The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
B. The jeepney driver operating under the boundary system is an employee of the jeepney operator, not a mere lessee. The jeepney operator exercises supervision and control over the jeepney driver. The jeepney operator, as holder of the certificate of public convenience, must see to it that the jeepney driver follows the route prescribed by the franchising authority and the rules promulgated as regards its operation. Moreover, jeepney drivers perform activities which are usually necessary or desirable in the usual business or trade of the jeepney operator (Jardin, et al. v. NLRC, G.R. No. 119268, February 23, 2000, 326 SCRA 299).
Labor Law Bar Questions and Answers (1999-2017)
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 tum, would provide the clinic 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 and Resorts 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 instructions to him on the replenishment of emergency kits and forbidding the clinic staff from receiving cash payments from the guests. In time, the nurses and the clinic staff claimed entitlement 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 independent contractor. Rule, with reasons. (4%) ’17—Q7
Table of Contents
LABOR 1 .................................................................1 FUNDAMENTAL PRINCIPLES AND POLICIES .1 RECRUITMENT AND PLACEMENT...................4 LABOR STANDARDS .........................................8 TERMINATION OF EMPLOYMENT..................20 MANAGEMENT PREROGATIVE ......................44 SOCIAL LEGISLATION .....................................46 LABOR 2 ...............................................................50 LABOR RELATIONS .........................................50 PROCEDURE AND JURISDICTION.................68
SUGGESTED ANSWER I will rule in favor of AB Hotel and Resort. Applying the Four-Fold Test will readily show that the real employer of the nurses and the clinic staff is Dr. Crisostomo and not AB Hotel and Resort., viz: (1) the selection and engagement of the nurses and clinic staff were made by Dr. Crisostomo; (2) their wages were paid by Dr. Crisostomo. As a matter of fact, SSS contributions were paid by him which, by itself, is already an indication that he is the employer. Although he did not exercise the power of dismissal, it can be said that as the doctor, he has the control of his employees' conduct in the dispensing of medical services to the guests and personnel of the resort. The fact that AB Hotel and Resort gave instructions to him regarding replenishment of emergency kits and forbidding his staff from receiving cash payments from guests is of no consequence. They are nothing more but guidelines which will not create an employer-employee relationship (Insular Life Co., Ltd. v. NLRC. G.R. No. 84484, November 15, 1989, 179 SCRA 459).
LABOR 1
FUNDAMENTAL PRINCIPLES AND POLICIES 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 employeremployee relationship, is a jeepney driver operating under the boundary system an employee of his jeepney operator or a mere lessee of the jeepney? Explain your answer. (3%) ’17— Q1
ALTERNATIVE ANSWER I will rule in favor of the employees. In the case of Samonte v. La Salle Greenhills, Inc (G.R. No. 199683, February 10, 2016), the Court held that "Time and again, we have held that the power of control refers to the existence of the power and not necessarily to the actual exercise thereof, nor is it essential for the employer to actually supervise the performance of duties of the employee. It is enough that the employer has the right to wield that power." Such power is present in the hands or AB Hotel and Resort.
A. The accepted tests to determine the existence of an employer-employee relationship are: A) Four-fold Test: 1. The selection and engagement of the employees; 2. The payment of wages 3. The power of dismissal; and 4. The power to control the employees' conduct (The Manila Hotel Corp. v. NLRC, G.R. No. 154591, March 5, 2007, 343 SCRA 1). The most important test is the element" of control, which has been defined as the " right to control not only the end to be achieved but also the means to be used in reaching such end" (LVN Pictures v. Philippine Musicians Guild, G.R. No. L-12582, January 28, 1961, 1 SCRA 132). B) Economic reaIity Test The Supreme Court has also used the economic reality test, where the economic realities prevailing within the activity or between the parties are examined, taking into consideration the totality of circumstances surrounding the true nature of the relationship between the parties (Orozco v. Court of Appeals, G.R. No. 155207, August 13, 2008, 562 SCRA 36.
Marciano was hired as Chief Engineer on board the vessel MV 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 employer's business for a continuous period of more than one year. Is Marciano's claim tenable? Explain your answer. (3%) ’17—Q8
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
No, Marciano's claim is not tenable. Seafarers are contractual employees for a fixed term, governed by the contracts they sign. We should not depart from the rulings of the Supreme Court in Brent School, Inc. v. Zamora (G.R. No. L-48494, February 5, 1990, 181 SCRA 702); Coyoca v. NLRC (G.R. No. 113658, March 31, 1995,243 SCRA 190); and Millares v. NLRC (G.R. No. 110524, July 29, 2002, 385 SCRA 306), which constitute stare decisis with respect to the employment status of seafarers as contractual employees, not regular employees, notwithstanding performance of usually necessary and desirable functions which exceed one year or continuous rehiring.
company. He is, however, required to meet a monthly quota of twenty (20) insurance policies, otherwise, he may be terminated. He was made to agree to a Code of Conduct for underwaters and is supervised by a Unit Manager. [a] Is Gregorio an employee of Guaranteed? (2.5%) ’16 – Q2(a) No, Gregorio is not an employee of Guaranteed. Control is the most important element of employer-employee relationship, which refers to the means and methods by which the result is to be accomplished (Ayelino Lambo and Vicente Belocura v. NLRC and J.C. Tailor Shop and/or Johnny Co., 375 Phil. 855 (1999f), citing Makati Haberdashery, Inc. v. NLRC, 259 Phil. 52 /1989J. The requirement of complying with quota, company code of conduct and supervision by unit managers do not go into the means and methods by which Gregorio must achieve his work. He has full discretion on how to meet his quota requirement, hence, there is no employer-employee relationship between Gregorio and Guaranteed.
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 managerial employees, and who act in a confidential capacity 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%)
ALTERNATIVE ANSWER: Yes, Gregorio is Guaranteed’s employee. The fact that Gregorio was made to agree to a Code of Conduct and was supervised by a Unit Manager are indicators that he is an employee of Guaranteed by using the control test mentioned in the Makati Haberdashery case. Furthermore, the fact that he was given a quota and can be terminated if he does not meet it all the more indicates that he is indeed an employee of Guaranteed. In Angelina Francisco v. NLRC Kasei Corporation G.R. No. 170087, August 31, 2006,, the court added another element to ascertain employer-employee relationship. This is whether or not the worker is dependent on the alleged employer for his continued employment. This was dubbed as the economic dependence test. The fact that Guaranteed can terminate Gregorio if he does not meet the quota of 20 insurance policies a month, means that the latter is economically dependent on the former which negates his status as an independent contractor and proves that he is an employee.
(a) Managerial employees — those vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall employees (Article 219 [212], par. m, Labor Code) Managerial employees cannot join, assist or form unions (Article 255 [245], Labor Code). Supervisory employees — those who, in the interest of managemen.t, effectively recommend such managerial actions if the exercise of such authority is not merely routine or clerical in nature, but requires use of independent judgment (Article 219 [212], par. m, Labor Code). Supervisory employees are not eligible for membership in a labor organization of rank-and-file employees but may join, assist, or form separate labor organizations of their own (Art. 255 [245], Labor Code). Rank-and-file employees — all other employees not falling within the definition of "managerial" or "supervisory" employees are considered rank-and-file employees (Article 219 [212] par. m, Labor Code). Rankand-file employees have the right to form, join or assist unions of their own choosing (Art. 253 [243), Labor Code). (b) SUGGESTED ANSWER No, these confidential employees cannot form, assist, or join labor unions. The exclusion from bargaining units of employees who, in the general course of their duties, become aware of management policies relating to labor relations is founded upon the “confidential employee rule". The rationale behind this rule is that employees should not be placed in a position involving a potential conflict of interests. Management should not be required to handle labor relation matters through employees who are represented by the union with which the company js required to deal and who in the normal performance of their duties may obtain advance information of the company's position with regard to contract negotiations, the disposition of grievances or other labor relations matters (San Miguel Corporation Supervisor and Exempt Employees Union v. Laguesma, G.R. No. 110399, August 15, 1997, 277 SCRA 370). ALTERNATIVE ANSWER No. Under the doctrine of necessary implication, the same reason for the disqualification of managerial employees applies to confidential employees (Pepsi-Cola Products Phil., Inc. v. Sec. of Labor, G.R. Nos. 96693 and 103300, August 10, 1999, 312 SCRA 104).
[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 Managers. Is he an employee of Guaranteed? Explain. (2.5%) ’16 – Q2(b) Yes, Gregorio is an employee. In fact, he is deemed as a regular employee. As a unit manager who was tasked to supervise underwriters, he can be said to be doing a task which is necessary and desirable to the usual business of Guaranteed. Article 295 of the Labor code provides that “(T)he provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, x x x.” ALTERNATIVE ANSWER: . Yes. Article 219 (m) of the Labor Code defines a Managerial employee as one who is vested with the powers or prerogatives to lay doWn and execute management policies and/or to Hire, transfer, si&phnd, lay-off, recall, discharge, assign or discipline employees. As Gregorio was appointed Unit Manager, the means and methods' of accomplishing his goal come under the guidelines laid down by Guaranteed. ANOTHER-ALTERNATIVE ANSWER: . . No, Guaranteeddkl not define the duties and responsibilities of Gregorio; Guaranteed left it to Gregorio’s discretion as to how he will achieve his goal. Therefore, the only interest Guaranteed has is in the result of Gregorio’s work. The relations between employer and employee are not purely contractual in nature. ’10 – Q1(2)
Gregorio was hired as an insurance underwriter by the Guaranteed Insurance Corporation (Guaranteed). He does not receive any salary but solely relies on commissions earned for every insurance policy approved by the company. He hires and pays his own secretary but is provided free office space in the office of the
Some aspects of the relations between employer and employee are determined by certain labor standards. Alternative Answer
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
plementing regulation, not to prohibit labor-only contracting, which is an arrangement where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machinery, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of the employer. Hence, it would be legal for Congress to do away with the prohibition on labor-only contracting in all areas need in the employer’s business operations. Assuming of course, that contractual workers are guaranteed their security of tenure.
The Constitution, Labor Code, Civil Code and other social legislations are replete with provisions that define employment relationship even without contract, with the intention of insuring that all the rights of labor are protected. Article 1700 of the Civil Code provides “[T]he relations between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good.” In Article 106 of the Labor Code, the principal is deemed as a direct employer in labor-only contracting, despite absence of contractual relationships between the worker and the principal reduced in writing. Equity likewise affords the aggrieved party relief in a case where an agent was given apparent authority by the employer to represent it to third persons, such as in a relationship between hospitals and doctors practicing medicine in its establishment (Nograles v. Capitol Medical Center, 511 SCRA 204 [2006].)
Explain the extent of the workers’ right to participate in policy and decision-making process as provided under Section 3, Article XIII of the Constitution. Does it include membership in the Board of Directors of a Corporation? ’08 – Q1b Under Section 3, Article XIII of the Constitution, the workers shall participate in policy and decision-making processes affecting their rights, duties, welfare and benefits, through labor-management councils [See Articles 211(g) and 255 of Labor Code (now Arts. 218(g) and 266.] The workers’ rights do not include membership in the Board of Directors of a Corporation (MERALCO v. The Honorable Secretary of Labor, 302 SCRA 173 [1999].)
An employment contract prohibiting employment in a competing company within one year from separation is valid. ’09 – Q1a An employment contract prohibiting employment in a competing company within a reasonable period of one year of separation is valid. The employer has the right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential programs and information.
What is the principle of codetermination? What, if any, is the basis under the Constitution for adopting it? ’07 – Q1 The principle of codetermination is one which grants to the workers the right to participate in policy-decision processes affecting their rights and benefits (Article 255 [now Art. 266] of the Labor Code]. Section 3, Article XIII of the Constitution guarantees labor their right to participate in decision and policy making processes affecting their rights, duties and welfare.
Enumerate at least four (4) policies enshrined in Section 3, Article XIII of the Constitution that are not covered by Article 3 of the Labor Code on declaration of basic policy. ’09 – Q2a Four (4) policies enshrined in Section 3, Article XIII of the 1987 Constitution which are not covered by Article 3 of the Labor Code on declaration of policy are: 1. All workers shall have the right to peaceful concerted activities, including the right to strike in accordance with law; 2. They shall be entitled to a living wage; 3. They shall participate in a policy of decision making processes affecting their rights and benefits as may be provided by law; 4. The state shall promote the principle of shared responsibility between workers and employers.
What is the purpose of labor legislation? '06 - Q1(1) These are these state policies and mandates dealing with labor in the 1987 Constitution: (1) The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare; (2) The State shall afford full protection to labor, local and overseas, organized and unorganized. It is the purpose of social legislation to implement aforesaid state policies and mandates in the Constitution.
Clarito, an employee of Juan, was dismissed for allegedly stealing Juan’s wristwatch. In the illegal dismissal case instituted by Clarito, the LA, citing Article 4 of the Labor Code, ruled in favor of Clarito upon finding Juan’s testimony doubtful. On appeal, the NLRC reversed the LA holding that Article 4 applies only when the doubt involves “an implementation and interpretation” of the Labor Code provisions. The NLRC explained that the doubt may not be necessarily be resolved in favor of labor since the case involves the application of the Rules on Evidence, not the Labor Code. Is the NLRC correct? ’09 – Q2b
What is the concept of liberal approach in interpreting the Labor Code and its Implementing Rules and Regulations in favor of labor? ’06 – Q1(2) In carrying out and interpreting the Labor Code’s provisions and its implementing regulations, the workingman’s welfare should be the primordial and paramount consideration. This kind of interpretation gives meaning and substance to the liberal and compassionate spirit of the law as provided in Article 4 of the Labor Code, as amended, which states that “all doubts in the implementation and interpretation of the Labor Code including its implementing rules and regulations shall be resolved in favour labor,” as well as the Constitutional mandate that the State shall afford full protection to labor and promote full employment opportunities for all (PLDT v. NLRC, 276 SCRA 1 [1997].)
The NLRC is not correct. It is a well settled doctrine that if doubts exist between the evidence presented by the employer and the employee, the scales of justice must be titled in favor of the latter. It is a time honored rule that in controversies between laborer and master, doubts necessarily arising from the evidence, or in the implementation of the agreement and writing should be resolved in favor of the laborer.
What property right is conferred upon an employee once there is an employer-employee relationship? ’06 – Q1(3)
Constitutionality of laws which (1) abolish the security of tenure clause in the Labor Code; and (2) allow contractualization in all areas needed in business operations. ’09 – Q12
The right to employment and the right to continue in one’s employment constitute the property right conferred upon the employee once there is an employer-employee relationship. Thus, the very important constitutional right that “no person may be deprived of life, liberty or property without due process of law” is violated when an employer terminates the employment of an employee without due process of law because said employment is a property right of the latter.
The first innovative measure, on abolition of the security of tenure clause in the Labor Code, is unconstitutional as it goes against the entitlement of workers to security of tenure under Section 3, Article XIII of the 1987 Constitution. The second innovative measure, on a law allowing contractualization in all areas needed in the employer’s business is legal. Article 106 of the Labor Code already allows the Secretary of Labor and Employment not to make appropriate distinctions between labor-only and job contracting. This means that the Secretary may decide, through im-
May social justice as a guiding principle in labor law be so used by the courts in sympathy with the working man if it collides with the equal protection clause of the Constitution? '03 - Q1
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
YES. The State is bound under the Constitution to afford full protection to Labor; and when conflicting interests collide and they are to be weighed on the scales of social justice, the law should accord more sympathy and compassion to the less privileged workingman (Fuentes v. NLRC. 266 SCRA 24 1997].) However, it should be borne in mind that social justice ceases to be an effective instrument for the "equalization of the social and economic forces" by the State when it is used to shield wrongdoing (Corazon Jamer v. NLRC. 278 SCRA 632 [1997].)
Examples are: (1) procedural requirements should be observed, namely, filing of notice of strike, observance of cooling-off period, taking of strike vote, and report of the strike vote; (2) use of violence, intimidation or coercion and blockade of ingress-egress are not allowed [Article 263(b)(c)(f)(g) [now Art. 277(b)(c)(f)(g)], Labor Code). RECRUITMENT AND PLACEMENT
Another Suggested Answer:
A. Andrew Mining Agency (AMA) recruited Feliciano for employment by Invictus Shipping, its foreign principal. Meantime, AMA and Invictus Shipping terminated their agency agreement. Upon his repatriation following his premature termination, Feliciano claimed from AMA and Invictus 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 Invictus Shipping. 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 foreigner, demanded that he first secures an employment permit from the DOLE. Is the employer correct? Explain your answer. (2.5%) ’17—Q3
NO, social justice as a guiding principle in law may not be used by the courts if it collides with the equal protection clause of the Constitution. Social justice is not a magic wand applicable in all circumstances. Not all labor cases will be automatically decided in favor of the worker. Management has also rights which are entitled to recognition and protection; justice must be dispensed according to facts and law; and social justice is not designed to destroy or oppress the employer. Another Suggested Answer: Social justice as a guiding principle in Labor Law can be implemented side by side with the equal protection clause of the Constitution. In implementation of the principle of social justice, the Constitution commands that the State shall afford protection to labor. Thus Labor Law may be pro-labor in the sense that labor is given certain benefits not given to management. But this is not necessarily violative of the equal protection clause of the Constitution because said clause allows reasonable classification.
A. AMA is not correct. The liability of the principal/employer and the recruitment/placement agency is joint and several. Such liability shall continue during the entire period or duration of the employment contract and shall not be affected by any substitution, amendment or modification made locally or in a foreign country of the said contract (Section 10, Rep. Act No. 8042, as amended by Section 7 of Rep. Act No. 10022). The fact that AMA and its foreign principal have already terminated their agency agreement does not relieve the former of its liability, because the obligations covenanted in the agency agreement between the local agent and its foreign principal are not coterminous with the term of such agreement so that if either or both of the parties decide to end the agreement, the responsibilities of such parties towards the contracted employees under the agreement do not at all end, but the same extends up to and until the expiration of the employment contracts of the employees recruited and employed pursuant to said recruitment agreement; otherwise, this will render nugatory the very purpose which the law governing the employment of workers for foreign jobs abroad was enacted (Catan v. NLRC, G.R. No. 77279, April 15, 1988, 160 SCRA 691). B. The exceptions are: direct hiring by members of the diplomatic organizations, international organizations, heads of state and government officials with the rank of at least deputy minister, and such other employers as may be allowed by the Secretary of Labor (Book I, Title I, Chapter I, Article 18, Labor Code). The reasons for the ban on direct hiring are: a) A worker hired directly by a foreign employer without government intervention may not be assured of the best possible terms and conditions of employment. b) A foreign employer must also be protected. Without government Intervention, a foreign employer may be entering into a contract with a Filipino who is not qualified to do the job. c) The mandatory requirement for remittance to the Philippines of a portion of the worker's foreign exchange earnings can easily be evaded by the worker. C. SUGGESTED ANSWER No, the employer is not correct. Only non-resident aliens seeking admission to the Philippines are required to obtain an employment permit from the Department of Labor and Employment (Article 40, Labor Code). ALTERNATIVE ANSWER
How do the provisions of the law on labor relations interrelate, if at all, with the provisions pertaining to labor standards? '03 - Q11 LABOR RELATIONS law focuses its provisions on the collective aspects of employer-employee relationship. Its legal provisions deal with employees organizing unions and how through these unions, employees are able to have collective bargaining with their employer. On the other hand, LABOR STANDARDS law focuses on the terms and conditions of employment of employees as individual employees or those legal provisions dealing with wages, hours of work and other terms and conditions of employment. There may be instances when the provisions of labor relations law may interrelate with provisions of labor standards law. Thus, a CBA which is dealt with in labor relations law may have provisions that improves upon the minimum terms and conditions of employment prescribed in labor standards law, like a CBA providing for a higher minimum wage, or for the computation of a higher overtime pay or the payment of holiday pay not only for regular holidays but also for certain special holidays. What is the rationale for the State regulation of strike activity and what are the interests involved that the State must balance and reconcile? Cite two (2) examples on how the law regulates the use of the strike as a form of concerted activity. ’00 – Q8 The first rationale is the constitutional provision that the right to strike is to be exercised "in accordance with law". Another rationale is the Civil Code provision that the relations between employer and employee are imbued with public interest and are subject to the provisions of special law. A third rationale is the police power of the state. The interests to be balanced are the rights of the workers, as primary socio-economic force, to protection of the law, to security of tenure, to concerted activities, etc. These should be balanced with the right of the employer to reasonable return on investment and to expansion and growth. General welfare or the general peace and progress of society should also be considered. This is why assumption of jurisdiction and certification to NLRC are allowed in "national interest" cases (Art. 263, Labor Code; Ilaw at Buklod ng Manggagawa v. NLRC, 198 SCRA 586 [1991]; Lapanday Workers Union v. NLRC, 248 SCRA 96 [1995].)
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
The employer is not correct. Under DOLE Department Order No. 75-06, resident foreign nationals are exempted from securing an employment permit.
citizens. Since only 70% of its authorized capital stock is owned by Filipinos, it consequently cannot validly engage in recruitment and placement of workers, locally and overseas.
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 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 managerial employee of the store but for a valid complaint 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%) ’16 – Q13
When does the recruitment of workers become an act of economic sabotage? (2%) ‘15 - Q1b Under Section 6(m) of RA 8042, illegal recruitment is considered economics sabotage if it is committed by a syndicate or is large scale in scope. It is syndicated illegal recruitment if the illegal recruitment is carried out by three (3) or more conspirators; and it is large scale in scope when it is committed against three (3) more persons, individually or as a group. 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, Victor complained of chronic coughing, intermittent fever, and joint pains. 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 Iloilo and there had himself examined. The examination revealed that he had tuberculosis.
Yes. The elements to determine the existence of an employment relationship are: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the employer’s power to control the employee’s conduct; and (d) the power of dismissal. The first element is present, as Matibay Shoe allowed shoe shine boys in its shoe shine stand to render services that are desirable in the line of business of Matibay Shoe. In issuing ID’s to the shoe shine boys, the same signifies that they can represent themselves as part of the work force of Matibay Shoe. The second element is also present. Requiring the customers to pay through the Matibay Shoe’s cashier signifies that their services were not engaged by the customers. Equally important, it was Matibay Shoe which gave the shoe shine boys their daily wage. The third element is satisfied. Requiring the shoe shine boys to be present from store opening until store closing and to follow company rules on cleanliness and decorum shows that they cannot conduct their activity anywhere else but inside the store of Matibay Shoe, hence, their means and methods of accomplishing the desired services for the customers of Matibay Shoe was controlled by it. Lastly, the fourth element is made apparent when Matibay Shoe barred the shoe shine boys from continuing with their work-related activity inside its establishment.
(a)
Victor sued for medical reimbursement, damages and attorney’s fees, claiming that tuberculosis was a compensable illness. Do you agree with Victor? Why or why not? (2%) ‘15 - 15a
TB is listed under Sec. 32-A of the POEA-SEC as a work-related disease. It was also either contracted or aggravated during the effectivity of Victor’s contract. Having shown its manifestations on board, Victor should have been medically repatriated for further examination 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, damages and attorney’s fees. TB is listed under Sec. 32-A of the POEA-SEC as a work-related disease. It was also either contracted or aggravated during the effectivity of Victor’s contract. Having shown its manifestations on board, Victor should have been medically repatriated for further examination 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, damages and attorney’s fees.
ALTERNATIVE ANSWER: No. The elements to determine the existence of an employment relationship are: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the employer’s power to control the employee’s conduct; and (d) the power of dismissal. The first element is absent. The mere issuance of an ID to the boys is not conclusive of the power of selection of Matibay Shoe. They may be given IDs merely as a security measure for the establishment. Furthermore, using the control test, the boys have exclusive power over the means and method by which the shoe shining activity is to be conducted.
(b) Due to his prolonged illness, Victor was unable to work for more than 120 days. Will this entitle him to claim total permanent disability benefits? (2%) ‘15 - 15b No. Victor’s TB is work-related and it developed on board, thereby satisfying the twin requisites 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-B(3) of the POEA-SEC. Since he already felt the manifestations of TB before his sign-off, he should have submitted post-employment medical examination (Jebsens Maritime Inc. v. Elmer T. Esguerra, 655 SCRA 300). In effect, the 120-day rule has no application at all.
Rocket Corporation is a domestic corporation registered with the SEC, with 30% of its authorized capital stock owned by foreigners and 70% of its authorized 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%) ‘15 - Q1a
As a general rule, direct hiring of Overseas Filipino Workers (OFWs) is not allowed. ’10 – Q1(3)
No. Article 27 of the Labor Code mandates that pertinently, for a Corporation to validly engage in recruitment and placement of workers, locally and overseas, at least seventy-five percent (75%) of its authorized and voting capital stock must be owned and controlled by Filipino
Article 18 of the Labor Code provides that no employer may hire a Filipino worker for overseas employment except through the Boards and entities authorized by the Department of Labor and Employment except direct-hiring by members of the diplomatic corps, international
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
organizations and such other employers as may be allowed by the DOLE. Another exemption is “Name Hire,” which refers to a worker who is able to secure an overseas employment opportunity without the assistance or participation of any agency.
ployer and was paid $350 until her 2 year contract expired. Upon her return to the Philippines, she filed a case against the agency and the 2 employers. May the agency validly raise the defense that it was not privy to the transfer of A to the 2nd employer? ’10 – Q22
On December 12, 2008, A signed a contract to be part of the crew of ABC Cruises through its Philippine Manning Agency. Under the standard employment contract of the 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. However, more than three months after A secured his exit clearance from the POEA for his supposed departure on January 15, 2009, XYZ still had not deployed him for no valid reason. Is A entitled to relief? ’10 – Q12
NO. Speedy’s obligation to A is joint and several with the principal employer (Section 10, R.A. No. 8042) The liability of the principal/employer and the recruitment/placement agency for any and all claims for money claims shall be joint and several, which undertaking shall form part of A’s employment contract, and condition precedent for its approval. This liability shall continue during the entire period or duration of the employment contract and shall not be affected by any substitution, amendment of modification made locally or in a foreign country of said contract (Section 10, R.A. No. 8042)
YES, even if no departure took place, the contact of employment has already been perfected which creates certain rights and obligations, the breach of which may give rise to a cause of action against the erring party: (1) A can file a complaint for Recruitment Violation for XYZ’s failure to deploy him within the prescribed period without any valid reason, a ground for the imposition of administrative sanctions against XYZ under Section 2, Rule I, Part V of the 2003 POEA Rules on Employment of Seafarers; (2) At the same time, A can file a case for illegal recruitment under Section 6(L) of R.A. No. 8042 (c.f. Section 11, Rule I, Part V of the 2003 POEA Rules on Employment of Seafarers.); (3) A may likewise file a complaint for breach of contract, and claim damages therefor before the NLRC, despite absence of an employer-employee relationship (EER). Section 10 of R.A. No. 8042 conferred jurisdiction on the Labor Arbiter not only on claims arising of EER, but also by virtue of any law or contract involving claims for actual, moral, exemplary and other forms of damages (Santiago v. CF Sharp Crew Management, Inc., 527 SCRA 165 [2007].)
Richie, a driver-mechanic, was recruited by Supreme Recruiters (SR) and its principal, Mideast Recruitment Agency (MRA), to work in Qatar for a period of two (2) years. However, soon after the contract was approved by POEA, MRA advised SR to forego Richie’s deployment because it had already hired another Filipino driver-mechanic. 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: 1. The Labor Arbiter has no jurisdiction over the case. The Labor Arbiter has jurisdiction, Section 10 of R.A. No. 8042 reads: “Money Claims – Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relations or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages.”
A was approached by X, an interviewer of job applicants for Alpha Personnel Services (APS), an overseas recruitment agency. X required A to submit certain documents and to pay P25,000 as processing fee. Upon payment of the said amount to the agency cashier, A was advised to wait for his visa. After 5 months, A visited the office of APS during which X told him that he could no longer be deployed for employment abroad. A was informed by the POEA that while APS was a licensed agency, X was not registered as its employee, contrary to POEA Rules and Regulations. Under said Rules, the obligation to register personnel with the POEA belongs to the officers of a recruitment agency. 1. May X be held criminally liable for illegal recruitment?
2.
An employer-employee relationship already existed between Richie and MRA, MRA and SR, as an agent of MRA, already approved and selected and engaged the services or Richie. 3.
NO. X performed his work with the knowledge that he works for a licensed recruitment agency. He is in no position to know that the officers of said recruitment agency failed to register him as its personnel (People v. Chowdury, 325 SCRA 572 [2000].) The fault not being attributable to him, he may be considered to have apparent authority to represent APS in recruitment for overseas employment. 2.
Because Richie was not able to leave for Qatar, no employer-employee relationship was established between them.
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. Rule on the validity of the foregoing arguments. ’09 – Q3
NO. In the recent case of Serrano v. Gallant Maritime, 582 SCRA 254 [2009], the Supreme Court held that the clause “three (3) months for every year of the unexpired term, whichever is less” in Section 10 of R.A. No. 8042 is unconstitutional. Richie is therefore entitled to two (2) years salaries due him under the POEA approved contracts.
May others having control, management or direction of APS be held criminally liable for illegal recruitment? ’10 – Q21
Discuss the types of illegal recruitment under the Labor Code. ’07 – Q3a
YES. APS, being a licensed recruitment agency, still has obligations to A for processing papers for overseas employment. Under Section 6(m) of R.A. No. 8042, failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker’s fault, amounts to illegal recruitment.
Under Article 38(b) of the Labor Code, as amended by R.A. No. 8042 otherwise known as the “Overseas Filipinos and Migrant Workers’ Act of 1995”. There are two types of illegal recruitment – particularly simple illegal recruitment and illegal recruitment which is considered as an offense involving economic sabotage. Illegal recruitment as an offense involving economic sabotage is committed under the following circumstances, to wit: When illegal recruitment is committed by a syndicate, that is when it is carried out by a group of three or more persons conspiring and/or confederating with another in carrying out any unlawful or illegal transaction, enterprise or scheme ; or
A was recruited to work abroad by Speedy Recruitment Agency as a technician for a Saudi Arabian construction firm with a monthly salary of $650. 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. She worked for the 2nd em-
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
When illegal recruitment is committed in large scale; that is when it is committed against three (3) or more persons whether individually as a group.
AB, a non-resident American, seeks entry to the country to work as VP of a local telecommunications company. You are with the DOLE. What permit, if any, can the DOLE issue so that AB can assume as VP in the telecommunications company? ’07 – Q20
In initiating actions against alleged illegal recruiters, may the Secretary of Labor and Employment issue search and arrest warrants? ’07 – Q3b
Article 40 of the Labor Code provides that “any alien seeking admission to the Philippines for employment purposes and any domestic or foreign employer who desires to engage an alien for employment in the Philippines shall obtain an employment permit from the Department of Labor.” “The employment permit may be issued to a non-resident alien or to the applicant employer after a determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired. Thus, AB (or telecommunications company) should be issued the above-mentioned alien employment permit so that AB can assume as Vice President of the telecommunications company.
NO. Under the 1987 Constitution, only judges may issue warrants of arrest or search warrant (Salazar v. Achacoso, 183 SCRA 145 [1990].) Cite five (5) grounds for disciplinary action by the POEA against overseas workers. ’07 – Q19 Under Section 1(A) and (B), Rule III, Part VII of the 2002 POEA Rules and Regulations Governing the Recruitment and Employment of Land-based Overseas Workers, the following are grounds for disciplinary actions against overseas workers: A. Pre-Employment Offenses 1. Using, providing, or submitting false information or documents for purposes of job application or employment; 2. Unjustified refusal to depart for the worksite after all employment and travel documents have been duly approved by the appropriate government agency/ies. B. Offenses during Employment 1. Commission of a felony or crime punishable by Philippine Laws or by the Laws of the host country; 2. Unjustified breach of employment contract; 3. Embezzlement of company funds or monies and/or properties of a fellow worker entrusted for delivery to kin or relatives in the Philippines; and 4. Violation/s of the sacred practices of the host country. Further, under Section 1(A) and (B), Rule II, Part VI of the 2003 Rules and Regulations Governing the Recruitment and Employment of Seafarers, the following are the grounds for disciplinary actions against seafarers: C. Pre-Employment Offenses 1. Using, providing, or submitting false information or documents for purposes of job application or employment; 2. Unjust refusal to join ship after all employment and travel documents have been duly approved by the appropriate government agencies. D. Offenses during Employment 1. Smuggling or violation of any custom rules and regulations of the Philippines and foreign port ; 2. Desertion; 3. Absence without leave; 4. Sleeping on post while on duty; 5. Insubordination; 6. Drunkenness; 7. Creating trouble outside the vessel’s premises; 8. Gambling; 9. Violation of company policies and regulations; 10. Incompetency and inefficiency; 11. Inciting mutiny, malicious destruction of ship’s property or any activity which will hamper the efficient operation of the vessel; 12. Concerted action to breach approved contracts; 13. Any activity which tends to destroy harmonious relationship of the company; 14. Grave abuse of authority; 15. Other gross misbehaviours prejudicial to good order or discipline; 16. Negligence causing damage, loss, spoilage or deterioration of vessel’s stocks and property; 17. Connivance with or coddling of stowaway; 18. Wilfully making false statements, reports, certification or making spurious seafarer’s documents for personal gain with or with intent to mislead or defraud the company; 19. Any other case as to cast aspersion on the good name of the company and vessel; 20. Violation of safety and environmental rules / regulations; and 21. Failure to observe the drug and alcohol policy of the company.
WTTA is a well-known travel agency and an authorized sales agent of the Philippine Air Lines. Since majority of its passengers are overseas workers, WTTA applied for a license for recruitment and placement activities. It stated in its application that its purpose is not for profit but to help Filipinos find employment abroad. Should the application be approved? ’06 – Q2 The application should be disapproved. Despite WTTA’s noble purpose, travel agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment, whether for profit or not (Article 26, Labor Code.) Can an overseas worker refuse to remit his earnings to his dependents and deposit the same in the country where he works to gain more interests? ’06 – Q3 NO. Article 22 of the Labor Code provides that it shall be mandatory for all Filipino workers abroad to remit a portion of their foreign exchange earnings to their families, dependents and/or beneficiaries in the country in accordance with rules and regulations prescribed by the Secretary of Labor and Employment. What qualifying circumstances will convert “illegal recruitment” to “sabotage”, thus subjecting its perpetrator or perpetrators to a penalty of life imprisonment and fine of at least P500,000? ’05 – Q2(1)(a)’ ’02 – Q15a Article 38(b) of the Labor Code, as amended by R.A. No. 8042 (Migrant Workers’ Act ) provides that illegal recruitment shall be considered an offense involving economic sabotage if any of the following circumstances exists: (a) When illegal recruitment is committed by a syndicate. A syndicate exists when three or more persons conspire and/or confederate with another in carrying out any unlawful or illegal transaction, enterprise or scheme ; or (b) When illegal recruitment is committed in large scale as when it is committed against three (3) or more persons whether individually as a group. Maryrose Ganda's application for the renewal other license to recruit workers for overseas employment was still pending with the POEA. Nevertheless, she recruited Alma and her 3 sisters for employment as housemaids in Saudi Arabia. Maryrose represented to the sisters that she had a license to recruit workers for overseas employment. Maryrose also demanded and received P30,000.00 from each of them for her services. However, Maryrose's application for the renewal of her license was denied, and consequently failed to employ the four sisters in Saudi Arabia. The sisters charged Maryrose with large scale illegal recruitment. Testifying in her defense, Maryrose declared that she acted in good faith because she believed that her application for the renewal of her license would be approved. Maryrose adduced in evidence the Affidavits of Desistance which the 4 private complainants had executed after the prosecution rested its case. In
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
the said affidavits, they acknowledge receipt of the refund by Maryrose of the total amount of P120,000.00 and indicated that they were no longer interested to pursue the case against Maryrose. Resolve the case with reasons. '05 - Q8(2)
No, because the NWPC exercises only technical and administrative supervision over the RTWPB (Article 121 (g), Labor Code). ALTERNATIVE ANSWER No, the Wage Order becomes effective fifteen (15) days after its publication in at least one (1) newspaper of general circulation in the region pursuant to the Rules of Procedure in Minimum Wage Fixing. ANOTHER ALTERNATIVE ANSWER Yes. In NWPC v. Alliance of Progressive Labor (G.R. No. 150326, March 12, 2014), it was ruled that "(t)he very fact that the validity of the assailed sections of Wage Order No. NCR-07 had been already passed upon and upheld by the NWPC meant that the NWPC had already given the wage order its necessary legal imprimatur. Accordingly, the requisite approval or review was complied with.” (b) The federation may initiate a review of the wage order even before the expiration of the 12 month period when there are supervening conditions, such as extraordinary Increase in prices of petroleum products and basic goods/services which demand a review of minimum wage rates as determined by the Board and confirmed by the Commission.
Maryrose is still criminally liable for large scale illegal recruitment. Good faith is not a defense in illegal recruitment as defined in Section 6 of R.A. No. 8042. Illegal recruitment is malum prohibitum. The refund of the P120,000.00 she received does not likewise extinguish her criminal liability. If at all, it satisfies only her civil liability. The affidavit of desistance, moreover, does not bar Maryrose’s prosecution. The criminal offense is not extinguished by such desistance. Besides, affidavits of desistance, as a rule, are frowned upon. Concerned Filipino contract workers in the Middle East reported to the DFA that XYZ, a private recruitment and placement agency, is covertly transporting extremists to terrorist training camps abroad. Intelligence agencies of the government allegedly confirmed the report. Upon being alerted by the DFA, the DOLE issued orders cancelling the licenses of XYZ, and imposing an immediate travel ban on its recruits for the Middle East. XYZ appealed to the OP to reverse and set aside the DOLE orders, citing damages from loss of employment of its recruits, and violations of due process including lack of notice and hearing by DOLE. The DOLE in its answer claimed the existence of an emergency in the Middle East which required prompt measures to protect the life and limb of OFWs from a clear and present danger posed by the on-going war against terrorism. Should the DOLE orders be upheld or set aside? '04 - Q3b
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%) B. Distinguish a learner from an apprentice. (4%) C. Are there differences between a househelper and a homeworker? Explain your answer. (4%) ’17—Q5
The DOLE order cancelling the licenses of XYZ is void because a report that an agency is covertly transporting extremists is not a valid ground for cancellation of a Certificate of Registration (Art. 39, Labor Code) and there is failure of due process as no hearing was conducted prior to the cancellation (Art. 38, Labor Code). The DOLE order imposing the travel ban is valid because it is a valid exercise of police power to protect the national interest (Sec. 3, Art. XIII, Constitution on full protection to labor safety of workers) and on the rule making authority of the Secretary of Labor (Art. 5, Labor Code; Philippine Association of Service Exporters, Inc. v. Drilon, 163 SCRA 386 [1988].)
A. SUGGESTED ANSWER Percival is correct. Under Article 85 of the Labor Code and Book Ill, Rule I, Section 7 of the Rules, it shall' be the duty of every employer to give his employees not less than sixty (60) minutes time-off for their regular meals. But where during the meal break, the workers are required to stand by for emergency work, such period is considered overtime (Pan American World Airways System (Phil.) v. Pan American Employees Association, G.R. No. L-16275, February 23, 1961, 1 SCRA 527). ALTERNATIVE ANSWER Percival is correct. All the time during which an employee is required to be on duty or to be at the employer's premises or to be at a prescribed work place, and all the time during which an employee is suffered or permitted to work is considered compensable hours. Given that Percival’s meal break was not one of complete rest, as he did not have the freedom to devote such period for his personal needs, the same should be considered as compensable hours of work. B. As to nature: a learner trains in a semi-skilled job; whereas, an apprentice trains in a highly technical job. 1. As to period: a learner is for three months; whereas, an apprentice is not less than three months but not more than six months, as a rule. 2. As to commitment to employ: For a learner, there is a commitment to employ the learner, as regular employees if he so desire, upon completion of the learnership; whereas, for an apprentice, there is no such commitment. 3. As to necessity of TESDA approval: For a learner, TESDA approval is not necessary, only TESDA inspection is required; whereas, for an apprentice, prior approval by TESDA is required. 4. As to deductibility of expenses: For a learner, there is no provision for deductibility of expenses; whereas, for an apprentice, expenses of training are deductible from income tax. 5. As to compensation: a learner has compensation; whereas, an apprentice has none if DOLE authorizes as when OJT is required by the school.
Is a corporation, 70% of the authorized and voting capital of which is owned and controlled by Filipino citizens, allowed to engage in the recruitment and placement of workers, locally or overseas? ’02 – Q15b NO. A corporation, seventy percent (70%) of the authorized and voting capital stock of which is owned and controlled by Filipino citizens cannot be permitted to participate in the recruitment and placement of workers, locally or overseas, because Article 27 of the Labor Code requires at least seventy-five percent (75%). LABOR STANDARDS 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 industries throughout Region 3. (a) Is the wage order subject to the approval of the National Wages and Productivity Commission before it takes effect? (2%) (b) The law mandates that no petition for wage increase 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%) ’17—Q4 (a) SUGGESTED ANSWER
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
C. Househelper refers to any person, whether male or female, who renders services in and about the employer's home and which services are usually necessary or desirable for the maintenance and enjoyment thereof, and ministers exclusively to the personal comfort and enjoyment of the employer's family (Rule XIII, Section 1(b), Book 3, Labor Code; Apex Milling Company, Inc. v. NLRC, G.R. No. 94951, April 22, 1991, 196 SCRA 251), homeworker, on the other hand, is one who works in a system of production under an employer or contractor whose job is carried out at his/her home, the materials of which may or may not be furnished by the employer or contractor (Department Order No. 005-92). The househelper is covered by the Kasam bahay Law; whereas, the homeworker is subject to the provisions of Book Ill of the Labor Code. The househelper works in another person's home; whereas, the homeworker does his job in the confines of his own home. The househelper has a definite employer while the homeworker has none. The househelper has security of tenure, which the homeworker does not have.
(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%) ’17—Q12(B) (a) Pursuant to Section 8(e) of Rep. Act No. 1161, the legal dependents of Gene under the Social Security Law are the legitimate, legitimated or legally adopted child who is unmarried, not gainfully employed and not over twenty-one years of age, or over twenty-one years of age provided that he is congenitally incapacitated and incapable of self-support, physically or mentally; the legitimate spouse dependent for support upon the employee; and the legitimate parents wholly dependent upon the covered employee for regular support. (b) Gene would be entitled to the funeral aid under the CBA for the death of his widowed mother because the latter is a legitimate parent wholly dependent upon him for regular support for many years. As held in a case, the coverage of the term "legal dependent" in a stipulation in a CBA granting funeral or bereavement benefits to a regular employee for the death of a legal dependent, if the CBA is silent about it, is to be construed as similar to the meaning that contemporaneous social legislation have set. This is because the terms of such social legislation are deemed incorporated in or adopted by the CBA (Philippines Journalists, Inc. v. Journal Employees Union, et al., G.R. No. 192601, June 3,2013,697 SCRA 103).
The labor sector has been loudly agitating for the end of laboronly contracting, as distinguished from job contracting. Explain these two kinds of labor contracting, and give the effect of u finding that one is a labor-only contractor. Explain your answers. (4%) ’17—Q10(a) There is labor-only contracting where: (1) the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others; and (2) the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer (Baguio v. NLRC, G.R. Nos. 79004-08, October 4, 1991, 202 SCRA 465; Art. 106, Labor Code). There is job contracting where: (I) the contractor carries on an independent business and undertakes the contract work on his own account under his own responsibility according to his own manner and method, free from the control and direction of his principal in all matters connected with the performance of the work except as to the results thereof; and (2) the contractor has substantial capital or investment in the form of tools, equipment, machineries, work premises, and other materials which are necessary in the conduct of his business (Baguio vs. NLRC, G.R. Nos. 79004-108, October 4, 1991,202 SCRA 465). A finding that a contractor is a labor-only contractor is equivalent to a declaration that there is an employer-employee relationship between the principal and the employees of the labor-only contractor (Industrial Timber Corp. v. NLRC, G.R. No. 83616, January 20, 1989, 169 SCRA 341). In such a case, the person or intermediary shall be considered merely as an agent of the employer, who shall be responsible to the workers in the manner and extent as if the latter were directly employed by him (Sandoval Shipyards, Inc. v. Prisco Pepito, G.R. No. 143428, June 25,2001, 359 SCRA 555). The liability of the principal vis-a-vis the employees of the labor-only contractor is comprehensive, i.e., not only for unpaid wages but for all claims under the Labor Code and ancillary laws (San Miguel Corporation v. MAERC Integrated Services, Inc., G.R. No. 144672, July 10, 2003, 405 SCRA 579).
Rosa was granted vacation leave by her employer 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 manufacturing practices useful to the company. She accepted the request because the errand would be important to the company and Zimbabwe was anyway in her itinerary. It appears that she contracted a serious disease during her trip. Upon her return, she filed a claim for compensation, insisting that she had contracted 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 occupational disease by the Employees’ Compensatton 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 compensable? Explain your answer. (2.5%) ’17—Q12(C) SUGGESTED ANSWER For sickness and the resulting disability to be compensable, the sickness must be the result of an occupational disease listed under Annex A of the Amended Rules on Employees' Compensation with the condition set therein satisfied; otherwise, proof must be shown that the risk of contracting the disease is increased by the working condition. The burden of proof is upon Rosa. No proof was presented by Rosa to substantiate the foregoing: Moreover, it is required that the sickness and the resulting injury must have arisen out of or in the course of employment. In the present case, Rosa contracted the disease while on vacation leave. Consequently, the disease contracted by her in Africa during her vacation leave is not compensable (Iloilo Dock & Engineering Co. v. Workmen’s Compensation Commission et al, G.R. No L-26341, November 27, 1968, 26 SCRA 102). ALTERNATIVE ANSWER Yes, although Rosa's leave of absence was approved, she was merely on a partial vacation due to the business assignment that her employer gave her to visit the plant of a client in Zimbabwe to derive best manufacturing practices useful to the company; thus, she had to go and observe said activity beneficial to her employer in the performance of
Gene is a married regular employee of Matibay Collloration. The employees and Matibay Collloration had an existing CBA that provided for funeral or bereavement 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 Collloration 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.
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
her assigned task. As she contracted the disease during her trip, the same must be construed as work-related.
fines wage as the remuneration or earning paid to an employee, however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, which is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered: It includes the fair and reasonable value, as determined by the Secretary of Labor, of board, lodging or other facilities customarily furnished by the employer to the employee.
Baido, 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 2007. He worked continuously in the sense that it was done for more than one harvesting season. [a] Was Dencio required to report Baido for compulsory social security coverage under the SSS law? Explain. (2.5%) ’16 – Q17(a)
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:
Dencio is required to report Baido for compulsory social security coverage under the SSS Law. From the facts mentioned, Baido is clearly an employee of Dencio. Considering the length of time that Baido has worked with Dencio, it may be justifiably concluded that he is engaged to perform activities necessary or desirable in the usual trade or business of Dencio and is therefore a regular employee. Length of service was used by the Supreme Court in the case of Brotherhood Labor Unity Movement of the Philippines v. Zamora, (G.R. No. 485451 January 7, 1987), to pronounce that the individual involved is a regular employee. Baido, is thus, not a casual or temporary employee, exempted from the coverage of the SSS Law.
a) b) c) d) e)
13th month pay; 14th to 18th month pay; Christmas basket worth P6,000; Gift check worth P4,000; and Productivity-based incentive ranging from a 20o/o to 40% increase in gross monthly salary for all employees who would receive an evaluation of “Excellent” 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:
[b] What are the liabilities of the employer who fails to report his employee for social security coverage? Explain. (2.5%) ’16 – Q17(b)
a) b) c) d)
The employer is subject to the following liabilities: It shall pay to the SSS damages equivalent to the benefit which the employee would have been entitled had his name been reported on time to the SSS, except that in case of pension benefits, the employer shall be liable to pay the SSS damages equivalent to five years monthly pension; however, if the contingency occurs within thirty (30) days from date of employment, the employer shall be relieved of his liability for damages (Sec. 24 (a), R.A. 1161, as amended). It shall pay the corresponding unremitted contributions and penalties thereon (Sec.24 (b), R.A. 1161, as amended).
