Empire and Wave has no period. Therefore, the
5-month limit on the TMRs' tenure is without basis. As a
consequence, they are deemed to have been engaged as
long as the task or undertaking contracted out to Wave
subsists. Under D.O. 174, it is the completion of said un-
dertaking and not the expiration of the TMRs' contracts
which controls.
XIX
Filmore Corporation was ordered to pay P49
million to its employees by the Labor Arbiter. It inter-
posed an appeal by filing a Notice of Appeal and paid
the corresponding appeal fee. However, instead of
filing the required appeal bond equivalent to the total
amount of the monetary award, Filmore filed a Motion
to Reduce the Appeal Bond to P4,000,000.00 but sub-
mitted a surety bond in the amount of P4.9 million.
Filmore cited financial difficulties as justification for its
inability to post the appeal bond in full owing to the
shutdown of its operations. It submitted its audited fi-
nancial statements showing a loss of P40 million in the
previous year. To show its good faith, Filmore also
filed its Memorandum of Appeal.
2016 BAR EXAMINATIONS 165
The NLRC dismissed the appeal for non-perfec-
tion on the ground that posting of an appeal bond eq-
uivalent to the monetary award is indispensable for the
perfection of the appeal and the reduction of the ap-
peal bond, absent any showing of meritorious ground
to justify the same, is not warranted. Is the dismissal
of the appeal correct? Explain. (5%)
Answer:
The dismissal of the appeal for non-perfection is cor-
rect. While an employer is allowed to file a motion to re-
duce the appeal bond, this remedy requires compliance
with two requisites, viz.: (a) the ground/s for reduction must
be meritorious; and (b) the motion to reduce must be ac-
companied with a reasonable bond. Reasonable bond is
10% of the judgment award (McBurnie v. Ganzon, G.R.
No. 178034 & 178117, 18 September 2009). While this r~-
quirement may have been met, the alleged financial diffi-
culties cannot be deemed a meritorious ground for bond
reduction in the absence of supporting financial statements
duly certified by an independent external auditor showing
that Filmore Corporation is in the red. It should have shown
the amount of its alleged losses and its capital for compa-
rison to determine the extent of the alleged huge losses
(See Linton Commercial Co., Inc. v. Alex He/lera, et al.,
G.R. No. 163147, 10 October 2007).
xx
Mario Brothers, plumbing works contractor, en-
tered into an agreement with Axis Business Corpo-
ration (Axis) for the plumbing works of its building
under construction. Mario Brothers engaged the servi-
ces of Tristan, Arthur, and Jojo as plumber, pipe fitter,
and th reader, respectively. These workers have
worked for Mario Brothers in numerous construction
projects in the past but because of their long relation-
166 BARQ&A
FOR THE PAST 10 YEARS
JfE~
ship. they were never asked to sign contracts for each
project. No reports to government agencies .were made
regarding their work in the company.
During the implementation of the works contract,
Axis suffered financial difficulties and was not ab.le to
pay Mario Brothers its past billings. As a result, the
three (3) employees were not paid their salaries for two
(2) months and their 13th month pay. Because Axis
cannot pay, Mario Brothers cancelled the contract and
laid off Tristan, Arthur, and Jojo. The 3 employees
sued Mario Brothers and Axis for illegal dismissal, un-
paid wages, and benefits.
a. Mario Brothers claims the 3 workers are pro-
ject employees. It explains that the agreement is, if the
works contract is cancelled due to the fault of the
client, the period of employment is automatically ter-
minated. Is the contractor correct? Explain. (2.5%)
b. Can Axis be made solidarily liable with Mario
Brothers to pay the unpaid wages and 13th month pay
of Tristan, Arthur, and Jojo? Explain. (2.5%)
Answer:
(a) The contractor is not correct. The three workers
are regular employees for having rendered services neces-
sary, desirable, vital and indispensable to the usual busi-
ness of Mario Brothers for several years (Art. 295, Labor
Code). Hence, they cannot be terminated except for a just
or authorized cause (Art. 294, Labor Code). Since mere
cancellation of the works contract is neither just nor autho-
rized cause, they are deemed illegally dismissed.
(b) As the principal of a legitimate job contractor, Axis
is imposed the solidary liability to pay the wages and bene-
fits withheld by its contractor (Art. 106, Labor Code; Me-
ra/co Industrial Engineering Services Corp. v. NLRC,
G.R. No. 145402, 14 .March 2008). Hence, Axis can be
made solidarily liable with Mario Brothers for payment of
the wages and 13th month pay of Tristan, Arthur and Jojo.
2017 BAR EXAMINATION
A. What are the accepted tests to determine the
existence of an employer-employee relationship? (5%)
B. Applying the tests to determine the existence
of an employer-employee relationship, is a jeepney
driver operating under the boundary system an emplo-
yee of his jeepney operator or a mere lessee of the
Jeepney? Explain your answer. (3%)
Answer:
A. The acceptable tests for determining employer-em-
ployee relationship are as follows:
1. The Fourfold Test. Its component tests are:
(a) the Selection Test;
(b) the Wage Test;
(c) the Dismissal Test; and
(d) the Control Test.
2. Two-Tier Test. It is the combination of
(a) the Control Test; and
(b) the Economic Dependence Test
3. Ecclesiastical Affair Test. It rules out employer-
employee relationship on the basis of the origin of the
dispute, viz., ecclesiastical or church matter.
4. lntracorporate Controversy Test. It rules out em-
ployer-employee relationship based on nature of relation-
ship and nature of controversy.
167

168 BARQ&A
fOR THE PAST 10 YEARS
B. A jeepney driver is an employee. The same State-
imposed restrictions which are for the operator to observe
in running his business affair are cross-imposed by him on
his driver. Hence, pursuant to the Control Test, the latter
is an employee under the boundary system.
H following his premature termination, Feliciano claimed
Procopio was dismissed from employment for
stealing his co-employee Raul's watch. Procopio filed
a complaint for illegal dismissal. The Labor Arbiter
ruled in Procopio's favor on the ground that Raul's tes-
timony was doubtful, and, therefore, the doubt should
be resolved in favor of Procopio. On appeal, the NLRC
reversed the ruling because Article 4 of the Labor
Code - which states that all doubts in the interpretation
and implementation of the provisions of the Labor
Code, including the implementing rules and regula-
tions, shall be resolved in favor of labor - applied only
when the doubt involved the "implementation and in-
terpretation" of the Labor Code; hence, the doubt,
which involved the application of. tbe rules on evi-
dence, not the Labor Code, could not necessarily be
resolved In favor of P.rocopio. Was the reversal cor-
rect? Explain your answer. (3%)
Answer:
No.
The reversal is not correct. The Liberal Interpreta-
tion Rule is not confined to the four corners of Art. 4 of the
Labor Code. Its full extent covers doubts and ambiguities
arising from labor contracts (Art. 1702. New Civil Code)
and evidence in labor proceedings (Hocheng Philippines
Corp. v. Antonio Farra/es, G.R. No. 211497, 18 March
2015). Hence, the Labor Arbiter's application thereof is cor-
rect.
'
2017 BAR EXAMINATIONS 169
Ill
A. Andrew Manning Agency (AMA) recruited Feli-
ciano for employment by lnvictus Shipping, its foreign
principal. Meantime, AMA and lnvictus Shipping termi-
nated their agency agreement. Upon his repatriation
from AMA and lnvictus Shipping the payment of his
salaries and benefits for the unserved portion of the
contract. AMA denied liability on the ground that it no
longer had an agency agreement with lnvictus Ship-
ping. Is AMA correct? Explain your answer. (3%)
B. As a rule, direct hiring of migrant workers is
not allowed. What are the exceptions? Explain your
answer. (2.5%)
C. Phil, a resident alien, sought employment in the
Philippines. The employer, noticing that Phil was a fo.
reigner, demanded that he first secure an employment
permit from the DOLE. Is the employer correct? Ex-
plain your answer. (2.5%)
Answer:
(A) No, AMA is not correct.
The solidary liability of a manning agent is not affec-
ted by the pretermination of its contract with its foreign
principal. Neither is it affected by the assumption of its res-
ponsibility by another manning agent.
(B) The following are the exceptions to the ban on
direct hiring:
(1) direct hiring of Filipinos by the diplomatic corps;
(2) direct hiring of Filipinos by foreign governments or
international organization; and
170 BARQ&A
FOR THE PAST 10 YEARS
(3) direct hiring as may be allowed by the Secretary of
Labor and Employment {Art. 18, Labor Code)
(C) No, the employer is 1ot correct.
Under D.O. 75-06, certain aliens are not required to
procure alien employment permits. Among those listed as
exempt are resident aliens, like Phil. This is still the case
under the present D.O. 186-17.
IV
~
The Regional Tripartite Wages and Productivity
Board (RTWPB) for Region 3 issued a wage order on
November 2, 2017 fixing the minimum wages for all in-
dustries throughout Region 3.
(A} Is the wage order subject to the approval of
the National Wages and Productivity Commission be-
fore it takes effect? (2%)
(B) The law mandates that no petition for wage in-
crease shall be entertained within a period of 12
months from the effectivity of the-wage order. Under
what circumstances may the Kilusang Walang Takot, a
federation of labor organizations that publicly and
openly assails the wage order as blatantly unjust,
initiate the review of the wage increases under the
wage order without waiting for the end of the 12-month
period? Explain your answer. (3%)
Answer:
(A) No.
Unless appealed in 1C calendar days to the National
Wages Productivity Comm;s~ion, a wage order becomes
effective once issued by the Regional Wages and.Produc-
tivity Board following proper conduct of consultations. (Art.
123, Labor Code).
2017 BAR EXAMINATIONS 171
(b) The Kilusang Walang Takot can always seek the
review of a blatantly unjust wage order within the 12-month
period which prohibitory period applies only to a new
application for a wage increase. The grounds for appeal
are: (I) non-observance of standards and criteria pres-
cribed by law; (II) absence of public hearings/consultations;
and (111) non-service of notices to the proper parties (Art.
123 Labor Code).
V,
A. Percival was a mechanic of Pacific Airlines. He
enjoyed a meal break of one hour. However, during
meal breaks, he was required to be on stand-by for
emergency work. During emergencies, he was made to
forego his meals or to hurry up eating. He demanded
payment of overtime for work done during his meal
periods. Is Percival correct? Explain your answer. (3%)
.
8. Distinguish a learner from an apprentice. (4%)
C. Are there differences between a househelper
and a homeworker? Explain your answer. (4%)
Answer:
(A) No.
Overtime is extra work rendered beyond normal hours
of work, as long as it is rendered within the same work day
(Art. 87, Labor Code). Since Percival's meal period is
within his normal hours of work, the work required of him
during that period is not overtime work. However, all meal
periods utilized by Pacific Airlines must be compensated
based on his basic salary; otherwise, the company would
be unjustly enriched at his expense.
172 BARQ&A
FOR THE PAST 10 YEARS
(B) A learner differs from an apprentice as follows:
1) A learner is engaged for not more than 3 months;
whereas, an apprentice is engaged for not more than 6
months;
2) A learner performs a semi-skilled work; whereas,
an apprentice performs a highly technical work;
3) A learner is regularized by the completion of his
learnership; whereas, the completion of the apprenticeship
does not regularize an apprentice;
4) The illegal dismissal a featner on the third month of
his employment regularize him; whereas, th$ illegal dismis-
sal of an apprentice anytime cH.irlng the period of his ap-
prentice does not have the same legal effect; and .
5) In the event of disputes, a learner shall file his com-
plaint with the Labor arbiter; whereas, subject to exhaus-
tion of administrative remedies, an apprentice shall file his
complaint with the DOLE Regional Director.
(C) Yes.
The differences between a househelper and a home-
worker are as follows:
1) As to regulatory law, househelpers (now kasam•
bahay) are protected by R.A. 10361; whereas, ind.ustrial
homeworkers are protected by P.D. 442; as nmumbered;
2) As to nature of work, a kasambahay ministers to
the personal comfort and convenience of a household;
whereas, a homeworker processes or fabricates raw
materials; ·
3) As to place of work, a kasambahay works at his
employer's house; whereas, a homeworker works at home
or about the premise of his home;
2017 BAR EXAMINATIONS 173
4) As to tenure, a kasambahay is a contractual wor-
ker; whereas, a homeworker has security of tenure (D.O.5,
s. 1995);
5) As to jurisdiction, the issues of a kasambahay
against his/her employer are for the DOLE Regional Direc-
tor to hear and resolve (Sec. 37, R.A. 10361 ); whereas,
the issues of a homeworker against his employer are not
exclusively for the DOLE Regional Director to resolve.
VI
A. One of Pacific Airline's policies was to hire only
single applicants as flight attendants, and considered
as automatically resigned the flight attendants at the
moment they got married. Is the policy valid? Explain
your answer. (2.5%)
B. Tarcisio was employed as operations manager
and received a monthly salary of P25,000.00 through
his payroll account with DB Bank. He obtained a loan
from Roberto to purchase a car. Tarcisio failed to pay
Roberto when the loan fell due. Roberto sued to col-
lect, and moved to garnish Tarcisio's payroll account.
The latter vigorously objected and argued that salaries
were exempt from garnishment. Is Tarcisio correct?
Explain your answer. (3%)
Answer:
(A) No, the policy is not valid.
A single status policy is valid only if it serves a legiti-
mate business purpose; otherwise, it is discriminatory as to
be within the proscriptive tone of Art. 134 of the Labor
Code, as renumbered. Since Pacific Airline's policy does
not amount to a bona fide occupational qualification
(BFQQ), it is productive of disparate treatment; hence, it
174 BARQ&A
FOR THE PAST 10 YEARS
is void. (Star Paper Corp., et.al. v. Rona/do Simbol,
et.al., G.R. No. 164774, 12 April 2006).
(8) Yes, Tarcisio is correct.
The law proscribing garnishment is supposed to per-
tain to a worker's wage only. However, given the purpose
of the prohibition which is to prevent virtual loss of employ-
ment, it also covers salaries. Garnishment as a creditor's
remedy sometimes results in loss of employment by the
debtor, resulting in the disruption of employment, produc-
tion and consumption which constitutes a substantial bur-
den on local commerce.
VII
Dr. Crisostomo entered into a retainer agreement
with AB Hotel and Resort whereby he would provide
medical services to the guests and employees of AB
Hotel and Resort, which, in turn, would provide the cli-
nic premises and medical supplies. He received a
monthly retainer fee of P60,000.00, plus a 70% share in
the service charges from AB Hotel-antl Resort's guests
availing themselves of the clinic's services. The clinic
employed nurses and allied staff, whose salaries, SSS
contributions and other benefits he undertook to pay.
AB Hotel and Resort issued directives giving instruc-
tions to him on the replenishment of emergency kits
and forbidding the clinic staff from receiving cash pay-
ments from the guests.
In time, the nurses and the clinic staff claimed en-
titlement to rights as regular employees of AB Hotel
and Resort, but the latter refused on the ground that
Dr. Crisostomo, who was their employer, was an inde-
pendent contractor. Rule with reasons. (4%)
2017 BAR EXAMrNATIONS 175
Answer:
The "rights" claim is baseless.
The claimants are the emP.loyees of Dr. Crisostomo
who is an independent contractor. Under the Fourfold Test.
no legal lie can be established between them and the hotel
which did not select them to be under its employ subject to
its duty to pay them corresponding salaries. Moreover, the
hotel is not contractually given the right to dissociate them
for just or authorized causes. Finally, the hotel does not
exercise control over the means by which they deliver medi-
cal services. On top of these, they are not economically
dependent on the hotel but on Dr. Crisostomo.
VIII
Marciano was hired as Chief Engineer on board
the vessel MN Australia. His contract of employment
was for nine months. After nine months, he was re-
hired. He was hired a third· time after another nine
months. He now claims entitlement to the benefits of a
regular employee based on his having performed
tasks usually necessary and desirable to the emplo•
yer's business for a continuous period of more than
one year. Is Marciano's claim tenable? Explain your
answer. (3%)
Answer:
No, it is not tenable.
Marciano is a seafarer; hence, he is a contractual em-
ployee (Mil/ares v. NLRC, G.R. No.110524, 29 July 2002).
As such, the nature of the onboard work performed by him
under his contracts does not give him regular employment
status since Art. 295 of the Labor Code has no application.
176 BAR Q&A
FORTHEPAST10YEARS
IX
Section 255 (245) of the Labor Code recognizes
three categories of employees, namely: managerial,
supervisory, and rank-and-file.
a. Give the characteristics of each category of
employees, and state whether the employees in each
category may organize and form unions. Explain your
answer. (5%}
b. May confidential employees who assist mana-
gerial employees, and who act in a confidential capa-
city or have access to confidential matters being
handled by persons exercising managerial functions in
the field of labor relations form, or assist, or join labor
unions? Explain your answer. (2.5%)
Answer:
(a) The characteristics of these employee categories
are as follows:
Managerial Employees. They ~xe_cute management
policies in the areas of hiring, firing, transferring, recalling,
suspending, laying off and disciplining subordinate emplo-
yee. As distinguished from top managers who are corpo-
rate officers, they are referred to as middle managers who
have supervision of the plant or a division thereof.
t vestment in the form of tools, equipment. machineries and
Supervisory Employees. Also referred to as Line
Managers, recommend managerial actions. In their dis-
charge of this function, they have discretion, independence
and th.eir recommendations are effective; and·they do not
perform their work in a clerical or routinary manner only.
Rank-and-File Employees. If neither managerial nor
. supervisory, an employee falls under this last category thru
the Principle of Elimination.
2017 BAR EXAMINATIONS 177
(b) It depends.
If the c0nfidential employees' access to the labor rela-
tions information is inherent in their job then they are dis-
qualified; otherwise, they can organize.
X
(A) The labor sector has been loudly agitating for
the end of labor-only contracting, as distinguished
from job contracting. Explain these two kinds of labor
contracting, and give the effect of a finding that one is
a labor-only contractor. Explain your answers. (4%)
(B) What are the grounds for validly terminating
the services of an employee based on a just cause?
(5%)
(C) Give the procedure to be observed for validly
terminating the services of an employee based on a
just cause? (4%)
Answer:
(A) Distinction:
Job contracting entails a trilateral affair between a
principal, contractor and worker. In this type of contracting,
the contractor is substantially capitalized or possesses in-
work premises as to have contracting capacity. In addition,
it controls the means and methods of the worker who ren-
ders services in a business undertaking independently car-
ried out by the contractor. In contrast, labor-only contrac-
ting is prohibited because the contractor lacks substantial
capital or investment and his worker performs work directly
related to the trade of his principal, or he does not exercise
labor law concept of control over the latter.
178 BARQ&A
FOR THE PAST 10 YEARS
The finding that one is a labor-only contractor results
in merger of legal personalities, i.e., the principal's legal
personality mergers with that of his labor-only contractor.
In a case initiated by the worker's complaint, therefore, the
contractor is not a necessary party. (Coca-Co/a Bottlers
Phils., Inc. v. Dela Cruz, et.al., G.R. No.184977, 7 De-
cember 2009).
(B) The specific just causes for employee termination
are the following:
(1) Serious misconduct;
(2) Fraud or loss of trust and confidence;
(3) Willful disobedience;
(4) Gross and habitual neglect of duty;
(5) Crime or offense against the employer, immediate
member of his family, or authorized representative; and
(6) Other analogous causes.
(C) The prescribed pretermina~ot} procedure for a
dismlssal for a just cause is as follows:
(1) Service of a Notice to Explain (NTE);
(2) Ample opportunity to be heard in person or with
the assistance of counsel; and
(3) Notice of Termination (NT).
XI
A. The modes of determining the exclusive bargai-
ning agent of the employees in a business are: (a) vo-
luntary recognition; (b) certification election; and (c)
consent election. Explain how they differ from one
another. {4%)
2017 BAR EXAMINATIONS 179
B. Marcel was the Vice President for Finance and
Administration and a member of the Board of Directors
of Mercedes Corporation. He brought a complaint for
illegal suspension and illegal dismissal against Merce-
des Corporation, which moved to dismiss the com-
plaint on the ground that the complaint pertained to
the jurisdiction of the RTC due to the controversy
being intra-corporate based on his positions in the
corporation. Marcel countered that he had only been
removed as Vice President for Finance and Adminis•
tration, not as a member of the Board of Directors. He
also argued that his position was not listed as among
the corporate offices in Mercedes Corporation's by-
laws. Is the argument of Marcel correct? Explain your
answer. (2.5%)
C. State the jurisdiction of the Voluntary Arbit-
rator, or Panel of Voluntary Arbitrators in labor dis-
putes? (4%) ·
Answer:
(A) Before the SEBA rule, the modes for EBR
selection were as follows:
(1) Voluntary Recognition. Thru thls mode of
election, the lone legitimate labor organization is given
recognition by the employer as the workers' sole
representative for purposes of collective bargaining.
(2) Certification Election. After the Med-Arbiter
allows a CE petition, the assigned election officer will
conduct an election between the participating unions and
No Union. The winner is the participant that gets majority
vote based on the valid votes cast.
(3) Consent Election. During a pre-election confe-
rence, the Med-Arbiter may ask the concerned unions if
they would rather agree on ground rules for the conduct
180 BAR Q&A
FOR THE PAST 10 YEARS
among themselves of an election. Either they engage the
supervision of the DOLE Regional Director or not.
(B) Mercedes argument is correct.
An intra-corporate dispute is determined with two (2)
jurisdictional rules, viz., Relationship Test and Nature of
Controversy Test. The first test on which the Mercedes
Corporation relies, is not all there is to testing the existence
of an intra-corporate controversy. The second test equally
requires that the issue be one,involving the application of
regulatory law. Here, the issue is the validity of a
suspension and dismissal which is resolvable thru the
application solely of ~abor Law.
(C) The jurisdiction of the Voluntary Arbitrator's (VA),
or Panel of VAs is as follows:
Traditional Jurisdiction. The VA has jurisdiction over
unresolved disputes arising from CBA interpretation or im-
plementation; and over unresolved disputes arising from
company personnel policy enforcement or implementation.
(Art. 274, Labor Code). _ _
Jurisdiction by Stipulation. The VA can hear and re-
solve such additional disputes. as may be expressly con-
ferred on him by the parties to a CBA or similar agreement.
(Art. 275, Labor Code; Vivero Doctrine)
XII
A. Juanita initiated a case for illegal dismissal
against Mandarin Company. The Labor Arbiter decided
in his favor, and ordered his immediate reinstatement
with full backwages and without loss of seniority and
other benefits. Mandarin Company did not like to allow
him back in its premises to prevent him from influen-
cing his co-workers to move against the interest of the
company; hence, it directed his payroll reinstatement
2017 BAR EXAMINATIONS 181
and paid his full backwages and other benefits even as
it appealed to the NLRC.