13th month pay; 14th month pay; Christmas basket worth P4,000; and 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 scheme, she objected. Is Katrina’s objection justified? Explain. (3%) ‘15 - Q4 Katrina’s objection is justified.
Benito is the owner of an eponymous clothing brand that is a top seller. He employs a number of male and female models who wear Benito’s clothes in promotional shoots and videos. His deal with the models is that Benito will pay them with 3 sets of free clothes per week. Is this arrangement allowed? (2%) ‘15 - Q3
Having enjoyed the across-the-board bonuses, Katrina has earned a vested right. Hence, none of them can be withheld or reduced. In the problem, the company has not proven its alleged losses to be substantial. 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. Hellera, 535 SCRA 434)
No. The arrangement is not allowed. 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 former’s compensation is not in the form prescribed by law.
As to the withheld productivity-based bonuses, Katrina is deemed to have earned them because of her excellent performance ratings for three quarters. On this basis, they cannot be withheld without violating the Principle of Non-Diminution of Benefits.
ALTERNATIVE ANSWER: Moreover, it is evident from the facts of the case that what was withdrawn by FEB was a productivity bonus. Protected by RA 6791 which mandates that the monetary value of the productivity improvement be shared with the employees, the “productivity-based incentive” scheme of FEB cannot just be withdrawn without the consent of its affected employees.
Under Article 102 of the Labor Code, wages of an employee are to be paid only in legal tender, even when expressly requested by the employee. Hence, no lawful deal in this regard can be entered into by and between Benito and his models. The models are not employees. Therefore, Art. 102 of the Labor Code applies. The payment does not have to be in legal tender.
Lolong Law Firm [LLF), which employs around fifty (50) lawyers and one hundred (100) regular staff, suffered losses for the first time in its history. The management informed its employees that it could no longer afford to provide them free lunch. Consequently,
But even if they are employees, the wage arrangement between Benito and the models is allowed by Art. 97(f) of the Labor Code which de-
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
it announced that a nominal fee would henceforth be charged. Was LLF justified in withdrawing this benefit which it had unilaterally been providing to its employees? (1%) (A) Yes, because it is suffering losses for the first time. (B) Yes, because this is a management prerogative which is not due to any legal or contractual obligation. (C) No because this amounts to a diminution of benefits which is prohibited by the Labor Code. (D) No. because it is a fringe benefit that has already ripened into a demandable right. ‘14 - Q3
(a)
ALTERNATIVE ANSWER::
(C) No because this amounts to a diminution of benefits which is prohibited by the Labor Code.
No. Rule 78, Section 4 provides that here must be a written authorization.
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 10 years. However, 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%) ‘14 - Q20
Inter-Garments Co. manufactures garments for export and requires its employees to render overtime work ranging from two to three hours a day to meets its clients deadlines. Since 2009, it had been paying its employees on overtime an additional 35% of their hourly rate for work rendered in excess of their regular eight working hours.
(b) (c)
Proof that such facilities are customarily furnished by the trade; The provision of deductible facilities is voluntarily accepted by the employee; and The facilities are charged at the fair and reasonable value. Mere availment is not sufficient to allow deduction from employees’ wages (Mayon Hotel & Restaurant v. Adarna, G.R. No. 157634, May 16, 2005, 458 SCRA 609).
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 sos that those who worked overtime were only paid an additional 25% instead of the previous 35%. To replace the workers’ overtime rate loss, the company granted a one-time 5% across-the-board wage increase.
Yes. A bonus is an act of generosity granted by an enlightened employer to spur the employee to greater efforts for the success of the business and realization of bigger profits. The granting of a bonus is a management prerogative, something given in addition to what is ordinarily received by or strictly due to the recipient. Thus, a bonus is not a demandable and enforceable obligation, except when it is made part of the wage, salary, or compensation of the employee. It may, therefore be withdrawn, unless they have been made part of the wage, salary, or compensation of the employees, a matter which is not the facts of the case. (American Wire Cable Company Daily Rated Employees Union v. American Wire Cable Co., Inc., GR No 155059, April 29, 2005)
Vigilant Union, the rank-and-file bargaining agent charged the company with Unfair Labor Practice on the ground (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.
ALTERNATIVE ANSWER: Is the union position meritorious? (8%) ‘13-Q3 No. Having been enjoyed for the last ten (10) years, the granting of the bonus has ripened into a company practice or policy, which can no longer be peremptorily withdrawn. Art. 100 of the Labor Code prohibits the diminution or elimination by the employer of the employees’ existing benefits.
However, the charge of the Union on the diminution of benefits (violation of Article 100 of Labor Code) appears to be meritorious. Since three (3) years have already elapsed, the overtime rate of 35% has ripened into practice and policy, and cannot be removed anymore (Sevilla Trading v. Semana, G.R. No, 152456, April 28, 2004, 428 SCRA 239). This is deliberate, consistent, and practiced over a long period of time.
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.
After thirty (30) years of service, Beta Company compulsorily retired Albert at age 65 pursuant to the company’s Retirement Plan. Albert was duly paid his full retirement benefits of one (1) month pay for every year of service under the Plan. Thereafter, out of compassion, the company allowed Albert to continue working and paid him his old monthly salary rate, but without the allowances he used to enjoy.
In the course of a routine inspection, a Department of Labor and Employment (DOLE) Inspector noted that the workers’ pay is below the prescribed minimum 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 about the minimum pay required by law. The company counsel further points out that the employees are aware that their food and lodging form part of their salary, and have long accepted the arrangement.
After five (5) years under this arrangement, the company finally severed all employment relations with Albert; he was declared fully retired in a fitting ceremony but the company did not give him any further retirement benefits. Albert thought this treatment was unfair 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 (5) working years, based either on the company Retirement Plan or the Retirement Pay Law, whichever is applicable’.
Is the company’s position legally correct? (8%) ‘13 - Q2 No. the following requisites were not complied with:
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
(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%) ‘13 - Q8a
Yes, as during said days, the already works not as a domestic servant but as a regular employee in his employer's boutique in a mall [Apex Mining Company, Inc. v. NLRC (G.R. No. 94951, April 22, 1991, 196 SCRA 251, 254-255)].
He would be considered a contractual employee, not a regular employee. His salaries and benefits will be in accordance with the stipulations of the contract he signed with the company.
b)
The present case is similar to a case decided by the Supreme Court (Januaria Rivera v. United Laboratories, G.R. No. 155639, April 22,2009) where the Court held that the company, in employing a retired employee whose knowledge, experience, and expertise the company recognized as an employee or as a consultant, is not an illegality; on the contrary, it is a recognized practice in this country. (B) Is he entitled to additional retirement benefits for the additional service he rendered after age 65? (4%) ‘13 Q8b No. He cannot be compulsory retired twice in the same company. b)
A spinster school teacher took pity on one of her pupils, a robust and precocious 12-year old boy whose poor family could barely afford the cost of his schooling. She lives alone at her house near the school after her housemaid had left. In the afternoon, she lets the boy do various chores as cleaning, 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 nights. The school principal learned about ti 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%) ‘12 Q4b
Yes. Mam-manu’s pre-employment requirement cannot be justified as a “bona fide occupational qualification,” where the particular requirements of the job would justify it. The said requirement is not valid because it does not reflect an inherent quality that is reasonably necessary for a satisfactory job performance. [PT&T vs. NLRC, G.R. No. 118978, May 23, 1997 citing 45A Am. Jur. 2d, Job Discrimination, Sec 506, p. 486] ALTERNATIVE ANSWER: Yes, Ingga’s contention is tenable considering Art. 136 of the Labor Code which prohibits discrimination against married women.
The defense is not tenable. Children below 15 years of age shall not be employed except: 1.
2.
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 5 years they decided to close the business.
When a child works directly under the sole responsibility of his/her parents or legal guardian and where only members of his/her family are employed Where a child’s employment or participation in public entertainment or information through cinema, theater, radio, television or other forms of media is essential [Section 12, RA 7610, as amended by RA 9231].
b)
d)
Are the employees entitled to separation benefits? ‘12 Q8d
Yes. In case of cessation of operation or establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one month pay or at least ½ month pay for every year of service, whichever is higher. A fraction of at least 6 months shall be considered as one whole year [Art. 283, Labor Code]
Is the driver a house helper? (5%) ‘12 - Q5a
Yes, insofar as concerns his work on MWF, as he ministers to the personal comfort and enjoyment of his employer’s family during those days. [Apex Mining Company, Inc. v. NLRC (G.R. No. 94951, April 22, 1991, 196 SCRA 251, 254-255)]. b)
Are the employees entitled to separation pay? (2%) ‘12 Q8b
No. Where closure is due to serious business losses, no separation pay is required. [North Davao Mining Corp. v. NLRC, 254 SCRA 721; JAT General Services v. NLRC 421 SCRA 78 (2004)]
The weekly work schedule of a drive is as follows: MWF - drive the family car to bring and fetch the children to and from school. TThS - drive family van to fetch merchandise from suppliers and deliver the same to a boutique in a mall owned by the family. a)
Mam-manu Aviation Company 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: Ilonggo, Cebuano, and Kapampangan. Ingga, 23 yrs old, was accepted as she possesses all the qualifications. After passing the probationary period. Ingga disclose 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 that the time of the celebration of their marriage. As a result of this revelation, Ingga was not hired as a regular flight attendant. Consequently, she files a complaint against Mam-manui alleging that the pre-employment qualifications violate relevant provisions of the Labor Code and are against public policy,. Is the contention of Ingga tenable? Why? (5%) ‘12 Q6b
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 retirement benefits. During the entire duration of his service, Dennis was not given his 13th month pay and his service incentive leave pay.
The same driver claims that for work performed in TThS, he should be paid the minimum daily wage of a driver in a commercial establishment. Is the claim of the driver valid? (5%) ‘12 - Q5b
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
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 retirement benefits. During the entire duration of his service, Dennis was not given his 13th month pay and his service incentive leave pay. a)
Payment on commission basis along does not prove that A is a field personnel. There must be proof that A is left to perform his work unsupervised by his employer. Otherwise, he is not a field personnel, thus entitled to commutable service incentive leave (SIL) credits (Auto Bus v. Bautista, 458 SCRA 578 [2005].) His action has not yet prescribed. In Auto Bus v. Bautista, 458 SCRA 578 [2005], the Supreme Court recognized that the SIL is such a unique labor standard benefit, because it is commutable. An employee may claim his service with the company upon his resignation, retirement, or termination. Therefore, when A resigned after five years, his right of action to claim ALL of his SIL benefits accrued at the time when the employer refused to pay him his rightful SIL benefits (Article 291 [now Art. 305], Labor Code.)
Is Dennis entitled to 13th month pay and service incentive pay? ( 5%) ‘12 - Q9a
No. A taxi driver paid under the boundary system is not entitled to a 13th month pay and SIL pay. Hence, his retirement pay should be computed solely on the basis of his salary. Specifically, Sec 3 (e) of the Rules and Regulations Implementing P.D> 851 excludes from the obligation of 13th month pay “Employers of those who are paid on xxx boundary” basis. On the other hand, Sec 1(d), Rule V, Book III of the Omnibus Rules provides that those “Employees whose performance is unsupervised by the employer” are not entitled to Service Incentive Leave. A taxi driver paid under the boundary system is an “unsupervised” employee. b)
A worked as a roomboy in La Mallorca Hotel. He sued for underpayment of wages before the NLRC alleging that he was paid below the minimum wage. The employer denied any under payment, arguing that based on long standing, unwritten policy, the Hotel provided food and lodging to its housekeeping employees, the costs of which were partly shouldered by it and the balance was charged to the employees. The employees’ corresponding share was thus deducted from their wages. The employer concluded that such valid deduction naturally resulted in the payment of wages below the prescribed minimum. If you were the LA, how would you rule? ’10 – Q23
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 days for every year of service, the additional 2.5 days representing 1/12 of the 13th month pay as well as the five days representing the service incentive leave for a total of 22.5 days ? Explain. (5%) ‘12 - Q9b
I will rule in favor of A. Even if food and lodging were provided and considered facilities by the employer, the employer could not deduct such facilities from its workers’ wages without compliance with law (Mayon Hotel & Restaurant v. Adana, 458 SCRA 609 [2005].) In Mabeza v. NLRC, 271 SCRA 670 [1997], the Supreme Court held that the employer simply cannot deduct the value from the employee’s wages without satisfying the following: (a) proof that such facilities are customarily furnished by the trade; (b) the provision of deductible facilities is voluntarily accepted in writing by the employee; and (c) the facilities are charged at fair and reasonable value.
No. Since he is not entitled to 13th month pay and SIL, his retirement pay should be computed solely on the basis of his salary. [R&E transport v. Latag, G.R. No. 155214, Feb 13, 2004]. A, a worker of ABC Company, was on leave with pay on March 31, 2010. He reported for work on April 1 and 2, Maundy Thursday and Good Friday, respectively, both regular holidays. Is A entitled holiday pay for the two successive holidays? ’10 – Q4
Albert, a 40-year old employer, asked his domestic helper, Inday, to give him a private massage. When Inday refused, she showed her Article 141 [now Article 139] of the Labor Code, which says that one of the duties of a domestic helper is to minister to the employer’s personal comfort and convenience. Is Inday’s refusal tenable? ’09 – Q6a
YES. A is entitled to holiday pay equivalent to two hundred percent (200%) of his regular daily wage for the two successive holidays that he worked [Section 6(a), Rule IV, Book III of the Omnibus Rules implementing the Labor Code.]
YES. Inday’s refusal to giver he employer a “private massage” is in accordance with law because the nature of the work of a domestic worker must be in connection with household chores. Massaging is not a domestic work.
After working from 10 AM to 5 PM on a Thursday as one of 5,000 employees in a beer factory, A hurried home to catch the early evening news and have dinner with his family. At around 10 PM of the same day, the plant manager called and ordered A to fill in for C who missed the second shift. May A validly refuse the plant manager’s directive? Assuming that A was made to work from 11 PM on Thursday until 2 AM on Friday, may the company argue that, since he was 2 hours later in coming to work on Thursday morning, he should only be paid for work rendered from 1 AM to 2 AM? ’10 – Q14
Distinguish a “househelper” from a “homeworker.” ’09 – Q6b Art. 139 [141]. Domestic Helper – one who performs services in the employer’s house which is necessary or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience of the members of the employer’s household, including the services of a family driver. Art. 151 [153]. Homeworker – is an industrial worker who works in his/her home processing raw materials into finished products for an employer. It is a decentralized form of production with very limited supervision or regulation of methods of work.
YES. A may validly refuse to fill in for C. A may not be compelled to perform overtime work considering that the plant manager’s directive is not for an emergency overtime work, as contemplated under Article 89 of the Labor Code.
What is wage distortion? Can a labor union invoke wage distortion as a valid ground to go on strike? ’09 – Q9a; ’06 – Q6
NO. Undertime is not off-set by overtime (Article 88, Labor Code.)
Wage distortion refers to a situation where an increase in the prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employees in an establishment as to effectively obliterate the distinctions in such wage structure based on skills, length of service and other logical bases of differentiation (Art. 124, Labor Code.) NO. In Ilaw at Buklod ng Mangagagawa v. NLRC, 198 SCRA 586, 594-595 (1991), the Court said that the existence of wage distortion is not a valid ground for staging a strike because Article 124 of the Labor
A, a driver for a bus company, sued his employer for non-payment of commutable service incentive leave (SIL) credits upon his resignation after 5 years of employment. The bus company argued that A was not entitled to service incentive leave since he was considered a field personnel and was paid on commission basis and that, in any event, his claim had prescribed. If you were the LA, how would you rule? ’10 – Q20 I will grant the prayer of A.
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
Code provides for a specific method or procedure for correcting wage distortion.
YES, serious misconduct is a ground for termination of employment. The term “misconduct” denotes intentional wrongdoing or deliberate violation of a rule of law or standard of behaviour.
What procedural remedies are open to workers who seek correction of wage distortion? ’09 – Q9b; ’06 – Q6; ’02 – Q17a
Another Suggested Answer:
The Procedural Remedies of Wage Distortion are provided in Article 124 of the Labor Code, as follows: 1. Organized establishments – follow the grievance procedure as provided for in the collective bargaining agreement and, if the dispute remains unresolved, then through voluntary arbitration. 2. Unorganized establishments – employer and workers, with the aid of the NCMB, shall endeavor to correct the wage distortion, and if they fail, to submit the issue to the NLRC for compulsory arbitration.
NO. The case for illegal dismissal with damages filed in the Office of the Labor Arbiter will not prosper. Renan was terminated for serious misconduct which is a just cause under Article 282 [now Art. 296] of the Labor Code. The act of Renan is grave and aggravated in character, and committed in connection with his work (Echaverria v. Venutek Media, 516 SCRA 72 [2007]), and indicates that he has become unfit to continue working for his employer (Torreda v. Toshiba Information Equipment, Inc., 515 SCRA 133 [2007].) Complainants had worked 5 years as waitresses in a cocktail lounge owned by respondent. They did not receive any salary directly from the respondent but shared in all service charges collected for food and drinks to the extent of 75%. With respondent’s prior permission, they could sit with and entertain guests inside the establishment and appropriate for themselves the tips given by guests. After 5 years, the complainant’s individual shares in the collected service charges dipped to minimum wage level as a consequence of the lounge’s marked business decline. Thereupon, complainants asked respondent to increase their share in the collected service charges to 85%, or the minimum wage level, whichever is higher. Respondent terminated the services of the complainants who countered by filing a consolidated complaint for unlawful dismissal, with prayer for 85% of the collected services of the minimum wage for the appropriate periods, whichever is higher. Decide. ’08 – Q11
Employment of children below fifteen (15) years of age in any public or private establishment is not absolutely prohibited. ’09 – Q11b Children below fifteen (15) years of age (can be employed) “when he/she works directly under the sole responsibility of his/her parents or guardian, and his employment does not in any way interfere with his/ her schooling.” A waiver of the right to claim overtime pay is contrary to law. ’09 – Q11d As a general rule, overtime compensation cannot be waived, whether expressly of impliedly; and any stipulation to the contrary is against the law (Pampanga Sugar Dev. Co., Inc. v. CIR, 114 SCRA 725 [1982].) An exception would be the adoption of a compressed work week on voluntary basis, subject to the guidelines of Department Order No. 02, Series of 2004.
Article 138 [now Art. 136] of the Labor Code provides as follows: “Art. 138 [136]. Classification of certain women workers – Any woman who is permitted or suffered to work, with or without compensation, in any night club, cocktail lounge, massage clinic, bar or similar establishment, under the effective control or supervision of the employer for a substantial period of time as determined by the Secretary of Labor, shall be considered as an employee of such establishment for purposes of labor and social legislation.” Since complainants are under the effective control of respondent, they are therefore considered as employees and entitled to full backwages based on the minimum wage for the appropriate period plus 85% of the collected service charges.
Atty. Renan, a CPA-lawyer and Managing Partner of an accounting firm, conducted the orientation seminar for newly-hired employees in the firm, among them, Miss Maganda. After the seminar, Renan requested Maganda to stay, purportedly to discuss some work assignment. Left alone in the training room, Renan asked Maganda to go out with him for dinner and ballroom dancing. Thereafter, he persuaded her to accompany him to the mountain highway in Antipolo for sight-seeing. During all these, Renan told that Maganda that most, if not all, of the lady supervisors in the firm are where are they now, in very productive and lucrative posts, because of his favourable endorsement. 1. Did Renan commit acts of sexual harassment in a workrelated or employment environment? 2. The lady supervisors in the firm, slighted by Renan’s revelations about them, succeed 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? ’09 – Q13
Arnaldo, President of “Bisig” Union in Femwear Company, readied himself to leave exactly at 5 PM, which was the end of his normal shift to be able to send off his wife who was scheduled to leave for overseas. However, the General Manager required him to render overtime work to meet the company’s export quota. Arnaldo begged off, explaining to the GM 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. ’08 – Q12 Compulsory overtime may be required when the completion or continuation of work stated before the 8th hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer [Article 89(e), Labor Code; Section 10, Rule I, Book III, Implementing Rules.] On the other hand, dismissal for willful disobedience of the employer’s lawful orders, requires that: (a) the assailed conduct must have been willful or intentional, characterized by a “wrongful and perverse attitude”; and (b) the order violated must have been reasonable, lawful, made known to the employee must pertain to his duties (Dimabayao v. NLRC, G.R. No. 122178, February 25, 1999; Alcantara, Jr. v. Court of Appeals, G.R. No. 143397, August 6, 2002.) Although the order to render overtime is valid, Arnaldo should not be dismissed because he was motivated by his honest belief that the order unreasonably prevented him from sending off his wife who was leaving for overseas. While the circumstances do not justify his violation of the order to render overtime, they for not justify Arnaldo’s dismissal (Alcantara, Jr. v. Court of Appeals, G.R. No. 143397, August 6, 2002.)
Atty. Renan is guilty of sexual harassment. This conclusion is predicated upon the following consideration: 1. Atty. Renan has authority, influence or moral ascendancy over Miss Maganda; 2. While the law calls for a demand, request or requirement of a sexual favor, it is not necessary that the demand, request or requirement of a sexual favor be articulated in a categorical oral or written statement. It may be discerned, with equal certitude from the acts of the offender (Domingo v. Rayala, 546 SCRA 90 [2008]); 3. The acts of Atty. Renan towards Miss Maganda resound with deafening clarity the unspoken request for a sexual favor, regardless of whether it is accepted or not by Miss Maganda; 4. In sexual harassment, it is not essential that the demand, request or requirement be made a condition for continued employment or promotion to a higher position. It is enough that Atty. Renan’s act result in an intimidating, hostile or offensive environment for Miss Maganda.
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
Discuss the statutory restrictions on the employment of minors? ’07 – Q2a
complaint for illegal dismissal but her employer X contended that Inday was not a regular employee but a mere househelp. Decide. ’07 – Q18
Article 140 [now Art. 138] of the Labor Code provides that employers shall not discriminate against any person in respect to terms and conditions of employment on account of his age. The employer is duty-bound to submit a report to DOLE of all the children under his employ, with a separate report on children found to be handicapped after a conduct of medical examination. Moreover, an employer in any commercial, industrial, or agricultural establishment or enterprise is required to keep a register of all children under his employ, indicating therein their respective dates of birth; and a separate file on written consent of their respective parents/guardians, another file for their educational and medical certificates, and a separate file for special work permits issued by the Secretary of DOLE. For all children employed as domestic, the head of the family shall give the domestic an opportunity to complete at least elementary education (Arts. 110, 108, 109, P.D. 603 of the Revised Penal Code.) Art. 272 provides that no person shall retain a minor in service against his will, in payment of a debt incurred in by an ascendant, guardian or person entrusted with the custody of said minor. Art. 278 enumerates various acts of exploitations of minors prohibited under the law, to wit: 1. Any person who shall cause any boy or girl under 16 years of age to perform any dangerous feat of balancing, physical strength or contortion; 2. Any person who, being an acrobat, gymnast, rope-walker, diver, wild-animal tamer or circus manager or engaged in a similar calling, shall employ in exhibitions of these kinds of children under 16 years of age who are not his children or descendants; 3. Any person engaged in any of the callings enumerated in the next paragraph who shall employ any descendant of his under 12 years of age in such dangerous exhibitions; 4. Any ascendant, guardian, teacher or person entrusted in any capacity with the care of a child under 16 years of age, who shall deliver such child graciously to any person following any of the callings enumerated in par. 2 hereof, or to any habitual vagrant or beggar; P.D. No. 603 – Child and Youth Welfare Code Article 107 of the Child and Youth Welfare Code provides that children below 16 years of age may only be employed to perform light work which is not harmful to their safety, health or normal development, and which is not prejudicial to their studies. R.A. No. 9231, amending R.A. No. 7610 R.A. No. 7610 included a provision allowing a minor below 15 years of age to participate in public entertainment or information through cinema, theater, radio or television provided that the contract is concluded by the child’s parents or legal guardian, with the express agreement of the child, and approval of DOLE. The employer is charged to secure a work permit for the child with DOLE prior to engaging the child. The employer is also required to: (a) to ensure the protection, health, safety, morals and normal development of the child; (b) institute measures to prevent the child’s exploitation and discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and (c) formulate and implement a continuing program for training and skills acquisition of the child. The Department of Education is charged to promulgate a course design under its non-formal program aimed at promoting the intellectual, moral and vocational efficiency to working children who have not undergone or finished elementary or secondary education.
Inday is a regular employee. Under Section 1(b), Rule XIII, Book 3 of the Labor Code, as amended, the terms “househelper” or “domestic servant” are defined as follows: “The term “househelper as used herein is synonymous to the term “domestic servant” and shall refer to any person, whether male or female, who renders services in and about the employer’s home and which services are usually necessary or desirable for the maintenance and enjoyment thereof, and ministers exclusively to the personal comfort and enjoyment of the employer’s family.” The foregoing definition clearly contemplates such househelper or domestic servant who is employed in the employer’s home to minister exclusively to the personal comfort and enjoyment of the employer’s family. The definition cannot be interpreted to include househelp or laundrywomen working in staffhouses of a company, like Inday who attends to the needs of the company’s guests and other persons availing of said facilities. The criteria is the personal comfort and enjoyment of the family of the employer in the home of said employer. While it may be true that the nature of the work of a househelper, domestic servant or laundrywoman in a home or in a company staffhouse may be similar in nature, the difference in their circumstances is that in the former instance they are actually serving the family while in the latter case, whether it is a corporation or a single proprietorship engaged in business or industry or any other agricultural or similar pursuit, service is being rendered in the staffhouses or within the premises of the business of the employer. In such instance, they are employees of the company or employed in the business concerned entitled to the privileges of a regular employee. The mere fact that the househelper or domestic servant is working within the premises of the business of the employer and in relation to or in connection with its business, as in its staffhouses for its guests or even for its officers and employees, warrants the conclusion that such househelper or domestic servant is and should be considered as a regular employee of the employer and not as a mere family househelper or domestic servant as contemplated in Section 1(b), Rule XIII, Book 3 of the Labor Code, as amended (Apex Mining Company, Inc. v. NLRC, 196 SCRA 251 [1991].) For humanitarian reasons, a bank hired several handicapped workers to count and sort out currencies. Their employment contract was for 6 months. The bank terminated their employment on the ground that their contract has expired prompting them to file with the LA a complaint for illegal dismissal. Will their action prosper? ’06 – Q4; ’12 – Q6a YES, their action will prosper. They are doing necessary or desirable jobs and are qualified for the job, and therefore they should be treated like other qualified able-bodied employees (Bernardo v. NLRC and Far East Bank, 310 SCRA 186 [1999].) They cannot be terminated simply because of the expiration of the contract. The nature of their work gives them the status of regular employees. What determines regularity is not the employment contract but the nature of the job (A.M. Oreta and Co. Inc. v. NLRC, 176 SCRA 218 [1989].) Can an employer and an employee enter into an agreement into an agreement reducing or increasing the minimum percentage provided for night differential pay, overtime pay, and premium pay? ’06 – Q5
May a househelp be assigned to non-household work? ’07 – Q2b
An employer and employee can enter into a contract increasing night differential pay, overtime pay, and premium pay benefits, as this is beneficial to the worker and no fraud or vice of consent could be inferred from it. An employer and employee could not, however, enter into a contract reducing the minimum pay for the above-stated benefits, as these would be against public policy and therefore void ab initio.
A househelp may be assigned to non-household work but a househelper assigned to work in a commercial, industrial or agricultural enterprise should have a wage or salary rate not lower than provided for agricultural or non-agricultural workers as prescribed by law. Inday was employed by mining company X to perform laundry service at its staffhouse. While attending to her assigned task, she slipped and hit her back on a stone. Unable to continue to with her work, she was permitted to go on leave for medication, but thereafter she was not allowed to return to work. She filed a
Determine whether the following minors should be prohibited from being hired and from performing their respective duties indicated hereunder:
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The Sigma Rho Fraternity Bar Operations 2018 1.
Bar Questions and Answers
A 17-year old boy working as a miner at Walwadi Mining Corp.
I will likewise file a complaint for illegal dismissal citing Article 136 [now Art. 138] of the Labor Code which provides that it is unlawful for an employer to require as a condition for continued employment that a woman employee shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee by reason of her marriage.
YES, he should be prohibited from being hired and from performing the duties of a miner because such constitutes hazardous work under D.O. No. 04 Series of 1999. Art. 139(c) [now 137(c)] of the Labor Code expressly prohibits the employment of persons below 18 years of age in an undertaking which is hazardous or deleterious in nature as determined by the Secretary of Labor. 2.
Araw ng Kagitingan and Good Friday are among the 10 paid regular holidays under Article 94 of the Labor Code. How much will an employee receive when both holidays fall on the same day? ’05 – Q5a
An 11-year old boy who is an accomplished singer and performer in different parts of the country.
NO, he should not be prohibited from being hired and from performing as a singer. Under Section 12, Article VIII of R.A. No. 7610, as amended by R.A. No. 7658, this constitutes an exception to the general prohibition against the employment of children below 15 years of age, provided that the following requirements are strictly complied with: (a) the employer shall ensure the protection, health and safety and morals of the child; (b) the employer shall institute measures to prevent the child’s exploitation and discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and (c) the employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skill acquisition of the child. Moreover, the child must be directly under the sole responsibility of his parents or guardians and his employment should not in any way interfere with his schooling. 3.
The employee will receive 200% of his regular wage when both regular holidays fall on the same day and he does not work. The law provides that he shall receive his regular daily wage for each regular holiday. The employee will receive 100% for Araw ng Kagitingan and 100% for Good Friday. If he works on that day, he is entitled to 400% of his regular daily wage; otherwise, there will be diminution of benefits (Asian Transmission Corp. v. Court of Appeals, 425 SCRA 478 [2004].) May a rank-and-file employee, who is not a member of the union representing his bargaining unit, avail of the wage increases which the union negotiated for its members? ’05 – Q5b YES. The beneficiaries of a Collective Bargaining Agreement include Non-Union Members. Otherwise, there will be discrimination which is prohibited by law (New Pacific Timber and Supply Co., Inc. v. NLRC, 328 SCRA 424 [2000].)
A 15-year old girl working as a library assistant in a girls' high school.
Under what conditions a “compressed work week” schedule may be legally authorized as an exception to the “eight-hour a day” requirement under the Labor Code? ’05 – Q5d
NO, she should not be prohibited from working as a library assistant because the prohibition in the Labor Code against employment of persons below 18 years of age merely pertains to employment in an undertaking which is hazardous or deleterious in nature as identified in the guidelines issued by the DOLE Secretary. Working as a library assistant is not one of the undertakings identified to be hazardous under D.O. No. 04 Series of 1999. 4.
A “compressed work week” schedule may be authorized under the following conditions: 1. The employee voluntarily agrees to it; 2. There is no diminution in their weekly or monthly take home pay or fringe benefits; 3. The benefits are more than or at least commensurate or equal to what is due the employees without the compressed work week; 4. Overtime pay will be due and demandable when they are required to work on those days which should have ceased to be working days because of the compressed work week schedule; 5. No strenuous physical exertion or that they are given adequate rest periods; and 6. It must be for a temporary duration as determined by the Department of Labor.
A 16-year old girl working as model promoting alcoholic beverages.
YES, she should be prohibited from working as a model promoting alcoholic beverages. R.A. No. 7610 categorically prohibits the employment of child models in all commercials or advertisements promoting alcoholic beverages and intoxicating drinks, among other things. 5.
A 17-year old boy working as a dealer in a casino. ’06 – Q14
YES, he should be prohibited from working as a dealer in a casino, because Article 139 (now Art. 137) of the Labor Code prohibits the employment of persons below 18 years of age in an undertaking which is hazardous or deleterious in nature as identified in the guidelines issued by the DOLE Secretary. Working as a dealer in a casino is classified as hazardous under D.O. No. 04 Series of 1999 as it exposes children to physical, psychological or sexual abuses.
Carissa, a comely bank teller, was due for her performance evaluation which is conducted every 6 months. A rating of "outstanding" is rewarded with a merit increase. She was given a "below average" rating in the last two periods. According to the bank's personnel policy, a 3rd rating of "below average" will result in termination. Mr. Perry Winkle called Carissa into his office a few days before submitting her performance ratings. He invited her to spend the night with him in his rest house. She politely declined. Undaunted, Mr. Winkle renewed his invitation, and Carissa again declined. He then warned her to "watch out" because she might regret it later on. A few days later, Carissa found that her 3rd and last rating was again "below average." Carissa then filed a complaint for sexual harassment against Mr. Winkle with the DOLE. In his counter-affidavit, he claimed that he was enamored with Carissa. He denied having demanded, much less received any sexual favors from her in consideration of giving her an "outstanding" rating. He also alleged that the complaint was premature because Carissa failed to refer the matter to the Committee on Decorum and Discipline for investigation and resolution before the case against him was filed. In her reply affidavit, Carissa claimed that there was no need for a prior referral to the Committee on Decorum and Discipline of her complaint. Resolve the case with reasons. '05 - Q7(2)
As a condition for her employment, Josephine signed an agreement with her employer that she will not get married, otherwise, she will be considered resigned or separated from the service. Josephine got married. She asked Owen, the personnel manager, if the company can reconsider the agreement. He told Josephine he can do something about it, insinuating some sexual favors. She complained to higher authorities but to no avail. She hires you as her counsel. What action or actions will you take? ’06 – Q15 As counsel for Josephine, I will file a complaint for work-related sexual harassment which, as in the case at bar, occurs when a person who has authority, influence or moral ascendancy over another, demands, requests or otherwise requires any sexual favor from the latter for, inter alia, the continued employment of said individual (Section 3, R.A. No. 7877.)
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
I will hold Mr. Perry Winkle guilty of sexual harassment. This resolution is predicated mainly upon the following considerations: 1. Mr. Perry Winkle exercises authority, influence or moral ascendancy over Carissa; 2. Mr. Winkle's insistence in inviting Carissa "to spend the night with him in his rest house" implies a request or demand for a sexual favor; 3. Mr. Winkle's warning clearly manifests that the refusal of the sexual favor would jeopardize Carissa's continued employment; and 4. Mr. Winkle's invitation for a sexual favor will result in an intimidating, hostile, or otherwise offensive working environment for Carissa. Carissa is correct in stating that there was no need for prior referral to the Committee on Decorum and Discipline of her complaint because nothing in the law precludes the victim of sexual harassment from instituting a separate and independent action for damages and other affirmative relief. (Section 6, R.A. No. 7877)
requesting a sexual favor from Masculado for a favorable recommendation regarding the latter's employment. It is not impossible for a male, who is a homosexual, to ask for a sexual favor from another male. Gil Bates, a computer analyst and programmer of Hard Drive Company, works 8 hours a day for 5 days a week at the main office providing customers information technology assistance. On Saturdays, however, the company requires him to keep his cellular phone open from 8 AM to 5 PM so that the Management could contact him in case of heavy work load or emergency problems needing his expertise. May said hours on Saturdays be considered compensable working hours “while on call”? If so, should said compensation be reported to the SSS? ’04 – Q7a Said hours on Saturdays should be considered as compensable working hours "while on call". In accordance with the Rules and Regulations Implementing the Labor Code, an employee who is not required to leave word at his home or with company officials as to where he may be reached is not working while on call. But in the question, Gil Bates was required to keep his cell phone open from 8:00 A.M. to 5:00 P.M. Therefore, Bates should be considered as working while on call, if he cannot use effectively and gainfully for his own purpose the time from 8:00 A.M. to 5:00 P.M. on Saturdays when he is required to keep his cellphone open. The compensation actually received by Bates for working while on call on Saturdays should be reported to the Social Security System because under the Social Security Law, compensation means "all actual remuneration for employment."
A spinster school teacher took pity on one of her pupils, a robust and precocious 12-year old boy whose poor family could barely afford the cost of his schooling. She lives alone at her house near the school after her housemaid left. In the afternoon, she lets the boy do various chores as cleaning, fetching water and all kinds of errands after school hours. She gives him rice and P30.00 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, and she invoked the exception provided in the Department Order of DOLE for the engagement of persons in domestic and household service. ’04 – Q1a; ’12 – Q4b
TRX, a local shipping firm, maintains a fleet of motorized boats plying the island barangays of AP, a coastal town. At day’s end the boat operators/crew members turn over to the boat owner their cash collections from cargo fees and passenger fares, less the expenses for diesel fuel, food, landing fees and spare parts. 50% of the monthly income or earnings derived from the operations of the boats are given to the boatmen by way of compensation. Deducted from the individual shares of the boatmen are their cash advance and peso value of their absences, if any. Are these boatmen entitled to overtime pay, holiday pay, and 13th month pay? '04 - Q7b
NO, her defense is not tenable. Under Article 139 of the Labor Code on "minimum employable age", no child below 15 years of age shall be employed except when he works directly under the sole responsibility of his parents or guardian, the provisions of the alleged Department Order of DOLE to the contrary notwithstanding. A mere Department Order cannot prevail over the express prohibitory provisions of the Labor Code. [Note: Sec. 3, R.A. No. 9231 (amending R.A. No. 7610) allows a child below 15 years of age to work for not more than 20 hours a week; provided, that the work shall not be more than four (4) hours at any given day; provided, further, that he does not work between 8 o'clock in the evening and 6 o'clock in the morning of the following day; and provided, finally, that the work is not hazardous or deleterious to his health or morals.]
If the boatmen are considered employees, like jeepney drivers paid on a boundary system, the boatmen are not entitled to overtime and holiday pay because they are workers who are paid by results. Said workers, under the Labor Code are not entitled, among others, to overtime pay and holiday pay. In accordance with the Rules and Regulations implementing the 13th month pay law, however, the boatmen are entitled to the 13th month pay. Workers who are paid by results are to be paid their 13th month pay.
Pedrito Masculado, a college graduate from the province, tried his luck in the city and landed a job as utility/maintenance man at the warehouse of a big shopping mall. After working as a casual employee for six months, he signed a contract for probationary employment for six months. Being well-built and physically attractive, his supervisor, Mr. Hercules Barak, took special interest to befriend him. When his probationary period was about to expire, he was surprised when one afternoon after working hours, Mr. Barak followed him to the men’s comfort room. After seeing that no one else was around, Mr. Barak placed his arm over Pedrito’s shoulder and softly said: “You have great potential to become regular employee and I think I can give you a favorable recommendation. Can you come over to my condo unit on Saturday evening so we can have a little drink? I’m alone, and I’m sure you want to stay longer with the company.” Is Mr. Barak liable for sexual harassment committed in a work-related or employment environment? '04- Q4b
A case against an employer company was filed charging it with having violated the prohibition against offsetting undertime for overtime work on another day. The complainants were able to show that, pursuant to the CBA, employees of the union had been required to work "overtime" on Saturday but were paid only at regular rates of pay on the thesis that they were not required to complete, and they did not in fact complete, the 8-hour work period daily from Monday through Friday. Given the circumstances, the employer contended that the employees were not entitled to overtime compensation, i.e., with premium rates of pay. Decide. '03 - Q6 The employer is correct. While Article 88 of the Labor Code clearly provides that undertime work on any other particular day shall not be offset by overtime work on any other day, this rule is inapplicable in this case pertaining to Saturday work which in reality does not constitute overtime work as Saturday is still a working day under the law and there is no CBA stipulation against it.
YES, the elements of sexual harassment are all present. The act of Mr. Barak was committed in a workplace. Mr. Barak, as supervisor of Pedrito Masculado, has authority, influence and moral ascendancy over Masculado. Given the specific circumstances mentioned in the question like Mr. Barak following Masculado to the comfort room, etc. Mr. Barak was
Another Suggested Answer:
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
Article 88 of the Labor Code provides that undertime work on any particular day shall not be offset by overtime work on any other day. The CBA being the law between the parties and the Union having shown that the employees rendered overtime work on Saturday, the contention of the employer is not tenable. The employer cannot use the undertime of Monday through Friday to offset the overtime on Saturday. Hence, the employees are entitled to overtime compensation, i.e. premium rates of pay on Saturday.
ther bankrupt or in liquidation, although its business operations after the foreclosure ceased. 3. The decision of the Labor Arbiter for XYZ & Co. to pay a sum of money to Caspar was based on an action in personam, not in rem, enforceable against any party (Sundowner Corp. v. Drilon, 180 SCRA 14 [1989].) 4. The reference in the Decision to “labor benefits due to an employee is superior to the right of a mortgagee of property” is misplaced. The preferential claim rule has no basis and runs contrary to law and jurisprudence.
XYZ Employees Association filed a complaint against ABC Bank for wrongful diminution of benefits. It alleged that the bank had been providing for a mid-year bonus equivalent to 1-month basic pay and a Christmas bonus equivalent to 1-month basic pay since 1971. Upon the effectivity of P.D. No. 851 in 1975 which granted the 13th month pay, the bank started giving its employees a 1month basic pay as mid-year bonus, 1-month basic pay as Christmas bonus, and 1-month basic pay as 13th month pay. In 1980, the bank was placed under conservatorship and by virtue of a monetary board resolution of the Central Bank, the bank only gave one month basic pay mandated by P.D. 851, and it no longer gave its employees the traditional mid-year and Christmas bonuses. Could ABC Bank be compelled, given the circumstances, to continue paying its employees the traditional midyear and Christmas bonuses in addition to the 13th month pay? ’03 – Q10
Can an individual, the sole proprietor of a business enterprise, be said to have violated the Anti-Sexual Harassment Act of 1995 if he clearly discriminates against women in the adoption of policy standards for employment and promotions in the enterprise? '03 Q15 When an employer discriminates against women in the adoption of policy standards for employment and promotion in his enterprise, he is not guilty of sexual harassment. Instead, the employer is guilty of discrimination against women employees which is declared to be unlawful by the Labor Code. For an employer to commit sexual harassment, he – as a person of authority, influence or moral ascendancy – should have demanded, requested or otherwise required a sexual favor from his employee whether the demand, request or requirement for submission is accepted by the object of said act. In the question, no such act was committed by the sole proprietor.
NO. The grant of a bonus is a prerogative, not an obligation, of the employer. (Traders Royal Bank v. NLRC, 189 SCRA 274 [1990].) The matter of giving a bonus over and above that which is required by law is entirely dependent on the financial capability of the employer to give it. (Businessday v. NLRC, 221 SCRA 9 [1993].) Hence, given the circumstances, ABC Bank cannot be compelled to continue paying its employees the traditional mid-year and Christmas bonuses in addition to the 13th month pay.
Socorro is a clerk-typist in the Hospicio de San Jose, a charitable institution dependent for its existence on contributions and donations from well-wishers. She renders work 11 hours a day but has not been given OT pay since her place of work is a charitable institution. Is Socorro entitled to OT pay? '02 - Q3
Premiere Bank, being the creditor-mortgagee of XYZ & Co., a garment firm, foreclosed the hypothecated assets of the latter. Despite the foreclosure, XYZ & Co. continued its business operations. A year later, the bank took possession of the foreclosed property. The garment firm's business operations ceased without a declaration of bankruptcy. Jose Caspar, an employee of XYZ & Co., was dismissed from employment due to the cessation of business of the firm. He filed a complaint against XYZ & Co. and the bank. The LA, after hearing, so found the company liable, as claimed by Jose Caspar, for separation pay. Premiere Bank was additionally found subsidiarily liable upon the thesis that the satisfaction of labor benefits due to the employee is superior to the right of a mortgagee of property. Was the LA correct in his decision? ’03 – Q12
YES. Socorro is entitled to overtime compensation. She does not fall under any of the exceptions to the coverage of Article 82, under the provisions of Hours of Work. The Labor Code is equally applicable to non-profit institutions. A covered employee who works beyond eight (8) hours is entitled to overtime compensation. Nemia earns P7.00 for every manicure she does in the barber shop of a friend which has 19 employees. At times she takes home P175.00 a day and at other times she earns nothing. She now claims holiday pay. Is Nemia entitled to this benefit? ’02 – Q5 No, Nemia is not entitled to holiday pay. Article 82 of the Labor Code provides that workers who are paid by results are, among others, not entitled to holiday pay. Nemia is a worker who is paid by results. She earns P7.00 for every manicure she does.
NO. The preference of credits established in Article 110 of the Labor Code cannot be invoked in the absence of any insolvency proceedings, declaration of bankruptcy, or judicial liquidation (DBP v. Santos, 171 SCRA 138 [1989].)
As a tireman in a gasoline station, open 24 hours a day with only 5 employees, Goma worked from 10 PM until 7 AM of the following day. He claims he is entitled to night shift differential. Is he correct? '02 - Q13a
Another Suggested Answer: NO. What Article 110 of the Labor Code establishes is not a lien but a preference of credit in favor of employees. Unlike a lien, a preference of credit does not create a charge upon any particular property of the debtor (Development Bank of the Philippines v. Secretary of Labor, 179 SCRA 630 [1989].)
YES. Under Article 86 of the Labor Code, night shift differential shall be paid to every employee for work performed between 10:00 o'clock in the evening to six o'clock in the morning. Therefore, Goma is entitled to nightshift differential for work performed from 10:00 pm until 6:00 am of the day following, but not from 6:00 am to 7:00 am of the same day.
Another Suggested Answer: On orders of his superior, Efren, a high-speed sewing machine technician, worked on May 1, Labor Day. If he worked 8 hours on that day, how much should he receive if his daily rate is P400.00? ’02 – Q13b
The Decision of the Labor Arbiter holding Premiere Bank (as foreclosing mortgagee-creditor) subsidiarily liable for a money obligation of XYZ & Co, (as mortgagor) to Caspar, its employee, has no legal basis. 1. There is no privity of relationship between the Bank and Caspar. The relationship, upon which the obligation to pay a sum of money is based, is between XYZ (the mortgagor) and Caspar as its employee arising from the Labor Code provision requiring an employer to pay separation pay, re: other causes of employment. 2. At both times - Labor Arbiter Decision to pay separation pay and foreclosure - XYZ & Co. was an existing business entity and nei-
Efren should receive P800.00. Article 92 of the Labor Code provides that the employer may require an employee to work on any regular holiday but such employee shall be paid a compensation equivalent to twice his regular rate.
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
This year, National Heroes Day (August 25) falls on a Sunday. Sunday is the rest day of Bonifacio whose daily rate is P500.00. 1. If Bonifacio is required by his employer to work on that day for 8 hours, how much should he be paid for his work? 2. If he works for 10 hours on that day, how much should he receive for his work? ’02 – Q14
An exclusive school for girls, run by a religious order, has a policy of not employing unwed mothers, women with live-in partners, and lesbians. Is the policy violative of any provision of the Labor Code on employment of women? ’00 – Q10a NO, the policy does not violate the Labor Code. The practice is a valid exercise of management function. Considering the nature and reason for existence of the school, it may adopt such policy as will advance its laudable objectives. In fact, the policy accords with the constitutional precept of inculcating ethical and moral values in schools. The school policy does not discriminate against women solely on account of sex (Article 135 [now Art. 133], Labor Code) nor are the acts prohibited under Article 137 [now Art. 135] of the Labor Code.
For working on his scheduled rest day, according to Article 93(a), Bonifacio should be paid P500.00 (his daily rate) plus P150.00 (30% of his daily rate) = P650.00. This amount of P650.00 should be multiplied by 2 = P1 ,300.00. This is the amount that Bonifacio as employee working on his scheduled rest day which is also a regular holiday, should receive. Article 94(c) of the Labor Code provides that an employee shall be paid a compensation equivalent to twice his regular rate for work on any regular holiday. The "regular rate" of Bonifacio on May 1, 2002 is with an additional thirty per cent (30%) because the day is also his scheduled rest day. P1,300.00 which is the amount that Bonifacio is to receive for working on May 1, 2002 should be divided by 8 to determine his hourly rate of P162.50. This hourly rate should be multiplied by 2 (the number of hours he worked overtime). Thus, the amount that Bonifacio is entitled to receive for his overtime work on May 1, 2002 is P325.00.
Alternative Answer: The school violated Article 137(2) [now Art. 135(2)] of the Labor Code which states that: "It shall be unlawful for any employer to discharge such woman on account of pregnancy". The pregnancy here could obviously have resulted from love and such only lends substance to the saying that "the heart has reasons of its own which reason does not know", a matter that cannot "be so casually equated with immorality" (Chua-Qua v. Clave, 189 SCRA 117 [1990].)
You were asked by a paint manufacturing company regarding the possible employment as a mixer of a person, aged seventeen (17), who shall be directly under the care of the section supervisor. What advice would you give? ’02 – Q17b
[Note: Under Section 13(c) of R.A. No. 9710 (Magna Carta of Women), the “expulsion and non-readmission of women faculty due to pregnancy outside of marriage shall be outlawed. No school shall turn out or refuse admission to a female student solely on the account of her having contracted pregnancy outside of marriage during her term in school.”]
I will advise the paint manufacturing company that it cannot hire a person who is aged seventeen (17). Article 139(c) [now Art. 137(c)] of the Labor Code provides that a person below eighteen (18) years of age shall not be allowed to work in an undertaking which is hazardous or deleterious in nature as determined by the Secretary of Labor. Paint manufacturing has been classified by the Secretary of Labor as a hazardous work.
The same school dismissed 2 female faculty members on account of pregnancy out of wedlock. Did the school violate any provision of the Labor Code on employment of women? ’00 – Q10b NO, because to tolerate pregnancy out of wedlock will be a blatant contradiction of the school's laudable mission which, as already stated, accords with high constitutional precepts. This answer does not contradict the ruling in Chua- Qua where the teacher merely fell in love with a bachelor student and the teacher, also single, did not get pregnant out of wedlock.
Ana Cruz has a low IQ. She has to be told at least 3 times before she understands her daily work assignment. However, her work output is at least equal to the output of the least efficient worker in her work section. Is Ms. Cruz a handicapped worker? ’00 – Q7 NO, low IQ or low efficiency does not make the worker "handicapped" in the contemplation of law. Handicap means such physical or mental infirmity that impairs capacity to work. The deficiency may also be due to age or injury (Article 78, Labor Code.)
LCFC borrowed P500M from the DBP and mortgaged the entire company, inclusive of its land, buildings and equipment, to guarantee the payment of the loan. However, because of the economic conditions, LCFC incurred heavy losses and eventually failed to pay DBP the required monthly amortizations over a period of more than 1 year. In due time, DBP foreclosed the mortgaged assets of LCFC resulting in the closure of the company and the displacement of all its employees for want of work. The LCFC Labor Union filed in behalf of the displaced workers a labor case against DBP as the new owner of the defunct cement factory for wage differentials, retirement pay and other money claims. The LA decided in the favor of the Union. DBP appealed to the NLRC. DBP contended in its appeal that its acquisition of the mortgage assets of LCFC through foreclosure sale did not make it the owner of the defunct LCFC, and that the doctrine of successor-employer is not applicable in this case, since DBP did not continue the business operation of LCFC. The NLRC while finding merit in DBP's contention, nonetheless held DBP liable to the extent of the proceeds of the foreclosure sale since the Union's claims in behalf of the workers constitute a first preference with respect thereto pursuant to Article 110 of the Labor Code. Is the NLRC correct in holding DBP liable to the extent of the proceeds of the foreclosure sale? ’99 – Q18
Nova Banking Corp. has a resthouse and recreational facility in the highlands of Tagaytay City for the use of its top executives and corporate clients. The resthouse staff includes a caretaker, two cooks and a laundrywoman. All of them are reported to the SSS as domestic or household employees of the resthouse and recreational facility and not of the bank. Can the bank legally consider the caretaker, cooks and laundrywoman as domestic employees of the resthouse and not of the bank? ’00 – Q9a NO, they are not domestic employees. They are bank employees because the resthouse and recreational facility are business facilities as they are for use of the top executives and clients of the bank (Article 141 [now Art. 139], Labor Code; Apex Mining Co., Inc. v. NLRC, 196 SCRA 251 [1991]; Traders Royal Bank v. NLRC, G.R. No. 127864, December 22, 1999.) Mrs. Josie Juan is the confidential secretary of the Chairman of the Board of the bank. She is presently on maternity leave. In an arrangement where the Chairman can still have access to her services, the bank allows her to work in her residence during her leave. For this purpose, the bank installed a fax machine in her residence, and gave her a cellphone and a beeper. Is Mrs. Juan a homeworker under the law? ’00 - Q9b
NO. DBP is not liable. DBP has a lien over the properties of LCFC which were mortgaged to DBP and said lien is superior to the preference that the workers have under the Labor Code (in Article 110) with respect to their claims as workers against LCFC. Panel: All claims must be filed in insolvency proceedings, which are outside the jurisdiction of the NLRC (Republic v. Peralta, 150 SCRA 37 [1987].)
NO, she is actually an office worker. She is not an industrial homeworker who accepts work to be fabricated or processed at home for a contractor, which work, when finished, will be returned to or repurchased by said contractor (Article 155 [now Art. 153] , Labor Code.)
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
TERMINATION OF EMPLOYMENT
Yes, Tarcisio is correct. Under Article 1708 of the Civil Code, “(t)he laborer’s wages shall not be the subject to execution or attachment, except for debts incurred for food, shelter, clothing and medical attendance.” The indebtedness of Tarcisio was due to a purchase of a car which is not one of the exceptions under the said law.
Procopio was dismissed from employment for stealing his coemployee Raul's watch. Procopio filed a complaint for illegal dismissal. The Labor Arbiter ruled in Procopio's favor on the ground that Raul’s testimony 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 regulations, shall be resolved in favor of labor— applied only when the doubt involved the "implementation and interpretation" of the Labor Code; hence, the doubt, which involved the application of the rules on evidence, not the Labor Code, could not necessarily be resolved in favor of Procopio. Was the reversal correct? Explain your answer. (3%) ’17— Q2
ANOTHER ALTERNATIVE ANSWER Garnishment, which is a species of attachment requires that the debtor (Tarcisio) is insolvent. What are the grounds for validly terminating the services on an employee based on a just cause? (5%) ’17—Q10(b) Article 296 of the Labor Code (formerly Article 282) provides for the termination of the services of an employee for just causes. An employer may terminate an employment for any of the following causes: (a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; (b) Gross and habitual neglect by the employee of his duties; (c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; (d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and (e) Other causes analogous to the foregoing.
SUGGESTED ANSWER The reversal is not correct. It is a time-honored rule that in controversies between a laborer and his master, doubts reasonably arising from the evidence, or in the interpretation of agreement and writings, should be resolved in the former's favor (Lepanto Consolidated Mining Company v. Dumapis, G.R. No. 163210, August 13, 2008, 562 SCRA 103). There appears to be serious doubts in the evidence on record as to the factual basis of the charges against Procopio. These doubts should be resolved in his favor in line with the policy under the Labor Code to afford protection to labor and construe doubts in favor of labor (Asuncion v. NLRC, G.R. No. 129329, July 31,2001,362 SCRA 56). ALTERNATIVE ANSWER The reversal is not correct. Article 227 (221) of the Labor Code clearly provides that "the rules of evidence prevailing in courts of law shall not be controlling" in any proceeding before the NLRC or the Labor Arbiters. Moreover, the NLRC/Labor Arbiters are mandated to use every and all reasonable means to ascertain the facts speedily and objectively and without regard to technicalities of law or procedure, all in the interest of due process.
Give the procedure to be observed for validly terminating the services of an employee based on a just cause? (4%) ’17—Q10(c) Procedural due process mandates that the twin requirements of Notice and Hearing should be present. The two notices are as follows: 1st notice: Notice of appraisal, which is a written notice served on the employee specifying the ground or grounds of termination, and giving the employee reasonable opportunity within which to explain his side. 2nd notice: Notice of termination, which Is a written notice of termination served upon the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination. 1. The first notice should contain a detailed narration of facts and circumstances that will serve as basis for the charge or specific causes or ground for termination against the employee, and a directive that the employee is given the opportunity to submit his written explanation within a reasonable period (Unilever Phil. v. Marla Ruby Rivera, G.R. No. 201701, June J, 2013, 697 SCRA 136). This is to enable the employee to intelligently prepare his explanation and defenses. 2. A general description of the charge will not suffice. The notice should specifically mention which company rules, if any, are violated (King of Kings Tramport, Inc. v. Mamac, G.R. No. 166208, June 29,2007,526 SCRA I 16), and that the employer seeks his dismissal for the act or omission charged against him; otherwise, the notice does not comply with the rules (Magro Placement and General Services v. Hernandez, G.R. No. I 56964, July 4, 2007, 526 SCRA 408; see also Mercury Drug Corporation v. Serrano, G.R. No. 160509, March 10, 2006 ,484 SCRA 434; citing Maqulling v. Pllilipplne Tuberculosis Society, Inc., G.R. No. 143384, February 4, 2005, 450 SCRA 465). 3. "Reasonable opportunity" under the Omnibus Rules means every kind of assistance that management must accord to the employee to enable him to prepare adequately for his defense. This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employee an opportunity to study the accusation against him, consult a union official or lawyer, gather data and evidence, and decide on the defenses he will raise against the complaint
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 collect, and moved to garnish Tarcisio's account. The latter vigorously objected and argued that salaries were exempt from garnishment. ls Tarcisio correct? Explain your answer. (3%) ’17—Q6 A. The policy is not valid. It violates the provisions of Article 136 (now Article 134) of the Labor Code on stipulations against marriage, to wit: "It shall be unlawful for an employer to require as a condition of employment or continuation of employment that a woman employee shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate, or otherwise prejudice a woman employee merely by reason of her marriage.” B. SUGGESTED ANSWER No, Tarcisio is not correct. Case law exempts wages of rank-and-file employees from garnishment. Tarcisio, however as operation manager, is a managerial employee. Since the rule covers only rank-and-file employees, therefore, Tarcisio's salary is not exempt from garnishment (Gaa v. Court of Appeals, G.R. No. L-44169, December 3, 1985, 140 SCRA 304). ALTERNATIVE ANSWER
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
(King of Kings Transport, Inc. v. Mamac, G.R. No. 166208, June 29, 2007, 526 SCRA 116). 4. After receiving the first notice apprising him of the charges against him, the employee may submit a written explanation (which may be in the form of a letter, memorandum, affidavit or position paper) and offer evidence in support thereof, like relevant company records (such as his 201 file and daily time records) and the sworn statements of his witnesses. a. For this purpose, he may prepare his explanation personally or with the assistance of a representative or counsel. He may also ask the employer to provide him copy of records material to his defense. His written explanation may also include a request that a formal hearing or conference be held. b. In such a case, the conduct of a formal hearing or conference becomes mandatory, as where there exist substantial evidentiary disputes or where company rules or practice requires an actual hearing as part of employment pre-termination procedure (Perez v. Philippine Telegraph and Telephone Company, G.R. No. 152048, April 7, 2009, 584 SCRA 110).
The law does not preclude the employer from terminating the probationary employment, if the employer finds that the probationary employee is not qualified for regular employment. As long as the termination was made for reasons provided under Article 296 of the Labor Code before the expiration of the six-month probationary period, the employer is well within its rights to sever the employer-employee relationship (Pasamba v. NLRC, G.R. No. 168421, 8 June 2007). What are the requisites of a valid quitclaim? (5%) ’16 – Q1 The requisites of a valid quitclaim are: 1. a fixed amount as full and final compromise settlement; 2. the benefits of the employees if possible with the corresponding amounts, which the employees are giving up in consideration of the fixed compromise amount; 3. a statement that the employer has clearly explained to the employees in English, Filipino, or in the dialect known to the employees and that by signing the waiver or quitclaim, they are forfeiting or relinquishing their right to receive the benefits which are due them under the law, and 4. a statement that the employees signed and executed the document voluntarily, and had fully understood the contents of the document and that their consent was freely given without any threat, violence, intimidation, or undue influence exerted on their person. It is advisable that the stipulations be made in English and Tagalog or in the dialect known to the employees. There should be two (2) witnesses to the execution of the quitclaim who must also sign the quitclaim. The document should be subscribed and sworn to under oath preferably before any administering official of the Department of Labor and Employ then to its regional office, the Bureau of Labor Relations, the NLRC or a labor attache in a foreign country. Such official shall assist the parties regarding the execution of the quitclaim and Waiver (Edi-Staffbuiilders International, Inc., v. NLRC, G.R. No. 145587, 26 October 2007).
Amaya was employed as a staff nurse by St. Francis Ho spital (SFH) on July 8, 2014 on a probationary status for six (6) months. Her probationary contract required, among others, strict compliance with SPH’s Code of Discipline. On October 16, 2014, Dr. Ligaya, filed a Complaint with the SFH Board of Trustees against Amaya for uttering slanderous remarks against the former. Attached to the complaint was a letter of Minda, mother of a patient, who confirmed the following remarks against Dr. Ligaya: “Bakit si Dr. Ligaya pa ang napili mong pedia' eh ang tanda- tanda na n’un? E makakaUmutin na yun x x x Alam mo ba, -kah.it wala namang 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 288 of the Labor Code (Termination by Employer); or b) terminate her for violating her probationary contract. Explain. (5%) ’16 – Q12
Hagibis Motors Corporation (Hagibis) has 500 regular employees in its car assembly plant. Due to the Asian financial crisis, Hagibis experienced very low car sales resulting to huge financial losses. It implemented several cost-cutting measures such as cost reduction on use of office supplies, employment hiring freeze, prohibition on representation and travel expenses, separation o f casuals and reduced work week. As counsel of Hagibis, what are the measures the company should undertake to implement a valid retrenchment? Explain. (5%) ’16 – Q4
I will advise the President of SFH to terminate Amaya for violating her probationary contract. Part and parcel of the standards of her employment is to strictly follow the Code of Conduct of SFH. The act of defaming Dr. Ligaya is certainly a misdemeanor that is usually not acceptable in any work environment. With such attitude Amaya displayed, she cannot pass the company standard of SFH. I will not suggest the dismissal of Amaya under Article 297. Though she displayed misconduct, the same is not work-related, as spreading a rumor against a Doctor does not go into the duties and responsibilities of a staff nurse.
For a valid retrenchment, the following requisites must be complied with: (a) the retrenchment is necessary to prevent losses and such losses are proven; (b) written notice to the employees and to the DOLE at least one month prior to the intended date of retrenchment; and (c) payment of separation pay equivalent to one-month pay or at least one-half month pay for every year of service, whichever is higher. Jurisprudential standards for the losses which may justify retrenchment are: Firstly, the losses expected should be substantial and not merely de minimis in extent. If the loss purportedly sought to be forestalled by retrenchment is clearly shown to be insubstantial and inconsequential in character, the bonafide nature of the retrenchment would appear to be seriously in question; secondly, the substantial loss must be reasonably imminent, as such imminence can be perceived objectively and in good faith by the employer; x x x thirdly, because of the consequential nature of retrenchment, it must be reasonably necessary and is likely to be effective in preventing the expected losses x x x lastly; xxx alleged losses if already realized, and the expected imminent losses sought to be forestalled, must be proVed by sufficient and convincing evidence (Manatad v. Philippine Telegraph and Telephone Corporation, G.R. No. 172363, March 7, 2008).
ALTERNATIVE ANSWER: I will advise the President of SFH to terminate Amaya for a just cause under Art. 297 of the Labor Code in relation to Art. 296. The Labor Code assigns a separate provision, Article 296, and provides a different set of grounds for the dismissal of probationary employees, to wit: ART. 296. PROBATIONARY EMPLOYMENT Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee.
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
Hagibis should exercise its prerogative to retrench employees in good faith. It must be for the advancement of its interest and not to defeat or circumvent the employees’ right to security of tenure. Hagibis should use fair and reasonable criteria, such as status, efficiency, seniority, physical fitness, age, and financial hardship for certain workers in ascertaining who would be dismissed and who would be retained among the employees.
stricken down unjust exploitation of laborers by oppressive employers, so will it strike down their unfair treatment by their own unworthy leaders. The Constitution enjoins the state to afford protection to labor. Fair dealing is equally demanded of unions as well as of employers in their dealings with employees (Heirs of Cruz vs, CIR, G.R. Nos. L-2333132, December 27, 1969). Tess, a seamstress at Marikit Clothing Factory, became pregnant. Because of morning sickness, she frequently absented herself from 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 nevertheless. 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 because of her numerous absences without leave and not because of her pregnancy. On the other hand, Tess argues that her dismissal was an act of discrimination, 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%) ’16 – Q14
Forbes Country Club (Club) owns a golf course and has 250 rankand- file employees who are members of the Forbes Country Club Union (Union). The Club has a CB A with the Union and one of the stipulations 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 standing as a condition for their continued employment during the lifetime of this agreement.” Peter, Paul and Mary were the Treasurer, Assistant Treasurer, and Budget Officer of the Union, respectively. They were expelled by the Board of Directors of the Union for malversation. The Union then demanded that the Club dismiss said officials pursuant to the Union Security Clause that required maintenance 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 explanations, the Club dismissed the erring officials. The dismissed officials sued the Club and the Union for illegal 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%) ’16 – Q7(a)
The position of Tess is meritorious because the dismissal was based on the alleged failure of Tess to file a leave of absence. She filed the said leave but was denied by Marikit Clothing Factory. Under the present law, a pregnant worker is entitled to go on maternity leave. She asked for leave of absence only to be denied and yet she was terminated for absence without leave. This is an act that flagrantly violates Tess’ right which translates to discrimination. However, I do not agree with Tess’ contention that her pregnancy was treated as a form of disease. There is nothing to support this contention.
The dismissal of Peter, Paul and Mary is valid as it was made pursuant to a union security clause contained in the Collective Bargaining Agreement between the management and the union. A union security clause is intended to strengthen a contracting union and protect it from the fickleness or perfidy of its own members (Caltex Refinery Employees Association v. Brillarts, G.R. no. 123782, September 16, 1997). In terminating employees by reason of union security clause, what the employer needs to determine and prove are: a), that the union security clause is applicable, b). that the union is requesting for the enforcement of the union security clause and, c). that there are sufficient evidence to support the decision of the union to expel the employee from the union (Picop Resources v. Tantla, G.R No. 160828, August 9, 2010). In the case at bar, the union demanded - the dismissal of Peter, Paul and Mary after they were expelled from the union. The Club then afforded them due process by ordering them to show cause in writing why they should not be dismissed. Thereafter, a conference was held in their behalf. Having complied with all the requirements mentioned, it can be said that the dismissal of Peter, Paul and Mary was made validly.
ALTERNATIVE ANSWER: The position of Tess is meritorious. Art. 133 (2) of the Labor Code provides that it shall he unlawful for any employer to discharge a woman on account of her pregnancy , or while on leave or in confinement due to her pregnancy. In the case at hand, the dismissal of Tess was clearly on account of her absences related to her pregnancy. Empire Brands (Empire) contracted the services of Style Corporation (Style) for the marketing and promotion of its clothing line. Under the contract, Style provided Empire with Trade Merchandising Representatives (TMRs) whose services began on September 15, 2004 and ended on June 6, 2007, when Empire terminated the promotions contract with Style. Empire then entered into an agreement for manpower supply with Wave Human Resources (Wave). Wave owns its condo office, owns equipment for the use by the TMRs, and has assets amounting to PI,000,000.00. Wave provided the supervisors who supervised the TMRs, who, in turn, received orders from the Marketing Director of Empire. In their agreement, the parties stipulated that Wave shall be liable for the wages and salaries of its employees or workers, including benefits, and protection due them, as well as remittance to the proper government entities of all withholding taxes, Social Security Service, and Philhealth premiums, 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.
[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%) ’16 – Q7(b) Yes, the Glub can be held liable to Peter, Paul and lyiary. Even if the elements under (a) and (b), as mentioned above, are present, it behooves upon the Club to ascertain in good faith the sufficiency of evidence that supports the decision of expelling them from the union. The Club should have been circumspect in the sense that it should have determined the veracity of the union’s claim that Peter, Paul and Mary were indeed guilty of malversation. Should it have been guilty of making a mistake then it should be accountable for it. Just as the Court has
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
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%) ’16 – Q18(a)
No. In GMA Network, Inc v. Pabriga, (G.R. No. 176419, November 27, 2013, the requirements to qualify an employment as project-based was set as follows: 1) employers claiming that their workers are project employees should not only prove that the duration and scope of the employment was specified at the time they were engaged, but also that there was indeed a project; and 2) the termination of the project must be reported by the employer to the DOLE Regional Office having jurisdiction over the workplace within the period prescribed, and failure to do so militates against the employer's claim of project employment. This is true evert outside the construction industry. Mario Brothers failed to comply with both requirements; hence, Tristan, Arthur and Jojo are its regular employees. The cancellation of its contract with Axis did not result to the termination of employment of Tristan, Arthur and Jojo.
Yes. From the time Empire contracted the services of Style, both engaged in labor-only contracting. In BPI Employees Union-Davao CityFUBU v. BPI, (G.R. No. 174912, July 24, 2013), it was ruled that where any of the following elements is present, there is labor-only contracting: (1) The contractor or subcontractor does not have substantial capital or investment which relates to the job, work or service to be performed and the employees recruited, supplied or placed by such contractor or subcontractor are performing activities which are directly related to the main business of the principal; or (2) The contractor does not exercise the right to control over the performance of the work of the contractual employee. The first element is present herein, as Style has no substantial capital or investment in engaging in the supply of services contracted out by Empire which is directly related to the marketing and promotion of its clothing line. The second element is present as it is inevitable for Empire to direct the activities of the TMRs to properly market and promote its product line. The subsequent contract of Empire with Wave did not affect the regular employment of the TMRs with Empire as, through the Marketing Director of Empire, the TMRs were under the control of Empire. Thus, the five-month employment contract entered into by the TMRs with Wave did not divest them of their regular employment status with Empire. In addition, such scheme undermined the security of tenure of the TMRs which is constitutionally guaranteed, hence, the contract of the TMRs with Wave is void ad initio.
[b] Can Axis be made solidarity liable with Mario Brothers to pay the unpaid wages and 1.3th month pay of Tristan, Arthur, and Jojo? Explain. (2.5%) ’16 – Q20(b) Yes, Axis can be made solidarily liable with Mario Brothers. Principals are solidarily liable with their contractors for the wages and other money benefits of their contractors’ workers. 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 himself with Ador simply executing Nico’s instructions.
[b] Were the TMRs illegally dismissed by Wave? (2.5%) ’16 – Q18(b)
a) No. As the TMRs are employees of Empire, Wave did not have the power of dismissal; thus, even if Wave dismissed the TMRs the same has no consequence.
Is there an employer-employee relationship between Nico and Ador? (4%) ‘15 - Q6a
Yes. With Ador’s simply executing Nico’s instruction, Nico, who now has control over Ador’s work, has become the employer of Ador. In Royale Homes Marketing Corp. v. Fidel Alcantara (G.R. No. 195190, July 28, 2014) the Supreme Court held that control is the most important determinant of employer-employee relationship.
Mario Brothers, plumbing works contractor, entered into an agreement with Axis Business Corporation (Axis) for the plumbing works of its building under construction. Mario Brothers engaged the services of Tristan, Arthur, and Jojo as plumber, pipe fitter, and threader, respectively. These workers have worked for Mario Brothers in numerous construction projects in the past but because of their long relationship, 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 able 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, unpaid wages, and benefits. [a] Mario Brothers claims the 3 workers are project 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 terminated. Is the contractor correct? Explain. (2.5%) ’16 – Q20(a)
ALTERNATIVE ANSWER: There is no employer-employee relationship. The case as hand pertains to a civil law arrangement. There is no business undertaken by Lucia; what the parties have is a contract for a specific service. b)
Will Nico need to register Ador with the Social Security System (SSS)? (2%) ‘15 - Q6b
Yes, as under Section 9 of the Social Security Law (Art. 1161 as amended), coverage in the SSS shall be compulsory upon all employees not over sixty (60) years of age and their employers. ALTERNATIVE ANSWER: If Ador is a purely casual employee: No. Casual employees are not subject to the compulsory coverage of the SSS by express provision of law. (Section 8(5) (3), RA 1161, as amended).
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
Don Don is hired as a contractual employee of CALLHELP, 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%) ‘15 - Q7
Din Din approaches you, as counsel, for legal advice. What would you advise her? (4%) ‘15 - Q9 I will advise Din Din to sue her boss and the supermarket for illegal dismissal. Din Din cannot be compelled to accept the promotion. Her unsatisfactory evaluations as well as her boss’ insistence that she should agree to the intended transfer to Visayas are badges of an abuse of management prerogative. In Pfizer Inc. v. Velasco (645 SCRA 135), the Supreme Court held that the managerial prerogative to transfer personnel must be exercised without abuse of discretion, bearing in mind the basic elements of justice and fair play. Hence, Din Din’s dismissal is illegal.
As Labor Arbiter, I will decide the case in favor of Don Don. Given the nature of Don Don’s work, which consist of activities usually or desirable in the usual business of CALLHELP, Don Don should be considered a regular employee.
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 VicePresident 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 verbally 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.
CALLHELP’s termination of Don Don’s service in the guise of “poor performance” is not valid. Whether for a probationary or regular employee, the requisites of dismissal on that ground do not appear to have been complied with by the employer here. 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 factory 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 contractual arrangement with People Plus, a service contractor, 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 workers cannot take any of the designs home and must complete their tasks within the premises of Star Crafts.
Is the preventive suspension of Karina valid? Discuss the reasons for your answer. (4%) ‘15 - Q10 SUGGESTED ANSWER: No. The preventive suspension of Karina is not valid. The employer may place an employee under preventive suspension if his/her continued employment would pose a serious and imminent threat to the life or property of the employer or of his/her co-employees. These requirements are not present here.
Is there an employer-employee relationship between Star Crafts and the 100 workers from People Plus? Explain. (4%) ‘15 - Q8 Yes. People Plus is a labor-only-contractor because it is not substantially capitalized. Neither does it carry on an independent business in which it uses its own investment in the form of tools, equipment, machineries or work premises. Hence, it is just an agent or recruiter of workers who perform work directly related to the trade of Star Crafts. Since both the essential element and the conforming element of laboronly contracting are present, Star Crafts becomes the employer of the supplied worker.
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 decides 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 because he has not yet been convicted. Comment on Matatag’s action in relation to Rico’s argument. (4%) ‘15 - Q11
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 whether the contractor is legitimate or not. 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.
Matatag Insurance does not have to await the result of the criminal case before exercising its prerogative to dismiss. Dismissal is not affected by a criminal case. Under the Three-fold Liability Rule, a single act may result in three liabilities, two of which are criminal and administrative. To establish them, the evidence of the crime must amount to proof beyond reasonable doubt; whereas, the evidence of the ground for dismissal is substantial evidence only. In this regard, the company has some basis already for withholding the trust it has reposed on its manager. Hence, Rico’s conviction need not precede the employee’s dismissal.
Din Din is a single mother with one child. She is employed as a sales executive at a prominent supermarket. She and her child live in Quezon City and her residence and workplace are a 15minute 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.
Blank Garments, Inc. (BLANK), a clothing manufacturer, employs more than 200 employees in its manufacturing business. Because of its high overhead, BLANK decided to sell its manufacturing business to Bleach Garments, Inc. (BLEACH) lock, stock and barrel which included goodwill, equipment, and personnel. After taking on BLANK’s business, BLEACH reduces the workforce by not
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
hiring half the workers specifically the ones with seniority. BLANK and BLEACH are still discerned to be sister companies with identical incorporators. The laid-off employees sue both BLANK and BLEACH for unlawful termination.
then proceeds to terminate 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) strike. c)
a)
How would you decide this case? (4%) ‘15 - Q12a
In transfer of ownership, the buyer corporation, as a general rule, is not duty-bound to absorb the employees of the selling corporation. The buyer corporation becomes liable to the displaced employees only if the change of ownership is done in bad faith or is used to defeat the rights of labor. In such a case, the successor-employer is duty-bound to absorb the displaced employees (Peñafrancia Tours and Travel Transport, Inc., v. Sarmiento, 634 SCRA 279).
If dismissal is based on illegal strike: 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 illegalities on the occasion of their illegal strike. Since the company prematurely and indiscriminately dismissed the AILU members then their dismissal is illegal.
Since the facts of the case do not show any bad faith in BLEACH’s sale to BLANK, BLEACH, consequently, is not obliged to absorb the displaced employees of BLANK.
If dismissal is based on the unlawful acts of barricading to lock the AILU members:
The case at hand involved sales of assets as differentiated from sales of assets as differentiated from sales of stocks. The ruling in SME Bank v. De Guzman (G.R. No. 184517, Oct. 8, 2013), which reversed Manlimos v. NLRC (312 Phil. 178), pointed out that in asset sales, the rule is that the seller in good faith is authorized to dismiss the affected employees, but is liable for the payment of separation pay under the law. The buyer in good faith, on the other hand, is not obliged to absorb the employees affected by the sale, nor is it liable for the payment of their claims. In contrast with asset sales, in which the assets of the selling corporation are transferred to another entity, the transaction in stock sales takes place at the shareholder level. Because the corporation possesses a personality separate and distinct from that of its shareholders, a shift in the composition of its shareholders will not affect its existence and continuity. Hence the corporation continues to be the employer and continues to be liable for the payment of their just claims. Absent a just or authorized cause, the corporation or its new majority shareholders are not entitled to lawfully dismiss corporate employees. b)
Was LB justified in terminating all those who were members of AILU on the two grounds cited? (3%) ‘15 Q16c
Yes. Article 264 (a) of the Labor Code authorizes the employer to declare the loss of employment status of “ANY WORKER” or union officer who knowingly participates in the commission of illegal acts during a strike. 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 assigned task, Linda accidentally burned herself. Because of the extent of her injuries, she went on medical 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%) ‘14 - Q1 The employer’s argument that Linda was not a regular employee has no merit. The definition of domestic servant or househelper contemplates one who is employed in the employer’s home to minister exclusively to the personal comfort and enjoyment of the employer’s family The Supreme Court already held that the mere fact that the househelper is working in relation to or in connection with its business warrants the conclusion that such househelper or domestic servant is and should be considered as a regular employee (Apex Mining Co., Inc. v. NLRC, G.R. No. 94951, April 22, 1991], Here, Linda was hired not to minister to the personal comfort and enjoyment of her employer’s family but to attend to other employees who teach and live inside the campus.
What is the “successor employer” doctrine? (2%) ‘15 Q12b
The “successor employer” doctrine refers to a sale or transfer in ownership of an entity that has been done in bad faith or to defeat the rights of labor. In such a case, it is as if there have been no changes in employer-employee relationship between the seller and its employees. The buyer becomes a “successor employer” and is obliged to absorb the displaced employees.
ALTERNATIVE ANSWER:
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 vote. AILI members locked in the LB management panel by barricading the doors and possible exits (including windows and fire escapes). LB requested the DOLE to assume jurisdiction over the dispute and to certify it for compulsory arbitration.
The complaint for illegal dismissal should be dismissed. There was no showing that in hiring the replacement cook, SU severed its employeremployee relationship with Linda. In illegal dismissal cases, an employee must first establish, by substantial evidence, the fact of dismissal before shifting to the employer the burden of proving the validity of such dismissal (Grand Asian Shipping Lines, Inc. v. Wilfred Galvez, G.R. No. 178184, January 29, 2014). Here, Linda’s dismissal was not clearly established. Lucy was one of approximately 500 call center agents at Hambergis, Inc. She was hired as a contractual 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 preceding contract. Six (6) months after the expiration of her latest contract, Lucy went to Hambergis personnel department to inquire why she was not yet being recalled to work. She was told that her performance during
The Secretary of Labor declined to assume jurisdiction, finding that the dispute was not one that involved national interest. LB
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
her last contract was “below average," Lucy seeks your legal advice about her chances of getting her job back. What will your advice be? (4%) ‘14 - Q2
contract (Millares U. NLRC, G.R. No. 110524, July 29,2002, 385 SCRA 306, 318). As a result of a bargaining deadlock between Lazo Corporation and Lazo Employees Union, the latter staged a strike. During the strike, several employees committed illegal acts. Eventually, its members informed the company of their intention to return to work. (6%)
Lucy cannot get her job back. She is a fixed-term employee and as such, her employment terminates upon the expiration of her (Rowell Industrial Corporation v Court of Appeals G.R> No. 167714, March 7, 2007, 517 SCRA 691).
(B) Assuming the company admits the strikers, can it later on dismiss those employees who committed illegal acts? - ‘14 - Q8B
ALTERNATIVE ANSWER: I will Advise Lucy that she can get her job back if she files a case for illegal dismissal where, as a general rule, the twin reliefs of backwages and reinstatement are available. In the instant case, Lucy is a regular employee because the employment contracts of five (5) months at a time, for four (4) years are obviously intended to circumvent an employee’s security of tenure and are therefore void. As a regular employee, Lucy may only be dismissed from service on just end authorized causes enumerated under the Labor Code, and after observance of procedural due process prescribed under said law (Magsalin v. National Organization of Working Men, G.R. No. 143492, May 9, 2003).
No. The employer may be considered as having waived its right to dismiss employees who committed illegal acts during the strike (Reformist Union of R.B. Liner v. NLRC, G.R. No. 1204-82, January 27, 1997, 266 SCRA 713). Luisa was hired as a secretary by the Asian Development 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 typographical 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 claiming arbitrariness and denial of due process.
Linis Manpower, lnc. (LMI) had provided janitorial services to the Philippine Overseas Employment Administration (POEM since March 2009. Its service contract was renewed every three months. However, in the bidding held in June 2012, LMI was disqualified and excluded. In 2013, six janitors of LMI formerly assigned at PQEA filed a complaint for underpayment of wages. Both LMI and POEA were impleaded as respondents. Should POEA, a government agency , subject to budgetary appropriations from Congress, be held liable with LMI for the payment of salary differentials doe to the complainant? Cite the legal basis of your answer. (4%) ‘14 - Q4
If you were the Labor Arbiter, how would you decide the case? (4%) ‘14 - Q10 I will dismiss the case. ADB enjoys immunity from suit. (DFA v. NLRC, G.R. No. 113191, September 1s, 1996).
Yes, but only to the extent of work performed under the contract. The second paragraph of Art. 106 of the Labor Code provides:
ALTERNATIVE ANSWER:
Art. 106. Contractor or subcontractor. …In the event that the contractor or subcontractor fails to pay the wages of his employees I accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him…
I will decide in favor of Luisa, by granting nominal damages. To clarify, however, Luisa’s dismissal is not illegal for it has been held that failure to observe prescribed standards of work, or to fulfill reasonable work assignments due to inefficiency, as in this ease, may, constitute just cause for dismissal (Iluminada Ver Buiser v. Leogardo, Jr., G.R. No. L63316, July 31, 1984, 131 SCRA 15). Nonetheless, the employer’s failure to comply with the procedure prescribed by law in terminating the services of the employee warrants the payment of nominal damages at Php 30,000, In accordance with the Supreme Court’s ruling in the case of Agabon v. NLRC (G.R. No. 158693, November 17, 2004).
The fact the POEA s a government agency is of no moment. In U.S.A. v Ruiz (G.R. No. L-35645, May 22, 1985), the Supreme Court ruled that the state may be sued if the contract it entered into is pursuant to its proprietary functions.
Lionel, an American citizen whose parents migrated to the U.S. from the Philippines, was hired by JP Morgan in New York as a call center specialist. Hearing about the phenomenal growth of the call center industry 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 employment contract did not specify a period for his stay in the Philippines. After three years of working in the Philippines, Lionel was advised that he was being recalled to New York and being promoted to the position of director of international call center operations. However, because of certain family reasons, Lionel advised the company of his preference to stay in the Philippines. He was dismissed by the company. Lionel now seeks your legal advice on: (6%)
Lina has been working as a steward with a Miami, U.S.A.based. Loyal Cruise Lines for the past fifteen (15) years. She was recruited by a local manning agency; Macapagal Shipping, and was made to sign a ten-month (10) employment contract every time she left for Miami. Macapagal Shipping paid for Lina’s round-trip travel expenses from Manila to Miami. Because of a food poisoning incident which happened during her last cruise assignment, Lina was not rehired. 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%) ‘14 - Q6 I will dismiss Lina’s complaint. Lina is a contractual employee and the length of her employment is determined by the contracts she entered into. Here, her employment was terminated at the expiration of the
(A) Whether he has a cause of action - ‘14 - Q11A
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
Lionel has a cause of action; he was illegally dismissed. Dismissal due to an employee’s refusal of a promotion is not within the sphere of management prerogative. There is no law that compels an employee to accept promotion (Dosch v. NLRC, G.R._No.L-51182, July 5, 1983).
(D) The employee does not wish to be reinstated. SUGGESTED ANSWER: (D) The employee does not wish to be reinstated. (DUP Sound Phils. V. CA, G.R. No. 168317, November 21, 2011)
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, 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%)
ALTERNATIVE ANSWER:
Luningning Foods engaged the services of Lamitan Manpower, Inc., a bona fide independent contractor, to provide “tasters” that will check on food quality. Subsequently, these “tasters” joined the union of rank-and-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 employeremployee relationship with the employees of an independent contractor. If you were the RTC judge, would you issue a restraining order against the union? (4%) ‘14 - Q23
None. Lando is an independent contractor for Don Luis does not exercise control over Lando’s means and method is tending to the former’s garden.
Yes. There is no labor dispute in the instant case. Since Lamitan Manpower is a bona fide independent contractor, there is no employeremployee relationship between Luningning and tasters.
Lanz was a strict and unpopular Vice-President for Sales of Lobinsons Land. One day, Lanz shouted invectives against Lee, a poor performing sales associate, calling him, among others, a “brown monkey.” Hurt, Lee decided to file a criminal complaint for grave defamation against Lanz. The prosecutor found probable cause and filed an information in court. Lobinsons decided to terminate Lanz for committing a potential crime and other illegal acts prejudicial to business. Can Lanz be legally terminated by the company on these grounds? (4%) ‘14 - Q14
ALTERNATIVE ANSWER:
(A) Is there an employer-employee relationship between Don Luis and Lando? ‘14 - Q13a Yes. All the elements of employer-employee relationship are present, viz: 1. The selection and engagement of the employee; 2. The power of dismissal; 3. The payment of wages; 4. The power to control the employee’s conduct. There was also no showing that Lando has his own tools, or equipment so as to qualify him as an independent contractor.
No. Art 254 of the Labor Code is clear that no temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity, except as provided in Article 218 and 264 of the same Code.
No. The grounds relied upon by Lobinsons are not just causes for dismissal under the Labor Code. Defamation is not a crime against person which is a ground to dismiss under Art 282, now Art 295 (d) of the Labor Code.
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 consider her: (1%) ‘14 - Q25
An accidental fire gutted the JKL factory in Caloocan. JKL decided to suspend operations and requested 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 Arbiter, how would you decide the case? (4%) ‘14 - Q21
(A) Monthly salary only (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
Suggested Answer: I will rule in favor of the employees JKL factory merely suspended its operations as a result of the fire that gutted its factory. Art 286 of the Labor Code states that an employer may bona fide suspend the operation of its business for a period not exceeding six (6) months. In such a case, there would be termination of the employment, but only a temporary displacement. Since the suspension of work lasted more than six months, there is now constructive dismissal (Sebuguero v NLRC, GR No 115394, September 27, 1995, 245 SCRA 532).
(D) Monthly salary plus sales commissions, plus cost of living allowance and representation allowance (Songco v. NLRC, G.R. No. L-50999, March 23, 1990) Jose and Erica, former sweethearts, both worked as sales representatives for Magna, a multinational firm engaged in the manufacture and sale of pharmaceutical products. Although the couple had already broken off their relationship, Jose continued to have special feelings for Erica.
Despite a reinstatement order, an employer may choose not to reinstate an employee if: (1%) ‘14 - Q22
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
(A) There is a strained employer-employee relationship (B) The position of the employee no longer exists (C) The employer’s business has been closed
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
also caused heavy damage to the two company-owned cars they were driving. ‘13 - Q1
full backwages after the Labor Arbiter found that he had been denied due process because no investigation actually took place.
(A) As lawyer for Magna, advise the company on whether just and valid grounds exist to dismiss Jose, (4%) ‘13 Q1a
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.
Jose can be dismissed for serious misconduct, violation of company rules and regulations and commission of a crime against the employer’s representatives. Article 282 of the Labor Code provides that an employer may terminate and employment for any serious misconduct or willful disobedience by the employee of the lawful orders of his employer or his representatives in connection with his work.
(B) Advise Bobby on the best course of action to take under the circumstances. (4%) ‘13 - Q4B The best course of action for Bobby to take under the circumstances is to allege constructive dismissal in the same case, and pray for separation pay in lieu of reinstatement.
Misconduct involved “the transgression of some established and definite rule of action, forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment.” For misconduct to be serious and therefore a valid ground for dismissal, it must be: 1. 2.
For ten (10) separate but consecutive yearly contracts, Cesar has been deployed as an able-bodied seaman by Meritt Shipping, through its local agent, Ace Maritime Service (agency), in accordance with 2000 Philippine Overseas Employment Administration Standard Employment Contract (2000 POEA-SEC), AMOSUP, and Meritt Shipping. Both the 2000 POEA-SEC and the CBA commonly provide that the same mode and procedures for claiming disability benefits. Cesar’s last contract (for nine months) expired on July 15,2013.
Of grave and aggravated character and not merely trivial or unimportant; and Connected with the work of the employee.
ALTERNATIVE ANSWER: Article 282(e) of the Labor Code talks of other analogous causes or those which are susceptible of comparison to another in general or in specific detail as a cause for termination of employment.
The offense committed by Jose did not relate to the performance of his duties.
Cesar disembarked from the vessel M/V Seven Seas on July 16,2013 as a seaman on “finished contract”. 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 to him to Dr. Sales, a cardiopulmonary specialist, who examined and treated him; advised him to take a complete rest for a while; 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 application. 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 vessels in the last 10 years. Rejected once again, Cesar filed a complaint for illegal dismissal and the payment of total permanent disability benefits against the agency and its principal.
For misconduct or improper behavior to be a just cause for dismissal, it (a) must be serious; (b) must relate to the performance of the employee’s duties; and (c) must show that the employee has become unfit to continue working for the employer.
Assume that you are the Labor Arbiter deciding the case. Identify the facts and issues you would consider material in resolving the illegal dismissal and disability complaint. Explain your choices and their materiality, and resolve the case. (8%) ‘13 - Q10
In one case, the Court considered theft committed against a co-employee as a case analogous to serious misconduct, for which the penalty of dismissal from service may be meted out to the erring employee (Cosmos Bottling Corp. v. Fermin, G.R. No. 193676/194303, June 20,2012). Similarly, Jose’s offense perpetrated against his coemployees, Erica and Paolo, can be considered as a case analogous to serious misconduct. (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%) ‘13 - Q1b
On the basis of the foregoing guidelines, it can be concluded that Paolo was not guilty of serious misconduct: Paolo was not performing official work at the time of the incident (Lagrosas v. Bristol Myers Squibb, G.R. No. 168637/ 170684, September 12,20080.
1. 2.
3. Additionally, there was no compliance with the rudimentary requirements of due process. 4. 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
5.
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Does the Labor Arbiter have jurisdiction to decide the case? Did Cesar submit to a post-employment examination within three (3) days upon his return? This is a mandatory requirement; otherwise, Cesar will forfeit his right to claim benefits. Is Dr. Sales the company-designated physician? The company-designated physician is the one who initially determines compensability. Was Cesar assessed by Dr. Sales (if he is the company physician) within 120 days? If the 120 days was exceeded and no declaration was made as to Cesar’s disability, was this extended to 240 days because Cesar required further medical treatment?
The Sigma Rho Fraternity Bar Operations 2018 6.
7.
8. 9.
a)
Bar Questions and Answers
Was the 240 days exceeded and still no final decision was reached as to Cesar’s disability? If so Cesar is deemed entitled to permanent total disability benefits. If the company’s physician and Cesar’s physician cannot agree, was a third physician designated to determine the true nature and extent of the disability. The third physician’s finding under the law is final and conclusive. In the matter of the complaint for illegal dismissal, there is none because Cesar disembarked on a “finished contract.” Seafarers are contractual employees for a fixed term governed by the contract they sign; an exception to Article 280 (now Article 286) of the Labor Code. Hence, the complaint for illegal dismissal will not prosper.
dismissed. During the term of the CBA, MMFF discovered that certain employee-members were initiating disaffiliation movement from MMFF to FAMAS. Dana Films, relying on the provision of the aforementioned DBA, complied with MMFF’s request and dismissed the employees identified by MMFF as disloyal to it. a)
Yes. While Dana Films, under the CBA, is bound to dismiss any employee who is expelled by MMFF for disloyalty (upon its written request), this undertaking should not be done hastily and summarily. Due process is required before a member can be dropped from the list of union members of good standing, The company’s dismissal of its workers without giving them the benefit of a hearing, and without inquiring from the workers of the cause of their expulsion as union members, constitute bad faith[ Liberty Cotton Mills Workers Union, et al. vs. Liberty Cotton Mills, Inc. et. al, G.R. No. L-33987, May 31, 1979].
Distinguish Labor-only contracting and Job-only contracting. ‘12 - Q1a
Labor-only contracting: The contractor does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the employees of the contractor are performing activities which are directly related to the main business of the principal. [Sy, et al. vs. Fairland Knitcraft Co., Inc., G.R. Nos. 182915 and 189658, December 12, 2011].
b)
b)
Labor-Only Contracting is prohibited while Job Contracting is allowed by law. ANOTHER SUGGESTED ANSWER:
2.
3.
4.
What are the liabilities of Dana Films and MMFF ot the dismissed employees, if any? (5%) ‘12 - Q2b
Dana Films is obliged (1) to reinstate the illegally dismissed employees to their former positions without reduction in rank, seniority, and salary; and (2) to jointly and severally pay the dismissed employees back wages, without any reduction in pay or qualification. [Amada Rice vs. NLRC, G.R. No. 68147, June 30, 1988].
Legitimate Job Contracting: The contractor has substantial capital and investment in the form of tools, equipment, etc. and carries a distinct and independent business and undertakes to perform the job, work or service on its own responsibility, according to its own manner and method, and free from control and direction of the principal in all matters connected with the performance of the work except as to the results thereof [Escasinas vs. Shangri-la’s Mactan Island Resort, 580 SCRA 344 (2009)].
1.
Will an action for illegal dismissal against Dana Films and MMFF prosper or not? Why? ‘12 - Q2a
Job-Only contracting is legal; whereas, Labor-only contracting is prohibited by law In Job-only contracting, the principal is only an indirect employer, whereas, in Labor-only contracting, the principal becomes the direct employer of the employees of the laboronly contractor. The liability of the principal in job-only contracting vis-a-vis employees of job-contractor is for a limited purpose only, e.g. wages and violation of labor standards laws; whereas, the liability of the principal in labor-only contracting is for a comprehensive purpose and, therefore the principal becomes solidarily liable with the labor-only contractor for all the rightful claims of the employees. In job-only contracting, no employer-employee relationship exists between the principal and the employees of the job contractor, whereas, in labor-only contracting, the law creates and employer-employee relationship between the principal and the employees of the labor-only contractor.