A few months later, the NLRC reversed the ruling
of the Labor Arbiter and declared that Juanito's dis-
missal was valid. The reversal ultimately became final.
May Mandarin Company recover the backwages
and other benefits paid to Juanito pursuant to the
decision of the Labor Arbiter in view of the reversal by
the NLRC? Rulewith reasons. (2.5%)
B. Gene is a married rli!gular employee of Matibay
Corporation. The employees and Matibay Corporation
had an existing CBA that provided for funeral or be-
reavement aid of P15,000.00 in case of the death of a
legal dependent of a regular employee. His widowed
mother, who had been living with him and his family
for many years, died; hence, he claimed the funeral
aid. Matibay Corporation denied the claim on the basis
that she had not been his legal dependent as the term
legal dependent was defined by the Social Security
Law.
(a) Who may be the legal dependents of Gene
under the Social Security Law? (2.5%)
(b) Is Gene entitled to the funeral aid for the death
of his widowed mother? Explain your answer. (2%)
C. Rosa was granted vacation leave by her emplo-
yer to spend three weeks in Africa with her family.
Prior to her departure, the General Manager of the
company requested her to visit the plant of a client of
the company in Zimbabwe in order to derive best ma-
nufacturing practices useful to the company. She ac-
cepted the request because the errand would be im-
portant to the company and Zimbabwe was anyway in
her itinerary. It appears that she contracted a serious
182 BAR Q&A
FOR THE PAST 10 YEARS
disease during the trip. Upon her return, she filed a
claim for compensation, insisting that she had con-
tracted the disease while serving the interest of her
employer.
Under the Labor Code, the sickness or death of an
employee, to be compensable, must have resulted
from an illness either definitely accepted as an occu-
pational disease by the Employees' Compensation
Commission, or caused by employment subject to
proof that the risk of contracting the same is increased
by working conditions.
Is the serious disease Rosa contracted during her
trip to Africa compensable? Explain your answer. (2.5%)
Answer:
(A) No.
Mandarin Company cannot recover the wages it paid
Juanita under the payroll reinstatement for these reasons:
(1) It was its exclusive prerogative to choose the kind
of reinstatement to give Juanita who- would have chosen
actual reinstatement if he had his way; hence, he cannot
be punished for helplessly submitting to the payroll reins-
tatement imposed on him; and
(2) No employee would ever agree to a payroll reins-
tatement if, at the end of the day, he would be compelled
to reimburse as to be driven to penury (PAL v. Garcia, et.
al., G.R. No. 164856, 20 January 2009),
B.
(a) Gene's legal dependents under the Social Security
Law are as follows: (I) Primary Beneficiaries, who are his
l~gitimate spouse who lives with him and all types of chil-
dren who are below 21, unmarried, and unemployed; and
2017 BAR EXAMINATIONS 183
(II) Secondary Beneficiaries, who are his parents as long
as wholly dependent on him for support.
(b) Yes, Gene is entitled to the funeral aid because
his deceased mother was wholly dependent on him for
support until her death. Being his legal dependent, she is
covered by the provision of the CBA on funeral or be-
reavement aid.
(C) Yes, it is compensable.
Under the Amended Rules on Employee Compen-
sation (AREC), disability or death arising from disease is
compensable if the disease is an occupational one, i.e., it
is listed under Annex "A" of the AREC as such. If unlisted,
it is stm an occupational disease if covered by the Proxi-
mate Cause Theory or the Increased Risk Theory. In
Rosa's case, she contracted the disease as a result of her
performance of a work-related task. Hence, there being no
efficient intervening cause breaking the chain of causes
connecting that performance to her disease, the occupa-
tional character of her medical condition is beyond doubt
(Proximate Cause Theory).
'
XIII
A. Given that the liability for an illegal strike is in-
dividual, not collective, state when the participating
union officers and members may be terminated from
employment because of the illegal strike. Explain your
answer. (4%)
B. A sympathetic strike is stoppage of work to
make common cause with other strikers in another es-
tablishment or business. Is the sympathetic strike va-
lid? Explain your answer. (1%)
C. Due to business recession, Ballistic Company
retrenched a part of its workforce. Opposing the re-
184 BARQ&A
FOR THE PAST 10 YEARS
trenchment, some of the affected employees staged a
strike. Eventually, the retrenchment was found to be
justified, and the strike was declared illegal; hence, the
leaders of the strike, including the retrenched emplo-
yees, were declared to have lost their employment sta-
tus.
Are the striking retrenched employees still en-
titled to separation pay under Sec. 298 (283) of the La-
bor Code despite the illegality of their strike? Explain
your answer. (2%)
Answer:
(A) The individual liabilities of the participants in an
illegal strike are as follows:
As to union officers, they shall lose their employment
on the basis of their knowing participation in the illegal
strike.
As to union members, they shall lose their employ-
ment based on their participation and act of committing ille-
galities in the course of the illegal striJs.e .•
(B) No, a sympathetic strike is not valid.
Of the three elements of a strike, the required labor
dispute is lacking. A labor dispute is understood as one
arising from a bargaining deadlock or unfair labor practice.
There can be no such type of dispute between parties not
related as employer and employee.
(C) Yes.
Since the retrenchment preceded the strike, the liabi-
lity of the company to pay separation pay under Art. 298 of
the Labor Code has attached already. Hence, regardless
of the outcome of its complaint for illegal strike, it must dis-
charge said duty. An illegal strike staged by retrenched
employees will not extinguish said obliga"tion.
2017 BAR EXAMINATIONS 185
XIV
Pursuant to his power under Sec. 278(g) (263(g))
of the Labor Code, the Secretary of Labor assumed ju-
risdiction over the 3-day old strike in Armor Steel
Plates, Inc., one of the country's bigger manufacturers
of steel plates, and ordered all the striking employees
to return to work. The striking employees ignored the
order to return to work.
(a) What conditions may justify the Secretary of
Labor to assume jurisdiction? (2.5%)
(b) What are the consequences of the assumption
of jurisdiction by the Secretary of Labor, and of the
· disobedience to the return to work? Explain your
answer. (2.5%)
Answer:
(a) The Secretary of Labor may assume jurisdiction if,
in his opinion, there is a labor dispute likely to result in a
strike or lockout in an industry national interest (Art.
278(g), Labor Code).
(b) The Assumption of Jurisdiction Order (AJO) of the
Secretary of Labor, whether it has an express "return to
work" instruction or not, has an injunctive effect. Hence,
once duly served, the union must return to work imme-
diately. If it ignores the AJO, the strike becomes illegal for
violation of an injunction (Injunction Test).

2018 BAR EXAMINATIONS
Narciso filed a complaint against Norte University
for the payment of retirement benefits after having
been a part-time professional lecturer in the same
school since 1974. Narciso taught for two semesters
and a summer term for the school year 1974-1975, took
a leave of absence from 1975 to 1977, and resumed
teaching until 2003. Since then, his contract has been
renewed at the start of every semester and summer,
until November 2005 when he was told that he could
no longer teach because he was already 75 years old.
Norte University also denied Narciso's claim for retire-
ment benefits stating that only full-time permanent
faculty, who have served for at least five years imme-
diately preceding the termination of their employment,
can avail themselves of post-employment benefits. As
part-time faculty member, Narciso did not acquire per-
manent employment status under the Manual of Re-
gulations for Private Schools, in relation to the Labor
Code, regardless of his length of service.
a. Is Narciso entitled to retirement benefits?
(2.5%)
b. If he is entitled to retirement benefits, how
should retirement pay be computed in the absence of
any contract between him and Norte University provi-
ding for such benefits? (2.5%)
Answer:
(a) Yes.
Although not a regular employee, Narciso is entitled
to retirement benefits under the Labor Code. As held in De
La Salle Araneta University vs. Bernardo, G.R. No. 1~0
186
2018 BAR EXAMINATIONS 187
809, 13 February 2017, Art. 302 of the Labor Code, as
renumbered, is a curative legislation which guarantees
retirement benefits to "any employee" in the absence of a
collective bargaining agreement (CSA) or similar contract.
Moreover, the implementing rules of R.A. 7641 employ the
term "all employees"; hence, non-regular employees are
not set apart from regular employees.
(b) Since Narciso appears to be entitled to both ser-
vice incentive leave (5 days) and 13th month pay (2.5.
days), his retirement benefits shall be computed based on
22.5 days. The same shall be multiplied by his applicable
daily rate and thereby his length of service which shall
include his authorized leaves.
II
Nayon Federation issued a charter certificate
creating a rank-and-file Neuman Employees Union. On
the same day, New Neuman Employees Union filed a
petition for certification election with the Department
of Labor and Employment (DOLE) Regional Office, at-
taching the appropriate charter certificate.
a. The employer, Neuman Corporation, filed a mo-
tion to dismiss the petition for lack bf legal personality
on the part of the petitioner union. Should the motion
be granted? (2.5%)
b. The employer likewise filed a petition for can-
cellation of union registration against New Neuman
Employees Union, alleging that Nayon Federation al-
ready had a chartered local rank-and-file union,
Neu.man Employees Union, pertaining to the same bar-
gaining unit within the establishment. Should the peti-
tion for cancellation prosper? (2.5%)
 ; ,;>,,.,ll~
BARQ&A
188
FOR THE PAST 10 YEARS
Answer:
(a) No.
For the limited purpose of filing a petition for certifica-
tion election, a charter has the legal personality even be-
fore it can formally be issued its certificate of registration
(Art. 241, Labor Code). Moreover, a certifrcation election
is a mode of verification only. Being investigative in charac-
ter, which does not initiate a litigation between the union
and the employer, the latter cannot move to dismiss the
petition because it is just a standby fHerit~ge Hotel
Manila v. Sec. of Labor, et al., G.R. No. 172132., 23 July
2014). Finally, the relationship between a federation and
its charter is that of an agency wherein the latter is the
principal. As such, it can take back from its agent the dele-
gated power to file a certification election petition on its
behalf.
(b) No.
The only recQgniz~d .grounds fe>fCi;lnc::eUl:itipn of a ¢er:..
tlficate of registration underArt. 247 oftha Labor Cod~.
as renumbered,; are:.(a) .mrarepresentat19n,·facls1?.$tatem~nt st
orfraud relative t9 the adoptkm or ratiflcatlom e1Hhe un1or:i s;
constitution and by-laws (CBL); (b) misrepresentation,
false statement, or fraud relative to the election of its union
officers; and (c) voluntary dissolution. The ground invoked
being outside the statutory list, the cancellation petition
filed by the federation should not be allowed to prosper ..
Ill
Due to his employer's dire financial situation,
Nicanor was prevailed upon by his employer to
voluntarily resign. In exchange, he demanded payment
of salary differentials, 13th month pay, and financial
assistance, as promised by his employer. Management
promised to pay him as soon as it is able to pay off all
•;> "•• "' • ,• .. ' ""'
2018 BAR EXAMINATIONS 189
retrenched rank-and-file employees. Five years later,
and before management was able to pay Nicanor the
amount promised to him, Nicanor died of a heart
attack. His widow, Norie, filed a money claim against
the company before the National Labor Relations Com-
ission (NLRC), including interest on the amount of the
unpaid claim. She also claimed additional damages
arguing that the supposed resignation letter was
obtained from her spouse through undue pressure and
influence. The employer filed a motion to dismiss on
the ground that (A) the NLRC did not have jurisdiction
over money claims, and (B) the action has prescribed.