X was one of more than one hundred (100) employees who were terminated from employment due to closure of Construction Corporation A. The Cruz family owned Construction Company A. Upon the closure of the company, the Cruzes established construction Company B. Both corporations had the same president, same board of directors, the same corporate offices, and the same subscribers. 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 book for both companies. X and his co-employees amended their complaint with the labor arbiter to hold Construction Company B jo ing and severally liable with construction Company A for illegal dismissal, backwages and separation pay. Construction Company B interposed a Motion to Dismiss contending that they are juridical entities with distinct and separate personalities form Construction Company A, 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 denied? Why? (5%) ‘12 - Q3b
Denied. The factual circumstances - that the businesses of Construction Company A and B are related, that all of the employees of A are the same persons manning and providing auxiliary services to units of B, and that the physical plants, offices and facilities are situated in the same compound - justify the piercing of the corporate being of Company B. [Indophil Textile Mill Workers Union vs. Calica, 2015 SCRA 697 (1992)]. The fiction of corporate entity can be disregarded when it is used to justify wrong or protect fraud. [Complex Electronics Association v. NLRC, G.R. No. 121315 & 122136, July 19, 1999)]
In the Collective Bargaining Agreement (CBA) between Dana Film and its rank-and-file Union (which is directly affiliated with MMFF, a national federation), a provision on the maintenance of membership expressly provides that the Union can demand the dismissal of any member-employee who commits acts of disloyalty to the Union as provided for in its Constitution and By-laws. The same provision contains an undertaking by the Union (MMFF) to hold Dana Films free from any and all claims of any employee
a)
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For humanitarian reasons, a bank hired several handicapped workers to count and sort out currencies. The handicapped workers knew that the contract was only
The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
for a period of six months and the same period was provided for in their employment contracts. After six months, the bank terminated their employment on the ground that their contract has expired. This prompted the workers to file with the labor arbiter a complaint for illegal dismissal. Will their action prosper? ‘12 - Q6a
was not able to prove that it had invested in tools, equipment, etc. Is the Labor Arbiter’s ruling valid? Explain (5%) ‘12 - Q10a Yes. The presumption is that a contractor is a labor-only contractor unless it is shown that it has substantial capital and substantial investment in the form of tools, equipment, machineries, work premises, and the like [Sy, et al. vs. Fairland Knitcraft Co., Inc., G.R. No. 182915 & 189658, December 12, 2011] Besides, what Art. 106 of the Code defines is Labor-Only Contracting and not Jon-Contracting. In mandating that “(t)here is labor-only contracting where the person supplying workers to an employer does not have substantial capital OR investment in the form of tools, equipment, etc, the law is therefore clear that the presence of either handicap - “substantial capital OR investment (in tools, etc) - is enough basis to classify one as a labor-only contractor.
No. An employment contract with a fixed term terminates by its own terms at the dn of such period. The same is valid if the contract was entered into by the parties on equal footing and the period specified was not designed to circumvent the security of tenure so the employees. (Brent School b. Zamora, 181 SCRA 702). a)
Inggu, 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 Inggu 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 autoshop explained that Inggu was like a partner who worked within its premises, using parts provided by the shop but otherwise Inggu was free to render service in the other auto shops. On the other hand, Inggu insisted that he was still entitled to the benefits because he was loyal to Pit Stop, it being a fact that he did not perform work for anyone else. Is Inggu correct? Explain briefly. (5%) ‘12 - Q7a
ANOTHER SUGGESTED ANSWER No, the Labor Arbiter’s ruling is not valid. Art 106 of the Labor Code provides that the contractor has “substantial capital or investment.” The law did not say substantial capital and investment. Hence, it is in the alternative; it is sufficient if the contractor has one or the other. I.e. , either the capital or the investment. And under Department Order No, 18-A, Series of 2011, the amount of P3 Million paid up capital for the company is substantial capital. b)
Yes. Inggu is an employee of Pit Stop. Article 1767 of the Civil Code states that in a contract of partnership, two or more persons bind themselves to contribute money, property or industry to a common fund, with the intention of dividing the profits among themselves. Not one of these circumstance sin present in this case. No written agreement exists to prove the partnership between the parties. Inggu did not contribute money, property or industry for the purpose of engaging in the supposed business. There is no proof that the was receiving a share in the profits as a matter of course. Neither is there any proof that he had actively participated in the management, administration and adoption of policies of the business. [Sy, et. al . v. Court of Appeals, G.R. No, 142293, Feb 27 2003].
No. the element of an employee’s “performing activities which are directly related to the principal business of such employer” does not actually matter for such is allowed by Art 107 of the Labor Code. An “independent contractor for the performance of any work, task, job or project” such as Security and Janitorial Agencies, naturally hire employees whose tasks are not directly related to the principal business of” the company hiring them. Yet, they can be labor-only contractors if they suffer from either of the twin handicaps of “substantial capital” OR “substantial investment “, and the like. Conversely, therefore, the performance by a job contractor’s employees of activities that are directly related to the main business of the principal does not make said employee a regular employee of the principal.
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 5 years they decided to close the business. c)
Deeds of release, waivers and quitclaims are not always binding and valid. ’10 – Q1(1) Deeds of release, waivers and quitclaims are not always valid and binding. An agreement is valid and binding only if: (a) the parties understand the terms and conditions of their settlement; (b) it was entered into freely and voluntarily; and (c) it is not contrary to law, morals and public policy.
If the closure allowed by law? (2%) ‘12 - Q8c
Yes, the determination to cease or suspend operations is a prerogative of management that the State usually does not interfere with, as no business can be required to continue operating to simply maintain the workers in employment. [San Pedro Hospital of Digos v. Secretary of Labor, G.R. No 104624, Oct 11 1996; Espina v. CA 519 SCRA 327 (2007)] a)
Does the performance by a contractual employee, supplied 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%) ‘12 Q10b
A was an able seaman contracted by ABC recruitment agency for its foreign principal, SSC. His employment contract provided that he would serve on board for 8 months. In connection with his employment, he signed an undertaking to observe the drug and alcohol policy which bans possession or use of all alcoholic beverages, prohibited substances and unprescribed drugs on board the ship. On his 3rd month of service while the ship 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 NLRC a complaint against the agency and the principal for illegal
XYZ Manpower Services was sued by its employees together with its client, ABC Polyester Manufacturing Company. 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
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
dismissal with a claim for salaries for the unexpired portion of his contract. 1. Was A’s dismissal valid?
tion of only one season (Hacienda Bino v. Cuenca, 456 SCRA 300 [2005].) Converting A to a mere houseboy at the house of the plantation owner amounts to an act of severing his employment relations as its plantation owner (Angeles v. Fernandez, 513 SCRA 378 [2007].)
NO. A’s dismissal was not valid. A was not found to be “in possession of the prohibited substance” nor was he “impaired by the use” thereof. Being “tested positive for marijuana” is not a ground for “disciplinary action” under the “undertaking” he signed. 2.
Diosdado, a carpenter, was hired by Building Industries Corp. (BIC), and assigned to build a small house in Alabang. His contract of employment specifically referred to him as a “project employee,” although it did not provide any particular date of completion of the project. Is the completion of the house a valid cause for the termination of Diosdado’s employment? If so, what are the due process requirements that BIC must satisfy? If not, why? ’09 – Q4
Is his claim for salaries for the unexpired portion of his contract tenable? ’10 – Q7
YES. Section 10 of the R.A. No. 8042 (as amended by R.A. No. 10022) provides that in case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, or any unauthorized deductions from the migrant worker’s salary, the worker shall be entitled to the full reimbursement of his placement fee with interest at twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) years for every year of the unexpired term, whichever is less (cf. Serrano v. Gallant Maritime, 582 SCRA 254 [2009].)
The completion of the house should be a valid cause for termination of Diosdado’s employment. Although the employment contract may not state a particular date, but if did specify that the termination of the parties’ employment relationship was to be on a “day certain” – the day when the phase of work would be completed – the employee cannot be considered to have been a regular employee (Filipinas Pre-Fabricated Building Systems v. Puente, 453 SCRA 820 [2005].) To satisfy due process requirements, under DOLE Department Order No. 19, Series of 1993, the employer is required to report to the relevant DOLE Regional Office the fact of termination of project employees as a result of the completion of the project or any phase thereof which one is employed.
Because of continuing financial constraints, XYZ, Inc., gave its employees the option to voluntarily resign from the company. A was one of those who availed of the option. On October 5, 2007, he was paid separation benefits equivalent to seven (7) months pay for his six (6) years and seven (7) months of service with the company and he executed a waiver and quitclaim. A week later, A filed against XYZ, a complaint for illegal dismissal. While he admitted that he was not forced to sign the quitclaim, he contended that he agreed to tender his voluntary resignation on the belief that XYZ was closing down its business. XYZ however continued its business under a different company name, he claimed. Rule on whether the quitclaim executed by A is valid or not. ’10 – Q11
Baldo was dismissed from employment for having been absent without leave (AWOL) for 8 months. It turned out that the reason for his absence was his incarceration after he was mistaken as his neighbor’s killer. Eventually acquitted and released from jail, Baldo returned to his employer and demanded reinstatement and full backwages. Is Baldo entitled to reinstatement and backwages? ’09 – Q5a
The quitclaim executed by A is valid and binding. Generally, deeds of release, waiver or quitclaims cannot bar employees from demanding benefits to which they are legally entitled or from contesting the legality of their dismissal, since quitclaims are looked upon with disfavor and are frowned upon as contrary to public policy. However, when the person making the waiver has done so voluntarily, with a full understanding thereof, and the consideration for the quitclaim is credible and reasonable, the transaction must be recognized as being a valid and binding undertaking (Francisco Soriano, Jr. v. NLRC, 530 SCRA 526 [2007].) A elected to voluntarily resign, and accepted a credible and reasonable separation benefits package. In exchange, A executed waiver and quitclaim. A’s resignation could not have possibly been vitiated by any fraud or misrepresentation on the part of XYZ, Inc. the company offered its voluntary resignation package because of continuing financial constraints, and not preliminary to closure of business. A’s belief is not the kind of proof required that will show he was defrauded, his consent vitiated, and therefore the termination of his employment illegal.
YES. Baldo is entitled to reinstatement. Although he shall not be entitled to backwages during the period of his detention, but only from the time the company refused to reinstate him (Magtoto v. NLRC, 140 SCRA 58 [1985].) Domingo, a bus conductor of San Juan Transportation, intentionally did not issue a ticket to a female passenger, Kim, his longtime crush. As a result, Domingo was dismissed from employment for fraud of willful breach of trust. Domingo contests his dismissal, claiming that he is not a confidential employee and, therefore, cannot be dismissed from the service for breach of trust. Is Domingo correct? ’09 – Q5b Domingo as bus conductor holds a position wherein he was reposed with the employer’s trust and confidence. In Bristol Myers Squibb v. Baban, 574 SCRA 198 [2008], the Court established a second class of positions of trust that involved rank-and-file employees who, in the normal and routine exercise of their functions, regularly handle significant amounts of money. A bus conductor falls under such second class of persons. This does not mean, however, that Domingo should be dismissed. In Etcuban v. Sulpicio Lines, 448 SCRA 516 [2005], the Court held that where the amount involved is miniscule, an employee may not be dismissed for loss of trust and confidence.
A was hired in a sugar plantation performing such tasks as weeding, cutting and loading canes, planting cane points, fertilizing and cleaning the drainage. 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 plantation worker but as a houseboy instead. A filed a case for illegal dismissal against the plantation owner. Decide. ’10 – Q17
Alexander, a security guard of Jaguar Security Agency (JSA), could not be given any assignment because no client would accept him. He had a face only a mother could love. After 6 months on “floating status”, Alexander sued JSA for constructive dismissal. The LA upheld Alexander’s claim of constructive dismissal and ordered JSA to immediately reinstate Alexander. JSA appealed the decision to the NLRC. Alexander sought the immediate reinforcement of the reinstatement order while the appeal was pending. JSA hires you as lawyer, and seeks your advice on the following: 1. Because JSA has no client who would accept Alexander, can it still be compelled to reinstate him pending appeal even if it has posted an appeal bond?
A is a regular employee. Therefore, he cannot be dismissed without just or valid cause. The primary standard for determining regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual trade of business of the employer (Pier 8 Arrastre & Stevedoring Services, Inc. v. Boclot, 543 SCRA 431 [2007].) Considering that A, as plantation worker, performs work that is necessary and desirable to the usual business of the plantation owner, he is therefore a regular seasonal employee and entitled to reinstatement upon onset of the next season unless he was hired for the dura-
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
YES. The posting of the bond of the employer does not have the effect of staying the execution of the reinstatement aspect of the decision of the Labor Arbiter (Pioneer Texturizing Corp. v. NLRC, 280 SCRA 806 [1997].)
the principal (Baguio v. NLRC, 202 SCRA 465 [1991]; Kimberly Independent Labor Union v. Drilon, 185 SCRA 190 [1990].) For another, MMSI was organized by Jolli-Mac itself to supply its personnel requirements (San Miguel Corp. v. MAERC Integrated Services, Inc., 405 SCRA 579 [2003].)
Another Suggested Answer: 2. YES, JSA can be compelled to reinstate Alexander, pending appeal of the decision of the Labor Arbiter to the NLRC, even if JSA post a bond. “Art. 229 [223]. Appeal. xxx In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned shall be immediately executory, even pending appeal and the posting of a bond.” 2.
They may file their claims against Jolli-Mac. A finding that MMSI is a “labor-only contractor is equivalent to declaring that there is an employer-employee relationship between Jolli-Mac and the workers of MMSI (Associated Anglo-American Tobacco Corp. v. Clave, 189 SCRA 127 [1990]; Industrial Timber Corp. v. NLRC, 169 SCRA 341 [1989].) The liability of Jolli-Mac vis-a-vis the workers of MMSI is for a comprehensive purpose, i.e., not only for the unpaid wages but for all the claims under the Labor Code and ancillary laws (San Miguel Corp. v. MAERC Integrated Services, Inc., 405 SCRA 579 [2003].)
Can the order of reinstatement be immediately enforced in the absence of a motion for the issuance of a writ of execution?
YES. In Pioneer Texturizing Corp. v. NLRC, 280 SCRA 806 [1997], the Court held that an award or order of reinstatement is selfexecutory and does not require a writ of execution to implement and enforce it. To require the application for and issuance of a writ of execution as prerequisite for the execution of a reinstatement award would certainly betray and run counter to the very object and intent of Article 223 [now Art. 229] of the Labor Code (on the immediate execution of a reinstatement order.) 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? ’09 – Q14
Alfredo was dismissed by management for serious misconduct. He filed suit for illegal dismissal, alleging that although there may be just cause, he was not afforded due process by management prior to his termination. He demands reinstatement with full backwages. 1. What are the twin requirements which the employer must observe in terminating or dismissing an employee?
If the order of reinstatement is being enforced, what should JSA do in order to prevent reinstatement? Explain your answers. ’09 – Q8
The twin requirements of due process are notice and hearing to be given to the worker. There is likewise a two-notice requirement rule, with the first notice pertaining to specific causes or grounds for termination and a directive to submit a written explanation within a reasonable period. The second notice pertains to the notice of termination. Pursuant to Perez v. Philippine Telegraph and Telephone Company, 584 SCRA 110 [2009], the Court held that a hearing or conference is not mandatory, as long as the employee is given “ample opportunity to be heard”, i.e., any meaningful opportunity (verbal or writer) to answer the charges against him or her and submit evidence in support of the defense, whether in a hearing, conference, or some other fair, just and equitable way.
The employer cannot prevent reinstatement but may, however, opt for reinstatement of the employee in the payroll of the company without requiring him to report back to his work (Zamboanga City Water District v. Buat, 232 SCRA 587 [1994].) PLEASE NOTE In connection with security guards, Department Order No. 14 series of 2001, if there is lack of assignment then the security guard is entitled to separation pay. Seafarers who have worked for 20 years on board the same vessel are not regular employees. ’09 – Q11a
2.
Is Alfredo entitled to reinstatement and full backwages? ’09 – Q17
Seafarers as overseas Filipino workers are fixed-term employees whose continued rehiring should not be interpreted as a basis for regularization but rather as a series of contract renewals sanctioned under the doctrine set in Millares v. NLRC (Gu-Miro v. Adorable, 437 SCRA 162 [2004].)
It depends. If the dismissal was without just cause and without due process, the dismissal of the employee is patently illegal. If the dismissal was for just cause but without due process, the dismissal is valid and the employer is only liable to pay indemnity in the form of nominal damages (Agabon v. NLRC, 442 SCRA 573 [2004].)
Jolli-Mac owns and operates the largest food chain the country. It engaged MMSI, a job contractor registered with the DOLE, to provide its restaurants the necessary personnel, consisting of cashiers, motorcycle delivery boys and food servers, in its operations. The Service Agreement warrants, among others, that MMSI has a paid up capital of P2 million; that it would train and determine the qualification and fitness of all personnel to be assigned to Jolli-Mac; that it would provide these personnel with proper Jolli-Mac uniforms; and that it is exclusively responsible to these personnel for their respective salaries and all other mandatory statutory benefits. After the contract was signed, it was revealed that MMSI had no other clients except Jolli-Mac, and one of its major owners was a member of the Board of Directors of JolliMac. 1. Is the Service Agreement between Jolli-Mac and MMSI valid?
Cite four (4) instances when an illegally dismissed employee may be awarded separation pay in lieu of reinstatement. ’09 – Q18a These four instances are: (1) in case the establishment where the employee is to be reinstated has closed or ceased operations; (2) where the company has been declared insolvent; (3) the former position no longer exists at the time of reinstatement for reason not attributable to the fault of the employer; and (4) where the employee decides not to be reinstated as when he does not pray for reinstatement in his complaint or position paper. Explain the impact of the union security clause to the employees’ right to security of tenure. ’09 – Q18b A valid union security clause when enforced or implemented for cause, after according the worker his substantive and procedural due process rights (Alabang Country Club, Inc. v. NLRC, 545 SCRA 357 [2008]); does not violate the employee’s right to security of tenure. Article 248(e) [now Art. 258(e)] of the Labor Code allows union security clauses and a failure to comply with the same is a valid ground to ter-
NO. It is not legal and valid because MMSI is engaged in laboronly contracting. For one, the workers supplied by MMSI to Jolli-Mac are performing services which are directly related to the principal business of Jolli-Mac. This is so because the duties performed by the workers are integral steps in or aspects of the essential operations of
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
minate employment. Union security clauses are designed to strengthen unions and is a valid law policy.
take. Pedro has been an “extra worker” for more than 10 years. He is also called upon to work on weekends, on holidays and when there are big affairs at the hotel. What is Pedro’s status as an employee under the Labor Code? ’08 – Q4
Savoy Department Store (SDS) adopted a policy of hiring a policy of hiring salesladies on a 5-month cycles. At the end of a saleslady’s 5-month term, another person is hired as replacement. Salesladies attend to store customers, wear SDS uniforms, report at specified hours, and are subject to SDS workplace rules and regulations. Those who refuse the 5-month employment contract are not hired. The day after the expiration of her 5-month engagement, Lina wore her SDS uniform but was denied entry into the store premises. Agitated, she went on a hunger strike and stationed herself in front of the gates of SDS. Soon thereafter, other employees whose 5-month term had also elapsed, joined Lina’s hunger strike. 1. Lina and 20 other salesladies filed a complaint for illegal dismissal, contending that they are SDS’ regular employees as they performed activities usually necessary or desirable in the usual business or trade of SDS and this, their constitutional right to security of tenure was violated when they were dismissed without valid, just or authorized cause. SDS argued that Lina et al. agreed – prior to engagement – to a fixed employment and this waived their right to a full-term tenure. Decide the dispute.
Pedro has acquired the status of a regular employee. Pedro was engaged to perform activities which are necessary or desirable in the usual business or trade of the employer. Moreover, Pedro has been an “extra waiter” for more than 10 years. Any employee who has rendered service for one year, whether continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists (Article 280 [ now Art. 294], Labor Code.] PizCorp and RSC entered into a “service agreement” where RSC, in consideration of service fees to be paid by PizCorp, 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 sa salaries and other statutory monetary benefits of its members deployed to PizCorp. The parties also stipulated that there shall be no employer-employee relationship between PizCorp and the RSC members. However, if PizCorp is materially prejudiced by any act of the delivery crew that violates PizCorp’s directives and orders, PizCorp can directly impose disciplinary sanctions on, including the power to dismiss, the erring RSC members. 1. Is the contractual stipulation that there is no employeremployee relationship binding on labor officials?
I will decide the case in favor of Lina et al. In the case of PNOC-Energy Development Corp. v. NLRC, G.R. No. 97747, March 31, 1993, the Supreme Court set down the criteria under which fixed-period contracts of employment do not circumvent security of tenure, to wit: 1. The fixed period of employment was knowingly and voluntarily agreed upon, without any force, duress or improper pressure upon the employee and absent any other circumstance vitiating his consent; or 2. It satisfactorily appears that the employer and the employee dealt with each other on more or less equal terms with no moral dominance over the employee. Lina et al. are not on equal terms with their employers and did not agree to a 5-month employment contract. The scheme of SDS to prevent workers from acquiring regular employment, violate security of tenure and is contrary to public policy (Pure Foods Corp. v. NLRC, G.R. No. 122653, December 12, 1997; cited in Philips Semiconductors [Phil.], Inc. v. Fadriquela, G.R. No. 141717, April 14, 2004.) 2.
NO. A contract of employment is impressed with public interest. The provisions of applicable statutes are deemed written into the contract, and the parties are not at liberty to insulate themselves and their relationships from the impact of labor laws and regulations by simply contracting with each other (Magsalin v. National Labor Organization of Working Men, G.R. No. 148492, May 9, 2003.) 2.
The employer of the RSC members is PizCorp. The four-fold test in determining employer-employee relationship is as follows: 1. The selection and engagement of the employees; 2. The payment of wages; 3. The power of dismissal; and 4. The power to control the employees’ conduct. Of the above, control of the employees’ conduct is the most crucial and determinative indicator of the presence or absence of an employer-employee relationship. Applying the Control Test, PizCorp is the employer of RSC because “if PizCorp is materially prejudiced by any act of the delivery crew that violates PizCorp’s directives and orders, PizCorp can directly impose disciplinary sanctions on, including the power to dismiss, the erring RSC member/s.” Clearly, PizCorp controls the RSC members’ conduct not only as to the end to be achieved but also as to the means of achieving the end (Manaya v. Alabang Country Club, Inc., G.R. No. 168988, June 19, 2007.)
The owner of SDS considered the hunger strike as eyesore and disruptive of SDS’s business. He wrote the Secretary of Labor a letter asking him to assume jurisdiction over the dispute and enjoin the hunger “strike.” What answer will you give if you were the Secretary of Labor?
Although the Secretary of Labor has wide discretion in exercising jurisdiction over a labor dispute, he may not enjoin the strike because SDS’ business is not indispensable to the national interest [Article 263(g) [now Art. 277(g), Labor Code.] 3.
Based on the test/s for employer-employee relationship, determine the issue of who is the employer of the RSC members.
Assume that no-fixed term worker complained, yet in a routine inspection of a labor inspector of the Regional Office of the DOLE found the 5-month period of SDS violative of the Labor Code’s security of tenure provisions and recommended to the Regional Director the issuance of a compliance order. The Regional Director adopted the recommendation and issued a compliance order. Is the compliance order valid? ’08 – Q3
3.
Assume that RSC has a paid-up capitalization of P1 million. Is RSC engaged in “labor only” contracting, permissible job contracting or simply, recruitment? ’08 – Q5
RSC is engaged in “labor-only” contracting. Apart from substantial capitalization or investment in the form of tools, equipment, machinery and work premises, the following factors need be considered: a. Whether the contractor is carrying on an independent business; b. The nature and extent of the work; c. The skill required; d. The term and duration of the relationship;
NO, the compliance order is not valid. The Regional Director exercises only visitorial and enforcement power over labor standard cases, and power to adjudicate uncontested money claims of employees. The Regional Director has no jurisdiction to rule on SDS’ 5-month term policy. SRC 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 workers to under-
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Bar Questions and Answers
The right to assign the performance of specified pieces of work; f. The control and supervision of the workers; g. The power of employer with respect to the hiring, firing and payment of the workers of the contractor; h. The control of the premises; i. The duty to supply premises, tools, appliances, materials and labor; and j. The mode, manner and terms of payment (Vinoya v. NLRC, G.R. No 126586, February 2, 2000; Escario v. NLRC, G.R. No. 124055, June 8, 2000; Corporal, Sr. v. NLRC. G.R. No. 129315, October 2, 2000.) Consider also the following circumstances: 1. The workers placed by RSC are performing activities which are directly related to the principal business of PizCorp; 2. RSC is not free from control and direction of PizCorp in all matters connected with the performance of the work (Baguio v. NLRC, 202 SCRA 465 [1991].) 4.
189 SCRA 211 [1990]; Kimberly Independent Labor Union v. Drilon, 185 SCRA 190 [1990].) Inday was employed by Herrera Home as interior decorator. During the 1st year of her employment, she did not report for work for one month. Hence, her employer dismissed her from the service. She filed with the LA a complaint for illegal dismissal alleging she did not abandon her work and that in terminating her employment, Herrera Home deprived her of her right to due process. She thus prayed that she be reinstated to her position. Inday hired you as her counsel. In preparing the position paper to be submitted to the LA, explain the standards of due process which should have been observed by Herrera Home in terminating your client's employment. ’06 – Q7 The Labor Code provides the following procedure to be observed in terminating the services of an employee to be observed in terminating the services on just causes as defined in Article 282 [now Art. 296] of the Code: (a) A written notice must be served on the employee specifying the ground or grounds for termination and giving him reasonable opportunity within which to explain his side; (b) A hearing or conference shall be conducted during which the employee concerned, with the assistance of counsel if he so desires, is given an opportunity to respond to the charge, present his evidence or rebut the evidence presented against him; and (c) A written notice of termination must be served on the employee indicating that upon due consideration of all the circumstance, grounds have been established to justify his termination.
Who has the obligation to report to the RSC members for membership with SSS, with the concomitant obligation to remit the SSS premiums? ’08 – Q9
Since RSC is a “labor only” contractor and, therefore, considered a mere agent of PizCorp. PizCorp, as the real employer, has the legal obligation to report the RSC members as its employees for membership with the SS and remit its premiums. Discuss briefly the instances when non-compliance by the employer with a reinstatement order of an illegally dismissed employee is allowed. ’07 – Q10 Despite a reinstatement order, an employer may not reinstate an employee in the following instances: (a) When the position or any substantial equivalent thereof no longer exists; (b) When reinstatement has been rendered moot and academic by supervening events, such as insolvency of the employer as declared by the court or closure of the business; or (c) The existence of strained relations between the employer and the illegally dismissed employee, provided that the matter is raised before the Labor Arbiter.
ABC Tomato Corp., owned and managed by three (3) elderly brothers and two (2) sisters, has been in business for 40 years. Due to serious business losses and financial reverses during the last five (5) years, they decided to close the business. 1. As counsel for the corporation, what steps will you take prior to its closure? As counsel for the corporation, I will see to it that the corporation shall serve a written notice on its intended date of closing or cessation on the workers of the corporation on the workers of the corporation and the Department of Labor and Employment at least one month before the intended date of the closure or cessation of operation.
As a rule, when is retirement due? ’07 – Q11a Article 287 [now Art. 301] of the Labor Code provides for two types of retirement: (a) Optional retirement – which may be availed of by an employee upon reaching the age of sixty (60) years; (b) Compulsory retirement – which may be availed of by an employee upon reaching the age of sixty-five (65) years. In both instances, the law imposes the minimum service requirement of five (5) years with the establishment.
2.
Are the employees entitled to separation pay?
The employees of the corporation are not entitled to separation pay because Article 283 [now Art. 297] of the Labor Code expressly provides that if the closure or cessation of operation of the establishment is due to serious business losses or financial reverses, the employees are not entitled to separation pay. If the reason for the closure is due to old age of the brothers and sisters: 3. Is the closure allowed by law?
When is retirement due for underground miners? ’07 – Q11b Pursuant to R.A. No. 8558, in the absence of a retirement plan or other applicable agreement providing for retirement benefits of underground mine employees in the establishment, any such employee may retire upon reaching the age of fifty (50) years, but not beyond sixty (60) years, if he has served for at least five (5) years or more as an underground miner employee or in an underground mine of the establishment.
YES, the closure is allowed by law. For a bona fide reason, an employer can lawfully close shop at any time. Just as no law forces anyone to go into business, no law can compel anybody to continue the same. It would be stretching the intent and spirit of the law if the Court interferes with management’s prerogative to close or cease its business operations just because the business is not suffering from any loss or because of the desire to provide workers continued employment (Alabang Country Club, Inc. v. NLRC, 466 SCRA 329 [2005].)
A Carpenter is employed by a private university in Manila. Is the carpenter a regular or casual employee? ’07 – Q16
4. If the employment of the carpenter is sporadic and brief in nature or occasional, his employment is casual especially because the work he is performing is not in the usual course of the school’s trade or business. However, if the carpenter has rendered at least one year, whether continuous or broken, he becomes a regular employee by operation of law, with respect to the activity in which he is employed and his employment shall continue while such activity exists (Article 280 [now Art. 294], Labor Code; Philippine Geothermal, Inc. v. NLRC,
Are the employees entitled to separation benefits? ’06 – Q10; ’12 – Q8
YES. The employees of the corporation are entitled to separation pay because the Labor Code expressly provides that the only time that they are not entitled to separation pay is when the closure or cessation of operation is due to serious business losses or financial reverses.
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
During their probationary employment, 8 employees were berated and insulted by their supervisor. In protest, they walked out. The supervisor shouted at them to go home and never to report back to work. Later, the personnel manager required them to explain why they should not be dismissed from employment for abandonment and failure to qualify for the positions applied for. They filed a complaint for illegal dismissal against their employer. As LA, how will you resolve the case? ’06 – Q12
quired that a termination report be submitted to the nearest public employment office upon the completion of the construction project (Aurora Land Projects Corp. v. NLRC, 266 SCRA 48 [1997].) There is no such requirement for an ordinary contractual worker. Antonio, a security guard, was caught sleeping on the job while on duty at the Yosi Cigarette Factory (YCF). As a result, he was dismissed from employment by the Wagan Security Agency, an independent contractor. At the time of his dismissal, Antonio had been serving as a watchman in the factory for many years, often at stretches of up to 12 hours, even on Sundays and holidays, without overtime, night-time and rest day benefits. He thereafter filed a complaint for illegal dismissal and non-payment of benefits against YCF, which he claimed was his actual and direct employer. As the LA assigned to hear the case, how would you correctly resolve the following: 1. Antonio's charge of illegal dismissal;
I will rule in favor of management. First of all, there was no abandonment because there was no intention not to return to work. It was just that the 8 employees were berated and insulted and even told never to report back to work. The probationary workers could, however, be terminated for failing to meet probationary standards. If the reasons for the supervisor’s berating and insulting behavior were poor or substandard performance on the part of the workers, their probationary employment could be legally terminated. Another Suggested Answer:
This is a case involving permissible job contracting. Antonio’s charge of illegal dismissal against Yosi Cigarette Factory will not prosper. Wagan Security Agency, an independent contractor, is Antonio’s direct employer (Article 109, Labor Code.) By force of law, there is in reality no employer-employee relationship between Yosi and Antonio (Baguio v. NLRC, 202 SCRA 465 [1991].)
I will rule against the employer. The probationary employees are entitled to security of tenure and may not be dismissed except for cause, and are entitled to be hired as regular employees if they are qualified for the position. There is no abandonment, because the absence of the employees has valid and justifiable cause, and they did not intend to sever employment or lose the intention to return to work.
2.
Mariano was a mason employed by the ABC Construction. Every time that ABC had a project, it would enter into an employment contract with Martillo for a fixed period that coincided with the need for his services, usually for a duration of 3 to 6 months. Since the last project involved the construction of a 40-storey building, Martillo was contracted for 14 months. During this period, ABC granted wage increases to its regular employees, composed mostly of engineers and rank-and-file construction workers as a result of the just concluded CBA negotiations, feeling aggrieved and discriminated against, Mariano and other similarlysituated project workers demanded that increases be extended to them, inasmuch as they should now be considered regular employees and members of the bargaining unit. 1. If you were counsel for ABC’s counsel, how would you respond to this demand?
Antonio’s claim for overtime and other benefits should be paid by Yosi Cigarette Factory. The Labor Code provides that in the event that the contractor of subcontractor fails to pay the wages of his employees, the employer shall be jointly and severally liable to the extent of the work performed under the contract in the same manner and extent that he is liable to employees directly employed by his contractor or subcontractor for any violation of any provision of the Labor Code, Malyn Vartan is a well-known radio-TV show host. She signed a contract with XYZ Entertainment Network to host a 1-hour daily talk show where she interviews various celebrities on topical subjects that she herself selects. She was paid a monthly remuneration of P300,000.00. The program had been airing for almost 2 years when sponsors' advertising revenues dwindled, constraining the network to cancel the show upon the expiration of its latest contract with Ms. Vartan. The talk-show host protested the discontinuance of her monthly talent fee, claiming that it was tantamount to her illegal dismissal from the network since she has already attained the status of a regular employee. 1. As the network's legal counsel, how would you justify its decision to cancel Ms. Vartan's program which in effect terminated her services in the process?
As legal counsel for ABC, I would argue that the employment of Mariano was fixed for a specific project or undertaking, the completion of which has been determined at the time of his engagement. Rendering 14 months of work foes not make him a regular employee, when to begin with, he was employed for a specific project, i.e., which is the construction of a particular 40-storey building. The rule on more than 1 year of service making the regular allied only to casual employees. Hence, Mariano does not belong to the bargaining unit of regular employees. 2.
Antonio's claim for overtime and other benefits. '05 Q3(1)
As the network’s legal counsel, I will argue that no employer-employee relationship exists between the network and Ms. Vartan. Reference has to be made to the terms and conditions provided under the contract and the parties shall be governed by the provisions of the new Civil Code. In the case of Sonza v. ABS-CBN Broadcasting Corp., 431 SCRA 583 [2004], it was held that a TV and radio talent is not an employee of the network company. Similarly in this case, Ms. Vartan cannot be considered as an employee of the network. Under the control test, the network had no control on the manner and means through which Ms. Vartan will perform her work. She herself selects the topical subjects in her interviews. She is also paid an extraordinary huge amount of P300,000 for her to considered a mere employee.
How is a project worker different from a casual or contractual worker? ’05 – Q2(2)
A project worker is employed for a specific project or undertaking the completion or termination of which is determined at the time of his engagement. His work need not be incidental to the business of the employer. His employment may exceed 1 year without necessarily making him a regular employee. A casual employee is engaged to perform a job, work or service which is incidental to the business of the employer. Moreover, the definite period of his employment is made known to him at the time of his engagement. His continued employment after the lapse of one year makes him a regular employee. Under the Social Security Law, employment that is purely casual and not for the purpose of occupation or business of the employer is not under the coverage of aforesaid law. A “project worker”, on the other hand, is a specific term used to designate workers in the construction industry hired to perform a specific undertaking for a fixed period which is co-terminus with a project or a phase thereof determined at the time of the engagement of the employee (Policy Instruction No. 19, DOLE), and it is mandatorily re-
2.
As counsel for the talk-show host, how would you argue you case? '05 - Q4(1)
As counsel for Mr. Vartan, I will argue that an employer-employee relationship exists, and that she is regular employee of the Network because of the nature of her work in relation to the nature of the business of the Network. Her work is usually necessary or desirable in the usual trade or business of the employer (Article 280 [now Art. 294], Labor Code.) I will invoke the four-fold test of employer-employee rela-
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
tionship, i.e., (1) selection and engagement of employee; (2) payment of wages; (3) power to dismiss; and (4) power of control.
under Article 281 [now Art. 295] of the Code. She was not obviously; she was a qualified and competent production operator. She would not have been repeatedly re-hired if she were not that qualified and competent. I will, this, advise her to sue for illegal dismissal, with prayer for regularization in addition to the reliefs of reinstatement and fill backwages provided for in Article 279 [now Art. 293] of the Labor Code.
[In the case of Dumpit-Murillo v. Court of Appeals, 524 SCRA 290 [2007], the Supreme Court held that “the practice of having fixed-term contracts in the broadcast industry does not automatically make all talent contracts valid and compliant with labor law – the assertion that a talent contract exists does not necessarily prevent a regular employment status.”]
RS, a security guard, filed a complaint for illegal dismissal against Star Security Agency. He alleged he was constructively dismissed after 10 years of service to the Agency. Having been placed on “off-detail” and “floating status” for 6 months already, he claimed the Agency just really wanted to get rid of him because it required him to take a neuro-psychiatric evaluation test by Mahusay Medical Center. RS said he already submitted the result of his evaluation test by Brent Medical Clinic as precondition to a new assignment, but the report was rejected by the Agency. RS added that Mahusay Medical Center had close ties with Star’s president. It could manipulate tests to favor only those guards whom the Agency wanted to retain. Star defended its policy of reliance on Mahusay Medical Center because it has been duly accredited by the PNP. It is not one of those dubious testing centers issuing ready-made reports. Star cited its sad experience last year when a guard ran amuck and shot an employee of a client-bank. Star claimed management prerogative in assigning its guards, and prayed that RS’ complaint be dismissed. What are the issues? Identify and resolve them. ’04 – Q1a
What is meant by “payroll reinstatement” and when foes it apply? ’05 – Q5c Payroll reinstatement is a form or reinstatement which an employer may opt to exercise in lieu of actual reinstatement. Here, the illegally dismissed employee is to receive his basic pay without the obligation of rendering any service to the employer. This occurs when a Labor Arbiter decides that an employee was illegally dismissed and as a consequence awards reinstatement pursuant to Article 279 [now Art. 293] of the Labor Code. Such award of reinstatement, according to Article 223 [now Art. 229] of the Code is immediately executor even pending appeal. Ricky Marvin had worked for more than 10 years in IGB Corporation. Under the terms of the personnel policy on retirement, any employee who had reached the age of 65 and completed at least 10 years of service would be compulsorily retired and paid 30 days' pay for every year of service. Ricky Marvin, whose immigrant visa to the USA had just been approved, celebrated his 60th birthday recently. He decided to retire and move to California where the son who petitioned him had settled. The company refused to grant him any retirement benefits on the ground that he had not yet attained the compulsory retirement age of 65 years as required by its personnel policy; moreover, it did not have a policy on optional or early retirement. Taking up the cudgels for Ricky Marvin, the union raised the issue in the grievance machinery as stipulated in the CBA. No settlement was arrived at, and the matter was referred to voluntary arbitration. If you were the Voluntary Arbitrator, how would you decide? '05 Q7(1)
The facts in the question raise these issues: 1. When RS was placed on "off-detail" or "floating status" for more than six months, can RS claim that he was terminated? 2. Is there a valid reason for the termination of RS? On the first issue, based on prevailing jurisprudence, RS can be considered as terminated because he has been placed on "off detail" or "floating status" for a period which is more than six (6) months. On the second issue, it is true that disease is a ground for termination. But the neuro-psychiatric evaluation test by the Mahusay Medical Center is not the certification required for disease to be a ground for termination. The Rules and Regulations implementing the Labor Code require a certification by a public health authority that the disease is of such nature or at such a stage that it cannot be cured within a period of six (6) months even with proper medical treatment.
I will grant Ricky Marvin the retirement benefits under Article 287 [now Art. 301] of the Labor Code. Said Article, as the minimum standard in law, allows an employee an optional retirement upon reaching the age of 60 years provided that he rendered at least 5 years of service – requirements that Ricky Marvin met under the facts of the case.
Another Suggested Answer: The issues involved are as follows: 1. Is there constructive dismissal? 2. Is there a valid exercise of management prerogative? On the first issue, there is constructive dismissal. RS cannot be placed on "off-detail" and "floating status" indefinitely. If it lasts for more than six (6) months, RS shall be deemed to have been constructively dismissed thus entitling him to separation benefits (Superstar Security Agency v. NLRC, 184 SCRA 74, [1990].) On the second issue, there is no valid exercise of management prerogative. Star's claim of management prerogative in assigning its guards cannot be exercised to defeat or circumvent RS' right to security of tenure.
Kitchie Tempo was one of approximately 500 production operators at HITEC Semiconductors, Inc., and export-oriented enterprise whose business depended on orders for computer chips from overseas. She was hired as a contractual 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 preceding contract. 6 months after the expiration of her last contract, Kitchie went to HITEC's personnel department to inquire why she was not yet being recalled for another temporary contract. She was told that her performance during her last stint was "below average." Kitchie seeks your advice as a labor lawyer about her chances of getting her job back. What will your advice be? ’05 – Q9
What are the authorized causes for a valid dismissal by the employer of an employee? Why are they distinct from the just causes? '04 - Q2b(2); ’02 – Q20b The AUTHORIZED CAUSES for a valid dismissal are the follow-
Kitchie’s “below average” rating will not matter. She was a regular employee from day one of her service as her work was evidently usually necessary or desirable to HITEC’s usual business. Under Paragraph 1 of Article 280 [now Art. 294], Kitchie is a regular (not casual) employee. Also, Kitchie obtained permanent regular employment when she was repeatedly re-hired by HITEC. As a permanent regular employee, working for an indefinite period, Kitchie is entitled to the reliefs of reinstatement and full backwages as mandated under Article 279 [now Art. 293] of the Labor Code. A “below average” rating would matter if Kitchie was made to undergo probationary employment, or was a probationary employee
ing: 1. 2. 3. 4.
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Installation of labor-saving devices; Redundancy; Retrenchment to prevent losses The closing or cessation of operation of the establishment or undertaking, unless the closing is for the purpose of circumventing the provisions of the Labor Code. Article 284 [now Art. 298] also provides that an employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees.
The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
or technical lines requiring special training, experience, or knowledge; or execute under general supervision special assignments and tasks; and who do not devote more than 20 percent of their hours worked in a work-week to activities which are not directly and closely related to the performance of the work described above. All others are rank and file employees under said Book (Art. 82, Labor Code, Sec. 2 (c), Rule I, Bk. III, Omnibus Rules Implementing the Labor Code). Under Book Five of the Labor Code, "MANAGERIAL EMPLOYEE" is one who is vested with powers or prerogatives to lay down, and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. A SUPERVISORY EMPLOYEE is one who, in the interest of the employer, effectively recommends such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. All employees not falling within any of the above definitions are considered rank-and-file employees for purposes of this Book (Article 212(m) [now Art. 219(m), Labor Code). On the matter of right to self-organization, a managerial employee cannot exercise such right; while a supervisor and a rank and file employee can (Articles 245 & 243 [now Arts. 254 & 252, Labor Code).
The authorized causes for a valid dismissal are distinct from just causes because where the dismissal of an employee is based on just causes, these just causes are acts committed by the employee which provide the basis for his dismissal. On the other hand, where the dismissal is based on authorized causes, these authorized causes are the results of the proper exercise by the employer of his management prerogatives. If a valid dismissal is based on just causes, there is no liability on the part of the employer, although sometimes, financial assistance to be given to the dismissed employee is asked of the employer. If a valid dismissal is based on authorized causes, the employer has to pay separation pay except in case of closure or cessation of operation due to serious business losses or financial reverses. Gabriela has been working as bookkeeper at Great Foods, Inc., since 1970. In the early part of the year 2003, Gabriela, who was already 50 years old, reported for work after a week-long vacation in her province. It was the height of the SARS scare, and management learned that the 1st confirmed SARS death case in the Philippines, a “balikbayan” nurse from Canada, is a townmate of Gabriela. Immediately, a memorandum was issued by management terminating the services of Gabriela on the ground that she is a probable carrier of SARS virus and that her continued employment is prejudicial to the health of her co-employees. Is the action taken by the employer justified? ’04 – Q6a
Daisy's Department Store hired Leo as a checker to apprehend shoplifters. Leo later became Chief of the Checkers Section and acquired the status of a regular employee. By way of a cost-cutting measure, Daisy's decided to abolish the entire Checkers Section. The services of Leo, along with those of his co-employees working in the same section, were terminated on the same day. A month after the dismissal of Leo, Daisy's engaged the services of another person as an ordinary checker and with a salary much lower than that which Leo used to receive. Given the above factual settings (nothing more having been established), could the dismissal of Leo be successfully assailed by him? '03 - Q13
The employer's act of terminating the employment of Gabriela is not justified. There is no showing that said employee is sick with SARS, or that she associated or had contact with the deceased nurse. They are merely townmates. Furthermore, there is no certification by a competent public health authority that the disease is of such a nature or such a stage that it cannot be cured within a period of six (6) months even with proper medical treatment (Implementing Rules, Book VI, Rule 1, Sec. 8, Labor Code.)
YES. Given the factual setting in the problem, and since "nothing more (have) been established", the dismissal of Leo can be successfully assailed by him. This is so because the burden of proof is upon the employer to show compliance with the following requisites for reduction of personnel: 1. Losses or expected losses should be substantial and not merely de minimis; 2. The expected losses must be reasonably imminent, and such imminence can be perceived objectively and in good faith by the employer. 3. It must be necessary and likely to prevent the expected losses. The employer must have taken other measures to cut costs other than labor costs; and 4. Losses if already realized, or the expected losses must be proved by sufficient and convincing evidence (Lopez Sugar Corp. v. Federation of Sugar Workers, 189 SCRA 179 [1990].) Moreover, the notice requirements to be given by Daisy's Department Store to DOLE and the employees concerned 30 days prior to the intended date of termination, as well as the requisite separation pay, were not complied with.
CMI had provided janitorial services to the NEDA since April 1988. Its service contract was renewed every 3 months. However, in the bidding held on July 1992, CMI was disqualified and excluded. In 1993, 6 janitors of CMI formerly assigned at NEDA filed a complaint for underpayment of wages. Both CMI and NEDA were impleaded as respondents for failure to comply with NCR Wage Orders Nos. 01 and 02, which took effect on November 1, 1990 and January 2, 1992, respectively. Should NEDA, a government agency subject to budgetary constraints, be held liable solidarily with CMI for the payment of salary differentials due the complainants? '04 - Q8a NEDA shall be held solidarily liable with CMI for the payment of salary differentials due to the complainants, because NEDA is the indirect employer of said complainants. The Labor Code provides that xxx (A) person, partnership, association or corporation which, not being an employer, contracts with an independent contractor for the performance of any work, task, job or project" xxx "shall be jointly and severally liable with his contractor or subcontractor to such employees (of the contractor or subcontractor) to the extent of work performed under the contract xxx" (Articles 106 and 107, Labor Code.)
Oscar was an agent supervisor, rising from the ranks, in a corporation engaged in real estate. In order to promote the business, the company issued a memorandum to all agent supervisors requiring them to submit a feasibility study within their respective areas of operation. All agent supervisors complied except Oscar. Reminded by the company to comply with the memorandum, Oscar explained that being a dropout in school and uneducated, he would be unable to submit the required study. The company found the explanation unacceptable and terminated his employment. Aggrieved, Oscar filed a complaint for illegal dismissal against the company. Decide. '03 - Q14
The Labor Code treats differently in various aspects the employment of (a) managerial employees, (b) supervisory employees, and (c) rank-and-file employees. State the basic distinguishing features of each type of employment. '03 - Q5 Under Book Three of the Labor Code, a MANAGERIAL EMPLOYEE refers to one whose primary duty consists of the management of the establishment in which he is employed or of a department or subdivision thereof, and to other officers or members of the managerial staff. A supervisor and a rank and file employee can be considered as members of the managerial staff, and therefore, a managerial employee if their primary duty consists of work directly related to management policies; if they customarily and regularly exercise discretion and independent judgment; regularly and directly assist a proprietor or a managerial employee whose primary duty consists of the management of the establishment in which they are employed or a subdivision thereof; or execute under general supervision work along specialized
For failure to comply with the memorandum to submit a feasibility study on his area of operation, Oscar cannot be terminated (presumably for insubordination or willful disobedience) because the same envisages the concurrence of at least two requisites: (1) the employee's assailed conduct must have been willful or intentional, the willfulness being characterized by a wrongful and perverse attitude; and (2) the order violated must have been reasonable, or lawful, made known
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
to the employee and must pertain to the duties which he had been engaged to discharge. In the case at bar, at least two requisites are absent, namely: (1) Oscar did not willfully disobey the memorandum with a perverse attitude; and (2) the directive to make a feasibility study did not pertain to his duties. Hence, the termination from employment of Oscar Pimentel is not lawful.
They are not subject to the regular hours and days of work and may come and go as they wish. They are not subject to any disciplinary measures from the Company, save merely for the inherent rules of general behavior and good conduct" (Ushio Marketing v. NLRC, 294 SCRA 673 [1998].) Sta. Monica Plywood Corp. entered into a contract with Arnold for the milling of lumber as well as the hauling of waste wood products. The company provided the equipment and tools because Arnold had neither tools and equipment nor capital for the job. Arnold, on the other hand, hired his friends, relatives and neighbors for the job. Their wages were paid by Sta. Monica Plywood. to Arnold, based on their production or the number of workers and the time used in certain areas of work. All work activities and schedules were fixed by the company. 1. Is Arnold a job contractor?
Design Consultants was engaged by the PNCC to supervise the construction of the SLEX Extension. Design Consultants hired Omar as a driver for 2 years. After his 2-year contract expired, he was extended another contract for 9 months. These contracts were entered into during the various stages and before the completion of the extension project. Omar claims that because of these repeated contracts, he is now a regular employee of Design Consultants. Is he correct? '02 - Q2 YES. The principal test for determining whether a particular employee is a "project employee" as distinguished from a "regular employee" is whether or not the "PROJECT EMPLOYEE" was assigned to carry out a "specific project or undertaking," the duration and scope of which were specified at the time the employee was engaged for the projects. In the problem given, there is no showing that Omar was informed that he was to be assigned to a "specific project or undertaking." Neither has it been established that he was informed of the duration and scope of such project or undertaking at the time of his engagement (Philex Mining Corp. v. NLRC, 312 SCRA 119 [1999].) Moreover, the re-hiring of Omar is sufficient evidence of the necessity or the indispensability of his services to the company's business (Aurora Land Projects Corp v. NLRC, 266 SCRA 48 [1997].) Hence, Omar is correct in claiming that he is a regular employee of Design Consultants, Inc.
NO. In two cases decided by the Supreme Court, it was held that there is "job contracting" where (1) the contractor carries on an independent business and undertakes the contract work in his own account, under his own responsibility according to his own manner and method, free from the control and direction of his employer or principal in all matters connected with the performance of the work except as to the results thereof; and (2) the contractor has substantial capital or investment in the form of tools, equipment, machineries, work premises and other materials which are necessary in the conduct of his business (Lim v. NLRC, 303 SCRA 432 [1999]; Baguio v. NLRC, 202 SCRA 465 [1991].) In the problem given, Arnold did not have sufficient capital or investment for one. For another Arnold was not free from the control and direction of Sta. Monica Plywood Corp. because all work activities and schedules were fixed by the company. Therefore, Arnold is not a job contractor. He is engaged in laboronly contracting.
Pandoy, an electronics technician, worked within the premises of Perfect Triangle, an auto accessory shop. He filed a complaint for illegal dismissal, OT pay and other benefits against Perfect Triangle, which refused to pay his claims on the ground that Pandoy was not its employee but was an independent contractor. It was common practice for shops like Perfect Triangle 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 Pandoy was like a partner who worked within its premises, using parts provided by the shop, but otherwise Pandoy was free to render service in the other auto shops. On the other hand, Pandoy insisted that he still was entitled to the benefits because he was loyal to Perfect Triangle, it being a fact that he did not perform work for anyone else. Is Pandoy correct? '02 - Q4
2.
Who is liable for the claims of the workers hired by Arnold? '02 - Q8
Sta. Monica Plywood Corp. is liable for the claims of the workers hired by Arnold. A finding that Arnold is a labor only contractor is equivalent to declaring that there exist an employer-employee relationship between Sta. Monica Plywood Corp. and workers hired by Arnold. This is so because Arnold is considered a mere agent of Sta. Monica Plywood Corp (Lim v. NLRC, 303 SCRA 432 [1999]; Baguio v. NLRC, 202 SCRA 465 [1991].) Lyric Theater Corp. issued a memorandum prohibiting all ticket sellers from encashing any check from their cash collections and requiring them instead to turn over all cash collections to the management at the end of the day. In violation of this memorandum, Melody, a ticket seller, encashed 5 checks from her cash collection. Subsequently the checks were dishonored when deposited in the account of Lyric Theater. For this action, Melody was placed under a 20-day suspension and directed to explain why she should not be dismissed for violation of the company's memorandum. In her explanation, she admitted having encashed the checks without the company's permission. While the investigation was pending, Melody filed a complaint against Lyric Theater for backwages and separation pay. The LA ordered Lyric Theater to pay Melody P115,420.79 representing separation pay and backwages. The NLRC affirmed the ruling of the LA. Is the ruling of the NLRC correct? ’02 – Q9
Pandoy is not correct. He is not an employee because he does not meet the four-fold test for him to be an employee of Perfect Triangle. All that he could claim is: he worked within the premises of Perfect Triangle. Pandoy was NOT engaged as an employee by Perfect Triangle. He was NOT paid wages by Perfect Triangle. Perfect Triangle does NOT have the power to dismiss him although Perfect Triangle may not continue to allow him to work within its premises. And most important of all, Pandoy was NOT under the control of Perfect Triangle as regards the work he performs for customers. The Supreme Court has ruled: "In stark contrast to the Company's regular employees, there are independent, free-lance operators who are permitted by the Company to position themselves proximate to the Company premises. These independent operators are allowed by the Company to wait on Company customers who would be requiring their services. In exchange for the privileges of favorable recommendation by the Company and immediate access to the customers in need of their services, these independent operators allow the Company to collect their service fee from the customer and this fee is given back to the Independent operator at the end of the week. In effect, they do not earn fixed wages from the Company as their variable fees are earned by them from the customers of the Company. The Company has no control over and does not restrict the methodology or the means and manner by which these operators perform their work. These operators are not supervised by any employee of the Company since the results of their work is controlled by the customers who hire them. Likewise, the Company has no control as an employer over these operators.
The ruling of the NLRC affirming the Labor Arbiter's decision ordering Lyric Theater to pay P115,420.79 representing separation pay and backwages is wrong. The Labor Arbiter's decision is wrong because: 1. It is premature. There was still no termination. All that was done by the employer (Lyric Theater) was to place the employee (Melody) under a 20-day suspension, meanwhile directing her to explain why she should not be dismissed for violation of company's memoranda. 2. The order for Lyric Theater to pay separation pay has no factual basis. Separation pay is to be paid to an employee who is terminated due to the Installation of labor saving de-
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
3.
vices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment undertaking. None of these events has taken place. Neither is separation pay here in lieu of reinstatement. Melody is not entitled to reinstatement because there is a just cause for her termination. The order for Lyric Theater to pay backwages has no factual basis. If after investigation, Lyric Theater dismisses Melody, there is just cause for such termination. There is willful disobedience by the employee of the lawful orders of her employer in connection with her work. She did not just violate the lawful order of the employer. She violated it five times. Melody did not give any justifiable reason for violating the company's memorandum prohibiting the encashment of checks (Jo Cinema Corp. v. Avellana, G.R. No. 132837, June 28, 2001.)
those who in the interest of the employer, effectively recommend such managerial actions, if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment (Art. 212(m) [now Art. 219(m), Labor Code.) In a case, the Supreme Court said: "In the petition before us, a thorough dissection of the job description of the concerned supervisory employees and section heads indisputably show that they are not actually managerial but only supervisory employees since they do not lay down company policies. PICOP's contention that the subject section heads and unit managers exercise the authority to hire and fire is ambiguous and quite misleading for the reason that any authority they exercise is not supreme but merely advisory in character. Theirs is not a final determination of the company policies inasmuch as any action taken by them on matters relative to hiring, promotion, transfer, suspension and termination of employees is still subject to confirmation and approval by their respective superior (Atlas Lithographic Services, Inc. v. Laguesma, 205 SCRA 12, 17 [1992].) Thus, where such power, which is in effect recommendatory in character, is subject to evaluation, review and final action by the department heads and higher executives of the company, the same, although present, is not effective and not an exercise of independent judgment as required by law (Philippine Appliance Corp. v. Laguesma, 229 SCRA 730, 737 [1993] citing Franklin Baker Company of the Philippines v. Trajano, 157 SCRA 416, 422-433 [1988].)" (Paper Industries Corp. of the Philippines v. Laguesma 330 SCRA 295, [2000].)
Tomas and Cruz have been employed for the last 22 years in various capacities on board the ships of BARKO Shipping Company. Their employment was made through a local manning company. They have signed several ten (10) month employment contracts with BARKO Shipping. The NLRC ruled that they were contractual employees and that their employment was terminated each time their contracts expired is the ruling of the NLRC correct? ’02 – Q11 YES. A contract of employment for a definite period terminates by its own terms at the end of such period. Since Tomas and Cruz signed ten (10) - month contracts, their employment terminates by its own terms at the end of each ten (10)-month period. The decisive determinant in term employment should not be the activities that the employee is called upon to perform but the day certain agreed upon by the parties for the commencement and termination of their employment relation (not the character of his duties as being "usually necessary or desirable in the usual business of the employer"). Stipulation in the employment contracts providing for "term employment" or "fixed period employment" are valid when the period are agreed upon knowingly and voluntarily by the parties without force, duress or improper pressure exerted on the employee; and when such stipulations were not designed to circumvent the laws on security of tenure (Brent School v. Zamora, 181 SCRA 702 [1990].) Moreover, in Brent School v. Zamora, supra, the Supreme Court stated that Article 280 [now Art. 294] of the Labor Code does not apply to overseas employment. In Pablo Coyoca v. NLRC, 243 SCRA 190 [1995], the Supreme Court also held that a seafarer is not a regular employee and Filipino seamen are governed by the rules and regulations governing overseas employment and the said rules do not provide for separation or termination pay. From the foregoing cases, it is clear that seafarers are considered contractual employees. They cannot be considered as regular employees under Article 280 [now Art. 294] of the Labor Code. Their employment is governed by the contracts they sign every time they are rehired and their employment is terminated when the contract expires. Their employment is contractually fixed for a certain period of time. They fall under the exception of Article 280 [now Art. 294] whose employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season. We need not depart from the rulings of this court in the two aforementioned cases which indeed constitute stare decisis with respect to the employment status of seafarers (Douglas Millares v. NLRC, et al, 328 SCRA 79, [2000].) Therefore, Tomas and Cruz are contractual employees. The ruling of the NLRC is correct.
May the general manager of a company be held jointly and severally liable for backwages of an illegally dismissed employee? ’02 – Q19b
Distinguish managerial employees from supervisory employees. ’02 – Q18a
Another Suggested Answer:
YES. If it is shown that he acted in bad faith, or without or in excess of authority, or was motivated by personal ill-will in dismissing the employee, the general manager may be held jointly and severally liable for the backwages of an illegally dismissed employee (ARB Construction C. v. Court of Appeals, 332 SCRA 427, (2000); Lim v. NLRC, 303 SCRA 432, [1999].) An employee was ordered reinstated with backwages. Is he entitled to the benefits and increases granted during the period of his lay-off? ’02 – Q20a YES. An employee who is ordered reinstated with backwages is entitled to the benefits and increases granted during the period of his lay-off. The Supreme Court has ruled: "Backwages are granted for earnings a worker lost due to his illegal dismissal and an employer is obliged to pay an illegally dismissed employee the whole amount of salaries plus all other benefits and bonuses and general increases to which the latter should have been normally entitled had he not been dismissed" (Sigma Personnel Services v. NLRC, 224 SCRA 181 [1993].) "A" worked for company "B" as a rank and file employee until April 1990 when A's services were terminated due to loss of confidence in A. However, before effecting A's dismissal, B accorded A due process including full opportunity to answer the charges against him in the course of the investigation. Was B justified in dismissing A after the investigation? ’01 – Q3 In the case of PLDT v. NLRC (G.R. No. 106947, February 11, 1999), the Supreme Court ruled that the basic requisite for dismissal on the ground of loss of confidence is that the employee concerned must be one holding a position of trust and confidence. Rank-and-file employees may only be dismissed for loss of confidence if the same is because of a willful breach of trust by a rank and file employee of the trust reposed in him by his employer or duly authorized representative (Article 282(c) [now Art. 296], Labor Code).
"B" is justified in dismissing "A" for loss of confidence after according him the right to procedural due process. However, the following
A MANAGERIAL EMPLOYEE is one who is vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. SUPERVISORY EMPLOYEES, on the other hand, are
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
guidelines must be observed, as ruled in Nokom v. NLRC, G.R. No. 140034. July 18, 2000: 1. loss of confidence should not be simulated; 2. it should not be used as subterfuge for causes which are improper, illegal or unjustified; 3. it may not be arbitrarily asserted in the face of overwhelming evidence to the contrary; and 4. it must be genuine, not a mere after thought to justify their action
payment of separation pay to employees in cases of "closing or cessation of operations of the establishment or undertaking". Is the union's claim correct or not? ’01 – Q6 The union's claim is not correct. In the case of National Federation of Labor v. NLRC, G.R. No. 127718, March 2. 2000, the Supreme Court ruled that there is no obligation to pay separation pay if the closure is not a unilateral and voluntary act of the employer. In the question, the closure was brought about not by a unilateral and voluntary act of the employer but due to the act of government in the implementation of the Comprehensive Agrarian Reform Law.
What economic components constitute backwages for a rank and file employee? Are these components equally applicable to a managerial employee? ’01 – Q4
What limitations, if any, do the law and jurisprudence impose on an employer's right to terminate the services of a probationary employee? ’01 – Q12a
The Labor Code (Article 279 [now Art. 293) employee who is unjustly dismissed from work is entitled to reinstatement and also to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to his actual reinstatement. An employee is entitled to all the above benefit regardless of whether he is a rank-and-file employee or a managerial employee. However, backwages may also include the 13th month pay which are paid to rank-and-file employees, as well as benefits arising from a CBA given only to employees in the bargaining unit. Managerial employees cannot be given the same since they are ineligible to join a labor organization.
The Labor Code (in Article 281 [now Art. 295]) provides that the services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. If the probationary employee is being terminated for just cause, he must, of course, be given due process before his termination. "X" is a bona fide service contractor providing manpower services to various companies, possessing the necessary capital and equipment needed to effectively carry out its commitments. "Y" is an employee of "X" and assigned to work as a janitor in Company "Z". In the course of Y's assignment, Z's supervisors and employees would give verbal instructions to Y as to how and where to perform his work. X pays Y salary. Subsequently, Y's services were terminated by X. Y sued Z for Illegal dismissal. May Y's case against Z prosper? ’01 – Q13a
"A" was hired by company "B" in January 1980 until A was illegally dismissed on April 30, 1990 as found by a LA who ordered reinstatement and full backwages from April 30, 1990 until A’s reinstatement. The Arbiter's decision was promulgated on April 29, 1995. B appealed claiming, among others, that the award for backwages was excessive in that it went beyond three-year rule set forth in Mercury Drug v. CIR (56 SCRA 696). Is B's contention tenable? ’01 – Q5
Y's case against Z will not prosper, because Z is not the employer NO, the contention of "B" is not tenable. R.A. No. 6715, which was enacted in 1989, in effect set aside the three-year rule set forth in Mercury Drug v. CIR (56 SCRA 696) when it provided that the full backwages that an unjustly dismissed employee shall receive shall be computed from the time his compensation was withheld from him up to the time of his actual reinstatement. The word "actual" was inserted in the law by Rep. Act No. 6715. Thus, in accordance with the aforesaid law, an unjustly dismissed employee shall receive his full backwages computed from the time his compensation was withheld from him up to the time of his actual reinstatement even if this period is more than three years.
of Y.
Another Suggested Answer:
"A", an employee of Company "B", was found to have been illegally dismissed and was ordered to be reinstated and paid backwages from the time of dismissal until actual reinstatement. The case was elevated all the way to the SC. By the time the SC's decision became final and executory, B had closed down and was in the process of winding up. Nonetheless, B paid A his backwages and separation pay. A complained that B’s computation was erroneous in that A's allowances was not included. Is A correct in his claim? ’01 – Q15a
The employer of "Y" is "X". "Y' would be an employee of "Z" if "X" here is a labor-only contractor but X is not a labor-only contractor. He possesses the necessary capital and equipment needed to effectively carry out its commitment as a service contractor. Applying the control test, the fact that "Z's" supervisors and employees give verbal instructions to Y as to how and where to perform his work does not necessarily mean that thereby he is under the control of Z as regards his employment as long as X, as service contractor, actually directs the work of Y. It should also be noted that X pays the salary of Y as the employee of the former.
NO, the contention of "B" is not tenable. The Supreme Court (in Ferrer v. NLRC, July 5, 1993) abandoned the Mercury Drug Rule and in 1996 Bustamante v. NLRC, 265 SCRA 61 the Supreme Court said: [Quoting Article 279 (now Art. 293) of the Labor Code] Under the above quoted provision, it became mandatory to award backwages to illegally dismissed regular employees. The law specifically declared that the award of backwages was to be computed from the time compensation was withheld from the employee up to the time of his reinstatement. The clear legislative intent of the amendment in RA No. 6715 is to give more benefits to the workers than was previously given them under the Mercury Drug rule. In other words, the provision calling for "full backwages" to illegally dismissed employees is clear, plain and free from ambiguity, and, therefore, must be applied without attempted or strained interpretation.
A is correct. After its amendment by Rep. Act No. 6715, the backwages that an employee who has been unjustly dismissed is entitled to receive is not limited to his full backwages but also includes his allowances and the other benefits or their monetary equivalent. Another Suggested Answer: In the case of Consolidated Rural Bank v. NLRC, G.R. No. 123810, January 20, 1999, the Supreme Court ruled that allowances of the employee should be included in the computation of backwages.
Company "A" was engaged in the manufacture of goods using the by-products of coconut trees and employed some 50 workers who lived in the coconut plantation in Quezon. The land upon which A conducted its operation was subjected to land reform under R.A. 6657 for distribution to the tenants and residents of the land. Consequently, A had to close its operations and dismiss its workers. The union representing the employees demanded that A pay the dismissed workers separation pay under Art. 283 [now Art. 297] of the Labor Code that requires, among others, the
Soon after the Asian meltdown began in October 1997, ABC Realty and Management Corporation undertook a downsizing program and terminated nearly a third of its regular workforce. The affected employees questioned their termination arguing that the action was precipitate in that ABC had not proved that it sustained any losses. Is the claim of the employees correct? ’01 – Q15b
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
The claim of the employees may or may not be correct. When the Corporation undertook its "downsizing" program, it may have terminated its employees on either one of two grounds, namely, redundancy or retrenchment. For REDUNDANCY, there is no requirement of losses, whereas in RETRENCHMENT, substantial losses, actual or anticipated, is a requirement (Article 283 [now Art. 297], Labor Code). In Atlantic Gulf and Pacific Company v. NLRC, G.R. No. 127516. May 28, 1999, the Supreme Court ruled: "... it is necessary to distinguish redundancy from retrenchment... REDUNDANCY exists when the services of an employee are in excess of what is required by an enterprise. RETRENCHMENT on the other hand, ... is resorted to primarily to avoid or minimize business losses." In Escareal v. NLRC, 213 SCRA 472 (1992), the Supreme Court ruled that the law does not require financial loss as a basis for redundancy.
Is the seniority or "last in first out" policy to be strictly followed in effecting a retrenchment or redundancy program? ’01 – Q16c Again, in Asian Alcohol Corp., the Supreme Court stated that with regard the policy of "first in, last out" in choosing which positions to declare as redundant or whom to retrench to prevent further business losses, there is no law that mandates such a policy. The reason is simple enough. A host of relevant factors come into play in determining cost efficient measures and in choosing the employees who will be retained or separated to save the company from closing shop. In determining these issues, management plays a pre-eminent role. The characterization of positions as redundant is an exercise of business judgment on the part of the employer. It will be upheld as long as it passes the test of arbitrariness. B. Ukol was compulsorily retired by his employer, Kurot Bottling Corp., upon the former's reaching 65 years of age, having rendered 30 years of service. Since there was no CBA, B. Ukol was paid his retirement benefits computed 15 days' pay for every year of service, based on B. Ukol's highest salary during each year of his employment. Not satisfied, B. Ukol filed action with the Arbitration Branch of the NLRC claiming that his retirement benefits were not computed properly. Is B. Ukol's claim meritorious? What are the components of his retirement benefits? ’01 – Q19a
What conditions must prevail and what requirements, if any, must an employer comply with to justify/effect a valid retrenchment program? ’01 – Q16a In the case of Asian Alcohol Corp. v. NLRC, G.R. No. 131108, March 25, 1999, the Supreme Court stated that the requirements for a valid retrenchment must be proved by clear and convincing evidence: (1) that the retrenchment is reasonably necessary and likely to prevent business losses which, if already incurred, are not merely de minimis, but SUBSTANTIAL, SERIOUS, ACTUAL and REAL or if only expected, are reasonably imminent as perceived objectively and in good faith by the employer; (2) that the employer served WRITTEN NOTICE both to the employees and to the Department of Labor and Employment at least one month prior to the intended date of retrenchment; (3) that the employer pays the retrenched employees SEPARATION PAY equivalent to one month pay or at least one-half (1/2) month pay for every year of service, whichever is higher; (4) that the employer exercises its prerogative to retrench employees in GOOD FAITH for the advancement of its interest and not to defeat or circumvent the employees' right to security of tenure; and (5) that the employer used FAIR and REASONABLE CRITERIA in ascertaining who would be dismissed and who would be retained among the employees, such as status (i.e., whether they are temporary, casual, regular or managerial employees), efficiency, seniority, physical fitness, age, and financial hardship for certain workers.
Ukol's claim is meritorious. His retirement benefit is to be computed in accordance with Article 287 [now Art. 301], which reads: "In the absence of a retirement plan or agreement providing for retirement benefits of employees in the establishment, an employee may retire ... and shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary for every year of service, a fraction of at least six months being considered as one whole year. The same Article then explains that the term one-half (1/2) month salary means fifteen days plus one-twelfth (1/12) of the 13th month pay and the cash equivalent of not more than five (5) days of service incentive leaves. The components of retirement pay are: (1) 15 days pay; (2) 1/12 of the 13th month pay; and (3) Cash equivalent of not more than five (5) days of service incentive leave. What exception(s) do(es) the law on retirement benefits provide(s) if any? ’01 – Q19b Retail, service and agricultural establishments or operations employing not more than ten (10) employees or workers are exempted from the coverage of the provision on retirement benefits in the Labor Code. Also, where there is a retirement plan of the employer that grants more than what the Labor Code grants.
What conditions must prevail and what requirements, if any, must an employer comply with to justify/effect a valid redundancy program? ’01 – Q16b
Banco de Manila and the Ang Husay Janitorial and Pest Control Agency entered into an Independent Contractor Agreement with the usual stipulations: specifically, the absence of employer-employee relationship, and the relief from liability clauses. Can the Bank, as a client, and the Agency, as an independent contractor, stipulate that no employer-employee relationship exists between the Bank and the employees of the Agency who may be assigned to work in the Bank? ’00 – Q3
In the case of Asian Alcohol Corp. v. NLRC, G.R. No. 131108, March 25, 1999, the Supreme Court stated that REDUNDANCY exists when the service capability of the work is in excess of what is reasonably needed to meet the demands on the enterprise. A REDUNDANT POSITION is one rendered superfluous by any number of factors, such as over-hiring of workers, decreased volume of business dropping of a particular line previously manufactured by the company or phasing out of a service activity previously undertaken by the business. Under these conditions, the employer has no legal obligation to keep in its payroll more employees than are necessary for the operation of its business. For the implementation of a redundancy program to be valid, the employer must comply with the following REQUISITES: (1) written notice served on both the employees and the Department of Labor and Employment at least one month prior to the intended date of retrenchment; (2) payment of separation pay equivalent to at least one month pay or at least one month pay for every year of service whichever is higher; (3) good faith in abolishing the redundant positions; and (4) fair and reasonable criteria in ascertaining what positions are to be declared redundant and accordingly abolished.
They can so stipulate if the relationship is indeed Job contracting. Yet the stipulation cannot prevail over the facts and the laws. The existence of employer-employee relationship is determined by facts and law and not by stipulation of the parties (Insular Life Assurance v. NLRC. 287 SCRA 476 [1998]; Tabas v. California Manufacturing, 169 SCRA 497 [1989].) Distinguish between dismissal of an employee for just cause and termination of employment for authorized cause. Enumerate examples of just cause and authorized cause. ’00 – Q6 Dismissal for a JUST CAUSE is founded on faults or misdeeds of the employee. Separation pay, as a rule, will not be paid. Examples: serious misconduct, willful disobedience, commission of crime, gross
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
and habitual neglect, fraud and other causes analogous to the foregoing (Article 282 [now Art. 296], Labor Code). Terminations for AUTHORIZED CAUSES are based on business exigencies or measures adopted by the employer, not constituting faults of the employee. Payment of separation pay at varying amounts is required. Examples: redundancy, closure, retrenchment, installation of labor saving device and authorized cause (Articles 283-284 [now Arts. 297-298, Labor Code.)
It is a regular court and not a Labor Arbiter that has jurisdiction on the suit for damages. The damages are not arising from the employer-employee relations which would have placed the suit under the jurisdiction of a Labor Arbiter. The suit arises from the fact that the President of the company shouted invectives at Mariet Demetrio in the presence of employees and visitors. Her complaint for damages is against an officer of the Company based on slanderous language allegedly made by the latter. This falls under the Jurisdiction of the ordinary courts. There is here a simple action for damages for tortious acts allegedly committed by the defendant. Such being the case, the governing statute is the Civil Code and not the Labor Code (Medina v. Castro-Bartolome, 116 SCRA 597.)
Metro Grocery Inc. arranged with Mr. Juan Dado, a Barangay Chairman, to provide the grocery with workers who will work as cashiers, bag boys, shelf counter helpers and sanitation workers. The grocery will pay Mr. Dado an amount equivalent to the direct and hidden costs of the wages of each worker assigned, plus 10% to cover the administrative costs related to their arrangement. Mr. Dado, in turn, will pay directly the workers their wages. As far as the workers are concerned, Mr. Dado is their employer. A group of concerned workers consulted you if Mr, Dado is really under the law their employer. 1. How will you analyze the problem in order to formulate your answer?
IMC undertook a reorganization of the company and right-sizing of its personnel complement due to the current financial crisis. The affected employees were given the option to resign with corresponding generous benefits attending such option. The said employees opted to resignation on account of these negotiated benefits; and after receipt of which, they executed quitclaims in favor of IMC. Immediately thereafter, the employees voluntarily resigned for valuable consideration and that, in any case, they have executed quitclaims in favor of the company. The employees, however, claimed that they were forced to resign, and that they executed the quitclaims only because of dire necessity. 1. Is the company guilty of Illegal dismissal?
I will analyze the problem by applying the fourfold test of employer-employee relationship. I will examine if Mr. Dado exercises power of control or supervision over the workers' manner and method of doing their work. Control is the most important factor in examining employeremployee relationship. The other factors are hiring, payment of wages, and power to dismiss, I will also examine whether there was job contracting or labor-only contracting. 2.
NO. The company is not guilty of illegal dismissal since the facts clearly indicate that the "employees were given the option to resign with corresponding generous benefits attending such option" and that these employees "opted for resignation on account of these negotiated benefits". Nothing in the facts indicate that their consent to the waiver of benefits under the Labor Code was vitiated by fraud, violence, undue influence or any other vice or defect.
What is the legal significance, if any, of the question of the concerned workers as to who is their employer? ’00 – Q13
The legal significance is the determination of employee-employer relationship, which gives rise to certain rights and obligation of both employer and employee, such as SSS membership, union membership, security of tenure, etc.
Alternative Answer: The company is not guilty of Illegal dismissal. According to the facts of the case, the employees opted to resign voluntarily, considering the generous benefits given to them in connection with such resignation. VOLUNTARY RESIGNATION cannot be considered as illegal dismissal (Samaniego v. NLRC, 198 SCRA 111.)
Mariet was a clerk-typist in the OP of a MNC. One day she was berated by the President of the company, the latter shouting invectives at her in the presence of employees and visitors for a minor infraction she committed. Mariet was reduced to tears out of shame and felt so bitter about the incident that she filed a civil case for damages against the company president before the regular courts. Soon thereafter, Mariet received a memorandum transferring her to the Office of the GM without demotion in rank or diminution in pay. Mariet refused to transfer. With respect to the civil suit for damages, the company lawyer filed a MTD for lack of jurisdiction considering the existence of an ER-EE relationship and therefore, it is claimed that the case should have been filed before the LA. 1. Will Mariet Demetrio's refusal to transfer constitute the offense of insubordination?
2.
A quitclaim case can be annulled on the ground of its being entered into involuntarily by employees because of "dire necessity". Thus, if it was dire necessity that forced a worker to sign a quitclaim even if the amount of money given to him by the employer was very much less than what the workers was entitled to receive, then the quitclaim was not voluntary, and thus, the said quitclaim is null and void. In a case (Veloso v. DOLE, 200 SCRA 201) the Supreme Court held that "dire necessity" is not an acceptable ground for annulling the releases, especially since it has not been shown that the employees had been forced to execute them. It has not been proven that the considerations for the quitclaims were unconscionably low and that the petitioners had been tricked into accepting them.
Mariet Demetrio's refusal to the transfer constitutes the offense of insubordination. The transfer is a lawful order of the employer. It is the employer's prerogative, based on its assessment and perception of its employees' qualifications, aptitudes, and competence, to move its employees around in the various areas of its business operations in order to ascertain where they will function with maximum benefit to the company. An employee's right to security of tenure does not give him such a vested right in his position as would deprive the company of its prerogative to change his assignment or transfer him where he will be most useful. When his transfer is not unreasonable, nor inconvenient, nor prejudicial to him, and it does not involve a demotion in rank or a diminution of his salaries, benefits, and other privileges, the employee may not refuse to obey the order of transfer (Philippine Japan Active Carbon Corp. v. NLRC, 171 SCRA 164.) 2.
Can the quitclaim be annulled on the ground of "dire necessity"? ’99 – Q11
May an ordinary rank-and-file employee be terminated for loss of trust and confidence? If so, what proof is required? If not, why not? ’99 – Q12(2) An ordinary rank and file employee may be terminated for loss of trust and confidence as long as loss of trust and confidence is brought about objectively due to a willful breach by the employee of the trust reposed in him by his employer or duly authorized representative, and said willful breach is proven by substantial evidence. When adequately proven, the dual grounds of breach of trust and loss of confidence constitute valid and ample bases to warrant termination of an errant employee. As a general rule, however, employers are allowed a wider altitude of discretion in terminating the employment of managerial personnel or those of similar rank performing functions which by their nature requires the employer's full trust and confidence, than in the case of an ordinary rank-and-file employee, whose termina-
Rule on the Motion to Dismiss. Should it be granted or denied? ’99 – Q5
The Motion to Dismiss should be denied.
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
tion on the basis of these same grounds requires proof of involvement in the events in question; mere uncorroborated assertions and accusations by the employer will not suffice (Manila Midtown Commercial Corporation v. Nuwhrain, 159 SCRA 212.)
and payment of money claims should be directed against Asia. Nevertheless, Baron filed a Third Party Complaint against Asia. 1. Is there an employer-employee relationship between the Baron Hotel, on one hand, and the Asia security guards, on the other hand?
On September 3, 1998, the NBI extracted from Joko Diaz — without the assistance of counsel — a sworn statement which made it appear that Joko, in cahoots with another employee, Reuben Padilla, sold 10 cash registers which had been foreclosed by North-South Bank for P50,000.00 and divided the proceeds therefrom in equal shares between the 2 of them. On September 10, 1998, Joko was requested by Rolando Bato, the bank manager, to appear before the Disciplinary Board for an investigation in the following tenor: "You are requested to come on Thursday. September 14, 1998, at 11 AM, the Board Room, without counsel or representative, in connection with the investigation of the foreclosed cash registers which you sold without authority." Mr. Bato himself conducted the investigation, and 2 days thereafter, he dismissed Joko. The bank premised its action in dismissing Joko solely on the latter's admission of the offense imputed to him by the NBI in its interrogation on September 3, 1998. Aside from this sworn statement, no other evidence was presented by the bank to establish the culpability of Joko in the fraudulent sale of the bank's foreclosed properties. 1. Is the dismissal of Joko Diaz by North-South Bank legally justified?
As a general rule, the security guards of a private security guard agency are the employees of the latter and not of the establishment that has entered into a contract with the private security guard agency for security services. But under the facts in the question, Baron Hotel appear to have hired the security guards, to have paid their wages, to have the power to promote, suspend or dismiss the security guards and the power of control over them, namely, the security guards were under orders of Baron Hotel as regard their employment. Because of the above-mentioned circumstances, Baron Hotel is the employer of the security guards. 2.
It is lawful for a private security guard agency to place its security guard on a "floating status" if it has no assignment to give to said security guards. But if the security guards are placed on a "floating status" for more than six (6) months, the security guards may consider themselves as having been dismissed.
The dismissal of Joko Diaz by North-South Bank is not legally justified. Diaz was not given the required due process by the Bank. He should have been given a written notice that he was being terminated and a statement of the causes for his termination. He was instead given a just notice about an investigation relative to an incident. It was also contrary to law for the Bank to tell Diaz that he should attend the investigation "without counsel or representative." Instead, he should have been afforded as provided in the Labor Code (in Article 277(b) [now Art. 291(b)) ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires. If the evidence that was the basis for the termination of Joko Diaz was only his own statement "extracted" from him by the NBI when Joko was without the assistance of counsel, then the statement cannot be substantial evidence for Joko's termination. 2.
Assuming that ASIA is the employer, is the act of ASIA in placing the security guards on "floating status" lawful? ’99 – Q14
JV, a cashier of Seaside Sunshine Supermart (SSS), was found after an audit, to have cash shortages on his monetary accountability covering a period of about five months in the total amount of P48,000.00. SSS served upon JV the written charge against him via a memorandum order of preventive suspension, giving JV 24 hours to submit his explanation. As soon as JV submitted his written explanation within the given period, the same was deemed unsatisfactory by the company and JV was peremptorily dismissed without any hearing. The day following his termination from employment, JV filed a case of illegal dismissal against SSS. During the hearing before the LA, SSS proved by substantial evidence JV's misappropriation of company funds and various infractions detrimental to the business of the company. JV, however, contended that his dismissal was illegal because the company did not comply with the requirements of due process. 1. Did SSS comply with the requirements of procedural due process in the dismissal from employment of JV?
Can Reuben Padilla's participation in the fraudulent sale of the bank's foreclosed properties be made to rest solely on the unilateral declaration of Joko Diaz? ’99 – Q13
In connection with the right to due process in the termination of an employee, the Labor Code (in Article 277(b) [now Art. 291(b)]) requires that the employer furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires. SSS did not comply with the above described requirements for due process. The memorandum order was for the preventive suspension of JV, not a notice for his termination and the causes of his termination.
NO. The unilateral declaration of Joko, where Joko has not been subjected to cross-examinations cannot be considered as substantial evidence; it is just hearsay. Asia Security & Investigation Agency (ASIA) executed a one-year contract with the Baron Hotel (BARON) for the former to provide the latter with 20 security guards to safeguard the persons and belongings of hotel guests, among others. The security guards filled up Baron application forms and submitted the executed forms directly to the Security Department of Baron. The pay slips of the security guards bore Baron's logo and showed that Baron deducted therefrom the amounts for SSS premiums, medicare contributions and withholding taxes. Assignments of security guards, who should be on duty or on call, promotions, suspensions, dismissals and award citations for meritorious services, were all done upon approval by Baron's chief Security officer. After the expiration of the contract with Asia, Baron did not renew the same and instead executed another contract for security services with another agency. Asia placed the affected security guards on "floating status" on "no work no pay" basis. Having been displaced from work, the Asia security guards filed a case against the Baron for illegal dismissal, overtime pay, minimum wage differentials, vacation leave and sick leave benefits, and 13th month pay. BARON denied liability alleging that Asia is the employer of the security guards and therefore, their complaint for illegal dismissal
2.
If you were the LA, how would you decide the case? ’99 – Q18
I will decide that the termination of JV was legal. It was for just cause. JV's misappropriation of company funds and various infractions detrimental to the business of the company duly proven by substantial evidence constitute a willful breach by JV of the trust reposed in him by his employer which is a just cause for termination (See Article 282 [now Art. 296], Labor Code.) But I will award him indemnity of, say P1,000, for the failure of the employer to give him due process. [In Agabon v. NLRC, 442 SCRA 573 (2004), the Supreme Court said that if the employee’s dismissal is for a valid cause but the employer disregarded the proper dismissal procedure, the dismissal is legal and the employee remains dismissed. But the employer, for not
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
observing proper procedure, will have to pay the employee an indemnity in the form of nominal damages which the Court imposed at P30,000.]
resulted from the new management’s directive to streamline operations and save on costs. If you were the Labor Arbiter assigned to the case, how would you decide? (4%) ‘14 - Q9
HIV adopted a redundancy program to streamline operations. Positions which overlapped each other, or which are in excess of the requirements of the service, were declared redundant. This program resulted in the reduction of manpower complement and consequent termination of 15 employees, which included the secretary of the local union and the company's Pollution control Officer. The union, IBM, questioned the termination of the 15 employees, contending that the same constituted union busting and therefore, illegal, if the same is undertaken without prior union approval. 1. Is IBM correct in its contention that redundancy can be implemented by HIV only upon prior union approval?
I will decide in favor of Luisa Court, provided that all the requisites for a valid retrenchment under the Labor code are satisfied. It is management prerogative to farm out any of its activities (BPI Employees Union-Davao City-FUBU (BPIEU-Davao-City-FUBU) v. Bank of the Philippine -Islands, G.RL. No. 174912, July 24, 2013). ALTERNATIVE ANSWER: I will decide in favor of the chambermaids. Art. 248 (c) of the Labor Code considers as unfair labor practice on the part of Luisa Court its “contract out the services of functions being performed by union members. “ Luisa Court’s abolition and act of outsourcing the chambermaids’ positions are clearly acts of illegal dismissal.
The Labor Code (in Article 283 [now Art. 297]) very clearly gives the employer the right to terminate any of its employees for redundancy. 2.
Can the position of Pollution Control Officer be declared redundant? ’99 – Q19
Lionel, an American citizen whose parents migrated to the U.S. from the Philippines, was hired by JP Morgan in New York as a call center specialist. Hearing about the phenomenal growth of the call center industry 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 employment contract did not specify a period for his stay in the Philippines. After three years of working in the Philippines, Lionel was advised that he was being recalled to New York and being promoted to the position of director of international call center operations. However, because of certain family reasons, Lionel advised the company of his preference to stay in the Philippines. He was dismissed by the company. Lionel now seeks your legal advice on: (6%)
If there is a law requiring companies to have a Pollution Officer, then HIV cannot declare such office redundant. If there is no such law, then the Pollution Officer could be considered redundant. Panel: Consider case of Escareal v. NLRC, 213 SCRA 472 (1992). A position created by law cannot be declared redundant. MANAGEMENT PREROGATIVE LKG Garments Inc. makes baby clothes for export. 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 employees 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 (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 affected 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 company? (4%) ‘15 - Q2
(C) What are his Chances of winning - ‘14 - Q11C He has a big chance of winning. An employee cannot be promoted without his consent, even if the same is merely a result of a transfer, and an employee’s refusal to accept promotion cannot be considered as insubordination or willful disobedience of a lawful order of the employer. In this case, JP Morgan cannot dismiss Lionel due to the latter's refusal to accept the promotion (Norkis Trading Co., Inc. v. Gnilo, G.R. N0. 159730, February 11, 2008, 544 SCRA 279).
NO. A change in work schedule is a management prerogative of LKG. Thus, Carding has no cause of action against LKG if, as a result of its change to two (2) shifts, he now can only expect a maximum of four (4) hours overtime work. Besides, Art. 97 of the Labor Code does not guarantee Carding a certain number of hours of overtime work. In Manila Jockey Employees’ Union v. Manila Jockey Club (517 SCRA 707), the Supreme Court held that the basis of overtime claim is an employee’s having been “permitted to work”. Otherwise, as in this case, such is not demandable.
ALTERNATIVE ANSWER: His chances of winning is nil because the objection to the transfer was grounded solely on personal “family reasons“ that will be caused to him because of the transfer (OSS Security & Allied Services, Inc. v. NLRC, G.R. No. 112752, February ,9, 2000, 325 scan 157); Phil. Industrial Security Agency Corp v. Dapiton G.R. No. 127421, December 8, 1999, 320. SCRA 124). Inter-Garments Co. manufactures garments for export and requires its employees to render overtime work ranging from two to three hours a day to meets its clients’ deadlines. Since 2009, it had been paying its employees on overtime an additional 35% of their hourly rate for work rendered in excess of their regular eight working hours.
Luisa Court is a popular chain of motels. It employs over thirty (30) chambermaids who, among others, help clean and-maintain the rooms. These chambermaids are part of the union rank-andfile employees which has an existing collective bargaining agreement (CBA) with the company. While the CBA was in force, Luisa Court decided to abolish the position of chambermaids and outsource the cleaning of the rooms to Malinis Janitorial Services, a bona fide independent contractor which has invested in substantial equipment and sufficient manpower. The chambermaids filed a case of illegal dismissal against Luisa Court. ln response, the‘ company argued that the decision to outsource
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 sos that those who worked overtime were only paid an additional 25% instead of the previous 35%. To
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
replace the workers’ overtime rate loss, the company granted a one-time 5% across-the-board wage increase.
workers in employment. [San Pedro Hospital of Digos v. Secretary of Labor, G.R. No 104624, Oct 11 1996; Espina v. CA 519 SCRA 327 (2007)]
Vigilant Union, the rank-and-file bargaining agent charged the company with Unfair Labor Practice on the ground (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.
A was working as a medical representative of RX pharmaceutical company when she met and fell in love with B, a marketing strategist for Delta Drug Company, a competitor of RX. On several occasions, the management of RX called A’s attention to the stipulation in his employment contract that requires him to disclose any relationship by consanguinity or affinity with co-employees or employees of competing companies in light of a possible conflict of interest. A seeks your advice on the validity of the company policy. What would be your advice? ’10 – Q9
Is the union position meritorious? (8%) ‘13-Q3 The allegation of Unfair Labor Practice by the Union is not meritorious. The selection as to who would render overtime work is a management prerogative.
The company policy is valid. However, it does not apply to A. As A and B are not yet married, no relationship by consanguinity or affinity exists between them. The case of Duncan Association of DetailmanPTGWO v. Glaxo Wellcome Philippines, Inc., 438 SCRA 343 [2004] does not apply in the present case.
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 investigation actually took place.
Flight attendant A, 5’6” tall, weighing 170 lbs. Ended up weighing 220 lbs. in 2 years. Pursuant to the long standing Cabin and Crew Administration Manual of the employer airline that set a 147pound limit for A’s height, management sent A a notice to “shape up or ship out” within 60 days. At the end of 60-day period, A reduced her weight to 205 lbs. the company finally sent her a Notice of Administration Charge for violation of company standards. Should A be dismissed? ’10 – Q18
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.
NO. While the weight standards for cabin crew may be a valid company policy in light of its nature as a common carrier, the airline company is now estopped from enforcing the Manual as ground for dismissal against A. It hired A despite her weight of 170 pounds, in contravention of the same Manual it now invoked. The Labor Code gives an airline the power to determine appropriate minimum age and other standards for requirement or termination in special occupations such as those of flight attendants and the like. Weight standards for cabin crew is a reasonable imposition by reason of flight safety (Yrasuegui v. Philippine Airlines, Inc., 569 SCRA 467 [2008]) However, A had already been employed for two (2) years before the airline company imposed on her this weight regulation, and nary an incident did the airline company raise which rendered her amiss of her duties.
(A) Is Bobby’s reinstatement pending appeal legally correct? (4%) ‘13 - Q4A No. It is not legally correct. The transfer of an employee ordinarily lies within the ambit of management prerogatives. But like other rights, there are limits thereto. This managerial prerogative to transfer personnel must be exercised without grave abuse of discretion, bearing in mind the basic elements of justice and fair play. Thus, the transfer of Bobby from Tarlac to Makati must be done in good faith, and it must not be unreasonable, inconvenient or prejudicial to the employee. On the other hand, the reinstatement of Bobby ought to be his former position, much akin to return-to-work order, ie. to restore status quo in the work place (Composite Enterprises v. Capamaroso, G.R. No. 159919, August 8, 2007, 529 SCRA 470).
Pepe Santos was an international flight steward of Fly-Safe Airlines (FSA). He ended up weighing 200 pounds in 5 years. Pursuant to the long standing Cabin and Crew Administration Manual of the employer airline that set a 170-pound limit for Pepe’s height and frame, management sent Pepe a notice to attain the prescribed weight within 6 months. At the end of 6 month period, Pepe reduced his weight to 205 lbs. The company finally sent him a Notice of Administration Charge for violation of company standards. He stated in his answer that, for medical reason, he cannot have a rapid weight loss. FSA decided to terminate Pepe’s services for violation of company standards. Pepe filed a complaint for illegal dismissal, arguing that the company’s weight requirement is unreasonable and that his case is not a disciplinary but a medical issue. FSA defended its policy as a valid exercise of management prerogative from the point of view of passenger safety and extraordinary diligence required by law of common carriers. It also posited that Pepe’s failure to achieve his ideal weight constituted gross and habitual neglect of duty, as well as willful disobedience to lawful employer orders. The LA’s dismissal found the dismissal illegal for there was neither gross and habitual neglect of duty nor willful disobedience. Is the LA correct? ’08 – Q10
ALTERNATIVE ANSWER: No. Under Article 223 of the Labor Code, the reinstatement order of the Labor Arbiter which is immediately executory even pending appeal, should pertain to restoration to status quo ante. 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 5 years they decided to close the business. If the reason for closure is due to old age of the brothers and sisters; c)
YES, the Labor Arbiter is correct. The exercise of management prerogative may be availed of for so long as they are reasonable, exercised in good faith and do not infringe upon the employee’s security of tenure. It is circumscribed by limitations found in law, collective bargaining agreement, or the general principles of fair play and justice (PAL v. NLRC, G.R. No. 85985, August 13, 1993.) The weight policy clearly has repercussions on Pepe’s
Is the closure allowed by law? (2%) ‘12 - Q8c
Yes, the determination to cease or suspend operations is a prerogative of management that the State usually does not interfere with, as no business can be required to continue operating to simply maintain the
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
right to security of tenure. After Pepe established that his inability to lose weight despite earnest efforts was a medical problem, it cannot be said that he acted with gross habitual neglect of duty.
compensation. Can the company unilaterally reduce the amount of bonus? ’02 – Q16b YES. The granting of a bonus is a management prerogative, something given in addition to what is ordinarily received by or strictly due the recipient. An employer, like Suerte Co., cannot be forced to distribute bonuses when it can no longer afford to pay. To hold otherwise would be to penalize the employer for his past generosity (Producers Bank of the Philippines v. NLRC, 355 SCRA 289 [2001].)
[However in Yrasuegui v. Philippine Airlines, Inc., 569 SCRA 467 (2008), the Supreme Court ruled that an employee may be dismissed the moment he is unable to comply with his ideal weight as prescribed by the weight standards – the dismissal would fall under Article 282(e) [now Art. 296(e)] of the Labor Code. The obesity of a cabin crew, when placed in the context of his work as flight attendant, becomes an analogous cause under Article 282(e) [now Art. 296(e)] of the Labor Code that justifies his dismissal from the service – his obesity may not be unintended, but is nonetheless voluntary. Employment in particular jobs may not be limited to persons to particular sex, religion, or national origin unless the employer can show that sex, religion, or national origin is an actual qualification for performing the job. The qualification is referred to as a Bona Fide occupational qualification (BFOQ). A Bona Fide Occupational Occupation is valid “provided it reflects an inherent quality reasonably necessary for satisfactory job performance.” The weight standards of an airline should be viewed as imposing strict norms of discipline upon its employees – the primary objective of said airline in the imposition of weight standards for cabin crew is flight safety, for it cannot be gainsaid that cabin attendants must maintain agility at all times in order to inspire passenger confidence when something goes wrong. Passenger safety goes to the core of the job of a cabin attendant. On board an aircraft, the body weight and size of a cabin attendant are important factors to consider in case of emergency – aircrafts have constricted cabin space, and narrow aisles and exit doors.]
Another Suggested Answer: It depends. If there is a legal obligation on the part of Suerte Co. to pay a bonus of its employees equivalent to 50% of their monthly compensation, because said obligation is included in a collective bargaining agreement, then Suerte Co. cannot reduce the bonus to 5% of their monthly compensation. But if the payment of the bonus is not a legal obligation but only a voluntary act on the part of the employer, said employer, unilaterally, can only reduce the bonus from 50% to 5% of the monthly compensation of its employees; the employer can, in fact, not give any bonus at all.
SOCIAL LEGISLATION 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 himself with Ador simply executing Nico’s instructions.