(a) Does the NLRC have jurisdiction to award
money claims including interest on the amount un-
paid? (2.5%)
(b) Assuming that the NLRC has jurisdiction, has
the action prescribed? (2.5%)
(c) May Nicanor's spouse successfully claim ad-
ditional damages as a result of the alleged undue pres-
sure and influence? (2.5%)
Answer:
(a) Yes.
The NLRC, thru the Labor Arbiter, has jurisdiction
over money claims reasonably connected to employer-em-
ployee relationship (Reasonable Causal Connection
Rule); provided the money issue is resolvable thru the
application solely of Labor Law (Sole Reference to Labor
Law Rule). Since both jurisdictional requirements are
present, the widow's money claims, including interest, can
be heard and determined by the NLRC.
(b) No.
Pursuant to the Principle of Promissory Estoppel,
the action has not prescribed (Accesories Specialist, Inc.
190 BARQ&A
FOR THE PAST 10 YEARS
v. Alabanza, G.R. No. 168985, 23 July 2008). Here, the
employer made an express promise to pay; said promise
reasonably induced belief or action; and the employee,
having been induced to believe that payment was forth-
coming, did not file a money complaint within 3 years. If his
omission be taken against him then he would be disadvan-
taged by his reasonable reliance on his employer's
promise of payment.
(c) Yes.
The wife may allege and support with substantial evi-
dence moral and exemplary damages (Art. 224, Labor
Code). In this regard, she must prove the employer's use
of scheme, manifest bad faith, and intention to make use
of Art. 306 of the Labor Code to avoid a legal duty.
IV
Natasha Shoe Company adopted an organiza•
tional streamlining program that resulted in the re-
trenchment of 550 employees in its main plant. After
having been paid their separation -benefits, the retren-
ched workers demanded payment of retirement bene-
fits under a CBA between their union and manage-
ment. Natasha Shoe Company denied the workers de-
mand.
(a) What is the most procedurally peaceful means
to resolve this dispute? (2.5%)
(b) Can the workers claim both separation pay
and retirement benefits? (2.5%)
Answer:
(a) Since the establishment is organized, the mode of
settlement most procedurally peaceful is recourse to the
grievance machinery. If the dispute be not resolved within
2018 BAR EXAMINATIONS 191
seven (7) calendar days, the same shall be elevated to
voluntary arbitration.
(b) Unless expressly prohibited by the CSA, both se-
paration pay and retirement benefits can be claimed
(Good Year v. Marina Angus, 185499, 14 November
2014). This is in keeping with both the Social Justice
Clause and the Full Protection Clause.
V
Nelda worked as a chambermaid in Hotel Never-
land with a basic wage of PhP560.00 for an eight-hour
workday. On Good Friday, she worked for one (1) hour
from 10:00 PM to 11 :00 PM. Her employer paid her only
PhP480.00 for each 8-hour workday, and PhP70.00 for
the work done on Good Friday. She sued for under-
payment of wages and non-payment of holiday pay
and night shift differential pay for working on a Good
Friday. Hotel Neverland denied the alleged underpay-
ment, arguing that based on long-standing unwritten
tradition, food and lodging costs were partially
shouldered by the employer and partially paid for by
the employee through salary deduction. According to
the employer, such valid deduction caused the pay-
ment of Nelda's wage to be below the prescribed mini-
mum. The hotel also claimed that she was not entitled
to holiday pay and night shift differential pay because
hotel workers have to work on holidays and may be
assigned to work at night.
(a) Does the hotel have valid legal grounds to de-
duct food and lodging costs from Nelda's basic sa-
lary? (2.5%)
(b) Applying labor standards law, how much
should Nelda be paid for work done on Good Friday?
192 BARQ&A 2018 BAR EXAMINATIONS 193
FOR THE PAST 10 YEARS

Show the computation in your test booklet and en-
circle your final answer. (2.5%)
Answer:
(a) No.
Even assuming the food and lodging qualified as faci-
lities, the hotel should have first applied for a facility eva-
luation permit with the Office of the Regional Director. Ab-
sent said permit, it could not deduct the value of the food
and lodging from the wage of Nelda.
(b) Nelda's take-home pay for working on Good
Friday is as follows:
Salary for 1 hour work rendered P 70.00
Holiday Pay P560.00
Nightshift Pay (10:00 to 11 :00 work) 7 .00
Total ............................ P 637.00
VI
A certification election was conducted in Nation
Manufacturing Corporation, whereby 55% of eligible
voters in the bargaining unit cast their. votes. The
results were as follows:
Union Nana: 45 votes
Union Nada: 40 Votes
Union Nara: 30 votes
No Union 80 votes
Union Nana moved to be declared as the winner
of the certification election.
(a) Can Union Nana be declared as the winner?
(2.5%)
(b) Assume that the eligibility of 30 voters was
challenged during the pre-election conference. The
ballots of the 30 challenged voters were placed inside
an envelope sealed by the DOLE Election Officer.
Considering the said envelope remains sealed, what
should be the next course of action with respect to the
said challenged votes? (2.5%)
Answer:
(a) No.
To win a certification election, a participant must gar-
ner so much number of votes comprising majority of all va-
lid votes. In this case, the majority vote is 97 .5. With just 45
votes, Union Nana lost the election; hence, it cannot be
certified.
(b) The necessity of opening the sealed envelopes
must be determined. If the 30 challenged votes could ma-
terially alter the result of the election then they have to be
opened. Since there is a possibility that at least 17.5 of the
challenged votes were cast in favour of No Union, the en-
velopes must be opened. If added to its 80 votes, No
Union would win the CE with 97.5 votes. Needless to say,
No Union can win a certification election.
VII
Nico is a medical representative engaged in the
pro-motion of pharmaceutical products and medical
devices for Northern Pharmaceuticals, Inc. He regular-
ly visits physicians'clinics to inform them of the che-
mical composition and benefits of his employer's pro-
ducts. At the end of every day, he receives a basic
wage of PhP700.00 plus a PhP150.00 "productivity al-
lowance." For purposes of computing Nico's 13th
194 BARQ&A
FOR THE PAST 10 YEARS
month pay, should the daily "productivity allowance"
be included? (2.5%)
Answer:
Since a productivity allowance is not performance-
based, it is not under the category of wage-type bonus. As
such, it is not part of Nico's basic salary (Boie-Takeda
Chemicals, Inc. v. Dela Serna, G.R. Nos. 92147 & 102
552, 10 December 1993). Therefore, it should be excluded
because 13th month pay is computed based only on a co-
vered employee's basic salary (P.D. 851).
VIII
Nathaniel has been a salesman assigned by New-
mark Enterprises (Newmark) for nearly two years at
the Manila office of Nutrition City, Inc. (Nutrition City).
He was deployed pursuant to a service agreement bet-
ween Newmark and Nutrition City, the salient provi-
sions of which were as follows:
a) the Contractor (Newmark) agrees to perform
and provide the Client (Nutrition City), on a non-ex-
clusive basis, such tasks or activities that are consi-
dered contractible under existing laws, as may be
needed by the Client from time to time;
b) the Contractor shall employ the necessary
personnel like helpers, salesmen, and drivers who are
determined by the Contractor to be efficiently trained;
c) the Client may request replacement of the Con-
tractor's personnel if quality of the desired result is
not achieved;
d) the Contractor's personnel will comply with the
Client's policies, rules, and regulations; and
2018 BAR EXAMINATIONS 195
e) the Contractor's two service vehicles and ne-
cessary equipment will be utilized in carrying out the
provisions of this Agreement
f) When Newmark fired Nathaniel, he filed an ille-
gal dismissal case against the wealthier company, Nut-
rition City, Inc., alleging that he was a regular emplo-
yee of the same. Is Nathaniel correct? (2.5%).
Answer:
(a) No.
In job-contracting, the principal is a statutory employer
but for a limited purpose only, i.e., to ensure payment of
the wages unlawfully withheld by its service provider as re-
quired by Art. 106 of the Labor Code (Mera/co Industrial
Engineering Services, Inc. v. NLRC, G.R. No. 145402,
14 March 2008). Being substantially capitalized or in pos-
session of required investment, Newmark is a legitimate
job contractor. Hence, applying Art. 106, its act of illegally
dismissing Nathaniel will not create comprehensive solida-
ry liability on the part of its principal as to be liable therefor.
IX
Sgt. Nemesis was a detachment non-commis-
sioned officer of the Armed Forces of the Philippines
in Nueva Ecija. He and some other members of his
detachment sought permission fr~m their Company
Commander for an overnight pass to Nueva Vizcaya to
settle some important matters. The Company Com-
mander orally approved their request and allowed
them to carry their firearms as the place they were
going to was classified as a "critical place." They
arrived at the place past midnight; and as they were
alighting from a tricycle, one of his companions acci-
dentally dropped his rifle, which fired a single shot,
and in the process hit Sgt. Nemesis fatally. The shoo-
196 BARQ&A
FOR THE PAST 10 YEARS
ting was purely accidental. At the time of his death, he
was still legally married to Nelda, but had been sepa-
rated de facto from her for 17 years. For the last 15
years of his life, he was living in with Narda, with
whom he has two minor children. Since Narda works
as a kasambahay, the two children lived with their
grandparents, who provided their dally support. Sgt.
Nemesis and Narda only sent money to them every
year to pay for their school tuition. Nelda and Narda,
both for themselves and the latter, also on behalf of
her minor children, separately filed claims for compen-
sation as a result of the death of Sgt. Nemesis. The
Line of Duty Board of the AFP declared Sgt. Nemesis'
death to have been "in line of duty", and recommen-
ded that all benefits due Sgt. Nemesis be given to his
dependents. However, the claims were denied by GSIS
because Sgt. Nemesis was not in his workplace nor
performing his duty as a soldier of the Philippine Army
when he died.
(a) Are the dependents of Sgt. Nemesis entitled to
compensation as a result of his death? (2.5%)
(b) As between Nelda and Narda, who should be
entitled to the benefits? (2.5%)
(c) Are the minor children entitled to the benefits
considering that they were not fully dependent on Sgt.
Nemesis for support? (2.5%)
Answer:
(a) Only the primary and secondary dependents of
Sgt. Nemesis, meeting prescribed qualifications, are en-
titled to compensation. As to Nelda, she must be his legal
spouse and she must be living with him. As to his children,
both legitimate and illegitimate, they must be below 21, un-
married, and not gainfully employed.
2018 BAR EXAMINATIONS 197
(b) Neither Nelda nor Narda is entitled to the benefit.
As to Nelda, she is not living with the member; hence,
lacking the second requisite, she is not a primary depen-
dent. As to Narda, she is not the legal spouse; hence,
lacking the first requisite, she is not also a primary depen-
dent.
(c) The minor children, even if not fully dependent on
Sgt. Nemesis, are entitled to the benefits because they are
all below 21, unmarried and not gainfully employed. Being
fully dependent, or living with the member, is not a requi-
site as to them.
X
Nonato had been continuously employed and
deployed as a seaman who performed services that
were necessary and desirable to the business of N-
Train Shipping, through its local agent, Narita Maritime
Services (Agency), in accordance with the 2010
Philippine Overseas Employment Administration
Standard Employment Contract (2010 POEA-SEC).
Nonato's last contract (for five months) expired on
November 15, 2016. Nonato was then repatriated due
to a "finished contract." He immediately reported to
the Agency and complained that he had been expe-
riencing dizziness, weakness, and difficulty in
breathing. The Agency referred him to Dr.Neri, who
examined, treated, and prescribed him with medica-
tions. After a few months of treatment and consulta-
tions, Nonato was declared fit to resume work as a
seaman. Nonato went back to the Agency to ask for re-
deployment but the Agency rejected his application.
Nonato filed an illegal dismissal case against the
Agency and its principal, wi,th a claim for total disabi-
lity benefits based on the ailments that he developed
on board N-Train Shipping vessels. The claim was
 BARQ&A
198
FOR THE PAST 10 YEARS
based on the certification of his own physician, Dr.
Nunez, that he was unfit for sea duties because of his
hypertension and diabetes.
a) Was Nonato a regular employee of N-Train
Shipping? (2.5%}
b) Can Nonato successfully claim disability bene-
fits against N-Train Shipping and its agent Narita Mari-
time Services? (2.5%)
Answer:
(a) No.
A seafarer is a contractual employee (Millares v.
NLRC, G.R. No. 110524, 29 July 2002). As such, he is
bound to the period stipulated in his fixed-term employ-
ment contract. Therefore, dissociation by reason of expira-
tion thereof does not constitute dismissal of a regular em-
ployee (Alma Covita v. SSM Maritime Services, Inc.,
G.R. No. 206600, 7 December 2016).
Nonato cannot successfully claim disability compen-
sation for these reasons: First, the requisites for compen-
sability are not present. Second, the Third Physician Rule
was not observed.
The twin-requisites of compensation for disability ari-
sing from disease are: (a) work-connection, and (b) effec-
tivity of contract (Sec. 20 -A, POEA-SEC). For a disease
to be work-connected, it must be listed under Sec. 32-A of
the POEA-SEC, subject to the disputable presumption of
work-connection as to unlisted diseases. To meet the se-
cond requisite, it must have been contracted or aggravated
during the effectivity of the seafarer's employment contract.
Since Nonato finished his contract, i.e., he was not me-
dically repatriated due to a work-connected disease, the
second requisite is absent. Moreover, he should have sub-
mitted himself to a third physician given the conflicting me-
dical assessments made by the company-designated phy~
2018 BAR EXAMINATIONS 199
sician and his physician of choice. He did not. For this ad-
ditional reason, he cannot successfully claim disability
compensation based on his medical evidence. (Philippine
Hammonia Ship Agency v. Eulogio Dumadag, G.R. No.
194362, 26 June 2013).
XI
Your favorite relative, Tita Nilda, approaches you
and seeks your advice on her treatment of her kasam-
bahay, Noray. Tita Nilda shows you a document called
a "Contract of Engagement" for your review. Under the
Contract of Engagement, Noray shall be entitled to a
rest day every week; provided that she may be reques-
ted to work on a rest day if Tita Nilda should need her
services that day. Tita Nilda also claims that this
Contract of Engagement should embody all terms and
conditions of Noray's work as the engagement of a ka-
sambahay is a private matter and should not be regu-
lated by the State.
a) Is Tita Nilda correct in saying that this is a
private matter and should not be regulated by the
State? (2.5%)
b) Is the stipulation that she may be requested to
work on a rest day legal? (2.5%)
c) Are stay-in family drivers included under the
Kasambahay Law?
Answer:
(a) No.
The engagement of an employee is not a contractual
matter only; it is, at the same time, impressed with public
interest to the end that stipulations in employment con-
tracts are subject to special laws for the protection of labor
(Alt. 1700, New Civil Code).
200 BARQ&A
FOR THE PAST 10 YEARS
(b) Yes.
The stipulation is reasonable. A kasambahay is en-
titled to a weekly rest period of a 24 consecutive hours fol-
lowing 6 consecutive days of work. However, for justifiable
ends, a worker's scheduled rest day may be moved to
another day. Hence, unless the stipulation is abused as to
amount to deprivation on a regular basis, it is valid.
(c) No.
Stay-in family drivers are not kasambahays. They are
regular employees pursuant to R.A. 10361.
XII
Nena worked as an Executive Assistant for Nes-
ting, CEO of Nordic Corporation. One day, Nesting
called Nena into his office and showed her lewd pic-
tures of women in seductive poses which Nena found
offensive. Nena complained before the General Ma-
nager who, in turn, investigated the matter and recom-
mended the dismissal of Nesting to_th_e Board of Direc-
tors. Before the Board of Directors, Nesting argued,
that since the Anti-Sexual Harassment Law requires
the existence of "sexual favors," he should not be dis-
missed from the service since he did not ask for any
sexual favor from Nena. ls Nesting correct? (2.5%)
Answer:
No.
The essence of sexual harassment is unwanted se-
xual attention. That Nena found the lewd pictures offensive
is an indication of the unwanted nature of Nesting's overt
act. Demand, requirement or request for sexual favour
need not be articulated in a categorical oral or written
statement. It may be discerned, with equal certitude, from
2018 BAR EXAMINATIONS 201
the acts of the offender. If the combined acts, i.e., preposi-
tioning the lewd pictures and summoning Nena into
Nesting's office for her to view them, "resound with defea-
ning clarity the unspoken request for sexual favor", sexual
harassment is deemed committed. (Domingo v. Raya/a,
G.R. Nos.155831& 155840, 18 February 2008)
XIII
Nicodemus was employed as a computer prog-
rammer by Network Corporation, a telecommunica-
tions firm. He has been coming to work in shorts and
sneakers, in violation of the "prescribed uniform poli-
cy" based on company rules and regulations. The
company human resources manager wrote him a let-
ter, giving him 10 days to comply with the company
uniform policy. Nicodemus asserted that wearing
shorts and sneakers made him more productive, and
cited his above-average output. When he came to work
still in violation of the uniform policy, the company
sent him a letter of termination of employment.
Nicodemus filed an illegal dismissal case. The Labor
Arbiter ruled in favor of Nicodemus and ordered his
reinstatement with backwages. Network Corporation,
however, refused to reinstate him. The NLRC 1st Divi-
sion sustained the Labor Arbiter's judgment. Network
Corporation still refused to reinstate Nicodemus.
Eventually, the Court of Appeals reversed the decision
of the NLRC and ruled that the dismissal was valid.
Despite the reversal, Nicodemus still filed a motion for
execution to with respect to his accrued backwages.
a. Were there valid legal grounds to dismiss Nico-
demus from his employment? (2.5%)
b. Should Nicodemus' motion for execution be
granted? (2.5%)
202 BARQ&A
FOR THE PAST 10 YEARS
Answer:
(a) Yes.
The acts of Nicodemus constituted willful disobe-
dience. The company rule he violated was a reasonable
workplace rule; it pertained to his duty; it was made known
to him; he wilfully violated it; and his wilful violation is cha-
racterized by wrongful and perverse mental attitude (Mon-
tallana v. La Consolacion College Manila, et al., G.R.
No. 208890, 8 December 2014) as shown by his persis-
tence and incorrigibility. In fact, habituality is not even an
element of insubordination. (Aparente v. NLRC, G.R. No.
117652, 27 April 2000)
(b) Yes.
Nicodemus is entitled to reinstatement wages. Had
Network Corporation complied with the reinstatement or-
der, he would have been momentarily restored to both his
work and pay. Absent justification for the non-reinstate-
ment, the duty to pay the wages he would have earned
had he been reinstated and allowed to work until reversal
of the judgment must be imposed on t-t=ie-company (Garcia,
et al. v. PAL, Inc., G.R. No. 164856, 20 January 2009,
Footnote No. 12).
XIV
Nelson complained before the DOLE Regional
Office about Needy Corporation's failure to pay his
wage increase amounting to PhPS,000.00 as mandated
in a Wage Order issued by the Regional Tripartite
Wages and Productivity Board. Consequently, Nelson
asked the DOLE to immediately issue an Order sustai-
ning his money claim. To his surprise, he received a
notice from the DOLE to appear before the Regional
Director for purposes of conciliating the dispute bet-
ween him and Needy Corporation. When conciliation
2018 BAR EXAMINATIONS 203
before the Regional Director failed, the latter procee-
ded to direct both parties to submit their respective
position papers in relation to the dispute. Needy Cor-
poration argued that since Nelson was willing to settle
for 75% of his money claim ~uring conciliation procee-
dings, only a maximum of 75% of the said money claim
may be awarded to him.
a. Was DOLE's action to conduct mandatory con-
ciliation in light of Nelson's complaint valid? (2.5%)
b. Should the Regional Director sustain Needy
Corporation's argument? (2.5%)
Answer:
(a) Yes.
No dispute shall progress to the filing of a complaint
unless the disputants have gone thru SEnA proceedings
(Sec. 1, R.A. 10396; Art 234, P.D 442). Hence, it was en-
tirely proper on the part of the Regional Director to treat the
complaint as a SEnA request.
(b) No.
Since mediation proceedings failed, judgment shall
be rendered after reception of evidence. To be valid, said
judgment must be based only on established facts and ap-
plicable law and doctrine. Incidents, like monetary de-
mands or offers in a failed SEnA proceedings and in failed
preliminary mandatory conferences do not constitute evi-
dence. In fact, they are to be treated as sacrosanct or privi-
leged communication (Pentagon Steel Corp. v. CA, et al.,
G.R. No. 174141, 26 June 2009).
xv
Nexturn Corporation employed Nini and Nono,
whose tasks involved directing and supervising rank-
204 BARQ&A
FOR THE PAST 10 YEARS
and-file employees engaged in company operations.
Nini and Nono are required to ensure that such emplo-
yees obey company rules and regulations, and recom-
mend to the company's Human Resources Department
any required disciplinary action against erring emplo-
yees. In Nexturn Corporation, there are two indepen-
dent unions, representing rank-and-file and superviso-
ry employees, resp.ectively.
a) May Nini and Nono join a union? (2.5%)
b) May the two unions be affiliated with the same
Union Federation? (2.5%)
Answer:
(a) Yes.
As supervisors, Nini and Nono are allowed by Art.
255 of the Labor Code to join a union; provided, they do
not join a union composed of rank-and-filers to bar conflict
of interest.
(b) Yes.
Under R.A 9481, a union composed of rank-and-file
employees and one composed of supervisors can affiliate
with the same federation, provided they belong to the
same establishment.
XVI
Nagrab Union and Nagrab Corporation have an
existing CBA which contains the following provision:
"New employees within the coverage of the bargaining
unit who may be regularly employed shall become
members of Nagrab Union. Membership in good stan-
ding with the Nagrab Union is a requirement for con-
tinued employment with Nagrab Corporation." Nagrab
Corporation subsequently acquired all the assets and
2018 BAR EXAMINATIONS 205
rights of Nuber Corporation and absorbed all of the lat-
ter's employees. Nagrab Union immediately demanded
enforcement of the above-stated CBA provision with
respect to the absorbed employees. Nagrab Corpora-
tion refused on the ground that this should not apply
to the absorbed employees who were former emplo-
yees of another corporation whose assets and rights it
had acquired.
a) Was Nagrab Corporation correct in refusing to
enforce the CBA provision with respect to the ab-
sorbed employees? (2.5%)
b) May a newly-regularized employee of Nagrab
Corporation (who is not part of the absorbed emplo-
yees) refuse to join Nagrab Union?
c) How would you advise the human resources
manager of Nagrab Corporation to proceed? (2.5%)
Answer:
(a) No.