Little Hands Garment Company, a manufacturer of children's apparel with around 1,000 workers, suffered losses for the first time in history when its US and European customers shifted their huge orders to China and Bangladesh. The management informed its employees that it could no longer afford to provide transportation shuttle services. Consequently, it announced that a normal fare would be charged depending on the distance traveled by the workers availing of the service. Was the Little Hands Garments Company within its rights to withdraw this benefit which it had unilaterally been providing to its employees? Select the best answer(s) and briefly explain your reason(s) therefor. (a) Yes, because it can withdraw a benefit that is unilaterally given; (b) Yes, because it is suffering losses for the first time; (c) Yes, because this is a management prerogative which is not due any legal or contractual obligation; (d) No, because this amounts to a diminution of benefits which is prohibited by the Labor Code; (e) No, because it is a fringe benefit that has already ripened into a demandable right or entitlement. ’05 – Q1(2)
b) Will Nico need to register Ador with the Social Security System (SSS)? (2%) ‘15 - Q6b Yes, as under Section 9 of the Social Security Law (Art. 1161 as amended), coverage in the SSS shall be compulsory upon all employees not over sixty (60) years of age and their employers. ALTERNATIVE ANSWER: If Ador is a purely casual employee: No. Casual employees are not subject to the compulsory coverage of the SSS by express provision of law. (Section 8(5) (3), RA 1161, as amended).
C. YES, because this is a management prerogative which is not due to any legal or contractual obligation. – The facts of the case do not state the circumstances through which the shuttle service may be considered as a benefit that ripened into a demandable right. There is no showing that the benefit has been deliberately and consistently granted, i.e. with the employer’s full consciousness that despite its not being bound by law or contract to grant it, it just the same granted the benefit.
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 allowance 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 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%) ‘15 - Q5
Another Suggested Answer: An employer cannot be forced to continue giving a benefit, which is unilaterally given as a management prerogative, when it can no longer afford to pay it. To hold otherwise, would be to penalize the employer for his past generosity (Producers Bank of the Philippines v. NLRC, 355 SCRA 289 [2001].) The projected bonus for the employees of Suerte Co. was 50% of their monthly compensation. Unfortunately, due to the slump in the business, the president reduced the bonus to 5% of their
Soledad’s defense is meritorious. Sec. 4(d) of the Kasambahay Law (RA 10361) provides that the term “Domestic Worker” shall not include
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
children who are under foster family arrangement, and are provided access to education and given an allowance incidental to education, i.e. “baon”, transportation, school projects and school activities.
Yes. Under RA 7699, otherwise known as the Portability Law, one may combine his years of service in the private sector represented by his contributions to the Social Security System (SSS) with his government service and contributions to the GSIS. The contribution shall be totalized for purposes of old-age, disability, survivorship and other benefits in case the covered member does not qualify for such benefits in either or both systems without totalization.
Luisa is an unwed mother with 3 children from different 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 maternity benefits under the SSS Act. Is she entitled to claim? (3%) ‘15 Q13
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 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 serious of chemotherapy once a week for four (4) weeks.
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. As to the fact that she got pregnant outside wedlock, as in her past three pregnancies, this will not bar her claim because SSS is non-discriminatory. 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 mistake, which resulted in Luis’s death. Marian, Luis’s widow, filed a claim with the GSIS seeking death benefits. 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%) ‘15 - Q14
(A) What benefits can Tammy claim under existing social legislation (4%) ‘13 - Q6A Assuming she is employed, Tammy is entitled to a special leave benefit of two months with fully pay (Gynecological Leave) pursuant to R.A. 9710 or the Magna Carta of Women. She can also claim Sickness Leave benefit in accordance with the SSS law.
No.
(B) What can Roger, Tammy’s 2nd husband and the father of her two (2) younger children, claim as benefits under the circumstances? (4%) ‘13 - Q6B
The GSIS is not correct. Luis, 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 peacekeeping mission. Therefore, his death is compensable.
Under R.A. 8187 or the Paternity Leave Act of 1996, Roger can claim paternity leave of seven (7) years with full pay if he is lawfully married to Tammy and cohabiting with her at the time of the miscarriage. A, single, has been an active member of the SSS for the past 20 months. She became pregnant out of wedlock on her 7th month of pregnancy. She was informed that she would have to deliver the baby through caesarean section. Can A claim maternity benefits? If yes, how many days can she go on maternity leave? If not, why is she not entitled? ’10 – Q3
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, 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%)
YES. The SSS law does not discriminate based on the civil status of a female member-employee. As long as said female employee has paid at least three (3) monthly contributions in the twelve (12) month period immediately preceding the semester of her childbirth, she can avail of the maternity benefits under the law. Since A gave birth through C-section, she is entitled to one hundred percent (100%) of her average salary credit for seventy-eight (78) days, provided she notifies her employer of her pregnancy and the probable date of her childbirth, among others (See Section 14-A, R.A. No. 8282.) The same maternity benefits are ensured by Section 22(b)(2) of the Magna Carta of Women (R.A. No. 9710.)
(B) Does Don Luis need to register Lando with the Social Security System (SSS)? ‘14 - Q13B Yes. Coverage for the SSG shall be compulsory upon all employees not over sixty (60) years of age. ALTERNATIVE ANSWER: No. Lando is not an employee of Don Luis. What the parties have is a contract for a piece of work which, while allowed by Art. 1713 of the Civil Code, does not make Lando an employee under the Labor Code and Social Security Act.
State briefly the compulsory coverage of the Government Service Insurance Act. ’09 – Q10a The following are compulsorily covered by the GSIS pursuant to Section 3 of R.A. No. 8291: 1. All employees receiving compensation who have not reached the compulsory retirement age, irrespective of employment status; 2. Members of the judiciary and constitutional commissions for life insurance policy.
Luisito has been working 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%) ‘14 - Q14
Can a member of a cooperative be deemed an employee for purposes of compulsory coverage under the Social Security Act? ’09 – Q10b
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
YES, an employee of a cooperative, not over sixty (60) years of age is, under the SSS Law, subject to compulsory coverage. Section 8(d) of the SSS Law defines an employee as – “Section 8(d) – any person who performs services for an employer in which either or both mental and physical efforts are used and who receives compensation for such service, where there is an employer-employee relationship.”
1.
Whose contention is correct, Weto or the HRD manager?
The contention of Weto is correct. The law provides that every married male is entitled to a paternity leave of seven (7) days for the first four (4) deliveries of the legitimate spouse with whom he is cohabiting (Section 2, R.A. No. 8187.) Jovy is Weto’s legitimate spouse with whom he is cohabiting. The fact that Jovy is his second wife and that Weto had 4 children with his first wife is beside the point. The important fact is that this is the first child of Jovy with Weto. The law did no distinguish and we should therefore not distinguish. The paternity leave was intended to enable the husband to effectively lend support to his wife in her period of recovery and/or in nursing to the newly-born child (Section 3, R.A. No. 8187.) To deny Weto this benefit would be to defeat the rationale of the law.
[Please see Republic v. Asiapro Cooperative, 538 SCRA 659 (2007).] Tito is an employee of a foundry shop in Malabon. He is barely able to make ends meet with his salary of P4,000 a month. One day, he asked his employer to stop deducting from his salary his SSS contribution, reasoning out that he is waiving his social security coverage. If you were Tito’s employer, would you grant the request? ’08 – Q7
2. NO, payment of SSS monthly contribution is compulsory and cannot be waived. To grant Tito’s request will violate the SSS Law and expose me to the risk of punishment of fine or imprisonment or both at the discretion of the Court (Section 6, Social Security Act, R.A. No. 8282.)
Is Jovy entitled to maternity leave benefits? ’05 – Q3(2)
YES, if Jovy, as a female employee, has paid at least three (3) monthly contributions in the twelve-month period immediately preceding the semester of her childbirth (Section 14-A, R.A. No. 8282.) Otherwise, she is not entitled to the benefit.
Carol is the secretary of the proprietor of an auto dealership in QC. She resides in Caloocan City. Her officer hours start at 8 AM and end at 5 PM. On July 30, 2008, at 7 AM, 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 SSS. Will the claim prosper? ’08 – Q8
Odeck, a policeman, was on leave for a month. While resting in their house, he heard two of his neighbors fighting with each other. Odeck rushed to the scene intending to pacify the protagonists. However, he was shot to death by one of the protagonists. Zhop, a housemaid, was Odeck's surviving spouse whom he had abandoned for another woman years back. When she learned of Odeck's death, Zhop filed a claim with the GSIS for death benefits. However, her claim was denied because: (a) when Odeck was killed, he was on leave; and (b) she was not the dependent spouse of Odeck when he died. Resolve with reasons whether GSIS is correct in denying the claim. '05 - Q8(1)
YES, under the “Going-To-And-From-Rule,” the injuries (or death, as in this case) sustained by the employee “going to and coming from” his place of work are compensable (Bael v. Workmen’s Compensation Commission, G.R. No. L-42255, January 31, 1977.) AB, single and living-in with CD (a married man), is pregnant with her fifth child. She applied for maternity leave but her employer refused the application because she is not married. Who is right? ’07 – Q14
The GSIS is not correct in denying the claim, because Odeck was on leave when he was killed. The law only requires that the GSIS member was in the service at the time of his death so that his beneficiaries may claim survivorship benefits. Odeck was still in service. He was just on leave. He intends to report back to work after his leave.
AB is right. The Social Security Law, which administers the Maternity Benefit Program, does not require that the relationship between the father and the mother be legitimate. The law is compensating the female worker because of her maternal function and resultant loss of compensation. The law is morality-free.
Another Suggested Answer: The GSIS is correct in denying the claim because Zhop was not the dependent spouse. Though she may still be the married spouse who at the same time may not have remarried, she is no longer dependent of Odeck for support. Odeck left her years back. The law defines a primary beneficiary the spouse who is a legal spouse and dependent on the member for support.
How are the “portability” provisions of R.A. No. 7699 beneficial to SSS and GSIS members in terms of their creditable employment services in the private sector or the government, as the case may be, for purposes of death, disability or retirement? ’05 – Q2(1)(c)
Atty. CLM, a dedicated and efficient public official, was the top executive of a GOCC. While inspecting an on-going project in a remote village in Mindanao, she suffered a stroke and since then had been confined to a wheelchair. At the time she stopped working because of her illness in line of duty, Atty. CLM was only 60 years old but she had been an active member of the GSIS for thirty years without any break in her service record. What benefits could she claim from the GSIS? Cite at least 5 benefits. '04 - Q8b
The “portability” provisions of Republic Act No. 7699 allow the transfer of funds for the account and benefit of the worker who transfers from one system to another. This is advantageous to the SSS or GSIS members for purposes of death, disability or retirement benefits. In the event employees transfer from the private sector to the public sector, their creditable employment services are carried over and transferred from one system to another.
The benefits Atty. CLM could claim from the GSIS are: (1) Employees compensation which shall include both income and medical and related benefits, including rehabilitation; (2) Temporary total disability benefit; (3) Permanent total disability benefit; (4) Separation benefit; and (5) Retirement benefit.
Mans Weto had been an employee of Nopolt Assurance for the last 10 years. His wife of 6 years died last year. They had 4 children. He then fell in love with Jovy, his co-employee, and they got married. In October this year, Weto's new wife is expected to give birth to her first child. He has accordingly filed his application for paternity leave, conformably with the provisions of the Paternity Leave Law which took effect in 1996. The HRD manager of the assurance firm denied his application, on the ground that Weto had already used up his entitlement under the law. Weto argued that he has a new wife who will be giving birth for the first time, therefore, his entitlement to paternity leave benefits would begin to run anew.
Pablo was a farm-hand in a plantation owned by ABC & Co., working approximately 6 days a week for a good 15 years. Upon Pablo's death, his widow filed a claim for burial grant and pension benefits with the SSS. The claim was denied on the ground that Pablo had not been a registered member-employee. Pablo's wid-
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
ow filed a petition before the SSS asking that ABC & Co. be directed to pay the premium contributions of Pablo and that his name be reported for SSS coverage. ABC & Co. countered that Pablo was hired to plow, harrow and burrow, using his own carabao and other implements and following his own schedule of work hours, without any supervision from the company. If proven, would this factual setting advanced by ABC & Co. be a valid defense against the petition? '03 - Q2
The Social Security Law [in Sec. 22(b)] provides that the right to institute the necessary action against an employer may be commenced within twenty (20) years from the time the delinquency is known or the assessment is made by the SSS, or from the time the benefit accrues, as the case may be. Ms. Sara Mira is an unwed mother with 3 children from 3 different fathers. In 1999, she became a member of the SSS. In August 2000, she suffered a miscarriage, also out of wedlock, and again by a different father. Can Ms. Mira claim maternity benefits under the Social Security Act of 1997? ’00 – Q1
ABC & Co. has a valid defense. Pablo should be an employee of ABC & Co. to be under the compulsory coverage of the SSS. To be an employee, Pablo should be under the control of ABC & Co. as regards his employment. But the facts show that he was not under the control of ABC & Co. as regards his employment. Among others, he had his own schedule of work hours, without any supervision from the company. Thus, he is an independent contractor and not an employee. An independent contractor is not under the compulsory coverage of the SSS. He may be covered as a self-employed person. But then as such, ABC & Co. has no legal obligation to report Pablo for coverage under the SSS because ABC & Co. is not Pablo's employer.
YES, she can claim maternity benefit. Entitlement thereto is not dependent on the claimant's being legally married (Sec. 14-A, Social Security Act of 1997.) The CBA of the Golden Corp. and the Golden Corp. Workers Union provides a package of welfare benefits far superior in comparison with those provided for in the Social Security Act of 1997. The welfare plan of the company is funded solely by the employer with no contributions from the employees. Admittedly, it is the best welfare plan in the Philippines. The company and the union jointly filed a petition with the SSS for exemption from coverage. Will the petition for exemption from coverage prosper? ’00 – Q2
The owners of FALCON Factory, a company engaged in the assembling of automotive components, decided to have their building renovated. 50 persons, composed of engineers, architects and other construction workers, were hired by the company for this purpose. The work was estimated to be completed in 3 years. The employees contended that since the work would be completed after more than 1 year, they should be subject to compulsory coverage under the Social Security Law. Do you agree with their contention? '02 - Q12
NO, because coverage under the SSS is compulsory where employer-employee relations exist. However, if the private plan is superior to that of the SSS, the plan may be integrated with the SSS plan. Still, it is integration and not exemption from SSS law (Philippine Blooming Mills Co., Inc. v. Social Security System, 17 SCRA 107 [1966]; R.A. No. 1161 as amended by R.A. No. 8282.)
NO. Under Section 8(j) of R.A. No. 1161, as amended by R.A. No. 8282, employment of purely casual and not for the purpose of the occupation or business of the employer is excepted from compulsory coverage. An employment is purely casual if it is not for the purpose of occupation or business of the employer. In the problem given, Falcon Factory is a company engaged in the assembling of automotive components. The fifty (50) persons (engineers, architects and construction workers) were hired by Falcon Factory to renovate its building. The work to be performed by these fifty (60) people is not in connection with the purpose of the business of the factory. Hence, the employ of these fifty (50) persons is purely casual. They are, therefore, excepted from the compulsory coverage of the SSS law.
Marvin is a caddy rendering caddying services for the members and guests of the Barili Golf & Country Club. As such caddy, he is subject to Barili Golf's rules and regulations governing Caddies regarding conduct, dress, language, etc. However, he does not have to observe any working hours, he is free to leave anytime he pleases; and he can stay away for as long as he likes. Nonetheless, if he is found remiss in the observance of club rules, he can be disciplined by being barred from the premises of Barili Golf. Is Marvin within the compulsory coverage of the SSS? ’99 – Q7 Because he is not an employee of the Barili Golf & Country Club, Marvin is not within the compulsory coverage of the Social Security System. Marvin is not an employee of the club because under the specific circumstances of his relations with the club, he is not under the orders of the club as regards employment which would have made him an employee of the club (See Manila Golf & Country Club, Inc. v. IAC, 237 SCRA 207.) But Marvin is within the compulsory coverage of the SSS as a self-employed person (See Section 9-A, Social Security Law of 1957.)
How many times may a male employee go on Paternity Leave? Can he avail himself of this benefit for example, 50 days after the first delivery by his wife? ’02 – Q16a A male employee may go on Paternity Leave up to four (4) children (Section 2, R.A. No. 8187.) On the question of whether or not he can avail himself of this benefit 50 days after the delivery of his wife, the answer is: YES, he can because the Rules Implementing Paternity Leave Act says that the availment should not be later than 60 days after the date of delivery.
Pitoy was employed as a public school teacher at the Marinduque HS from July 1, 1983 until his untimely demise on May 27, 1997. On April 27, 1997, a memorandum was issued by the school principal, which reads: "You are hereby designated to prepare the MODEL DAM project, which will be the official entry of or school the forthcoming Division Search for Outstanding Improvised Secondary Science Equipment for Teachers to be held in Manila on June 4, 1997. You are hereby instructed to complete this MODEL DAM on or before the scheduled date of the contest." Pitoy complied with his superior's instruction and constructed an improvised electric microdam, which he took home to enable him to finish it before the deadline. On May 27, 1997, while working on the MODEL DAM Project in his house, he came to contact with a live wire and was electrocuted. He was immediately brought to a clinic for emergency treatment but was pronounced dead on arrival. The death certificate showed that he died of cardiac arrest due to accidental electrocution. Pepay (Pitoy's common-law wife for more than 20 years) and a Pitoy Jr. (his only son) filed a claim for death benefits with the GSI, which was denied on the ground that Pitoy 's death did not arise out of and in the course of employment and therefore not compensable because the accident occurred in his house and not in the school premises.
In 1960, Juan hired Pablo to drive for the former's lumber company. In 1970, Pablo got sick and was temporarily laid-off. In 1972, Pablo recovered and resumed working for the same lumber company, now run by Juan's wife since Juan had already passed away. In 1996, Pablo retired. When Pablo applied for retirement benefits with the SSS that same year, he discovered that the lumber company never enrolled him as an employee, much less remitted his contributions that were deducted from his salary. The lumber company agreed to pay for Pablo's contributions plus penalties but maintained that most of Pablo's claims had already prescribed under Art, 1150 of the Civil Code. (Art. 1150 provides "The time for prescription of all kinds of actions, when there is no special provision which ordains otherwise, shall be counted from the day they may be brought."). Is the Lumber company's contention correct? ’01 – Q13b The lumber company's contention is not correct.
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Bar Questions and Answers
Is Pepay entitled to file a claim for death benefits with the GSIS?
justified, and the strike was declared illegal; hence, the leaders of the strike, including the retrenched employees, were declared to have lost their employment status. Are the striking retrenched employees still entitled to separation pay under Sec. 298 (283) of the Labor Code despite the illegality of their strike? Explain your answer. (2%) ’17—Q13
The beneficiaries of a member of the GSIS are entitled to the benefits arising from the death of said member. Death benefits are called survivorship benefits under the GSIS Law. Not being a beneficiary, Pepay Palaypay is not entitled to receive survivorship benefits. She is not a beneficiary because she to a common-law wife and not a legal dependent spouse. 2.
A. When a strike is declared illegal because of non-compliance with statutory or contractual requirements or because of the use of unlawful means, the consequence Is loss of employment status of the officers of the union who knowingly participated in the illegal strike. Ordinary union members will lose their employment status only if they participated in the commission of illegal acts during the strike, thus, mere union membership does not result in automatic loss of employment as a result of an illegal strike (Article 263-264 [now Articles 278-279] of the Labor Code; Pepsi-Cola Labor Union v. NLRC, G.R. No. L-58341, June 29, 1982, 114 SCRA 930; Solidbank Corp. v. Solidbank Union, G.R. No. 159461, November 15,2010, 634 SCRA 554). B. A sympathetic strike is not valid. It is illegal because the strikes have no direct grievance against their own employer; that is, no labor dispute exists between the strikers and the employer. C. SUGGESTED ANSWER No. The Supreme Court has ruled if the strike staged by the union is declared illegal, the union officers and members are considered validly dismissed from employment for committing illegal acts during the illegal strike. The striking retrenched union officials and members who were found guilty of having staged an illegal strike, which constituted serious misconduct, will not be entitled to separation pay (C. Alacantara & Sons, Inc. v. Court of Appeals, G.R. No. 155109, March 14, 2012, 631 SCRA 486; citing Toyota Motors Phils. Corp. Workers Association v. NLRC G.R. No. 15886& 158789, October 19, 2007, 537 SCRA 171). ALTERNATIVE ANSWER Yes. Article 298 (283) of the Labor Code requires an employer to give, without qualification, separation pay in cases of retrenchment. The law does not make a distinction as to which among the retrenched employees are entitled to receive separation pay; thus, the striking retrenched employees are still entitled to separation pay despite the illegality of their strike.
Is the cause of death of Pitoy Mordeno (cardiac arrest due to accidental electrocution in his house) compensable? ’99 – Q20
YES. To be compensable under the GSIS Law, the death need not be work connected.
LABOR 2
LABOR RELATIONS The modes of determining the exclusive bargaining agent of the employees in a business are: (a) voluntary recognition; (b) certification election; and (c) consent election. Explain how they differ from one another. (4%) ’17—Q11(A) (a) Voluntary Recognition: An employer may voluntarily recognize the representation status of a labor union if the establishment is unorganized and has only one legitimate labor organization. Such voluntary recognition, accompanied by supporting documents, should be submitted to the Regional Office, which issued the labor union's certificate of registration. (b) Certification Election: This is the process by which a legitimate labor organization or the employer may file a petition for certification election to determine the choice of an exclusive collective bargaining agent of the employees. A med-arbiter shall automatically order a certification election by secret ballot when a petition is filed (1) in an unorganized establishment or (2) in an organized establishment where the petition is supported by at least 25% of all employees in the bargaining unit. To have a valid certification election, at least a majority of all eligible votes in the bargaining unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all employees in the unit. (c) Consent Election: Similar to a certification election proceeding, consent election is the process of determining through secret ballot the sole and exclusive bargaining agent of employees in an appropriate collective bargaining unit for purposes of collective bargaining or negotiations. This process, however, differs from a certification election as this is voluntarily agreed upon by the parties, with or without the DOLE's intervention. In such a case, the med-arbiter need not issue a formal order calling for such an election. The minutes of the agreement and records of the case are forwarded to the Regional Director for implementation of the consent election.
Pursuant to his power under Sec. 278(g) (263(g)) of the Labor Code, the Secretary of Labor assumed jurisdiction 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%) ’17—Q14(a) (a) The conditions that may justify the Secretary of Labor to assume jurisdiction are found in Article 278(g) (formerly Article 263 (g)), viz: "When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. xxx"
A. Given that the liability for an illegal strike is individual, 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 establishment or business. Is the sympathetic strike valid? Explain your answer. (1%) C. Due to business recession, Ballistic Company retrenched a part of its workforce. Opposing the retrenchment, some of the affected employees staged a strike. Eventually, the retrenchment was found to be
Asia Union (Union) is the certified bargaining agent of the rankand- file employees of Asia Pacific Hotel (Hotel), The Union submitted its Collective Bargaining Agreement (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 Conciliation and Mediation Board (NCMB). Consequently, the Union conducted a Strike Vote on January 14, 2015, when it was approved.
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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 prevented these workers from entering the premises, claiming that they violated the company rule on Grooming Standards. On January 16, 2015, the Union subsequently staged a picket outside the Hotel premises and prevented other workers from entering the Hotel. The Union members blocked the ingress and egress of customers and employees to the Hotel premises, which caused the Hotel severe lack of manpower and forced the Hotel to temporarily cease operations resulting to substantial losses. On January 20, 2015, the Hotel issued notices to Union members, preventively suspending them and charging them with the following offenses: (! ) illegal picket; (2) violation of the company rule on Grooming Standards; (3) illegal strike; and (4) commission of illegal acts during the illegal strike. The Hotel later terminated the Union officials and members who participated in the strike. The Union denied it engaged in an illegal strike and. Countered that the Hotel committed an unfair labor practice (ULP) arid a breach of the freedom of speech.
It cannot be said that the hotel is guilty of violating the union member’s right to freedom of speech. The right to freedom of expression is not absolute; it is subject to regulation so that it may not be injurious to the right of another or to society. As discussed, the union member’s act of cropping or shaving their heads caused substantial losses to the hotel caused by the cessation of its operations. The Supreme Court in one case held that the union’s violation of the hotel grooming standards was clearly a deliberate and concerted action to undermine the authority of and to embarrass the hotel and was, therefore, not a protected action. The physical appearance of the hotel employees directly reflect the character and well-being of the hotel, being a five-star hotel that provides service to topnotch clients. ALTERNATIVE ANSWER: Yes. The Hotel is guilty of Unfair Labor Practice under Art. 259 of the Labor Code, specifically Art. 259 (t) To interfere with, restrain or coerce employees in the exercise of their right to self-organization. The act of the Hotel in preventing the employees from entering the work premises constitutes this unfair labor practice. 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 vote. AILI members locked in the LB management panel by barricading the doors and possible exits (including windows and fire escapes). LB requested the DOLE to assume jurisdiction over the dispute and to certify it for compulsory arbitration.
[a] Was the picketing legal? Was the mass action of the Union officials and members an illegal strike? Explain. (2.5%) ’16 – Q5(a) The picket was illegal. The right to picket as a means of communicating the facts of a labor dispute is a phase of freedom of speech guaranteed by the constitution (De Leon v. National Lahdr Union 100 Phil 789 [1957]) But this right is not absolute. Article 278 of the Labor Code provides that no person engaged in picketing shall obstruct the free ingress to or egress from the employer’s premises for lawful purposes or obstruct public thorough fares. The acts of the union members in blocking the entrance and exit of the hotel which caused it to shutdown temporarily makes the picket illegal. The actions of all the union members in cropping or shaving their head is deemed an illegal strike. In National Union of Workers in the Hotel Restaurant and Allied Industries (NUWHRA1NAPL-IUF) Dusit Hotel Nikko Chapter v. Court of Appeals, G.R. No. 163942 November 11 2008, the Supreme Court ruled that the act of the Union was not merely an expression of their grievance or displeasure but was, .indeed, a calibrated and calculated act designed to inflict serious damage to the hotel’s grooming standards which resulted in the temporary., cessation and disruption of the hotel’s operations. This should be considered as an illegal strike.
The Secretary of Labor declined to assume jurisdiction, finding that the dispute was not one that involved national interest. LB then proceeds to terminate 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) strike. a)
ALTERNATIVE ANSWER: As regards the shaving of heads by the union members, their mass action was not an illegal strike. It was the Hotel administration which prevented them from entering the hotel premises.
Was AILU justified in declaring a strike without a strike vote and a notice of strike? Why or why not? (3%) ‘15 Q16a
No. Firstly, a Notice of Strike is always required by Art. 263(c) of the Labor Code before a strike may be staged - be it grounded on bargaining deadlock or unfair Labor Practice. Secondly, the Supreme Court already held in Sukothai that while AILU may not exhaust the 15-day cooling-off period in case of dismissal from employment of its officers who were duly elected in accordance with the Union constitution and by-laws and the dismissal constitutes union busting and a threat to AILU’s existence, still, Art. 263(f) requires that a strike vote be undertaken through a secret ballot and approved by a majority of the total union membership in the bargaining unit. Devoid of a notice of strike and a strike vote, AILU’s strike is therefore illegal.
[b] Rule on the allegations of ULP and violation of freedom of speech. Explain. (2.5%) ’16 – Q5(b) The Hotel is not guilty of ULP. The act of the hotel in suspending and eventually dismissing the union officers who concertedly antagonized and embarrassed the hotel management and, in doing so, effectively disrupted the operations of the hotel, is an act of self- preservation. The law in protecting the rights of the laborer authorizes neither oppression nor self-destruction of the employer. The right of the employer to dismiss its erring employees is a measure of self protection (Filipro v. NLRC, G.R. No. 70546, October 16, 1966). The power to dismiss an employee is a recognized prerogative that is inherent in the employee’s right to freely manage and regulate its business (Philippine Singapore Transport Service v. NLRC, G.R. No. 95449 [1997]).
The Collective Bargaining Agreement (CBA) between Libra Films and its union, Libra Films Employees’ Union (LFEU), contains the following standard clauses: 1. 2. 3.
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Maintenance of membership; Check off for union dues and agency fees; and No strike, no lock-out.
The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
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, citing their constitutional right to organize (Which includes the right NOT to organize). LFEU demands that Libra Films institute administrative proceedings to terminate 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. The union claims that Libra Films grossly violated the terms of the CBA and engaged in unfair labor practice. (a)
The Equity of the Incumbent rule has it that all existing federations or national unions, possessing all qualifications of an LLO and none of the grounds for CR cancellation, shall continue to maintain their existing affiliates regardless of their location or industry to which they belong. In case of dissociation, affiliates are not required to observe the one union-one industry rule. Philippine News Network (PNN) engages the services 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 proceeds to sign with PNN which then asks her to anchor their nightly newscast. NNN sues Anya and PNN before 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.
Are LFEU’s claims correct? Explain. (4%) ‘15 - Q17a
LFEU’s claim that Libra Films committed ULP based on its violation of the CBA is not correct. For violation of a CBA to constitute ULP, the violation must be violation of its economic provisions. Moreover, said violation 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 or representational provision; hence, no ULP was committed. (BPI Employees Union-Davao City v. BPI, 702 SCRA 42).
b.
(b) Distinguish between a “closed shop” clause and “maintenance of membership” clause (2%) ‘15 - Q17b
The NLRC may issue an injunctive writ to enjoin an illegal activity under Art. 264 (old) 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 pursuant to Rule XII of the 2011 NLRC Rules of Procedure, as amended.
In a "closed shop" clause, all employees are required to be members of the union at the time of hiring. They too must remain members of good standing during the period of employment as a condition of continued employment. Maintenance of membership clause, on the other hand, requires all employees who are union members at the time of the execution of the CBA to maintain their membership of good standing, as a condition of continued employment. (c)
What are the grounds for a labor injunction to issue? (2%) ‘15 - Q21b
Moreover, for labor injunction to issue, it must be proven under Art. 218(e). Labor Code: 1.
Distinguish between “union dues” and “agency fees.” (2%) ‘15 - Q17c
2.
Union dues are union funds paid by union members, normally through check-off by the employer on the basis of an individual written authorization duly signed by the employees pursuant to Art. 241 (o) of the Labor Code. Agency fee, on the other hand, is a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent. Art. 248(e) of the Labor Code mandates that only non-union members who accept the benefits under the CBA may be assessed agency fees. Their check-off authorization is not required.
3.
4. 5.
That the prohibited or unlawful acts have been threatened and will be committed and will be continued unless restrained; That substantial and irreparable injury to the complainant's property will follow; That greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief; That complainant has no adequate remedy at law; and That public officers charged with the duty to protect complainant's property are unable or unwilling to furnish adequate protection
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 segregated votes, four (4) were cast by probationary employees and six (6) were east by dismissed employees whose respective cases are still on appeal. (10%)
George is an American who is working as a consultant for a local IT company. The company has a union and George wants to support the union. How far can George go terms of his support for the union? (3%) ‘15 - Q18 George, as a general rule, is prohibited by Art. 270(a) of the Labor Code from giving any donation, grant or other form of assistance, in cash or in kind, directly or indirectly to the Union. He can give a support only upon prior permission from the Secretary of Labor relative to "Trade Union activities" as defined in said law.
(A) Should the votes of the probationary and dismissed employees be counted in the total votes cast for the purpose of determining the winning labor union? - ‘14 Q5A
George, in addition to his alien employment permit, must first prove that the country whereof he is a national recognizes the right of Filipinos working therein to organize. Under these conditions, he is allowed to support the existing union by joining it as to increase its membership.
Yes. Rule. IX, Sec. 5 of DOLE Department Order 40-03 provides that “all employees who are members of the appropriate bargaining unit sought to be represented bi the petitioner at the time of the issuance of the order granting the conduct of a certification election shall be eligible to vote. An employee who has been dismissed from work but has contested the legality of the dismissal in s forum of appropriate jurisdiction
What is the rule on the "equity of the incumbent"? (2%) ‘15 - Q19
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
at the time of the issuance of the order for the conduct of a certification election shall be considered a qualified voter; unless his/her dismissal was declared valid in a final judgment at the time of the conduct of the certification election."
not abandoned their employment. Rather, they have; only ceased temporarily from rendering work. The striking employees have not lost their right to go back to their positions, because the definition of a strike is not a renunciation of their employment, much less their employee-employer relationship.
(B) Was there a valid election? - ‘14 - Q5B
ALTERNATIVE SUGGESTED ANSWER:
Yes. To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes (art. 256, now Art. 266, of the Labor Code.) In the instant case, 500 out of 600 rank-and-file employees voted.
No. As a general rule, replacements take their employment as conditional. i.e. subject to the rights of striker to return to work. However, since this is an economic strike, the strikers are entitled to reinstatement only in case Lazo Corporation has not yet hired permanent replacement (Consolidated Labor Associafion v. Marsman & Co., G.R. No.L-17038, July 31, 1964, 11 SCRA 589).
(C) Should Union A be declared the Winner? - ‘14 - Q5C No. The Labor Code provides that the Labor Union receiving the majority of the valid votes case shall be certified as the exclusive bargaining agent of all the workers in the unit (Art. 256 now 266, of the Labor Code). Here, the number of valid votes cast is 490; thus, the winning union should receive at least 246 votes. Union A only received 200 votes.
Which of the following groups does not enjoy the right to selforganization? (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 ten (10) employees. (D) those who work as legal secretaries ‘14 - Q12
(D) Suppose the election is declared invalid, which of the contending unions should represent the rank and file employees? - ‘14 - Q5D
(D) those who work as legal secretaries (Tunay na Pagkakaisa ng manggagawa sa Asia Brewery v. Asia Brewery, Inc., G.R. No. 162025, August 3, 2010).
None of them should represent the rank-and-file employees (Art. 255, now Art. 265, of the Labor Code). (E) Suppose that in the election, the unions obtained the following votes: A-250; B-150; C-5O; 40 voted “no union”; and 10 were segregated votes. Should Union A be certified as the bargaining representative? - ‘14 Q5E
Our Lady of Peace Catholic School Teachers and Employees Labor Union (OLPCS-TELU) is a legitimate labor organization composed of vice principals, department heads, coordinators, teachers, and non-teaching personnel of Our Lady of Peace Catholic School (OLPCS). OLPCS-TELU subsequently filed a petition for certification election among the teaching and non-teaching personnel of OLPCS before the Bureau of Labor Relations (BLR) of the Department of Labor and Employment (DOLE). The Med-Arbiter subsequently granted the petition and ordered the conduct of a joint certification election for the teaching and non-teaching personnel of OLPCS.
Yes. The Labor Code provides that the Labor Union receiving the majority of the valid votes cost shall be certified as the exclusive bargaining agent of all the workers in the unit (Art. 256, now Art. 2661 of the Labor Code). Here, the number of valid votes cast is 49O. Thus, the winning union would receive at least 246 votes; Union A received 250 votes
May OLPCS-TELU be considered a legitimate labor organization? (5%) ‘14 - Q15
As a result of a bargaining deadlock between Lazo Corporation and Lazo Employees Union, the latter staged a strike. During the strike, several employees committed illegal acts. Eventually, its members informed the company of their intention to return to work. (6%)
Yes the facts of the case concede that OLPCS-TELY “is a legitimate labor organization.” Samahang East Gate Enterprises (SEGE) is a labor organization composed of the rank-and-file employees of East Gate Enterprises (EGE), the leading manufacturer of all types of gloves and aprons. EGE was later requested by SEGE to bargain collectively for better terms and conditions of employment of all the rank-andfile employees of EGE. Consequently, 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 petition and considering that the employees concerned were its own rank-and-file employees, it should be allowed to take an active part in the certification process. Is the contention of EGE proper? Explain. (5%) ‘14 - Q16
(A) Can Lazo Corporation refuse to admit the strikers? - ‘14 - Q8A No. The commission of illegal acts during strike does not automatically bring about loss of employment status. Due process must be observed by the employer before any dismissal can be made (Stamford Marketing Corp. v. Julian, G.R. No. 145496, February 24, 2004, 423 SCRA 633). (C) If due to prolonged strike, Corporation hired replacements, can it refuse to admit the replaced strikers? - ‘14 - Q8C No. Sec. 3, Art. XIII of the Constitution guarantees workers the right to strike in accordance with the law and prolonged strike is not prohibited by law. With Art. 212 (o) defining strike as any temporary stoppage of work as a result of an industrial or labor dispute, it is the prerogative of strikers to cut short or prolong a strike. By striking, the employees have
No. Under Art. 258(a) of the Labor Code, an employer is a mere bystander in certification elections, whether the petition for certification elections is filed by said employer or a legitimate labor organization. The employer shall not be considered a party thereto with a concomitant right to oppose a petition for certification election.
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
negotiations between its management and the union. After following all the requisites 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 Corporation declared everyone who participated in the strike as having lost their employment. (4%)
Philhealth is a government-owned and controlled corporation employing thousands of Filipinos. Because of the desire of the employees of Philhealth to obtain better terms and conditions of employment from the government, they formed the Philhealth Employees 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 better terms and conditions of employment? - ‘14 - Q17A
(A) Was Liwanag Corporation’s action valid? ‘14 - Q26A Yes. A strike that is undertaken despite the issuance by the Secretary of Labor of an assumption or certification order becomes an illegal act committed in the course of a strike. It rendered the strike illegal. The Union officers and members, as a result, are deemed to have lost their employment status for having knowingly participated in an illegal act (Union of Filipino Employees (UFE) v Nestle Philippines, Inc., GR No. 88710-13, December 19, 1990, 192 SCRA 396). Such kind of dismissal under Art. 264 can immediately be resorted to as an exercise of management prerogative (Biflex Phils., Inc. v Filflex Industrial & Manufacturing Corp., GR No. 155679, December 19, 2006, 511 SCRA 247).
Yes. Employees of Philhealth are allowed to self-organize under Sec. 8, Art III and Sec. 3, Art XIII of the Constitution which recognize the rights of all workers to self-organization. They cannot demand, however, for better terms and conditions of employment for the same are fixed by law (Art. 244 Labor Code), besides, their salaries are standardized by Congress (Art. 276 Labor Code). (B) In case of unresolved grievances, can PEA resort to strikes, walkouts, and other temporary work stoppages to pressure the government to accede to their demands? ‘14 - Q17B
ALTERNATIVE ANSWER: No. Liwanag Corporation cannot outrightly declare the defiant strikers to have lost their employment status. “As in other termination cases,” the strikers are entitled to due process protection under Art. 277 (b) of the Labor Code. Nothing in Art. 264 of the Code authorizes immediate dismissal of those who commit illegal acts during a strike (Stanford Marketing Corp. v Julian, GR No. 145496, February 24 ,2004, 423 SCRA 633; Sucio v NLRC, GR No. 146762, January 30, 2007, 513 SCRA 325).
No. Since the terms and conditions of government employment are fixed by law, government workers cannot use the same weapons employed by workers in the private sector to secure concessions from their employers (Blaquera v Alcala, GR Nos. 109406, 110642, 111494, 112056, 119597, September 11,1998). The procedural requirements of a valid strike include: (1%) ‘14 Q18
(B) If, before the DOLE Secretary assumed jurisdiction, the striking union members communicated in writing their desire to return to work, which offer Liwanag Corporation refused to accept, what remedy, if any, does the union have? ‘14 - Q26B
(A) A claim of either unfair labor practice or deadlock in collective bargaining (B) Notice of strike filed at least fifteen (15) days before a ULP-grounded strike or at least thirty (30) days prior to the deadlock in a bargaining-grounded strike (C) Majority of the union membership must have voted to stage te strike with notice thereon furnished to the National Conciliation and Mediation Board (NCMB) at least twenty-four (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
File a case for illegal dismissal [Art. 217 (a) (2), Labor Code] Pablo works as a driver at the National Tire Company (NTC). He is a member of the Malayang Samahan ng Manggagawa sa NTC, the exclusive rank-and-file collective bargaining representative in the company. The union has a CBA with the NTC which contains a union security and a check-off clause. The union security clause contains a maintenance of membership provision that requires all members of the bargaining unit to maintain their membership in good standing with the union during the clause on the other hand authorizes the company to deduct from union members’ salaries defined amounts of union dues and other fees. Pablo refused to issue to the company for the check-off of his dues, maintaining that he will personally remit his dues to the union.
(B) Notice of strike filed at least fifteen (15) days before a ULPgrounded strike or at least thirty (30) days prior to the deadlock in a bargaining-grounded strike (Art, 263(c), Labor Code) ALTERNATIVE ANSWER: (C) Majority of the union membership must have voted to stage te strike with notice thereon furnished to the National Conciliation and Mediation Board (NCMB) at least twenty-four (24) hours before the strike vote is taken (Art, 263(cf), Labor Code) (D) Strike vote results must be furnished to the NCMB at least seven (7) days before the intended strike (Art, 263(f), Labor Code)
(A) 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%) ‘13 Q9a No. Under R.A. 9481, violation of the Collective Bargaining Agreement, to be an unfair labor practice, must be gross in character. It must be a flagrant and malicious refusal to comply with the economic provisions of the CBA.
Liwanag Corporation is engaged in the power generation business. A stalemate was reached during the collective bargaining
ALTERNATIVE ANSWER:
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
right to self-organization xxx for purposes of collective bargaining”. They can only “form labor organizations for their mutual aid and protection”.
No. Check-offs in truth impose an extra burden on the employer in the form of additional administrative and bookkeeping costs. It is a burden assumed by management at the instance of the union and for its benefit, in order to facilitate the collection of dues necessary for the latter’s life and sustenance. But the obligation to pay union dues and agency fees obviously devolves not upon the employer, but the individual employee. It is a personal obligation not demandable from the employer upon default or refusal of the employee to consent to a check-off. The only obligation of the employer under a check-off is to effect the deductions and remit the collections to the union (Holy Cross of Davao College v. Joaquin, G.R. No. 110007, October 18,1996).
b)
Explain briefly how they differ from one another (5%) ‘12 - Q7b
(B) Can the union charge Pablo with disloyalty for refusing to allow the check off of his union dues and, on this basis, ask the company to dismiss him from employment? (4%) ‘13 - Q9b
Voluntary Recognition is possible only in unorganized establishments where there is only one legitimate labor organization and the employer voluntarily recognizes the representation status of such a union; whereas 1. Certification election is a process of determining the sole and exclusive bargaining agent of the employees in a n appropriate bargaining unit for purposes of collective bargaining, which process may involve one, two or more legitimate labor organizations. On The other hand, 2. Consent Election is an agreed one, the purpose being merely to determine the issue of majority representation of all the workers in the appropriate bargaining unit.
No. The check-off clause in the CBA will not suffice. The law prohibits interference with the disposition of one’s salary. The law requires “individual written authorization” to deduct union dues from Pablo’s salaries. For as long as he pays union dues, Pablo cannot be terminated from employment under the union security clause. As a matter of fact, filing a complaint against the union before the Department of Labor for forcible deduction from salaries does not constitute acts of disloyalty against the union. (Tolentino v. Angeles, G.R. No. L-8150, May 30, 1956, 52 O.G. 4262) a)
The modes of determining an exclusive bargaining agreement are: i) Voluntary recognition ii) Certification election iii) Consent Election
“Certification Election” refers to the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit for purposes of collective bargaining or negotiation. A certification election is ordered by the Department. [Sec. 1, (h), Rule 1, Book V, Omnibus Rules Implementing the Labor Code]
Juicy Bar and NightClub allowed by tolerance fifty (50) Guest Relations Officers (GROs) to work without compensation in its establishment under the direct supervision of tis Manager from 8PM to 4AM. Everyday, including Sundays and holidays. The GROs , however, were free to ply their trade elsewhere at anytime, but once they enter the premises of the night club, there were required to stay up to closing time. The GROs earned their keep exclusively from commissions for food and drinks, and tips from generous customers. In time, the GROs formed the Solar Ugnayan ng mga Kababaihang Inaapi (SUKI), a labor union duly registered with DOLE. Subsequently, SUKI filed a petition for Certification Election in order to be recognized as the exclusive bargaining agents of its members. Juicy Bar and Nightclub opposed the petition on the singular ground of absence of employer-employee relationship between the GROs on the one hand and the nightclub on the other hand. May the GROs form SUKI as a labor organization for purposes of collective bargaining? Explain briefly. (5%) ‘12 Q4a
“Consent Election” refers to the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit for the purposes of collective bargaining or negotiation. A consent election is voluntarily agreed upon by the parties, with or without the intervention by the Department. [Sec. 1 (h), Rule 1, Book V, Omnibus Rules] Differentiate “surface bargaining” from “blue-sky-bargaining.” ’10 – Q2b SURFACE BARGAINING is defined as “going through the motions of negotiating” without any legal intent to reach an agreement. The determination of whether a party has engaged in unlawful surface bargaining is a question of intent of the party in question, which can only be inferred from the totality of the challenged party’s conduct both and away from the bargaining table. It involves the question of whether an employer’s conduct demonstrates an unwillingness in good faith or is merely hard bargaining (Standard Chartered Bank Employees Union (NUBE) v. Confesor, 432 SCRA 308 [2004].) BLUE-SKY BARGAINING is defined as “unrealistic and unreasonable demands in negotiations by either labor or management, where neither concedes anything and demands the impossible” (Standard Chartered Bank Employees Union (NUBE) v. Confesor, 432 SCRA 308 [2004].)
Yes, The GROs worked under the direct supervision of the Night Club Manager for substantial period of time. Hence, under Art. 138, with or without compensation, the GROs are to be deemed employees. As such, they are entitled to all the rights and benefits granted to employees under the Constitution and other piece so labor legislation including the right to form labor organizations for purposes of collective bargaining. (Const. Art XIII, Sec 3; Labor Code, Art 243).
Company XYZ has two recognized labor unions, one for its rankand-file employees (RFLU), and one for supervisory employees. Of later, the company instituted a restructuring program by virtue of which A, a rank-and-file employee, was promoted to a supervisory position along with 4 other colleagues, also active 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 cancellation of the registration of RFLU on the ground that A and her colleagues have remained to be members of RFLU. Is the petition meritorious? ’10 – Q5
SUGGESTED ALTERNATIVE ANSWER: No. While the GROs are considered employees of Juicy Bar and NIghtClub by fiction of law for purposes of labor and social legislation (Art 138, Labor Code), Art 243 of the Labor Code however excludes “ambulant, intermittent, and itinerant workers xxx and those without any definite employers” such as the GROs here, from exercising “the
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
NO. Having been promoted to supervisory positions, A and her colleagues are no longer part of the rank-and-file bargaining unit. They are deemed removed from membership of RFLU (Article, 245-A [now Art. 264], Labor Code as amended by R.A. No. 9481.)
Davao City v. Calleja, 165 SCRA 725, 732 [1988]; San Jose City – Electric Service Cooperative, Inc. v. Ministry of Labor, 173 SCRA 697, 701-703 [1989].) A is employed by XYZ Company where XYZ Employees Union (XYZ-EU) is the recognized exclusive bargaining agent. Although A is a member of rival union XYR-MU, he receives the benefits under the CBA that XYZ-EU had negotiated with the company. XYZ-EU assessed A a fee equivalent to the dues and other fees paid by its members but A insist because he is not a member of XYZ-EU and he has not issued an authorization to allow the collection. Explain whether his claim is meritorious. ’10 – Q13; ’09 – Q11e
A is a member of the labor union duly recognized as the sole bargaining representative of his company. Due to a bargaining deadlock, 245 members of the 500-strong union voted on March 13, 2010 to stage s strike. A notice of strike was submitted to the NCMB on March 16, 2010. Seven days later or on March 23, 2010, the workers staged a strike in the course of which A had to leave and go to the hospital where his wife had just delivered a baby. The union members later intimidated and barred other employees from entering the work premises, thus paralyzing the business operations of the company. A was dismissed from employment as a consequence of the strike. 1. Was the strike legal?