The distinction between employees hired as probatio-
nary or temporary to be regularized later and absorbed
employees is insubstantial. As long as they joined the com-
pany after the effectivity of the Union Shop Clause, they
are bound thereto. Therefore, as to the absorbed emplo-
yees, they are covered by the union security clause (BPI v.
BPI Employees Union- Davao Chapter-Federation of
Unions in BPI UNJBANK, G.R. No. 164301, 19 October
2011).
(b) No.
He is not a new employee or a new hire; hence, he is
not covered by the union security clause. Only a CBA pro-
vision in print. can be enforced (SWOFLU, et al. v. SONE-
DCO, G.R. No. 220383, 5 October 2016).
206 BARQ&A 2018 BAR EXAMINATIONS 207
FORTHEPAST10YEARS

(c) I will advise the HR Manager to classify the em-
ployees into new hires and old hires, with specific refe-
rence to the date of effectivity of the Union Shop Clause.
Those covered by the clause may be dismissed upon re-
quest of the union, subject to due process.
back to work. As an exception, which fails to obtain here,
strikers whose employee status is under challenge may be
reinstated on the payroll (University of the Immaculate
Conception, Inc. v. Hon. Sec. of Labor, G.R. No. 151
379, 14 January 2005).

XVII

Upon compliance with the legal requirements on

the conduct of a strike, Navarra Union staged a strike
against Newfound Corporation on account of a collec-
tive bargaining deadlock. During the strike, some
members of Navarra Union broke the windows and
punctured the tires of the company-owned buses. The
Secretary of Labor and Employment assumed jurisdic-
tion over the dispute.
a} Should all striking employees be admitted
back to work upon the assumption of jurisdiction by
the Secretary of Labor and Employment? Will these
include striking employees who damaged company
properties? (2.5%)
- .
b) May the company readmit strikers only by
restoring them to the payroll? (2.5%)

Answer:
(a) Provided the Assumption of Jurisdiction Order
(AJO) is duly served on the company, it must admit the
strikers back to work under the same terms and conditions
obtaining prior to the strike. As to the strikers who da-
maged company properties, they shall be admitted back
unless dismissed under Art. 297 of the Labor Code.

(b) No.
The phrase "under the same terms and conditions" in
Art. 278(g) of the Labor Code means actual admission

2019 BAR EXAMINATIONS
PARTI
A.1.
Define, explain or distinguish the following_terms:
{a) Just and authorized causes (2%)
(b) Seasonal and project employees (2%)
(c) Strikes and lockouts (2%)
(d) Bona fide occupational qualifications (2%)
(e) Grievance machinery (2%)
Answer:
(a) A just cause is a fault-based ground for dismissal
under Art. 297, Labor Code; whereas, an authorized
cause is a non-fault ground for dismissal under Articles
298 and 299 of the Labor Code.
(b) A seasonal employee is one- engaged for the du-
ration of the season for which he has been engaged;
whereas, a project employee is one whose employment is
co-terminus with the specific project or undertaking for
which he has been engaged; provided, its scope or dura-
tion was made known to him upon his engagement (Art.
295, Labor Code).
(c) Strikes are carried out thru temporary stoppage
of work; whereas, lockouts are carried out thru temporary
withholding of work (Art. 279, Labor Code).
(d) A bona fide occupational qualification (BFOQ) is
an occupational requirement based on quality or attribute.
It is valid if it serves a legitimate business purpose, it is
work-related, and its possession enhances an employee's
208
2019 BAR EXAMINATIONS 209
productivity at work (Star Paper Corp., et al. v. Simbol, et
al., G.R. No. 164774, 12 April 2006).
(e) A grievance machinery is a contractual dispute
resolution mechanism for all grievable disputes. It is a
mandatory provision of a collective bargaining agreement
(CBA), without which it cannot be registered.
A.2.
X is a member of the Social Security System
(SSS). In 2015, he died without any spouse or children.
Prior to the semester of his death, X had paid 36
monthly contributions. His mother, M, who had pre-
viously been receiving regular support from X, filed a
claim for the latter's death benefits.
(a) Is M entitled to claim death benefits from the
SSS? Explain. (2.5%)
(b) Assuming that X got married to his girlfriend a
few days before his death, is M entitled to claim death
benefits from the SSS? Explain. (2.5%)
Answer:
(a) M is entitled to the death benefits. Being the
mother of X, who was single and without issue, she is ele-
vated to the status of sole beneficiary (Sec-. 8 '(k), R.A.
8282).
(b) In view of the marriage of X to his girlfriend, M is
deemed restored to her secondary beneficiary status.
Hence, X's wife will be his primary beneficiary until she
remarries; provided, she was living with him at the time of
his death (Sec. B(k), R.A. 8282; Yolanda Signey v. SSS,
G.R. No. 173582, 28 January 2008).
210 BARQ&A
FOR THE PAST 10 YEARS
A.3.
A, B, and C were hired as resident-doctors by MM
Medical Center, Inc. In the course of their engagement,
A, B, and C maintained specific work schedules as de-
termined by the Medical Director. The hospital also
monitored their work through supervisors who gave
them specific instructions on how they should perform
their respective tasks, including diagnosis, treatment,
and management of their patients.
One day, A, B, and C approached the Medical Di-
rector and inquired about the non-payment of their em-
ployment benefits. In response, the Medical Director
told them that they were not entitled to any because
they were mere "independent contractors" as express-
ly stipulated in the contracts which they admittedly
signed. As such, no employer-employee relationship
existed between them and the hospital.
(a) What is the control test in determining the
existence of an employer-employee? (2%)
(b) Is the Medical Director's reliance on the con-
tracts signed by A, B, and C to refute the existence of
an employer-employee relationship correct? If not, are
A, B, and C employees of MM Medical Center, Inc.?
Explain. (3%)
Answer:
a) Under the Control Test, the person who exercises
labor law concept of control, actual or reserved, is the em-
ployer of the person over whom he exercises it. Labor law
concept of control is control over means and methods of
performance (Orozco v. CA, Philippine Daily Inquirer &
Magsanoc G.R. No. 155207, 13 Aug. 2008).
2019 BAR EXAMINATIONS 211
(b) No, the Medical Director is not correct. Employer-
employee relationship is a question of both law and fact.
Law provides its cognitive significance, whereas evidence
gives its out-there representation. Being a matter of law
and evidence, it cannot be the subject of stipulation. A, B
and C, who are not medical specialists, are the employees
of MM Medical Center, Inc. owing to the "means-methods
control" exercised by the latter over them.
A.4.
Mrs. B, the personal cook in the household of X,
filed a monetary claim against her employer, X, for de-
nying her service incentive leave pay. X argued that
Mrs. B did not avail of any service incentive leave at
the end of her one (1) year of service and hence, not
entitled to the said monetary claim.
(a) Is the contention of X tenable? Explain. (2.5%}
(b) Assuming that Mrs. B is instead a clerk in X's
company with at least 30 regular employees, will her
monetary claim prosper? Explain (2.5%}
Answer:
(a) No, X's contention is not tenable. As a kasamba-
hay, Mrs. B is entitled to service incentive leave {R.A.
10361). As such, she has the prerogative to use it, mone-
tize it after 12 months of service, or commute it until sepa-
ration from service. If she elects the second, she has three
(3) years from demand for payment to avail of the benefit
(Lourdes Rodriguez v. Park N Ride, G.R. No. 222980,
20 March 2017) . .Hence, not being a prescribed claim, its
withholding is unlawful.
{b) Being a corporate employee, Mrs. B is a covered
employee. And not being one of the less than ten (1 O) re-
gular employees, as her employer has at least 30 regular
212 BARQ&A
FOR THE PAST 10 YEARS
employees, she is qualified. Hence, prescription being a
non-issue, she is entitled to service incentive leave.
A.5.
Ms. F, a sales assistant, is one of the eight (8) wor-
kers regularly employed by ABC Convenience Store.
She was required to report on December 25 and 30.
Should ABC Convenience Store pay her holiday
pay? Explain. (2.5%)
Answer:
No. ABC Convenience Store, being a retail establish-
ment, does not have the duty to pay holiday pay to Ms. F
because she is one of its less than ten (10) regular em-
ployees. As such, she is disqualified by Art. 94 (a) of the
Labor Code.
A.6.
D, one of the sales representatives of OP; Inc.,
was receiving a basic pay of PS0,000.00 a month, plus
a 1% overriding commission on his actual sales tran-
sactions. In addition, beginning three (3) months ago,
or in August 2019, D was able to receive a monthly gas
and transportation allowance of PS,000.00 despite the
lack of any company policy therefor.
In November 2019, D approached his manager
and asked for his gas and transportation allowance for
the month. The manager declined his request, saying
that the C{)mpany had decided to discontinue the
aforementioned allowance considering -the increased
costs of its overhead expenses. In response, D argued
that OP, lnc.'s removal of the gas and transportation
allowance amounted to a violation of the rule on non-
diminution of benefits.
2019 BAR EXAMINATIONS 213
Is the argument of D tenable? Explain. (2.5%)
Answer:
No, D's argument is not tenable.
The Principle of Non-Diminution of Benefits (Art.
100, Labor Code) strictly pertains to pre-promulgation be-
nefits and not to post-promulgation benefits such as
subject allowance (Apex Mining Co. v. NLRC, G.R. No.
86200, 25 Feb. 1992; Insular Hotel Employees Union-
NFL v. Waterfront Insular Hotel Davao, G.R. No. 174
040, 22 Sept. 2010). If what is diminished is a post-promul-
gation benefit, the rule violated is the Principle of Grants.
At any rate, the subject allowance has not yet ripened to a
demandable right since its enjoyment was for a few
months only and the company did not intend to grant it
permanently.
A.7,
W Gas Corp. is engaged in the manufacture and
distribution to the general public of various petroleum
products. On January 1, 2010, W Gas Corp. entered in-
to a Service Agreement with Q Manpower Co., whereby
the latter undertook to provide utility workers for the
maintenance of the former's manufacturing plant. Al-
though the workers were hired by Q Manpower Co.,
they used the equipment owned by W Gas Corp. in
performing their tasks, and were likewise subject to
constant checking based on W Gas Corp. 's proce-
dures.
On February 1, 2010, Mr. R, one of the utility
workers, was dismissed from employment in line with
the termination of the Service Agreement between W
Gas Corp. and Q Manpower Co. Thus, Mr. R filed a
complaint for illegal dismissal against W Gas Corp.,
claiming that Q Manpower Co. is only a labor-only con-
214 BAR Q&A
FOR THE PAST 10 YEARS
tractor. In the course of the proceedings, W Gas Corp.
presented no evidence to prove Q Manpower Co.'s
capitalization.
(a) Is Q Manpower Co. a labor-only contractor?
Explain. (2.5%)
(b) Will Mr. R's complaint for illegal dismissal
against W Gas Corp. prosper? Explain. (2.5%)
Answer:
(a) Q Manpower Co., not being substantially capita-
lized and possessed with investment in the form of tools,
equipment, machineries or work premises, is a labor-only
contractor. Relevantly, its apparent labor-only contractor
status is confirmed by the fact that it does not control the
means and methods of performance of the manpower it
supplied. Since both essential element and confirming ele-
ment are present, it is a labor-only contractor (Prof. C.A.
Azucena).
(b) Yes, it will prosper. In labor-only contracting, the
legal personality of the principal merges with that of its la-
bor-only contractor who is just its agent ·rcoca-Cola Bott-
lers Phils., Inc. v. de/a Cruz, et /., G.R. No. 184977, 7
Dec. 2009). Hence, pursuant to the Principle of Merger of
Legal Personalities, the former as the real employer can
be proceeded against for illegal dismissal despite the
termination of subject contracting agreement.
A.8.
Ms. T was caught in the act of stealing the com-
pany property of her employer. When Ms. T admitted
to the commission of the said act to her manager, the
latter advised her to just tender her resignation; other-
wise, she would face an investigation which would
likely lead to the termination of her employment and
the filing of criminal charges in court.
2019 BAR EXAMINATIONS 215
Acting on her manager's advice, Ms. T submitted
a letter of resignation. Later on, Ms. T filed a case for
constructive dismissal against her employer. While
Ms. T conceded that her manager spoke to her in a
calm and unforceful manner, she claimed that her re-
signation was not completely voluntary because she
was told that should she not resign, she could be ter-
minated from work for just 'cause and worse criminal
charges could be filed against her.
(a) What is the difference between resignation
and constructive dismissal? (2%)
(b) Will Ms. T's claim for constructive dismissal
prosper? Explain. (3%)
Answer:
(a) A resignation is a voluntary self-termination when
personal reasons cannot be sacrificed in favor of the exi-
gency of the employer's business (Gan v. Galderma Phi-
lippines, Inc., et al., G.R. No.177167, 17 Jan. 2013 ). In
contrast, a constructive dismissal is a quitting because the
employer has made continued employment impossible, un-
reasonable or unlikely (Phil. Japan Active Carbon Corp.
v. NLRC, G.R. No. 83239, 8 March 1989).
(b) No, Ms. T's claims will not prosper. She was not
placed in a situation that left her no option except to self-
terminate. Instead, she was just given a graceful exit. A
graceful exit is within the prerogative of an employer to
give instead of binding an employee to his fault, or filing an
action for redress against him (Central Azucarera de
Sais, Inc., et al. v. Janet T. Siason, G.R. No. 215555, 29
Ju/y2015).
A.9.
After due proceedings, the Labor Arbiter (LA) de-
clared Mr. K to have been illegally dismissed by his
216 BARQ&A
FORTHEPAST10YEARS
former employer, AB, Inc. As a consequence, the LA
directed ABC, Inc. to pay Mr. K separation pay in lieu
of reinstatement as well as his full backwages.
While ABC, Inc. accepted the finding of illegal
dismissal, it nevertheless filed a motion for reconsi-
deration, claiming that the LA erred in awarding both
separation pay and full backwages, and instead,
should have ordered Mr. K's reinstatement to his for-
mer position without loss of seniority rights, and other
privileges, but without payment of backwages. In this
regard, ABC, Inc. pointed out that the LA 's ruling did
not contain any finding of strained relations or that
reinstatement was no longer feasible. In any case, it
appears that no evidence was presented on this score.
(a) Is ABC, lnc.'s contention to delete the separa-
tion pay, and instead, order reinstatement without
backwages correct? Explain. (3%)
(b) Assuming that on appeal, the National Labor
Relations Commission (NLRC) upholds the decision of
the LA, where, how, and within what timeframe should
ABC, Inc. assail the NLRC ruling? (2-%}
Answer:
(a) As to separation pay, the LA's decision fails to
state that there is a bar to reinstatement; hence, he should
have ordered reinstatement pursuant to the general rule
prescribed by Art. 294 of the Labor Code. Since the alter-
native relief of separation pay is an exception, it must be
justified with a reinstatement bar. As,to backwages, how-
ever, it cannot be deleted because it is a logical conse-
quence of a finding of illegal dismissal (!CT Marketing
Services, Inc. v. Mariphil Sales, G.R. No. 202090, 9
Sept. 2015). Hence, absent any reason for limiting or with-
holding it, it should be awarded as it was awarded by the
LA.
2019 BAR EXAMINATIONS 217
(b) After the denial of the appellant's motion for re-
consideration, the NLRC's decision and order of denial can
be assailed under Rule 65 of the Rules of Court thru the
filing a petition for certiorari within 60 days from receipt of
said denial order. Correction of error of jurisdiction, resul-
ting in the nullification of the assailed dispositions, should
be sought based on the NLRC's grave abuse of its appel-
late power amounting to lack of, or excess of jurisdiction.
A.10,
For purposes of prescription, within what periods
from the time the cause of action accrued should the
following cases be filed:
(a) Money claims arising from employer-emplo-
yee relations (1 %)
(b) Illegal dismissal (1%)
(c) Unfair labor practice (1%)
(d)-Offenses under the Labor Code (1%)
(e) Illegal recruitment ( 1%)
Answer:
(a) Money claims arising from employer-employee re-
lationship shall be prosecuted within 3 years from date
they become a legal possibility, or can be judicially brought
(Art~306, Labor Code; Art. 1150, New Civil Code; Anabe
v. Asian Construction, G.R. No. 183233, 23 Dec. 2009);
(b) Illegal dismissal shall be assailed within 4 years
from complete severance of employer-employee relation-
ship, or date of salary/positional downgrade (Art. 1146,
New Civil Code; Orchard Golf & Country Club v. Fran-
cisco, G.R. No. 178125, 18 March 2013);
(c) Unfair labor practice shall be brought by complaint
under the Labor Code not later than 1 year from date of
218 BARQ&A
FOR THE PAST 10 YEARS
commission (Art.305, Labor Code). As to its criminal as-
pect, it shall be prosecuted within 3 yea.rs from date of
finality of the ULP judgmeni (Arl. 305, Labor Code).
(d) Offenses under the Labor Code shall be prosecu-
ted within 3 years from date of commission (Art. 305,
Labor Code); and
(e) Illegal rE?Grui:tment shall be pro~Elqlited within 5
years if simple illegal recruitment, and within 20 years if
economic sabotage (Sec.7, Rule IV, RA. 10022).
PART II
8.11.
Briefly discuss the powers and responsibilities of
the following in the scheme of the Labor Code:
(a) Secretary of Labor (2%)
(b) Bureau of Labor Relations (2%)
{c) Voluntary Arbitrators (2%)
Answer:
(a) Secretary of Labor
(i) Ordinary Powers. Visitorial and enforcement (Art.
128, Labor Code); appellate ( review of compliance orders
issued under Art. 128, Labor Code; and review of CE or-
ders per Art. 272, Labor Code); rule-making (Art. 5,
Labor Code); and, control and supervision (The Heritage
Hotel Manila v. NUWHRAIN-HHMSC, G.R. No. 178296.
12 Jan. 2011).
(ii) Extraordinary Powers. Assumption power under
Art. 278 (g); and suspension power under Art. 292 (b),
both of the Labor Code.
2019 BAR EXAMINATIONS 219
(b) Bureau of Labor Relations
(i) Original Jurisdiction. Jurisdiction over intra-union
and inter-union disputes involving national unions, and like
labor organizations (Art. 232, Labor Code).
(ii) Appellate Jurisdiction. Jurisdiction over appealed
decisions of the DOLE Regional Director in intra-union and
inter-union cases (Art. 232, Labor Code; Bar/es v. Bito-
nio, G.R. No. 120270, 16 June 1999).
(c) Voluntary Arbitrators
Traditional Jurisdiction. Jurisdiction over unresolved
disputes arising from CBA interpretation or implementation;
and unresolved disputes arising from the enforcement or
implementation company personnel policies (Art. 274, La-
bor Code).
Jurisdiction by Stipulation. Jurisdiction over such other
disputes as may be expressly conferred by a CSA or similar
agreement (Vivero v. CA, G.R. No. 138938, 24 Oct. 2000).
8.12.
Due to serious business reverses, ABC Co. deci-
ded to terminate the services of several officers re-
ceiving "fat" compensation packages. One of these of-
ficers was Mr. X, its Vice-President for External Affairs
and a member of the Board of Directors. Aggrieved,
Mr. X filed a complaint for i'Uegal dismissal before the
National Labor Relations Commission (NLRC) - Regio-
nal Arbitration Branch.
ABC Co. moved for the dismissal of the case on
the ground of lack of jurisdiction, asserting that since
Mr. X occupied the position of Vice-President for Ex-
ternal Affairs which is listed in the by-laws of the
corporation, the case should have been tiled before
the Regional Trial Court.
220 BARQ&A
FOR THE PAST 10 YEARS
The Labor Arbiter (LA) denied ABC Co.'s motion
and proceeded to rule that Mr. X was illegally dis-
missed. Hence, he was reinstated in ABC Co.'s payroll
pending its appeal to the NLRC.
(a) Did the LA err in denying ABC Co.'s motion to
dismiss on the ground of lack of jurisdiction? Explain.
(2.5%)
· (b) Assuming that jurisdiction is not at issue and
that the NLRC reverses the LA's ruling of illegal dis-
missal with finality, may ABC Co. claim reimbursement
for the amounts it paid to Mr. X during the time that he
was on payroll reinstatement pending appeal? Explain.
(2.5%)
Answer:
(a) The LA did not err. Even if the office occupied by
Mr. X may have been listed in the corporate by-laws as a
corporate office, it should have been shown that he was
appointed to it by the Board of Directors. Absent evidence,
Mr. X was a corporate employee; hence, the tenurial issue
he brought to the LA was not an iAtra-corporate issue.
(Cosare v. Broadcom Asia, Inc., et al., G.R. No. 2011
298, 5 Feb. 2014). Moreover, mere membership in the go-
verning board does not make one a corporate officer. Un-
less elected as President, Secretary or Treasurer, a mem-
ber of the board would not qualify as a corporate officer
(Sec. 24, Revised Corporation Code).
(b) ABC Co. cannot claim reimbursement because
Mr. X had nothing to do with the reinstatement given him.
On the contrary, the company exercised its exclusive right
to determine which type of reinstatement to give him. Had
it informed him of the possibility of a reimbursement, he
would not have chosen to be driven to penury at the end of
the day thru a reimbursement by compulsion. In this case,
the Principle of Unjust Enrichment has no application;
2019 BAR EXAMINATIONS 221
hence, he can keep the salaries he received. (Garcia, et
al. v. PAL, G.R. No. 164856, 20 Jan. 2009).
B.13.
Mr. A signed a one (1 )-year contract with XYZ Re-
cruitment Co. for deployment as welding supervisor
for DEF, Inc. located in Dubai. The employment con-
tract, which the Philippine Overseas Employment Ad-
ministration (POEA) approved, stipulated a salary of
US$600.00 a month.
Mr. A had only been in his job in Dubai for six (6)
months when DEF, Inc. announced that it was suffe-
ring from severe financial losses and thus intended to
retrench some of its workers, among them Mr. A. DEF,
Inc. hinted, however, that employees who would ac-
cept a lower salary could be retained.
Together with some other Filipino workers, Mr. A
agreed to a reduced salary of US$400.00 a month and
thus, continued with his employment.
(a) Was the reduction of Mr. A's salary valid?