NO. The fee exacted from A takes the form of an AGENCY FEE. This is sanctioned by Article 248(e) [now Art. 258(e)] of the Labor Code. The collection of agency fees in an amount equivalent to union dues and fees from employees who are not union members is recognized under Article 248(e) [now Art. 258(e)] of the Labor Code. The union may collect such fees even without written authorization from the non-union member employees, if said employees accept the benefits resulting from the CBA and is a member of the appropriate bargaining unit. The legal basis of agency fees is quasi-contractual (Del Pilar Academy v. Del Pilar Academy Employees Union, 553 SCRA 590 [2008].)
NO. The strike was not legal due to the union’s failure to satisfy the required majority vote of union membership (251 votes), approving the conduct of a strike [See Article 263(f [now Art. 277(f)] ), Labor Code; Section 11, Rule XXII, Dept. Order No. 40-03.] Also, the strike was illegal due to the non-observance of the 30day cooling off period by the union [Article 263(c) [now Art. 277(c)], Labor Code.] 2.
Was A’s dismissal valid? ’10 – Q6 Samahang Manggagawa ng Terracota (SMT), a union of supervisory employees at Terracota, Inc., recently admitted a member of the company’s managerial staff, A, into the union ranks. 1. Should A be a member of the supervisory union?
NO. Article 264 of the Labor Code distinguishes the effects of illegal strikes between ordinary workers and union officers who participate therein. A, as an ordinary striking worker, may not be declared to have lost his employment status by mere participation in an illegal strike, unless there is proof that he knowingly participated in the commission of illegal acts during the strike (Arellano University Employees and Workers Union v. Court of Appeals, 502 SCRA 219 [2006].) This is an aspect of the State’s constitutional and statutory mandate to protect the rights of employees to self-organization (Club Filipino, Inc. v. Bautista, 592 SRA 471 [2009].)
YES, as long as A is not a confidential employee who has access to confidential matters on labor relations (San Miguel Corporation Supervisors and Exempt Employees Union v. Laguesma, 277 SCRA 370, 374-375 [1997]. If A performs supervisory functions, such as overseeing employees’ performance and with power of recommendation, then A is a rightful member of the supervisory union. Otherwise, he may not, because Samahang Manggagawa ng Terracota cannot represent A, A being not part of SMT’s bargaining unit.
ABC company and U labor union have been negotiating for a new CBA but failed to agree on certain economic provisions of the existing agreement. In the meantime, the existing CBA expired. The company thereafter refused to pay the employees their midyear bonus, saying that that the CBA which provided for the grant of midyear bonus had already expired. Are the employees entitled to be paid their midyear bonus? ’10 – Q8; ’08 – Q1a
2.
Assuming that A is ineligible to join the union, should the registration of SMT be cancelled? ’10 – Q15
NO. R.A. No. 9481 introduced a new provision, Article 245-A [now Art. 255], which provides that mixed membership is not a ground for cancellation of a union’s registration, but said employees wrongfully joined are deemed removed from the union.
YES, under Article 253 [now Art. 263] of the Labor Code, the parties are duty-bound to maintain the status quo and to continue in full force and effect the terms and conditions of the existing CBA until a new agreement is reached by the parties. Likewise, Article 253 [now Art. 263] provides for an automatic renewal clause of a CBA. Although a CBA has expired, it continues to have legal effects as between the parties until a new CBA has been entered into. The same is also supported by the principle of hold-over, which states that despite the lapse of the formal effectivity of the CBA, the law stills considers the same as continuing in force and effect until a new CBA shall have been validly executed (MERALCO v. Hon. Sec. of Labor, 337 SCRA 90 [2000] citing National Congress of Unions in the Sugar Industry of the Philippines v. Ferrer-Calleja, 205 SCRA 478 [1992].) The terms and conditions of the existing CBA remain under the principle of CBA continuity.
On the 1st day of collective bargaining negotiations between rankand –file Union A and B Bus Company, 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 the ground rules on the 2nd day, the union representatives reiterated their proposal for a wage increase. When company representatives suggested a discussion of political provisions in the CBA as stipulated in the ground rules, the members went on a mass-leave the next day to participate in a whole-day prayer rally in front of the company building. 1. The company filed a petition for assumption of jurisdiction with the Secretary of Labor and Employment. The Union opposed the petition, arguing that it did not intend to stage a strike. Should the petition be granted?
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? ’10 – Q10
YES. There was a strike. What the union engaged in was actually a “work stoppage” in the guise of a protest rally. Article 212(o) [now Art. 219(o)] of the Labor Code defines strike as a temporary stoppage of work by the concerted action of employees as a result of an industrial of labor dispute. The fact that the conventional term “strike” was not used by the striking employees to describe their common course of action is inconsequential. What is controlling is the substance of the situation, and not its appearance. The term “strike” encompasses not only concerted work stoppages, but also slowdowns, mass leaves, sit-downs, attempts to damage, destroy or
A cannot join XYZ Cooperative Employees Association, because owning shares in XYZ Cooperative makes him a co-owner thereof. An employee-member of a cooperative cannot join a union and bargain collectively with his cooperative for an “owner cannot bargain collectively with himself and his co-owners” (Cooperative Rural Bank of
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sabotage plant equipment and facilities, and similar activities (Santa Rosa Coca-Cola Plant Employees Union v. Coca-Cola Bottlers Phils., Inc., 512 SCRA 437 [2007] 2.
very labor dispute that sparked the union to strike, the Secretary of Labor comes short of his duty under Article 263(g) to maintain status quo or the terms and conditions prevailing before the strike. In fact, the Secretary could be accused of disposing of the parties’ labor dispute without the benefit of a hearing, in clear derogation of due process of law.
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.
Rank-and-file workers from Peacock Feathers, a company of 120 employees, registered their independent labor organization with the DOLE Regional Office. Management 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 submitted to the DOLE were fraudulent. Specifically, management presented affidavits of 10 out of 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 that purpose. The union argued that the stated date of the meeting should have read “January 11, 2010,” instead of “January 1, 2010”, and that, at any rate, the other 30 union members were enough to register a union. Decide. ’10 – Q24
NO. The Union’s contention is wrong. A strike may be declared only in cases of deadlock in collective bargaining negotiations and unfair labor practices [Article 263(c) [now Art. 277(c]), Labor Code; Section 1, Rule V, NCMB Manual of Procedures.] The proposal of the company to discuss political provisions pursuant to the ground rules agreed upon does not automatically mean that the company refuses to discuss the economic provisions of the CBA, or that the company was engaged in “surface bargaining” in violation of its duty to bargain, absent any showing that such tend to show that the company did not want to reach an agreement with the Union. In fact, there is no deadlock to speak of in this case. The duty to bargain does not compel either party to agree to a proposal or require the making of a concession. The parties’ failure to agree which to discuss first on the bargaining table, did not amount to ULP for violation of duty to bargain. Besides, the mass leave conducted by the union members failed to comply with the procedural requirements for a valid strike under the Rules, without which, the strike conducted taints of illegality. 3.
Petition for cancellation is dismissed for want of merit. The date specified therein is purely a typographical error as admitted by the union. There was no willful of deliberate intention to defraud the union members that will vitiate their consent to the ratification. To be a ground for the cancellation of union registration under the Labor Code, the nature of the fraud must be grave and compelling enough to vitiate the consent of the majority of the union members (Mariwasa Siam Ceramics v. Secretary of Labor, 608 SCRA 706 [2009].) Moreover, 20% of 120 is 24. So, even if the 10 union members disown their participation to the ratification of the union constitution and by-laws, the union is correct in arguing that the 30 members suffice to uphold the legitimacy of its union (Article 234 [now Art. 239], Labor Code.)
Union member AA, a pastor who headed the prayer rally, was served a notice of termination by management after it filed the petition for assumption of jurisdiction. May the company validly terminate AA? ’10 – Q16
NO. The company cannot terminate AA because the Labor Code provides that mere participation of a worker in a strike shall not constitute sufficient ground for termination of his employment.
Not all confidential employees are disqualified to unionize for purposes of collective bargaining. ’09 – Q1b
Several employees and members of Union A were terminated by Western Phone on the ground of redundancy. After complying with the necessary requirements, the Union staged a strike and picketed the premises of the company. The management then filed a petition for the Secretary of Labor and Employment to assume jurisdiction over the dispute. Without the benefit of a hearing, the Secretary issued an Order to assume jurisdiction and for the parties to revert to the status quo ante litem. 1. Was the order to assume jurisdiction legal?
Not all confidential employees are disqualified to unionize for the purpose of collective bargaining. Only confidential employees, who, because of the nature of their positions, have access to confidential information affecting labor-management relations as an integral part of their positions are denied the right of self-organization for purposes of collective bargaining (San Miguel Corporation Supervisors and Exempt Employees Union v. Laguesma, 277 SCRA 370, 374-375 [1997].
YES. The Secretary of Labor and Employment has the plenary power to assume jurisdiction under Article 263(g) of the Labor Code. When in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to national interest, the Secretary of Labor may assume jurisdiction over the dispute and decide it or certify it to the NLRC for compulsory arbitration [Article 263(g), Labor Code]. This extraordinary authority granted to the Secretary of Labor is aimed at arriving at a peaceful and speedy resolution to labor disputes, without jeopardizing national interests (Steel Corp. v. SCP Employees Union, 551 SCRA 594 [2008].) Such assumption shall have the effect of automatically enjoining an impending strike or lockout, or an order directing immediate return to work and resume operations, if a strike already took place, and for the employer to re-admit all employees under the same terms and conditions prevailing before the strike or lockout [Article 263(g) [now Art. 277(g]), Labor Code; Section 15, Rule XXII, Dept. Order No. 40-G-03.] 2.
A runaway shop is not automatically an act constituting unfair labor practice. ’09 – Q1c A runaway shop is not automatically an unfair labor practice. It is an unfair labor practice if the relocation that brought about the runaway shop is motivated by anti-union animus rather than for business reasons. [In relation to Art. 248(a), now Art. 258(a) of the Labor Code] In the law of labor relations, the substitutionary doctrine prohibits a new collective bargaining agent from repudiating an existing collective bargaining agreement. ’09 – Q1d The existing collective bargaining agreement (in full force and effect) must be honored by a new exclusive bargaining representative because of the policy of stability in labor relations between an employer and the workers.
Under the same set of 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? ’10 – Q19
Johnny is the duly elected President and principal union organizer of NMMR, a legitimate labor organization. He was unceremoniously dismissed by management for spending virtually 95% of his working hours in union activities. On the same day Johnny received the notice of termination, the labor union went on strike. Management filed an action to declare the strike illegal, contending that: 1. The union did not observe the “cooling-off period” mandated by the Labor Code; and
NO. The Secretary of Labor’s order will be inconsistent with the established policy of the State of enjoining the parties from performing acts that undermine the underlying principles embodied in Article 263(g) [now Art. 277(g)] of the Labor Code. In this case, excepting the employees terminated due to redundancy from whose who are required to return-to-work, which was the
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
YES. The conduct of a strike action without observing the coolingoff period is a violation of one the requirements of law which must be observed. The cooling-off periods required by Articles 263(c) and 263(f) [now Articles 277(c) and 277(f)] of the Labor Code are to enable the DOLE to exert efforts to amicably settle the controversy, and for the parties to review and reconsider their respective positions during the cooling-off periods. But the Labor Code also provides that if the dismissal constitutes union busting, the union may strike immediately. 2.
ity of the voters – have chosen not to be represented by any union? NO, because 216 workers want to be represented by a union as bargaining agent. Only 180 workers opted for “No Union.” Hence, a clear majority is in favor of being represented by a union. 3.
The union went on strike without complying with the strike-vote requirement under the Labor Code. Rule on the foregoing contentions. ’09 – Q7a & Q7b
I will conduct a run-off election between the labor unions receiving the two highest number of votes. To have a run-off election, all contending unions (3 or more choices required) must have garnered 50% of the number of votes cast. In the present case, there are four (4) contending unions and they garnered 216 votes. The votes garnered by the contending unions are even more than 50% of the number of votes cast. Hence, a run-off election is in order.
YES. The conduct of the strike action without a strike vote violates Article 263(f) [now 277(f)] – “In every case, the union or the employer shall furnish the [DOLE] the results of the voting at least seven (7) days before the intended strike...” to enable the DOLE and the parties to exert the last effort to settle the dispute without strike action. The LA 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 LA’s finding be sufficient to secure the Manager’s conviction? ’09 – Q7c
The Company and Triple-X Union, the certified bargaining agent of rank-and-file employees, entered into a CBA effective for the period from January 1, 2002 to December 31, 2007. For the 4th and 5th years, significant improvements in wages and other benefits were obtained by the Union. As early as October 2007, the Company and the Union started negotiations to renew the CBA. Despite mutual good faith and earnest efforts, they could not agree. However, no union filed a petition for certification election during the freedom period. On March 30, 2008, no CBA had been concluded. Management learned that the Union would declare a bargaining deadlock on the next scheduled bargaining meeting. On April 3, 2008, the Union declared a deadlock. In the afternoon of the same day, management issued a formal announcement in writing, posted on the bulletin board, that due to the CBA expiration on December 31, 2007, all fringe benefits contained therein are considered withdrawn and can no longer be implemented, effective immediately. 1. When was the “freedom period” referred to in the foregoing narration of facts?
NO. The administrative proceedings shall not be binding on the criminal case or be considered as evidence of guilt, but merely as proof of compliance with the requirements to file the said criminal case for the commission of an unfair labor practice. Government employees have the right to organize but will incur administrative liability if they join concerted mass actions. ’09 – Q11c Government employees have the right to organize, but they may be held liable for engaging in concerted mass actions, it being a prohibited activity under CSC Law (E.O. 180.) The right of the government employees to organize is limited to the formation of unions or associations without including the right to strike (Gesite v. Court of Appeals, 444 SCRA 51 [2004].)
The freedom period or the time within which a petition for certification election to challenge the incumbent collective bargaining agent may be filed is from sixty (60) days before the expiry date of the CBA.
Among the 400 regular rank-and-file workers of MNO Company, a certification election was ordered conducted by the Med-Arbiter of the Region. The contending parties obtained the following votes: Union A
70
Union B
71
Union C
42
Union D
33
No Union
180
Spoiled votes
4
2.
After April 3, 2008, will a petition for certification election filed by another legitimate labor union representing the rank-and-file employees legally prosper?
YES, because the deadlock declared by the Union had not been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout. Any of these measures is required to institute the so-called “deadlock bar rule.” 3.
Is management’s withdrawal of the fringe benefits valid?
NO. Pending renewal of the CBA, the parties are bound to keep the status quo and to treat the terms and conditions embodied therein still in full force and effect, until a new agreement is reached by the union and management. This is part and parcel of the duty to bargain collectively under Article 253 [now Art. 263] of the Labor Code.
There were no objections or challenges raised by any party on the results of the election. 1. Can Union B be certified as the sole and exclusive collective bargaining agent among the rank-and-file workers of MNO considering that it garnered the highest number of votes among the contending unions?
4.
If you were the lawyer for the union, what legal recourse or action would you advise? ’09 – Q16
I would recommend the filing of an unfair labor practice against the employer for violating the duty to bargain collectively under Article 248(g) [now Art. 258(g)] of the Labor Code. This arbitration case also institutes the “deadlock bar” that shall prevent any other union from filing a certification election.
NO. To be certified as bargaining agent, the vote required is majority of the valid votes cast. There were 396 valid votes cast, the majority of which is 199. Since Union B only for 71 votes, it cannot be certified as the sole and exclusive bargaining agent of MNO’s rankand-file workers. 2.
If you were the duly designated election officer in this case, what would you do to effectively achieve the purpose of certification election proceedings? ’09 – Q15
On the day that the Union could validly declare a strike, the SOLE issued an order assuming jurisdiction over the dispute and enjoining the strike, or if one has commenced, ordering the striking workers to immediately return to work. The return-to-work order required the employees to return to work within 24 hours and was served at 8 AM of the day the strike was to start. The order at the
May the management or lawyer of MNO legally ask for the absolute termination of the certification election proceedings because 180 of the workers – a clear plural-
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
same 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 so. On the 3rd day, the workers reported for work, claiming that they did so in compliance with the Secretary’s return-to-work order that binds them as well as the Company. The Company, however, refused to admit them back since they had violated the Secretary’s return-to-work order and are now considered to have lost their employment status. The Union officers and members filed a complaint for illegal dismissal arguing that there was no strike but a protest rally which is a valid exercise of the workers’ constitutional right to peaceable assembly and freedom of expression. Hence, there was no basis for the termination of their employment. You are the LA to whom the case was raffled. Decide, ruling on the following issues: 1. Was there a strike?
A new provision, Article 239-A [now Art. 247], was inserted into the Labor Code by R.A. No. 9481, as follows: “Art. 247 [239-A]. Voluntary Cancellation of Registration. – The registration of a legitimate labor organization may be cancelled by the organization itself. Provided, That at least two-thirds (2/3) of its general membership votes, in a meeting duly called for that purpose to dissolve the organization; Provided further; That an application to cancel registration is thereafter submitted by the board of the organization, attested to by the president thereof.” If indeed the local union was dissolved in accordance with the above provision of law, the argument of “Puwersa” is not tenable. This is so because “Puwersa” only had the status of an agent, while the local union remained the basic unit of the association (Liberty Cotton Mills Workers Union v. Liberty Cotton Mills, Inc., 66 SCRA 512 [1975]; cited in Filipino Pipe and Foundry Corp. v. NLRC, G.R. No. 115180, November 16, 1999.) Explain the Globe Doctrine. ’07 – Q4a
YES, there was a strike because if the concerted action of work by the union members (Article 212(o) [now Art. 219(o)] of the Labor Code.) 2.
Under the Globe Doctrine, the bargaining units may be formed through separation of new units from existing ones whenever plebiscites had shown the workers’ desire to have their own representatives (Globe Machine and Stamping Co., 3 NLRB 294, applied in Democratic Labor Union v. Cebu Stevedoring Co., 103 Phil. 1103 [1958].)
Were the employees simply exercising their constitutional right to petition for redress of their grievances?
NO, there was a defiance of the assumption order of the Secretary of Labor by the union. The assumption order is immediately executory. Following an assumption order by the strikers is not a matter of option or voluntariness but of obligation on their part (Marcopper Mining Corp. v. Brillantes, G.R. No. 11981, March 11, 1999; Art. 264(a) [Now Art. 278(a)].) 3.
Explain the Community of Interest of Rule. ’07 – Q4b The Community of Interest of Rule states that in choosing the appropriate bargaining unit, there must be a determination of the community of interests of the employees. A bargaining unit under Department Order No. 40-03 refers to a “group of employees sharing mutual interests within a given employer unit, comprised of all or less than all of the entire body of employees in the employer unit or any specific occupation or geographical grouping within such employer unit. The test grouping is community or mutuality of interests, such as substantial similarity of works and duties or of compensation and working conditions, because the basic test asserted is whether or not it is fundamentally the combination which will best assure to all employees the exercise of their collective bargaining rights.
What are the consequences, if any, of the acts of the employees? ’08 – Q6
Defiance of the return-to-work order of the Secretary after he has assumed jurisdiction is a ground for loss of the employment status of any striking officers or member (Telefunken Semiconductors Employees Union-FFW v. Court of Appeals, G.R. Nos. 143013-14, December 18, 2000). However, this rule should not apply to the employees who failed to return because of the accompanying picket that blocked the free egress and ingress to and from the company.
Discuss the legal requirements of a valid strike. Should these requisites be complied with substantially or strictly? ’07 – Q9; ’04 – Q2b(1)
The rank-and-file union staged a strike in the company premises which caused the disruption of business operations. The supervisors’ union of the same company filed a claim for unpaid salaries for the duration of the strike, arguing that the supervisors’ failure to report to work was not attributable to them. The company contended that it was equally faultless, for the strike was not the direct consequence of any lockout or unfair labor practice. May the company be held liable for the salaries of the supervisors? ’08 – Q13
The legal requirements of a valid strike are as follows: 1. No labor union may strike on grounds involving inter-union or intra-union disputes; 2. In cases of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike with the Department of Labor of Employment at least thirty (30) days before the intended date thereof. In case of unfair labor practice, the period of the notice shall be fifteen (15) days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and bylaws, which may constitute union busting where the existence of union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately. 3. A decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in meetings or referenda called for that purpose. 4. In every case, the union shall furnish the Department of Labor and Employment the results of the voting at least seven (7) days before the intended strike subject to the coolingoff period herein provided. 5. No labor organization shall declare a strike without first having bargained collectively; without first having filed the notice required or without the necessary strike vote first having
NO, following the “No Work No Pay” principle, the supervisors are not entitled to their money claim for unpaid salaries. They should not be compensated for services skipped during the strike. The age-rule governing relations between labor and capital, or management and employee of a “fair day’s wage for a fair day’s labor” remains as the basic factor in determining employees’ wages (Aklan Electric Cooperative, Inc. v. NLRC, G.R. No. 121439, January 25, 2000.) “Puwersa”, a labor federation, after having won in a certification election held in the company premises, sent a letter to respondent company reminding it of its obligation to recognize the local union the federation represents and to enter into a CBA with the local union. Respondent company replied that though it is willing, the rank-and-file employees already lost interest in joining the local union as they had dissolved it. “Puwersa” argued that since it won in a certification election, it can validly perform its function as a bargaining agent and represent the rank-and-file employees despite the union’s dissolution. Are the arguments of “Puwersa” tenable? ’08 – Q14
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
6.
7.
been obtained and reported to the Department of Labor and Employment. No strike shall be declared after assumption of jurisdiction by the President or the Secretary or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike. In a strike, no person engaged in picketing should commit any act of violence, coercion or intimidation or obstruct the free ingress to or egress from the employer’s premises for lawful purposes, or obstruct public thoroughfares.
have committed illegal acts during the strike who can be declared as having lost their employment status. 2.
Assuming the company admits all thee strikers, can it later on dismiss those employees who committed illegal acts?
Even is as its initial response, the company admitted all the strikers, the company is not estopped from afterwards dismissing those employees who committed illegal acts during the strike. Article 264 [now Art. 278] of the Labor Code states that “any worker xxx who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status.”
The above requisites are to be complied with strictly. Thus, the Supreme Court has ruled that non-compliance of the requirements of notice or strike vote or of the waiting periods makes a strike an illegal strike.
3.
Some officers and rank-and-file members of the union staged an illegal strike. Their employer wants all the strikers dismissed. As lawyer, what will you advise the employer? ’07 – Q15
If due to the prolonged strike, ROSE Corporation hired replacements, can it refuse to admit the replaced strikers? '06 - Q11
ROSE Corporation cannot refuse to admit the strikers if they did not commit any illegal acts during a lawful strike. The Labor Code is very clear: Workers who went on strike have not lost their employment status even if the company had hired their replacements
I will advise the employer that not all the strikers can be dismissed. Any union officer who knowingly participates in an illegal strike may be declared to have lost his employment status but a worker who is not a union officer may be declared to have also lost his employment status only if he commits illegal acts during a strike (CCBPI Postmix Workers Union v. NLRC, 299 SCRA 410 [1998].)
Can a “no-union” win in a certification election? ’06 – Q13(1) . YES, because the objective in a certification election is to ascertain the majority representation of the bargaining representative, if the employees desire to be represented at all by anyone. Hence, “no union” is one of the choices in a certification election.
The modes of determining an exclusive bargaining agent are: 1. Voluntary recognition; 2. Certification election; 3. Consent election Explain briefly how they differ from one another. ’06 – Q8; ’12 – Q7b
When does a “run-off” election occur? ’06 – Q13(2) A “run-off” election or second election occurs when an election which provides for three (3) or more choices results in no choice receiving a majority of the valid votes cast, and no objections or challenges have been presented which, if sustained, can materially change the results; the election officer shall motu propio conduct a run-off election within 10 calendar days from the close of the election proceedings between the labor unions receiving the 2 highest number of votes; provided that, the total number of votes of all contending unions is at least fifty per cent (50%) of the number of votes cast (Rule X, Dept. Order No. 40-03.)
There is a voluntary recognition when in an unorganized establishment with one legitimate labor organization, the employer voluntarily recognized the representation status of such a union. Within thirty (30) days from such recognition, the employer and union shall submit a notice of voluntary recognition with the Regional Office of the Department of Labor and Employment which issued the recognized labor union’s certificate of registration or certificate of a chartered local. Certification election refers to the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit for purposes of collective bargaining or recognition. A certification election is ordered by the Department of Labor and Employment, while a consent election is voluntarily agreed upon by the parties, with or without the intervention by the Department.
As HRD Manager of EZ Components, an unorganized manufacturer of electric and electronic components for household appliances, you are suddenly confronted with demands for recognition and collective bargaining negotiations from two competing labor unions. They both claim to represent all the rank-and-file employees. Union A is led by a moderate faction, while Union B is affiliated with a militant federation identified with leftist ideology. Which of the following courses of action should you take to best protect the interests of your company and employees? (a) Recognize Union A as the rightful bargaining representative because it will be more reasonable to deal with; (b) Recognize Union B because you do not want to antagonize its leftist connections and foment inter-union conflicts; (c) Ignore the demands of either union since you cannot be compelled legally to deal with them at this stage; or (d) Petition the Bureau of Labor Relations to conduct a certification election to determine which union really represents the majority of the employees in the appropriate bargaining unit. ’05 – Q1(1)
When the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit is not ordered by the Department of Labor and Employment, but has been voluntarily agreed upon by the parties with or without the intervention of the Department of Labor and Employment, then the process is a consent election. As a result of bargaining deadlock between ROSE Corp. and ROSE Employees Union, its members staged a strike. During the strike, several employees committed illegal acts. The company refused to give in to the union's demands. Eventually, its members informed the company of their intention to return to work. 1. Can ROSE Corporation refuse to admit all the strikers? Article 264 [now Art. 278] of the Labor Code provides that “mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of employment even if a replacement had been hired by the employer during such lawful strike.” On the other hand, the same Article of the Labor Code also provides: “Any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status.” Because of the above-quoted provisions of the Labor Code, ROSE Corporation cannot refuse to admit all the strikers who inform the company of their intention to return to work, except those who may
D. Petition the Bureau of Labor Relations to conduct a certification election to determine which union really represents the majority of the employees in the appropriate bargaining unit. Under Article 258 [now Art. 269] of the Labor Code, when requested to bargain collectively, an employer may petition the Bureau for an election. A group of employees in XYZ Factory belonging to a religious sect, in conformity with the teachings and dictates of their religion, refused to join the labor union in the factory. The labor union was able to negotiate a substantial wage increase in its
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
CBA with management. A provision therein stated that the wage increase would be paid to the members of the union only in view of a "closed shop" union security clause in the new agreement. The members of the sect protested and demanded that the wage increase be extended to them. The officers of the union countered by demanding their termination from the company pursuant to the "closed shop" provision in the just-concluded CBA. 1. Is the CBA provision valid?
Distinguish between Social security and union security. '04 Q2b(5) SOCIAL SECURITY is the protection given by social insurance programs such as the programs of the SSS, GSIS and PHIC undertaken pursuant to their respective charters, including the employees compensation program provided for in the Labor Code. The aforesaid programs provide income benefits and/or medical care when contingencies like sickness, (also maternity in the case of SSS) disability, death, or retirement, including in the case of the GSIS, separation and unemployment benefits. On the other hand, UNION SECURITY refers to a clause in a collective bargaining agreement whereby the employer agrees to employ or continue in employment only workers who are members of the exclusive collective bargaining representative of the employees of said employer in a bargaining unit.
NO, the CBA provision is not valid. The benefits of a CBA are extendible to all employees regardless of their membership in the union because to withhold the same from non-union members would be to discriminate against them (National Brewery & Allied Industries Labor Union of the Philippines v. San Miguel Brewery, Inc., 8 SCRA 805 [1963].) 2.
Should the company comply with the union's demand of terminating the members of the religious sect? ’05 – Q6
Distinguish between Sympathy strike and general strike. ’04 – Q2a(1)
Which of the following may be considered among industries most vital to national interest as to be the subject of immediate assumption of jurisdiction by the Secretary of Labor and Employment or certification for compulsory arbitration in case of strike or work stoppage arising from a labor dispute? (1) Bulletin daily newspaper publishing company; (2) Local franchise of Jollibee and Starbucks. (3) Shipping and port services in Cebu and Manila. (4) Enchanted Kingdom, Elephant Island and Boracay Resort. (5) LBC, DHL and FedEx centers. Justify your answer or choice. '04 - Q3a
In both a sympathy strike and in a general strike, there is a stoppage of work by the concerted action of employees. In both kinds of strike, the strike is not the result of a labor or industrial dispute. As the name implies, workers go on a SYMPATHY STRIKE to show their sympathy for certain workers who are on strike. On the other hand, in a GENERAL STRIKE, workers in the country or in a region, province, or city or municipality go on a strike to publicly protest a certain policy or action taken by the government. Thus, for instance, a general strike may be declared by workers to publicly protest the stand of President Arroyo that she is against an increase of the minimum wage at this time.
Certification of labor dispute for immediate assumption of jurisdiction by the Secretary of the Department of Labor and Employment, as indispensable to national interest [Art. 263(g), [now Art. 277(g), Labor Code]. 1. Bulletin Daily Newspaper. Access to information, e.g., local, foreign, or otherwise are requirements for an informed citizenry. 2. Shipping and port services in Cebu and Manila. The country needs domestic sea transport due to our topography and for the smooth flow of business and government operations. 3. LBC, DHL, FEDEx Centers. Couriers are essential to foreign and domestic business and government operations.
Distinguish between Company union and union shop. '04 - Q2a(2)
MPH Labor Union is the duly certified bargaining representative of the rank-and-file employees of MM Park Hotel since the 1970’s. The CBA contained union shop security provisions. After the signing of the 2000– 2005 CBA, the Union demanded the dismissal of 3 employees, XX, YY and ZZ, pursuant to the union security clause in the CBA. The Hotel Management replied that it was legally impossible to comply with the demand of the Union. It might even be construed as unfair labor practice. For it appeared that XX, YY and ZZ had been recently promoted as supervisors and resigned from the Union. But according to the Union, the 3 submitted their resignations outside the freedom period after the 1996–2000 CBA expired on June 30, 2000. The Union argued that the Hotel Management could not skirt its obligation to respect and implement the union security clause by promoting the three employees. That could be viewed as rewarding employees for their disloyalty to the union, said the union officers. 1. Does the union security clause sufficiently justify the demand for dismissal of the three employees or not?
NO, the company should not comply with union’s demand. In the case of Victoriano v. Elizalde Rope Workers’ Union, 59 SCRA 54 (1974), religious freedom is superior to the freedom to contract. In the hierarchy of values, religious freedom takes a preferred position and the right to contract must yield. Accordingly, the CBA provision which is contractual in nature must not prevail over the duty to respect the worker’s constitutional right to religious freedom.
A COMPANY UNION is a union of employees dominated or under the control of the employer of said employees. A UNION SHOP, on the other hand, refers to a union security clause in a collective bargaining agreement whereby the employer agrees to terminate the employment of an employee who has not become a member of the union which is the exclusive collective bargaining representative of the employees in a bargaining unit within a certain period after the employment of said employee or has ceased to become a union member. Distinguish between Lock-out and Closed Shop. '04 - Q2a(3) LOCKOUT refers to the temporary refusal of an employer to furnish work as a result of a labor or industrial dispute. CLOSED SHOP, on the other hand, refers to a union security clause in a collective bargaining agreement whereby the employer agrees not to employ any person who is not a member of the exclusive collective bargaining representative of the employees in a bargaining unit. Distinguish between Consent election and certification election. '04 - Q2a(4)
NO. The Union Security Clause does not justify the dismissal of the promoted supervisors who were formerly members of the rankand-file union.
A certification election and a consent election are both elections held to determine through secret ballot the sole and exclusive representative of then employees in an appropriate bargaining unit for the purpose of collective bargaining or negotiations. There is this difference, however, a CERTIFICATION ELECTION is ordered by the Department of Labor and Employment while a CONSENT ELECTION is voluntarily agreed upon by the parties, with or without the intervention of the Department of Labor and Employment.
2.
May the Hotel Management validly refuse the Union’s demand? ’04 – Q5
YES. The Hotel Management may validly refuse to dismiss the supervisors. As supervisors, they are no longer covered by the CBA of the employer and the rank-and-file union. The law does not require a promoted supervisor to resign upon promotion from their membership in
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
the rank-and-file union; rather, by operation of law, they can no longer continue their membership with the rank-and-file union. Article 245 [now Art. 254] of the Labor Code provides that supervisory employees shall not be eligible for membership in a labor organization of the rank-and-file employees but may join, assist, or form separate labor organizations of their own.
for 10 to 15 years with no improvement in working conditions and monetary benefits. The leaders of the workers’ association approached you and asked: what legal steps could they take to protect their security of tenure? What advice could you give them? '04 - Q9a I would advise them to register the workers' association with the Department of Labor and Employment. Then, have the workers' association file a unfair labor practice case against the employer.
The CBA between the Company and the rank-and- file Union contained the following provision: “Section 3. MEAL ALLOWANCE. The Company agrees to grant a MEAL ALLOWANCE of TEN PESOS (P10.00) to all employees who render at least TWO (2) hours or more of actual overtime work on a workday, and FREE MEALS, as presently practiced, not exceeding TWENTY FIVE PESOS (P25.00) after THREE (3) hours of actual overtime work.” Dispute in the interpretation of the above provision arose as the Company asserts that the phrase “after three (3) hours of actual overtime work” does not mean after exactly three (3) hours of actual overtime work; it means after more than three (3) hours of actual overtime work. The Union, on the other hand, maintained that “after three (3) hours of actual overtime work” simply means after rendering exactly, or no less than, three (3) hours of actual overtime work. Which interpretation do you think should prevail? '04 - Q5b
Another Suggested Answer: The workers are entitled to the constitutional (Art. XIII, Sec. 3, 1987 Constitution) and statutory (Art. 279 [now Art. 293], Labor Code) guarantees of security of tenure. When this right to security of tenure is violated, an action for illegal dismissal is an available remedy. If they are dismissed because of union activities, an action for unfair labor practice can be filed (Sec. 3, Art. XIII, Constitution; Art. 243 [now Art. 252], Labor Code.) If successful, the workers will be entitled to full backwages, including money value of benefits, and reinstatement without loss of seniority (Art. 279 [now Art. 293], Labor Code). A, B, C and D (treasurer, accountant, elementary department Principal, and secretary of the Director, respectively), regular employees of a private educational institution, were administratively charged for their participation in a picket held in front of the campus after office hours. Several faculty members, non-academic staff and students joined the peaceful prayer rally organized by disgruntled employees to protest certain alleged abuses of the incumbent School Director. Subsequently, the rank-and-file employees succeeded in forming the first and only union of the School. During the investigation, the administration discovered that two (2) days prior to the rally, A, B, C and D attended the meeting of the School’s employees’ association which planned the protest activity. Two well-known organizers/leaders of a national labor federation were also present. A, B, C and D were dismissed by the School on the ground of violating the Labor Code which prohibits managerial employees to “join, assist or form any labor organization”. Is the contention of the School tenable? Is the dismissal of A, B, C and D valid? ’04 – Q9b
The interpretation of the Union should prevail. In a Supreme Court decision, it was ruled that the condition “after three (3) hours of actual overtime work” is satisfied after exactly three (3) hours of actual overtime work. FX, head of a newly formed labor union composed of 1/3 of the total number of rank-and- file employees in Super Stores, Inc., agitated his fellow employees to demand from management pay increases and OT pay. His supervisor summoned him to explain his tardiness and refusal to obey regulations. Feeling threatened, he gathered 20 of his members and staged a 2-day picket in front of the shopping mall. Security staff arrived and dismantled the placards and barricades blocking the employees’ entry to the mall. In retaliation, FX threw stones at the guards, but the other striking workers just stood by watching him. 7 days after the picket, FX who had gone AWOL returned to the mall and announced that he had filed a complaint for illegal dismissal and unfair labor practice against SSI. SSI learned that FX’s group was not registered. No strike vote and strike notice were filed prior to the picket. The guards were told not to allow FX entry to the company premises as management considered him effectively terminated. Other union members were accepted back to work by SSI. Was the dismissal of FX for a valid cause? Was due process observed? '04 - Q6b
The dismissal of A, B, C and D on the ground that they violated the Labor Code provision which states that managerial employees "are not eligible to join, assist or form any labor organization" is not valid. The Labor Code does not provide for any sanction for the aforesaid acts. These acts could not be considered as just cause for the termination of employment, either. Another Suggested Answer:
There is a valid cause for the dismissal of FX, but due process was not observed. Peaceful picketing is part of the constitutional freedom of speech. The right to free speech, however, has its limits, and picketing as a concerted activity is subject to the same limitations as a strike, particularly as to lawful purpose and lawful means. But it does not have to comply with the procedural requirements for a lawful strike, like the notice of strike or the strike vote. However, in the problem given, picketing became illegal because of unlawful means, as barricades blocked the employees' entry to the mall, and violence, ensued when FX threw stones at the guards. There was thus, valid cause for the dismissal of FX. However, due process was not observed because SSI did not comply with the twin requirements of notice and hearing.
The dismissal of the managerial employees is invalid. The dismissal of the management employees because of union activities, no matter how erroneous or tenuous may be the basis of the exercise, is a violation of the constitutional and statutory guaranteed rights of selforganization, and an act of unfair labor practice (Sec. 3, Art. XIII, Constitution; Art. 243 [now Art. 252], Labor Code. See also Art. 248 (a) [now Art. 258(a)], Labor Code). Employees of ABC declared a strike after filing a Notice of Strike with the DOLE. They barricaded company gates and damaged vehicles entering company premises. On the 2nd day of the strike, ABC filed a petition with the DOLE Secretary to intervene through the issuance of an assumption of jurisdiction order that the Secretary may issue when a strike or lock-out will adversely affect national interest. ABC furnished the Secretary with evidence to show that company vehicles had been damaged; that electric power had been cut off; and equipment and materials were damaged because electric power was not immediately restored. ABC forecast that the country’s supply of chlorine for water treatment (which the company produces) would be affected adversely if ABC’s operations were closed down by the strikers. Could the DOLE Secretary intervene, assume jurisdiction and issue a TRO? '04 - Q10a
Around 100 workers of a mill in a coconut plantation organized themselves for the purpose of promoting their common interest and welfare. The workers’ association prepared a petition for increasing the daily pay of its members in compliance with minimum wage rates for their sector in the region, and for granting benefits to which they are entitled under the law. However, the workers became restless and anxious after the owner-manager threatened them with mass lay-off if the association would press for their demands. Most of its members have worked in the mill
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
YES, the Secretary of Labor and Employment can assume jurisdiction over the dispute because ABC could be considered as an industry indispensable to the national interest since it produces the country’s supply of chlorine for water treatment. The assumption of jurisdiction by the Secretary of Labor and Employment has the effect of ending the strike. The strikers will be subject to a return to work order by the Secretary of Labor and Employment upon her assumption of jurisdiction.
The Labor Code provides that a union officer who knowingly participates in an illegal strike loses his employment status. Thus, the union officers were legally dismissed. But for a union member to lose his employment status, he should have committed illegal acts during the strike, like acts of violence, coercion or intimidation or obstruction of ingress to or egress from the employer's premises for lawful purposes or obstruction of public thoroughfares. The union members, including Cesar Trino, did not commit any of these acts. Thus, it would be illegal to dismiss them.
Because of alleged “unfair labor practices” by the management of GFI System, a GOCC, its employees walked out from their jobs and refused to return to work until the management would grant their union official recognition and start negotiations with them. The leaders of the walk-out were dismissed, and the other participants were suspended for 60 days. In arguing their case before the CSC, they cited the principle of social justice for workers and the right to self-organization and collective action, including the right to strike. They claimed that the Constitution shielded them from any penalty because their walk-out was a concerted action pursuant to their rights guaranteed by the basic law. Is the position taken by the walk-out leaders and participants legally correct? '04 - Q10b
There are instances when a certification election is mandatory. What is the rationale for such a legal mandate? '03 - Q7 According to the Labor Code, in any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by a legitimate labor organization. In the above-described situation, a certification election is made mandatory because if there is no certified bargaining agent as determined by a certification election, there could be no collective bargaining in the said unorganized establishment. At what particular point does a labor organization acquire a legal personality? a) On the date the agreement to organize the union is signed by the majority of all its members; or b) On the date the application for registration is duly filed with the Department of Labor; or c) On the date appearing on the Certificate of Registration; or d) On the date the Certificate of Registration is actually issued; or e) None of the above. Choose the correct answer. '03 - Q10
The position taken by the walk-out leaders and participants is not legally correct. They are government employees, and as such, they do not have the right to strike. According to the actual wording of Section 3 of Article XIII of the Constitution, the State "shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities including the right to strike in accordance with law." Thus, the last clause of the above-quoted provision of the Constitution makes it very clear: the right to strike is not constitutional; it is statutory because the right should be "in accordance with law". And there is as yet no law giving government employees the right to strike. In a labor dispute, the Secretary of Labor issued an "Assumption Order". Give the legal implications of such an order. '03 - Q3
D. On the date the Certificate of Registration is actually issued. Any applicant labor organization, association or group of unions or workers shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration.
Under Art. 263(g) [now Art. 277(g)] of the Labor Code, such assumption shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption order. If one had already taken place at the time of assumption, all striking or lockout employees shall immediately return to work and the employer shall immediately resume operations and re-admit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same. The mere issuance of an assumption order by the Secretary of Labor automatically carries with it a return-to-work order, even if the directive to return to work is not expressly stated in the assumption order. Those who violate the foregoing shall be subject to disciplinary action or even criminal prosecution. Under Art. 264 [now Art. 278] of the Labor Code, no strike or lockout shall be declared after the assumption of jurisdiction by the Secretary.
Malou is the Executive Secretary of the Senior VP of a bank while Ana is the Legal Secretary of the bank's lawyer. They and other executive secretaries would like to join the union of rank and file employees of the bank. Are they eligible to join the union? ’02 – Q6a The following rules will govern the right of self-organization of Malou, Ana, and the other Executive Secretaries; 1. No Right to Self-Organization — Confidential employees who act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor management relation. The two criteria are cumulative and both must be met (San Miguel Corporation Union v. Laguesma, 277 SCRA 370 [1997].) 2. With Right to Self-Organization — When the employee does not have access to confidential labor relations information, there is no legal prohibition against confidential employees from forming, assisting, or joining a labor organization (Sugbuanon Rural Bank, Inc. v. Laguesma, 324 SCRA 425 (2000].) 3. No right of self-organization for Legal Secretaries — Legal Secretaries fall under the category of confidential employees with no right to self-organization. (Pier & Arrastre Stevedoring Services, Inc. v. Confesor, 241 SCRA 294 [1995].)
Magdalo, a labor union in Oakwood, a furniture manufacturing firm, after failing in its negotiations with Oakwood, filed with the DOLE a notice of strike. The DOLE summoned Magdalo and Oakwood for conciliation hearings to resolve the deadlock. Unable to agree despite efforts of the DOLE, Magdalo called a strike participated in by its officers and union members including Cesar Trinio, a rank-and-file employee, who led the "walk out." Oakwood filed a petition to declare illegal the strike which Magdalo staged without observing the 7-day ban under the Labor Code. Oakwood claimed that the strike being illegal, all those who participated therein, including Cesar Trinio, could be dismissed as, in fact, they were so dismissed by Oakwood. Decide. ’03 – Q4
Mang Bally, owner of a shoe repair shop with only 9 workers in his establishment, received proposals for collective bargaining from the Bally Shoe Union. Mang Bally refused to bargain with the workers for several reasons. 1st, his shoe business is just a service establishment. 2nd, his workers are paid on a piecework basis (i.e., per shoe repaired) and not on a time basis. 3rd, he has less than 10 employees in the establishment. Which reason or reasons is/are tenable? ’02 – Q6b
When Oakwood dismissed all the officers and members of the union who participated in the strike which was declared illegal because it was staged without observing the seven-day ban under the Labor Code, Oakwood illegally dismissed the union members, including Cesar Trinio.
None. First, Mang Bally's shoe business is a commercial enterprise, albeit a service establishment. Second, the mere fact that the
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workers are paid on a piece-rate basis does not negate their status as regular employees. Payment by piece is just a method of compensation and does not define the essence of the relation. (Lambo v. NLRC, 317 SCRA 420 [1999].). Third, the employees' right to self-organization is not delimited by their number. The right to self-organization covers all persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational Institutions whether operating for profit or not (Article 243 [now Art. 252], Labor Code.)
Union members may be expelled from the labor organization only on valid grounds provided for in the Union Constitution, By-Laws, or conditions for union membership. Another Suggested Answer: Whenever appropriate for any violation of the rights as: 1. Refusal to pay union dues and special assessments; 2. Disloyalty to the union; and 3. Violation of the constitution and by-laws of the union.
The union deducted P20.00 from Rogelio's wages for January. Upon inquiry he learned that it was for death aid benefits and that the deduction was made pursuant to a board resolution of the directors of the union. Can Rogelio object to the deduction? ’02 – Q7
Company A and Union B had a 3-year CBA that expired on June 12, 1990. Negotiations proved futile so the unresolved issues were referred to an Arbiter who rendered a decision on March 15, 1992 retroactive to December 14, 1990. Is the Arbiter's decision providing for retroactivity tenable or not? ’01 – Q1
YES. In order that the special assessment (death aid benefit) may be upheld as valid, the following requisites must be compiled with: (1) Authorization by a written resolution of the majority of all the members at the general membership meeting duly called for the purpose; (2) Secretary's record of the meeting; and (3) Individual written authorization for the check-off duly signed by the employee concerned (ABSCBN Supervisors Employees Union Members v. ABS-CBN Broadcasting Corp. and Union Officers, 304 SCRA 489 [1999].) In the problem given, none of the above requisites were complied with by the union. Hence, Rogelio can object to the deduction made by the union for being Invalid.
The referral of the unresolved issues of the collective bargaining negotiations to an Arbiter is not within the jurisdiction of the Arbiter. But assuming that the unresolved issues in the collective bargaining negotiations were properly referred to the Arbiter pursuant to the provision of the Labor Code (Article 262 [now Art. 276]) that states that a Voluntary Arbitrator may hear and decide any labor dispute, including bargaining deadlocks, the Arbiter's decision providing for retroactivity is tenable. Exercising his compulsory arbitration power, the Arbiter could decide the issue of retroactivity in any way which is not contrary to law, morals, good customs, public order or public policy. But in a case (Manila Electric Co v. Secretary of Labor Leonardo Quisumbing, G.R. No. 127598 February 22, 2000), the Supreme Court said that an arbitral award shall retroact to the first day after the sixmonth period following the expiration of the last day of the CBA that was being re-negotiated.
Eaglestar Company required a 24-hour operation and embodied this requirement in the employment contracts of its employees. The employees agreed to work on Sundays and Holidays if their work schedule required them to do so for which they would be paid additional compensation as provided by law. Last March 2000, the union filed a notice of strike. Upon Eaglestar's petition, the Secretary of Labor certified the labor dispute to the NLRC for compulsory arbitration. On April 20, 2000 (Maundy Thursday), while conciliation meetings were pending, the union officers and members who were supposed to be on duty did not report for work. Neither did they report for work on April 21 (Good Friday) and on April 22 (Black Saturday), disrupting the factory's operations and causing it huge losses. The union denied it had gone on a strike because the days when its officers and members were absent from work were legal holidays. Is the contention of the union correct? '02 - Q2
Company "A" contracts out its clerical and janitorial services. In the negotiations of its CBA, the union insisted that, henceforth, the company may no longer engage in contracting out these types of services, which services the union claims to be necessary in the company's business, without prior consultation. Is the union's stand valid or not? ’01 – Q2a The union's stand is not valid. It is part of management prerogative to contract out any work, task, job or project except that it is an unfair labor practice to contract out services or functions performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization (Article 248(c) [now Art. 258(c) of the Labor Code.)