Explain. (2.5%)
(b) Assuming that the reduction was invalid, may
Mr. A hold XYZ Recruitment Co. liable for underpay-
ment of wages? Explain. (2.5%)
Answer:
(a) No, the reduction was not valid. There was a con-
tractual breach. Applying lex ex contractu or lex loci
ce/ebrationis, Philippine law controls; hence, the substan-
tial character of the alleged financial losses must have
been proven with financial statements duly certified by an
independent external auditor. Mere announcement of los-
ses would not suffice. The threat of retrenchment was just
222 BAR Q&A
FOR THE PAST 10 YEARS
a scheme to conveniently effect the illegal substitution of
the POEA-approved employment contracts.
(b) Yes, Mr. A may hold XYZ Recruitment Co. liable
for the payment of his wages under the rule that a recruiter
is solidarity liable for breaches of the terms and conditions
of the POEA-approved employment contract (Sec 1 (f),
Rule II, Book II, POEA Rules and Regulations; Datuman
v. First Cosmopolitan Manpower and Promotion Servi-
ces, Inc., G.R. No. 156029, 14 Nov. 2008).
B.14.
Upon a review of the wage rate and structure per-
taining to its regular rank and file employees, K Corpo-
ration found it necessary to increase its hiring rates
for employees belonging to the different job classifica-
tion levels to make their salary rates more competitive
in the labor market.
After the implementation of the new hiring salary,
Union X, the exclusive bargaining agent of the rank
and file employees, demanded a simitar salary adjust-
ment for the old employees. It argued that the increase
in hiring rates resulted in wage distortion since it
erased the wage gap between the new and old emplo-
yees. In other words, new employees would enjoy
almost the same salary rates as K Corporation's old
employees.
(a) What is wage distortion? (2%)
(b) Did a wag~ di~tt>rtion arise under the circums-
tances which legally obligated K Corporation to rectify
the wages of its old employees? Explain. (3%)
2019 BAR EXAMINATIONS
223
Answer:
(a) A wage distortion is the elimination or serious
contraction of the wage gap advantage enjoyed by one
wage group over another of the same wage region; provi-
ded, such elimination or compression is caused by a wage
law, or wage order (Art. 124, Labor Code); CSA renego-
tiation (Metro Transit Organization, Inc. v. NLRC, et al.,
G.R. No. 116008, 11 July 1995); or merger (Manila Man-
darin Employees Union v. NLRC, et al. G.R. No. 108
556, 19 Nov. 1996); but not a promotion (NFL v. NLRC,
G.R. No. 103586, 21 July 1994).
(b) No. Since the cause of the alleged elimination is
not one of the recognized causes, as it was an adjustment
of the hiring rate for new hires joining other wage groups,
the elimination of the wage gap is not a wage distortion. It
is rather clear that the increased rate would only be given
to new hires and not to all the members of the wage
group/s they would be joining. Hence, the company has
npthing to adjust or rectify.
B.15.
On December 1, 2018, GHI Co., an organized es-
tablishment, and Union J, the exclusive bargaining
agent therein executed a five (5)-year collective bar-
gaining agreement (CBA) which, after ratification, was
registered with the Bureau of Labor Relations.
(a) When can the union ask, at the earliest, for the
renegotiation of all terms of the CBA, except its repre-
sentation aspect? Explain. (2.5%)
(b) When is the earliest time that another union
can file for a petition for certification election? Explain.
(2.5%)
224 BARQ&A
FOR THE PAST 10 YEARS
Answer:
(a) Except for the representation aspect of the CSA,
the other provisions can be renegotiated not later than 3
years from date of the CBA's effectMty (Art.265; Labor
Code).
(b) Another union can file a petition for certification
election during the freedom period of the CBA which is the
last 60 days of its political iife (Art. 265, Labor Code).
8.16.
W Ship Management, Inc. hired ~eafarer G as bo-
sun in its vessel under the terms of the 2010 Philippine
Overseas Employment Administration-Standard Em-
ployment Contract (POEA-SEC).
On his sixth (6th) month on board, Seafarer G fell
ill while working. In particular, he complained of sto-
mach pain, general weakness, and fresh blood in his
stool. When his Illness persisted, he was medically re-
patriated on January 15, 2018. On tne _same day, Sea-
farer G submitted himself to a post-employment medi-
cal examination, wherein he was referred for further
treatment. As of September 30, 2018, Seafarer G has
yet to be issued any fit-to-work certification by the
company-designated physician, much less a final and
definitive assessment of his actual condition. Since
Seafarer G still felt unwell, he sought an opinion from
a doctor of his choice who later issued an independent
assessment stating that he was totally and permanent•
ly disabled due to his illness sustained during work.
Seafarer G then proceeded to file a claim for total
and permanent disability compensation. The company
asserts that the claim should be dismissed due to
prematurity since Seafarer G failed to first settle the
2019 BAR EXAMINATIONS 225
matter through the third-doctor conflict resolution pro-
cedure as provided under the 2010 POEA-SEC.
(a) What is the third-doctor conflict resolution
procedure under the 201 O POEA-SEC? Explain. (2%)
(b) Will Seafarer G's claim for total and perma-
nent disability benefits prosper despite his failure to
first settle the matter through the third-doctor conflict
resolution procedure? Explain. (3%)
(c) Assuming that Seafarer G failed to submit
himself to a post-employment medical examination
within three (3) working days from his return, what is
the consequence thereof to his claim? Explain. (2%)
Answer:
(a) In the event of conflicting medical assessments,
the parties are required to select a third physician whose
finding shall be final and binding on them. Under Sec. 20
(B) of the 2010 POEA-SEC, the selection is consensual;
however, jurisprudence has made it mandatory (Philippine
Hammonia Ship Agency, Inc. v. Eulogio Dumadag,
G.R. No. 194362, 26 June 2013).
(b) Yes, it will prosper. The Third Physician Rule
has no application when the company-designated physi-
cian exceeds·tne 120-day treatment period without making
a final, categorical and definitive assessment. Here, he al-
lowed 209 days to elapse without issuing a fit-to-work as-
sessment or a disability grade (Apines v. E/burg Ship-
management Phil., Inc., G.R. No. 202114. 9 Nov. 2016).
(c) Non-compliance with the 3-day reporting require-
ment results in the forfeiture of G's entitlement to disability
compensation (Sec. 20(8), POEA-SEC).
226 BARQ&A
FOR THE PAST 10 YEARS
B.17.
Ms. A is a volleyball coach with five (5) years of
experience in her field. Before the start of the volley-
ball season of 2015, she was hired for the sole pur-
pose of overseeing the training and coaching of the
University's volleyball team. During her hiring, the
Vice-President for Sports expressed to Ms. A the Uni-
versity's expectation that she would bring the Univer-
sity a championship at the end of the year. ·
In her first volleyball season, the University
placed ninth (9th) out of 10 participating teams. Soon
after the end of the season, the Vice-President for
Sports informed Ms. A that she was a mere probatio-
nary employee and hence, she need not come back for
the next season because of the poor performance of
the team.
In any case, the Vice-President for Sports claimed
that Ms. A was a fixed-term employee whose contract
had ended at the close of the year ..
(a) Is Ms. A a probationary, fixed-term, or regular
employee? Explain your reasons as to why she is or
she is not such kind of an employee for each of the
types of employment given. (5%)
(b) Assuming that Ms. A was dismissed by the
University for serious misconduct but was never given
a notice to explain, what is the consequence of a pro-
cedurally infirm dismissal ft'om service under our
Labor law and jurisprudence? Explain. (2%)
Answer:
(a) Ms. A is a regular employee. She cannot be consi-
dered a fixed-term employee in the absence of a fixed-term
employment contract, nor a probationary employee be-
2019 BAR EXAMINATIONS
227
cause it was not expressly communicated to her upon her
engagement that her tenure was for six (6) months unless
she survived pre-disclosed standards for regularization.
When an employee is hired without being apprised of such
standards, he is deemed a regular employee regardless of
the employer's intent to hire him as a probationary emplo-
yee (Abbott Laboratories v. Alcaraz, G.R. No. 192571,
23 July 2013).
(b) The violation of Mr. A's right to statutory due pro-
cess requires the assessment of the University with nomi-
nal damages. The amount is P30,000.00 because a dis-
missal for failure to qualify is akin to a dismissal for a just
cause (Abbott Laboratories v. Alcaraz, G.R. No. 192571,
23 July 2013).
B.18.
When resolving a case of unfair labor practice
(ULP) filed by a union, what should be the critical point
of analysis to determine if an act constitutes ULP?
(2.5%)
Answer:
The nature of an unfair labor practice, (ULP) is that it
is a violation ofworkers' right to self-organization (Art 258,
Labor Code_; C.ulfll v. Eastern Telecommunications
Phils., G.R. No. 165381, 9 February 2011). An act, how-
ever unfair it may be, is not a ULP unless listed as such
under Articles 259 and 260 of the Labor Code. Therefore,
the critical point of analysis in a ULP case filed by a union
is whether the act complained of is expressly listed as ULP
under Art. 259 of the Labor Code.
228 BARQ&A
FOR THE PAST 10 YEARS
B. 19,
Because of dwindling sales and the consequent
limitation of production, rumors were rife that XYZ, Inc.
would reduce its employee force. The next day, the
employees of XYZ, Inc. received a notice that the com-
pany will have a winding down period of 10 days, after
which there will be a six (6)-month suspension of ope-
rations to allow the company to address its precarious
financial position.
On the fourth (4th} month of suspension of its
operations, XYZ, Inc. posted an announcement that it
will resume its operations in 60 days but at the same
time announced that instead of closing down due to fi.
nancial losses, it will retrench 50% of the work force.
(a) Is the announcement that there would be re-
trenchment affecting 50% of the work force sufficient
compliance with the legal requirements for retrench-
ment? Explain. (2.5%)
(b) Assuming that XYZ, Inc., instead of retrench-
ment, extended the suspension of-its operations from
six (6) months to eight (8) months, would the same be
legally permissible? If not, what are the consequen-
ces? (2.5%)
Answer:
(a) No. The 30-day notice requirement is a written no-
tice that must be served on both the Department of Labor
and Employment and the affected employees (Art. 298,
Labor Code). Hence, the posted announcement is a viola-
tion of the prescribed pre-termination procedure.
(b) Temporary suspension of business operations un-
der Art. 301 of the Labor Code should not exceed 6
months; otherwise, the suspension would ripen to cons-
2019 l;!AR EXAMINATIONS 229
tructive dismissal after the period expires. In such case,
the company would be ordered to reinstate and pay back-
wages.
B. 20.
Discuss the differences between compulsory and
voluntary/optional retirement as well as the minimum
benefits provided under the Labor Code for retiring
employees of private establishments. (2.5%)
Answer:
A voluntary/optional retirement is a termination of em-
ployment based on a bilateral agreement to terminate em-
ployment at an agreed age regardless of years in service,
or after a certain number of years in service regardless of
age. It is a matter of contract. In contrast, a compulsory
retirement is a termination of employment by operation of
law. It is a matter of statute.
Under Art. 302 of the Labor Code, retiring emplo-
yees shall be paid retirement benefits computed as follows:
(22.5 days x Daily Rate) x Length of Service. The 22.5
days consist of 15 days representing half-month salary, 5
days as service incentive leave, and 2.5 days representing
1/12 of 13th month pay.The full 22.5.days shall be used if
the retiree is entitled to both service incentive leave and
13th month pay. In all cases, the 15 days must always be
used.