The contention of the union is NOT correct. In the case, it is clear that the employees agreed to work on Sundays and Holidays if their work schedule required them to do so for which they would be paid additional compensation as provided by law. The above-mentioned agreement that the employees voluntarily entered into is valid. It is not contrary to law. It is provided in the agreement that if they will work Sundays or Holidays that they will be paid additional compensation as provided by law. Neither is the agreement contrary to morals, good customs, public order or public policy. Thus, when the workers did not report for work when by agreement they were supposed to be on duty, there was a temporary stoppage of work by the concerted action of the employees as a result of an industrial or labor dispute because they were on strike (Interphil Laboratories Employees Union-FFW v. Interphil Laboratories Inc., 372 SCRA 658 [2001].)
Another Suggested Answer: The union's stand that there must be a prior consultation by the employer with the union before contracting out can be effected is valid. Article XIII, Section 3 of the Constitution, and Article 255 [now Art. 266) of the Labor Code guarantee the right of workers to participate in policy and decision making processes which affect their rights and benefits. Job contracting will undoubtedly and directly affect their rights, benefits and welfare (Philippine Airlines v. NLRC, 255 SCRA 301 [1993]; and Manila Electric Company v. Quisumbing, 302 SCRA 173 [1999].) Company "A" and Union "B" negotiated the last 2 years of their 5year CBA on April 1, 1990 to expire on March 31, 1992. Considering the amicable relations between the parties, neither one moved for the extension or termination of the agreement. Sometime in 1995, some disgruntled employees filed a complaint demanding that they be paid the annual salary increases and other related annual increases specified in the CBA of April 1990, citing the provision in Art. 253 [now Art. 263) of the Labor Code which requires the parties to "xxx keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60 day period and/or until a new agreement is reached by the parties". A, however, maintained that the annual salary increases and related benefits specifically provided for in the CBA were, pursuant to contract and law, effective only for the term specified therein, namely, until March 31, 1992 only. Who is correct? ’01 – Q7
Do employees of a cooperative have a right to form a union? ’02 – Q18b Employees who are members of a cooperative cannot form a union because, as members, they are owners and owners cannot bargain with themselves. However, employees who are not members of the cooperative can form a union (San Jose City – Electric Service Cooperative, Inc. v. Ministry of Labor, 173 SCRA 697, [1989].) On what ground or grounds may a union member be expelled from the organization? '02 - Q19a
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The disgruntled employees are correct in their claim that the expired CBA remains in full force and effect until a new CBA is signed in accordance with Article 253 [now Art. 263] of the Labor Code. The SC ruled in New Pacific Timber and Supply Co., Inc. v. NLRC, 328 SCRA 424 [2000]: "Article 253 [now Art. 263] of the Labor Code explicitly provided that until a new Collective Bargaining Agreement has been executed by and between the parties, they are duly bound to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement. The law does not provide for any exception or qualification as to which of the economic provisions of the existing agreement are to retain force and effect, therefore, it must be understood as encompassing all the terms and conditions in the said agreement."
NO, SIGAW's case will not prosper. The application of technicalities of procedural requirements in certification election disputes will serve no lawful objective or purpose. It is a statutory policy that no obstacles should be placed on the holding of a certification election, (Samahang ng Manggagawa sa Pacific Plastic v. Laguesma 267 SCRA 203 [1997]) and that the law is indisputably partial to the holding of a certification election (Western Agusan v. Trajano, 196 SCRA 622 [1991].) At any rate, UNIDAD completed all the requirements for union registration on July 14, 2001, and legitimate union status was accorded on July 15, 2001, or at least ten (10) days before the scheduled date for holding the Certification Election.
Another Suggested Answer:
YES, workers decide whether they will or will not become members of a labor organization. That's why a union's constitution and bylaws need the members' adoption and ratification. Moreover, if they are members of a religious group whose doctrine forbids union membership, their right not to be compelled to become union members has been upheld. However, if the worker is not a "religious objector" and there is a union security clause, he may be required to join the union if he belongs to the bargaining unit (Reyes v. Trajano, 209 SCRA 484 [1992].)
Do workers have a right not to join a labor organization? ’00 – Q4a
With Art. 253 [now Art. 263] of the Labor Code as basis, the disgruntled employees should be paid the annual salary increases and other related annual increases provided in the 1990-1992 CBA even after the expiration of said CBA as long as said CBA did not provide that said increases were to be paid only for certain specific years. What requisites must a Union comply with before it can validly impose special assessments against its members for incidental expenses, attorney's fees, representation expenses and the like? ’01 – Q12b
Do the following workers have the right to self-organization? 1. Employees of non-stock, non-profit organizations?
The Labor Code (in Art. 241(n) [now Art. 249(n)]) provides that "no special assessments or other extraordinary fees may be levied upon the members of a labor organization unless authorized by a written resolution of a majority of all the members at a general membership meeting duly called for the purpose."
Even employees of non-stock non-profit organizations have the right to self-organization. This is explicitly provided for in Article 243 [now Art. 252] of the Labor Code. A possible exception, however, are employee-members of nonstock non-profit cooperatives.
Another Suggested Answer:
2.
In the case of ABS-CBN Supervisors Employees Union Members v. ABS-CBN Broadcasting Corp. and Union Officers, 304 SCRA 489 [1999], the Supreme Court ruled that the following are the requisites: (1) Authorization by a written resolution of the majority of all the members at the general membership meeting duly called for the purpose; (2) Secretary's record of the meeting; and (3) Individual written authorization for the check-off duly signed by the employee concerned (See also: Gabriel v. Secretary of Labor, G.R. No. 115949, March 16, 2000.)
Alien employees? '00 - Q4b
ALIEN EMPLOYEES with valid work permits in RP may exercise the right to self-organization on the basis of parity or reciprocity, that is, if Filipino workers in the aliens' country are given the same right (Article 269 [now Art. 283], Labor Code). Distinguish between "Certification Election", "Consent Election," and "Run-off Election." ’00 – Q14 CERTIFICATION ELECTION requires a petition for a Certification Election filed by a union or employer. A Med-Arbiter grants the petition and an election officer is designated by the regional director to supervise the election (Articles 256-258 [now Arts. 267-269], Labor Code.) CONSENT ELECTION is held by agreement of the unions with or without participation of the med-arbiter (Warren Manufacturing Workers Union v. Bureau of Labor Relations, 159 SCRA 387 [1988].) RUN-OFF ELECTION takes place between the unions who received the two highest number of votes where not one of the unions obtained the majority of the valid votes cast, provided that the total union votes is at least 50% of the votes cast (Article 256 [now Art. 267], Labor Code).
Under what conditions may the Secretary of Labor or his duly authorized representative inquire into the financial activities or legitimate labor organizations? ’01 – Q18a The Labor Code (in Article 274 [now Art. 288]), the Secretary of Labor and Employment or his duly authorized representative is empowered to inquire into the financial activities of legitimate labor organizations upon the filing of a complaint under oath and duly supported by the written consent of at least twenty (20%) percent of the total membership of the labor organization concerned and to examine their books of accounts and other records.
The Ang Sarap Kainan Workers Union appointed Juan Javier, a law student, as bargaining representative. Mr. Javier is neither an employee of Ang Sarap Kainan Company nor a member of the union. Is the appointment of Mr. Javier as a bargaining representative in accord with law? ’00 – Q15a
UNIDAD, a labor organization claiming to represent the majority of the rank and file workers of BMTC filed a petition for certification election during the freedom period obtaining in said corporation. Despite the opposition thereto by SIGAW Federation on the ground that UNIDAD was not possessed with all the attributes of a duly registered union, the Med-Arbiter issued an Order calling for a certification election on July 25, 2001. This Order was promulgated and served on the parties on July 12, 2001. On July 14, 2001, UNIDAD submitted and served the required documents for its registration as an independent union, which documents were approved by the DOLE on July 15, 2001. During the elections, UNIDAD won over SIGAW. SIGAW questioned UNIDAD's victory on the ground that UNIDAD was not a duly registered union when it filed the petition for a certification election. Shall SIGAW’s case prosper or not? ’01 – Q20
YES, the law does not require that the bargaining representative be an employee of the company nor an officer or member of the union [Article 212(j) [now Art. 219(j)], Labor Code.] A CBA was signed between the Ang Sarap Kainan Company and the Ang Sarap Kainan Workers Union. Should the CBA be registered with the BLR? If so, why? ’00 – Q15b So that the contract-bar rule may apply the CBA should be registered, assuming it has been validly ratified, and contains the mandatory provisions (Article 232 [now Art. 237], Labor Code.)
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The Samahan ng Mga Manggagawa sa Pids and Co. Inc. lost its majority status in the bargaining unit 1 year after the signing of the CBA. Bickering among all the 3 other unions in the bargaining unit were a daily occurrence, with each union asserting majority status. To resolve this pestering problem, the Company and the 3 other unions agreed to hold a consent election under the supervision of the BLR. In the consent election, Pids and Co. Worker's Union won, and was accordingly recognized by the Company as the exclusive bargaining representative in the bargaining unit. Is the Pids and Co. Workers Union bound by the CBA signed between the Company and the Samahan ng Mga Manggagawa Sa Pids? ’00 - Q16a
NO, the picketing activity itself cannot be curtailed. What can be curtailed are the Illegal acts being done in the course of the picket. However, if this is a "national Interest" case under Article 263(g) [now Art. 277(g)], the strike or work stoppage may be stopped by the power of assumption of Jurisdiction or certification of the case to the National Labor Relations Commission (Nagkakaisang Manggagawa sa Cuison Hotel v. Libron, 124 SCRA 448 [1983]; Free Telephone Workers Union v. PLDT, 113 SCRA 662 [1982].) SMCT filed a Petition for CE among the supervisory employees of the Tabaco before the NCR Regional Office of the DOLE. It alleged, among other things, that it is a LLO, a duly chartered local of NAFLU; that Tabaco is an organized establishment; and that no CE has been conducted within one year prior to the filing of its petition for CE. The Petition filed by SMCT showed that out of its 50 members, 15 were rank-and-filers and two (2) were managers. Tabaco filed a MTD on the ground that SMCT union is composed of supervisory and rank-and-file employees and, therefore, cannot act as bargaining agent for the proposed unit. SMCT filed an opposition to the said Motion alleging that the infirmity, if any, in the membership of the union can be remedied in the pre-election conference thru the exclusion-inclusion proceedings wherein those employees who are occupying rank-and-file positions will be excluded from the list of eligible voters. 1. Should the Motion to Dismiss filed by the Tabaco be granted or denied?
YES, because the Collective Bargaining Agreement is not invalidated by the change of the bargaining agent while the CBA is still effective. The "substitutionary doctrine'' applies (Benguet Consolidated Inc. v. BCI Employees, 23 SCRA 465 [1968].) Shortly after the consent election, Pids and Co. Inc. sold the Groceries Division to Metro Manila Grocery Inc. The employees of the sold division formed part of the bargaining unit described in the CBA, and all were absorbed by Metro Manila Grocery Inc. Is Metro Manila Grocery Inc., as the new employer, bound by the CBA existing at the time of the sale? ’00 – Q16b NO. There are no indications that the sale is simulated or intended to defeat the employees' right to organize. A bona fide sale terminates the employment relationship between the selling company and its employees. The CBA does not bind the purchaser in good faith because the CBA is a personam contract, unless the buyer agrees to be bound (Sundowner Development Corp. v. Drilon, 180 SCRA 14 [1989]; Associated Labor Union v. NLRC, 204 SCRA 913 [1993].)
NO. Article 245 [now Art. 254] allows supervisory employees to form, join, or assist separate labor organizations of their own, but they are not allowed for membership in a labor organization of the rank-andfile employees. Before R.A. No. 9481 took effect on June 14, 2007, it was ruled that a supervisors’ union could not affiliate with the same federation as that of the rank-and-file union (Atlas Lithographic, January 6, 1992.) It was further ruled that a union whose membership included supervisors and rank-and-file employees was not and could not become a legitimate labor organization. It could not petition for a certification election. It could not ask to be recognized as the bargaining representative of employees, and it could not strike (Toyota Motor, February 19, 1997.) The above rulings in Atlas Lithographic and Toyota are no longer true because of the last sentence of Article 254 [245] and amendatory Article 255 [245-A], both added by R.A. No. 9481 [Azucena, Everyone’s Labor Code, p. 240 (2012).]
A division manager of a company taunted a union officer 2 days after the union submitted to the DOLE the result of the strike vote. The division manager said: “The union threat of an unfair labor practice strike is phony or a bluff. Not even ten percent (10%) of your members will join the strike.” To prove union member support for the strike, the union officer immediately instructed its members to cease working and walk out. Two hours after the walkout, the workers voluntarily returned to work. 1. Was the walkout a strike? And if so, was it a valid activity? 2. Can the union officer who led the short walkout, but who likewise voluntarily led the workers back to work, be disciplined by the employer? ’00 – Q17
2.
YES, it was a strike because there was a work stoppage by concerted action and there is an existing labor dispute. It was not a valid activity because the requisites for a valid strike were not observed (Article 212(o) and 212(l) [now Arts. 212(o) and Art. 219(l) Labor Code.)
NO, the two (2) Managers cannot be part of the bargaining unit composed of supervisory employees. A bargaining unit must effect a grouping of employees who have substantial, mutual interests in wages, hours, working conditions and other subjects of collective bargaining. (San Miguel Corp. Supervisors and Exempt Employees Union v. Laguesma, 227 SCRA 370.) The Labor Code (in Article 245 [now Art. 254]) provides that managerial employees are not eligible to join, assist or form any labor organization. The above provision shows that managerial employees do not have the same interests as the supervisory employees which compose the bargaining unit where SMCT wishes to be the exclusive collective bargaining representative.
YES, the employer may discipline the union officer. An illegal strike is a cause for the union officer to be declared to have lost his employment status [Article 263(c),(d),(e),(f); Article 264(a) [now Art. 277(c),(d),(e),(f); Art. 278(a) Labor Code.] The workers engaged in picketing activity in the course of a strike. 1. Will picketing be legal if non-employees of the strikebound employer participate in the activity?
Distinguish between "contract bar rule" and "deadlock bar rule". '99 - Q2(1)
YES, the picketing is legal even though non-employees join it. Picketing is a form of the exercise of freedom of speech. Picketing, provided it is held peacefully, is a constitutional right. The disputants in a legal dispute need not be employer-employee of each other (De Leon v. National Labor Union, 100 Phil 789 [1957]; Cruz v. Cinema Stage, etc., 101 Phil 1259 [1957].) 2.
Can the two (2) Managers be part of the bargaining unit? '99 - Q1
Under the "CONTRACT BAR RULE," a certification election cannot be held if there is in force and in effect a collective bargaining agreement that has been duly registered with the Department of Labor and Employment except during the freedom period of such CBA which is the 60-day period prior to the expiry date of said CBA (See Articles 231, 253-A and 256 [now Arts. 231, 264 and 267, Labor Code.) Under the "DEADLOCK BAR RULE" a certification election cannot be held if a bargaining deadlock to which an incumbent or certified bargaining agent is a party had been submitted to conciliation or mediation or had become the subject of a valid notice of strike or lockout
Can picketing activity be curtailed when illegal acts are committed by the picketing workers in the course of the activity? ’00 – Q18
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(See Section 3, Rule XI, Book V of the Implementing Rules and Regulations of the Labor Code.)
certification election. The law refers to "all" the employees in the bargaining unit. All they need to be eligible to vote is to belong to the "bargaining unit" (Airtime Specialists, Inc. v. Ferrer-Calleja, 190 SCRA 749.)
What is the "automatic renewal clause" in a CBA? ’99 – Q2(2) The "AUTOMATIC RENEWAL CLAUSE" in a CBA refers to that provision of the Labor Code (Article 253 [now Art. 263]) which states that "It shall be the duty of both parties (to a CBA) to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60- day (freedom) period and/or until a new agreement is reached by the parties."
Alternative Answer:
Solar Plexus Bar and Night Club allowed by tolerance 50 GROs to work without compensation in its establishment under the direct supervision of its Manager from 8 PM to 4 AM everyday, including Sundays and holidays. The GROs, however, are free to ply their trade elsewhere at anytime but once they enter the premises of the night club, they are required to stay up to closing time. The GROs earned their keep exclusively from commissions for food and drinks, and tips from generous customers. In time, the GROs formed the SUKI; a labor union duly registered with DOLE. Subsequently, SUKI filed a petition for CE in order to be recognized as the exclusive bargaining agent of its members. Solar Plexus opposed the petition for CE on the singular ground of absence of ER-EE 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? ’99 – Q3; ’12 – Q4a
J&J is a domestic corporation engaged in the manufacturing of consumer products. Its rank-and-file workers organized the JEU, a duty registered local union affiliated with PAFLU, a national union. After having been certified as the exclusive bargaining agent of the appropriate bargaining unit, JEU-PAFLU submitted its proposals for a CBA with the company. In the meantime, a power struggle occurred within the national union PAFLU between its National President, Manny Pakyao, and its National Secretary General, Gabriel Miro. The representation issue within PAFLU is pending resolution before the Office of the Secretary of Labor. By reason of this intra-union dispute within PAFLU, J&J obstinately and consistently refused to offer any counter-proposal and to bargain collectively with JEU-PAFLU until the representation issue within PAFLU shall have been resolved with finality. JEU-PAFLU filed a Notice of Strike. The Secretary of Labor subsequently assumed jurisdiction over the labor dispute. 1. Will the representation issue that has arisen involving the national union PAFLU, to which the duty registered local union JEU is affiliated, bar collective bargaining negotiation with J&J?
YES. Any employee, whether employed for a definite period or not, shall, beginning on his first day of service, be considered an employee for purposes of membership in any labor union (Article 277(c) [now Art. 291(c), Labor Code].)
The GROs may form SUKI as a labor organization for purposes of collective bargaining. There is an employer-employee relationship between the GROs and the night club. The Labor Code (in Article 138 [now Art. 136]) provides that any woman who is permitted or suffered to work, with or without compensation, in any nightclub, cock tail lounge, massage clinic, bar or similar establishment, under the effective control or supervision of the employer for a substantial period of time as determined by the Secretary of Labor, shall be considered as an employee of such establishment for purposes of labor and social legislation. In the case at bar, it is clearly stated that the women once they enter the premises of the night club would be under the direct supervision of the manager from 8:00 p.m. to 4:00 a.m. everyday including Sundays and holidays. Such is indicative of an employer-employee relationship since the manager would be exercising the right of control.
The representation issue that has arisen involving the national union PAFLU should not bar collective bargaining negotiations with J&J. It is the local union JEU that has the right to bargain with the employer J&J, and not the national union PAFLU. It is immaterial whether the representation issue within PAFLU has been resolved with finality or not. Said squabble could not possibly serve as a bar to any collective bargaining since PAFLU is not the real party-in-interest to the talks; rather, the negotiations are confined to the corporation and the local union JEU. Only the collective bargaining agent, the local union JEU, possesses the legal standing to negotiate with the corporation. A duly registered local union affiliated with a national union or federation does not lose its legal personality or independence (Adamson and Adamson, Inc. v. The Court of Industrial Relations and Adamson and Adamson Supervising Union (FFW), 127 SCRA 268 [1984].)
In what instance may a petition for certification election be filed outside the freedom period of a current collective bargaining agreement? ’99 – Q4(1) As a general rule, in an establishment where there is in force and effect a CBA, a petition for certification election may be filed only during the freedom period of such CBA. But to have the above-mentioned effect, the CBA should have been filed and registered with the Department of Labor and Employment (See Articles 231, 253-A and 256 [now Arts. 231, 264 and 267], Labor Code.) Thus, a CBA that has not been filed and registered with the Department of Labor and Employment cannot be a bar to a certification election and such election can be held outside of the freedom period of such CBA.
2.
Can the Secretary of Labor decide the labor dispute by awarding the JEU CBA Proposals as the CBA of the parties? '99 - Q6
YES. The Secretary of Labor can decide the labor dispute by awarding the JEU CBA proposals as the Collective Bargaining Agreement of the parties because when the Secretary of Labor (under Article 263(g) [now Art. 277(g)]) assumes jurisdiction over a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor exercises the power of compulsory arbitration over the labor dispute, meaning, that as an exception to the general rule, the Secretary of Labor has the power to set or fix wages, rates of pay, hours of work or terms and conditions of employment by determining what should be the CBA of the parties (See Divine Word University of Tacloban v. Secretary of Labor and Employment, 213 SCRA 759 [1992].)
Are probationary employees entitled to vote in a certification election? ’99 – Q4(2) In a certification election, all rank-and-file employees in the appropriate bargaining unit are entitled to vote. This principle is clearly stated in Article 255 of the Labor Code which states that the "labor organization designated or selected by the majority of the employees in such unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining." Collective bargaining covers all aspects of the employment relation and the resultant CBA negotiated by the certified union binds all employees in the bargaining unit. Hence, all rank-and-file employees, probationary or permanent, have a substantial interest in the selection of the bargaining representative. The Code makes no distinction as to their employment status as basis for eligibility to vote in the petition for
Polaris Drug Company had an existing CBA with PWU which was due to expire on May 31, 1999. PWU had a total membership of 100 rank-and-file employees of the company. Mike Barela, a militant member of the union, suspected that the union officers were misappropriating union funds as no financial report was given to the general membership during the union's general assembly. Hence, Mike Barela prepared a sworn written complaint and filed the same with the Office of the Secretary of Labor on May 10,
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1999, petitioning for an examination of the financial records of PWU. 1. Is the Secretary of Labor authorized by law to examine the financial records of the union?
PROCEDURE AND JURISDICTION Marcel was the Vice President for Finance and Administration and a member of the Board of Directors of Mercedes Corporation. He bought a complaint for illegal suspension and illegal dismissal against Mercedes Corporation. He bought a complaint for illegal suspension and illegal dismissal against Mercedes Corporation, which moved to dismiss the complaint on the ground that the complaint pertained to the jurisdiction of the RTC due to the controversy being intracorporate based on his positions in the corporation. Marcel countered that he had only been removed as Vice President for Finance and Administration 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 bylaws. Is the argument of Marcel Correct? Explain your answer. (2.5%) ’17—Q11(B)
The Secretary of Labor is expressly authorized by the Labor Code (in Article 274 [now Art. 288]) to examine the financial records of the unions to determine compliance or non-compliance with the pertinent provisions of the Labor Code and to prosecute any violation of the law and the union constitution-and by- laws. But this authority may be exercised only upon the filing of a complaint under oath and duly supported by the written consent of at least twenty percent (20%) of the total membership of the labor organization concerned. 2.
Under the facts given above, could an examination or audit of the financial records of the union be ordered? ’99 – Q8
Under the facts given in the question, an examination or audit of the financial records of the union cannot be ordered because for such examination or audit to take place, there should be a complaint under oath and duly supported by written consent of at least twenty (20%) per cent of the total membership of the labor organization concerned. In this case, the aforementioned requirement was not fulfilled. It was only a sworn written complaint by one union member that was filed. Also, the Labor Code provides that an examination of the books of a union shall not be conducted during the sixty (60) day freedom period nor within thirty (30) days immediately preceding the date of election of union officials. In the case, the complaint was filed on May 10, 1999 which is within the freedom period of the current CBA which was to expire on May 31. 1999.
SUGGESTED ANSWER Yes, Marcel's argument is correct. The question is whether the complaint for illegal dismissal filed by Marcel is intra-corporate and thus beyond the jurisdiction of the Labor Arbiter. Marcel as the Vice-President for Finance and Administration is not a corporate official. Although he is a member of the Board of Directors, he was not removed as such; he was removed only from his position as Vice-President. Lnasmuch as the core issue is his termination as a non-corporate official, then Marcel’s complaint for illegal dismissal is not an intra-corporate controversy (Real v. Sangu Philippines, Inc. et al, G.R. No. 168757, January 19, 2001, 640 SCRA67). ALTERNATIVE ANSWER Yes, Marcel's argument is correct. Only corporate officers such as the president, secretary, treasure~ and such other officers as may be provided in the by-laws of the corporation are subject to the jurisdiction of the RTC. Corporate officers are those whose positi0n is a creation of the corporate charter or by laws and whose election is by virtue of the acts of the Board of Directors (Cosare v. Broadcom Asia, Inc., G.R. No. 201298, February 5, 2014, 715 SCRA 534).
In a CE conducted by the DOLE, AWOL headed by Cesar, won over PML, headed by Eddie. Hence, AWOL was certified as the exclusive bargaining agent of the rank-and-file employees of the LTC. Shortly, thereafter, a CBA was concluded by LTC and AWOL which provided for a closed shop. Consequently, AWOL demanded that Eddie and all the PML members be required to become members of AWOL as a condition for their continued employment: otherwise, they shall be dismissed pursuant to the closed shop provision of the CBA. The union security clause of the CBA also provided for the dismissal of employees who have not maintained their membership in the union. For one reason or another, Francis, a member of AWOL, was expelled from the union membership for acts inimical to the interest of the union. Upon receipt of the notice that Francis failed to maintain his membership in good standing with AWOL, LTC summarily dismissed him from employment. 1. Can Eddie and all the PML members be required to become members of the AWOL pursuant to the closed shop provision of the CBA?
State the jurisdiction of the Voluntary Arbitrator, or Panel of Voluntary Arbitrators in labor disputes? (4%) ’17—Q11(C) SUGGESTED ANSWER The jurisdiction of the Voluntary Arbitrator, or Panel of Voluntary Arbitrators in labor disputes is provided in Article 174 (formerly Article 261) of the Labor Code, viz: the Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies referred to in the immediately preceding article. Accordingly, violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the Collective Bargaining Agreement. For purposes of this article, gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement. ALTERNATIVE ANSWER Under Articles 274 and 275 of the Labor Code, as re-numbered, the jurisdiction of Voluntary Arbitrators or Panel of Voluntary Arbitrators are: (a) original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement (Article 274); (b) those arising from the interpretation or enforcement of company personnel policies (id.);
Eddie Gracia and all the PML members cannot be required to become members of AWOL pursuant to the closed shop provision of the CBA. According to the Labor Code (Article 248(e) [now 258(e)]), a closed shop provision cannot be applied to those employees who are already members of another union at the time of the signing of the CBA. 2.
Is the termination from employment of Francis by LTC lawful? ’99 – Q16
Pursuant to the closed shop provision of the CBA entered into by AWOL with LTC, membership in AWOL has become a condition of employment in LTC. As long as the expulsion of Francis Magallona from AWOL was done in accordance with applicable provisions of law and with the Constitution and By-laws of the AWOL, then it was lawful for LTC to terminate Magallona. Panel: The termination is unlawful (Ferrer v. NLRC)
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(c) upon agreement of the parties, jurisdiction to hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks (Article 275).
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 ruling that Inggo is an employee of DJN Radio, and that Inggo is entitled to his monetary claims in the total amount of P3G,G00.00. 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 jurisdiction of the NLRC and not the DOLE because Inggo’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%) ’16 – Q3(a)
Juanito 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 influencing his co-workers to move against the interest of the company; hence, it directed his payroll reinstatement 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 Juanita's dismissal was valid. The reversal ultimately became final. May Mandarin Company recover the back wages and other benefits paid to Juanito pursuant to the decision of the Labor Arbiter in view of the reversal by the NLRC? Rule, with reasons. (2.5%) ’17—Q12(A)
Yes. Pursuant to Article 128 (b) of the Labor Code, the DOLE may do so where the prima facie determination of employer-employee relationship is for the exclusive purpose of securing compliance with labor standards provisions of said Code and other labor legislation. The DOLE, in the exercise of its visitorial and enforcement powers, somehow has to make a determination of the existence of an employer- employee relationship. Such determination, however, cannot be coextensive with the visitorial and enforcement power itself. Indeed, such determination is merely preliminary, incidental and coliateral to the DOLE’S primary function of enforcing labor standards provisions (People's Broadcasting Bomba Radyo Phils., Inc. v. Secretary of Labor, G.R. No. 179652, May 8, 2009).
Mandarin cannot recover the backwages and other benefits paid to Juanito. The decision of the Labor Arbiter insofar as the reinstatement aspect is concerned, is immediately executory pending appeal (Felix v. Enertech Systems Industries Inc., G.R. No. 192007, March 28, 2001, 355 SCRA 680). In fact, in the case of Pioneer Texturizing Corp. v. NLRC (G.R. No. 118651, October 16, I 997, 280 SCRA 806), it was held that the order of the Labor Arbiter is self-executory; hence, it is the obligation of Mandarin to immediately admit Juanito back to work or reinstate him in the payroll. When Mandarin appealed the Labor Arbiter's decision to the NLRC, the employer-employee relationship between the former and Juanito never ceased; and his employment status remained uncertain until the NLRC reversed the decision, which became final Thus, the reinstatement salaries due to Juanito were, by their nature. Payment of unworked backwages. These were salaries due to him because he was prevented from working despite the finding of the Labor Arbiter that he had been illegally dismissed (Wenphil Corp. v. Abing and Tuason, G.R. No. 207983, April 17, 2014, 721 SCRA 126).
[b] If the DOLE finds that there is an employee-employer relationship, does the case fall under the jurisdiction of the Labor Arbiter considering that the claim of Inggo is more than P5,00Q.G0. Explain. (2.5%) ’16 – Q3(b) No. As held in the case of Meteoro v. Creative Creatures, Inc., G.R. No. 171275, July 13, 2009, the visitorial and enforcement powers of the Secretary, exercised through his representatives, encompass compliance with all labor standards laws and other labor legislation, regardless of the amount of the claims filed by workers; thus, even claims exceeding P5,000.00.
What are the consequences of assumption of jurisdiction by the Secretary of Labor, and of the disobedience to the return to work? Explain your answer. (2.5%) ’17—Q14(b)
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 explanation within 48 hours. Pedro submitted his explanation 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%) ’16 – Q6(a)
The assumption of jurisdiction by the Secretary of Labor automatically results in a retur.n-.to-work of all striking workers (if one has already taken place) or enjoins the taking place of a strike, whether or not a corresponding order had been issued by the Secretary of Labor (Union of Filipro Employees v. Nestle Philippines, Inc., G.R. Nos. 88710-13, December 19, 1990, 192 SCRA 396). When jurisdiction over a labor dispute is assumed by the Secretary of Labor, such comprehensive jurisdiction includes all incidental issues and cases which otherwise would be under the original and exclusive jurisdiction of the labor arbiters (International Pharmaceuticals, Inc v. Secretary of Labor, G.R. Nos. 92981-83, January 9, 1992, 205 SCRA 59). A disobedience or defiance of the return-to-work order of the Secretary of Labor results in a loss of employment status (Allied Banking Corporation v. NLRC, G.R. No. 116128, July 12, 1996, 258 SCRA 724).
The twin notice and hearing rule requires a directive that the employee be given the opportunity to submit a written explanation on why he should not be dismissed within a reasonable period of time (King of Kings Transport, Inc. v. Santiago O. Mamac, G.R. No. 166208, June 29, 2007). The grounds for terminating an employee, again as explained in the Kings case, must be a detailed narration of the facts and circumstances that will serve as basis for the charge against him. Further, it should mention specifically which company rule or provision of the Labor Code was violated. The Supreme Court defines ‘reasonable period of time” to be five calendar days from the day the employee received the NTE. As to the hearing, in Perez v. Philippine Telegraph Company, 584 SCRA 110 [2009J, the Supreme Court enunciated the rule that a hearing is only necessary if it was asked or requested by an
Inggo 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 P80.00 per script, earning an average of P20,000.00 per month. Inggo filed a complaint before the Department of Labor and Employment (DOLE) against DJN Radio for illegal deduction, non-payment of service incentive
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employee. In case it was requested, a summary hearing must be done by the employer where the employee must be afforded the opportunity to adduce evidence and present witnesses in his behalf. Then the employer must inform the employee in writing of its decision stating the facts, the analysis of the evidence and statement of witnesses and the law or policy which led to the decision.
(G.R. No. 194303, 20 June 2012), it was ruled that theft committed against a co-employee is considered as a case analogous to serious misconduct, for which the penalty of dismissal from service may be meted out to the erring employee. In a case for illegal dismissal and non-payment of benefits, with prayer for Damages*, Apollo was awarded the following: 1) P20G, 000.00 as back.wages; 2) P80,000.00 as unpaid wages; 3) P20,000.00 as unpaid holiday pay; 4) PS,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 percent (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. [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%) ’16 – Q16(a)
[b] Did the Biyahe sa Langit Transport comply with the prior procedural requirements for dismissal? (2.5%) ’16 – Q6(b) No. The notice given by Biyahe sa Langit Transport did not give Pedro a minimum period of five (5) days to submit a written explanation. He was given only 48 hours to submit the same. The fact that he met the deadline did not cure the lapse committed by Biyahe sa Langit Transport. There being a violation of procedural due process, Biyahesa Langit Transport becomes liable for nominal damages even, assuming that there was a valid ground for dismissal. Jim is the holder of a certificate of public convenience 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 ofthe 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 restoration 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 ofthe contract. Nick has the right to use the jeepney at any hour of the day provided it is operated on the approved line o f 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 dismissal, 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 dally boundary of one thousand (PI,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%) ’16 – Q15
The attorney’s fees should be granted to Robbie. There are two commonly accepted concepts of attorney’s fees the so-called ordinary and extraordinary. In its ordinary' concept, an attorney’s fee is the reasonable compensation paid to a lawyer by his client for the legal services he has rendered to the latter. The basis of this compensation is the fact of his employment by and 'his agreement with the client. In its extraordinary cbhcept, bitorhey’s teds are deemed indemnity for damages ordered by the court to be paid by the losing party in a litigation. The instances where these may be awarded are those enumerated in Article 2208 of the Civil Code, specifically par. 7 thereof which pertains to actions for recovery of wages, and is payable not to the lawyer but to the client, unless they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof. The extraordinary concept of attorneys fees is the one contemplated in Article 111 of the Labor Code, which provides: “Art. 111. Attorneys fees, (a) in cases of unlawful withholding of wages, the culpable party may be assessed attorneys fees equivalent to ten percent of the amount of wages recovered x x x” Article 111 is an exception to the declared policy of strict construction in the awarding of attorneys fees. Although an express finding of facts and law is still necessary to prove the merit of the award, there need not be any showing that the employer acted maliciously or in bad faith when it withheld the wages. There need only be a showing that the lawful wages were not paid accordingly, as in this case. In carrying out and interpreting the Labor Code’s provisions and its implementing regulations, the employees’ welfare should be the primordial and paramount consideration. This kind of interpretation gives meaning and substance to the liberal and compassionate spirit of the law as provided in Article 4 of the Labor Code which states that all doubts in the implementation and interpretation of the provisions of the Labor Code, including its implementing rules and regulations, shall be resolved in favor of labor, and Article 1702 of the Civil Code which provides that in case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer (PCL Shipping Philippines, Inc. »\ NLRC, G.R. No. 153031, [December 14, 2006]).
Jim’s Motion to Dismiss must be denied. Although Jim and Nick called their contract as a lease, it is actually a contract of employment, and the rentals that Nick must pay to Jim is actually a boundary. 'Martinez v. National Labor Relations Commission,(G,R, No. 117495, May 29,1997), teaches that jeepney owners/operators exercise control over jeepney: drivers. The fact that the drivers do not receive fixed wages,,but get billy that in excess of the so-called boundary they pay to the owner/bperator does not affect the existence of employer-employee relationship. Nick was engaged by Jim to perform activities which were usually necessary or desirable to the business or trade of Jim which makes him the employer of Nick.
[b] Robbie likewise questions the imposition of interests on the amounts in question because it was not claimed by Apollo, and the Civil Code provision on interests does not apply to a labor case. Rule on the issue and explain. (2.5%) ’16 – Q16 It is now well-settled that generally, legal interest may be imposed upon any unpaid wages, salary differential, merit increases, productivity bonuses, separation pay, backwages on other monetary claims and
[b] Assuming that Nick is an employee of Jim, was Nick validly dismissed? Yes. For failing to remit five (5) months worth of boundary, Nick apparently committed fraud against Jim. In Cosmos Bottling Corporation v. Vermin, G.R. No. 193676 and Fermin v. Cosmos Bottling Corporation,
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benefits awarded illegally dismissed employees. Its grant, however, remains discretionary upon the courts (Conrado A. Lim v. HMR Philippines G.R. No. 189871, August 13, 2013). Legal interest was imposed on all the monetary awards by the SC in the case of Bani Rural Bank r. Be Guzman (G.R. No. 170904 November 13, 2013). The Court therein declared that imposition of legal interest in any final and executory judgment does not violate the immutability principle. The court ruled that once a decision in a labor case becomes final, it becomes a judgment for money from which another consequence flows - the payment of interest in case of delay.
agent on the ground that it was unlawful to: (1) barricade the management panel in the building, and (2) strike. b)
Was the Secretary of labor correct in declining to assume jurisdiction over the dispute? (2%) ‘15 - Q16b
The refusal of the Secretary to assume jurisdiction is valid. Par. (g) of Art. 263 (old) of the Labor Code leaves it to his sound discretion to determine if national interest is involved. Assumption power is full and complete. It is also plenary and discretionary (Philtranco Service Enterprises, Inc. v. Philtranco Workers Union-AGLO, G.R. No. 180962, February 26, 2014). Thus if in his opinion national interest is not involved, then the company cannot insist that he assume jurisdiction.
Fiimore Corporation was ordered to pay P49 million to its employees by the Labor Arbiter. It interposed 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, Fiimore filed a Motion to Reduce the Appeal Bond to P4,800,000.00 but submitted a surety bond in the amount of P4.9 million. Fiimore 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 financial statements showing afioss of P40 million in the previous year. To show its good faith, Fiimore also filed its Memorandum of Appeal. The NLRC dismissed the appeal for non-perfection on the ground that posting of an appeal bond equivalent to the monetary award is indispensable for the perfection of the appeal and the reduction of the appeal bond, absent any showing of meritorious ground to justify the same, is not warranted. Is the dismissal of the appeal correct? Explain. (5%) ’16 – Q19
(A) XYZ Company and Mr. AB. a terminated employee who also happens to be the President of XYZ Employees Union, agree in writing to submit Mr. AB's illegal dismissal case to voluntary arbitration. Is this agreement a valid one? (3%) ‘15 Q20A The agreement is valid because the preferred mode of settling labor disputes is through voluntary modes, like voluntary arbitration. The agreement is consistent with Sec. 3, Art. XIII of the Constitution. Moreover, Art. 262 of the Labor Code authorizes a voluntary arbitrator to hear and decide by agreement of the parties, all other labor disputes. (B) XYZ Company and XY70 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 voluntary arbitration. If you are counsel for XYZEU, what advice would you give the union as to the: ( l ) propriety of the request of XYZ Company, and (2) the relative advantages/ disadvantages between voluntary arbitration and compulsory arbitration? (4%) ‘15 - Q20b
No. In McBurnie v. Ganzon, (G.R. Nos. 178034, 186984-85, October 17, 2013), NLRC made a serious error in denying outright the motion to reduce the bond. Once the motion to reduce the appeal bond is accompanied by at least 10% of the monetary awards, excluding damages and attorney's fees, the same shall provisionally be deemed the reasonable amount of the bond in the meantime that an appellant's motion is pending resolution by the Commission. Only after the posting of a bond in the required percentage shall an appellant's period to perfect an appeal under the NLRC Rules be deemed suspended. The NLRC must resolve the motion and determine the final amount of bond that shall be posted by the appellant, still in accordance with the standards of meritorious grounds and reasonable amount. Should the NLRC later determine that a greater amount or the full amount of the bond needs to be posted by the appellant, then the party shall comply accordingly. The appellant has ten (10) days from notice of the NLRC order to perfect the appeal by posting the required appeal bond. 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 vote. AILI members locked in the LB management panel by barricading the doors and possible exits (including windows and fire escapes). LB requested the DOLE to assume jurisdiction over the dispute and to certify it for compulsory arbitration. The Secretary of Labor declined to assume jurisdiction, finding that the dispute was not one that involved national interest. LB then proceeds to terminate all of the members of the bargaining
1.
As counsel, I will advise the union to accede to the request of the company. Besides being the constitutionally preferred mode of dispute settlement, voluntary arbitration is less adversarial and more expeditious.
2.
The advantages of voluntary arbitration are: a. the parties' dispute is heard and resolved by a person whom both parties have chosen as their judge; hence, likely to be impartial. b. if both parties are willing to submit their dispute, the decision is final and binding on them in general by reason of their submission agreement; and c. in the event of a challenge, the decision is elevated to the CA and then to the SC, i.e., less one layer of appeal because the NLRC is out of the way. The disadvantages of voluntary arbitration are:
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b.
Bar Questions and Answers
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 in case of enforcement of judgment, the Voluntary Arbitrator has no sheriff to enforce it.
As to jurisdiction, the LA can hear and resolve cases under Art. 217 (old) of the Labor Code, money claims under Sec. 7 of R. A. 10022; and referred wage distortion disputes in unorganized establishments, as well as the enforcement of compromise agreements pursuant to the 2011 NLRC Rules of Procedure, as amended. 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.
The advantages of compulsory arbitration are: a. subject to pre-litigation mediation, a case can be initiated through the filing of a verified complaint by a union member, unlike in voluntary arbitration where the Voluntary Arbitrator acquires jurisdiction primarily through a submission agreement. In a case 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.
Mario comes from a family of coffee bean growers. Deciding to incorporate his fledgling coffee venture, he invites his best friend, Carlo, to join him. Carlo is hesitant because he does not have money to invest but Mario suggests a scheme where Carlo can be the Chief Marketing Agent of the company, earning a salary and commissions. Carlo agrees and the venture is formed. After one year, the business is so successful that they were able to declare dividends. Mario is so happy with Carlo's work that he assigns 100 shares of stock to Carlo as part of the latter's bonus. Much later on, it is discovered that Carlo had engaged in unethical conduct which caused embarrassment to the company. Mario is forced to terminate Carlo but he does so without giving Carlo the opportunity to explain.
The disadvantages of compulsory arbitration 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.
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 corporate act, he cannot be held personally liable. a)
Philippine News Network (PNN) engages the services 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 proceeds to sign with PNN which then asks her to anchor their nightly newscast. NNN sues Anya and PNN before 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.
As the Labor Arbiter assigned to this case, how would you resolve the jurisdiction question. (3%) ‘15 - Q22a
The Labor Arbiter has jurisdiction over Carlo's illegal dismissal complaint as he was hired by Mario on a "salary and commission” basis. In Grepalife v. Judico (180 SCRA 445) it was held that a worker who is paid on a salary plus commission basis is an employee. While regular courts have jurisdiction over Mario's corporate act of severing ties with Carlo, the Labor Arbiter, pursuant to Art. 217 A-(2) of the Labor Code, has jurisdiction over Carlo's illegal dismissal complaint. ALTERNATIVE ANSWER:
a.
Is NNN's remedy correct? Why or why not? (3%) ‘15 Q21a
Carlo is party to a joint-venture. Hence, he is not related to Mario as an employee. As a business organization, the affairs of that joint venture are not governed by Labor Law, except in relation to its employees. Any issue arising from that affair, therefore, must be brought to the RTC. Thus, the NLRC has no jurisdiction because the matter did not arise from employer-employee relationship and the issue between the disputants is not resolvable solely through the application of Labor Law
The NLRC has no jurisdiction. As to PNN, there is no employer-employee relationship between itself and NNN; hence, the NLRC cannot hear and resolve their dispute (Reasonable Causal Connection 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 solely through the application of the Labor Code, other labor statutes, CBA or employment contract. (Reference to Labor Law Rule) c.
b)
What is the rule on personal liability of corporate officers for a corporate act declared to be unlawful? (2%) ‘15 - Q22b
Corporate officers are not, as a general rule, personally liable for the corporate acts they performed in behalf of the corporation they represent. They are, however, personally liable for their corporate acts if
Distinguish the jurisdiction of a Labor Arbiter from that of the NLRC. (3%) ‘15 - Q21c
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they acted with malice or bad faith (Girly Ico v. Systems Technology Institute, Inc., G.R. No. 185100, July 9, 2014).
There is likewise no showing that his position as Assistant Vice President is a corporate officer in the company’s by-laws. The Labor Arbiter, therefore, has jurisdiction over the case. (Art 217 (a) (2), Labor Code)
Non-lawyers can appear before the Labor Arbiter if: [l%] (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 Php5,000 ‘14 - Q7
The jurisdiction of the National Labor Relations Commission does not include: (1%) ‘14 - Q27 (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 involving the recovery of wages and other monetary claims and benefits arising from employer-employee relations where the aggregate money claim of each does not exceed five thousand pesos (P5,000) (C) Original jurisdiction to act as a compulsory arbitration body over labor disputes certified to it by the Regional Directors (D) Power to issue a labor injunction
(A) they represent themselves (Art. 222, Labor Code; Rule 111, Sec. 6, 2011 NLRC Rules of Procedure). Lionel, an American citizen whose parents migrated to the U.S. from the Philippines, was hired by JP Morgan in New York as a call center specialist. Hearing about the phenomenal growth of the call center industry 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 employment contract did not specify a period for his stay in the Philippines. After three years of working in the Philippines, Lionel was advised that he was being recalled to New York and being promoted to the position of director of international call center operations. However, because of certain family reasons, Lionel advised the company of his preference to stay in the Philippines. He was dismissed by the company. Lionel now seeks your legal advice on: (6%)
(C) Original jurisdiction to act as a compulsory arbitration body over labor disputes certified to it by the Regional Directors Cris filed a complaint for illegal dismissal against Bake Company. The Labor Arbiter dismissed the complaint but award Cris financial assistance. Only the company appealed solely to the question of whether financial assistance could be awarded. The NLRC, instead of ruling solely on the appealed issue, fully reversed the Labor Arbiter’s decision; it found Bake Company liable for illegal dismissal and ordered the payment of separation pay and full backwages.
(B) Whether he can file a case in the Philippines - ‘14 - Q11B Yes. Since this is a. case of illegal dismissal, the Labor Arbiters have jurisdiction over the same (Art. 217 (a) (2), Labor Code). Under the 2011 NLRC Rules of Procedure, all cases which Labor Arbiters have authority to hear and decide, may be filed in the Regional Arbitration Branch having jurisdiction over the workplace of the complainant or petitioner (Rule IV, Sec 1).
Through a petition for certiorari under Rule 65 of the Rules of Court, Baker Company challenged the validity 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 assistance award.
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 Coordination. 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 jurisdiction 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%) ‘14 - Q19
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 whether in substance or in form’ in the exercise of its appellate jurisdiction. Decide the case. (8%) ‘13 - Q5 The review power of the NLRC in perfected appeals is limited only to those issues raised on appeal. Hence, it is grave abuse of discretion of the NLRC to resolve issues not raised on appeal (United Placement International v. NLRC, G.R. No. 102081-83, April 12, 1993, 221 SCRA 445). ALTERNATIVE ANSWER: In the exercise of its jurisdiction, the NLRC is empowered to determine even issues not raised on appeal in order to fully settle the issues surrounding the case. [See: Art. 218(c), now Art. 224(c)]. Philippine Electric Company is engaged in electric power generation and distribution. It is a unionized company with Kilusang Makatao as the union representing its rank-and-file employees.During the negotiations for their expired collective bargaining agreement (CBA), the parties duly served their proposals and counter-proposals on one another. The parties, however failed to
I will deny the motion to dismiss. “Corporate officers” in the context of Presidential Decree No. 902-A are those officers of the corporation who are given that character by the Corporation Code or by the Corporation’s by-laws. Sec. 25 of the Corporation Code enumerates three specific officers that in law are considered as corporate officers- the president, secretary and the treasurer. Lincoln is not one of them.
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discuss the merits of their proposals and counter-proposals in any formal negotiation meeting because their talks already bogged down on the negotiation grounds i.e., on the question of how they would conduct their negotiations, particularly on whether to consider retirement as a negotiable issue.
3.
Because of the continued impasse, the union went on strike. The Secretary of Labor and Employment immediately assumed jurisdiction over the dispute to avert widespread electric 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 of 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.
b)
Did the Secretary of Labor exceed his jurisdiction when he proceed to rule on the parties’ CBA positions even though the parties did not fully negotiate on their own? (8%) ‘13 - Q7
c) A deadlock on the negotiations for the collective bargaining agreement between College X and the Union prompted the latter, after duly notifying DOLE, to declare a strike on November 5. The strike totally paralyzed the operations of the school. The Labor Secretary immediately assumed jurisdiction, and continued with the strike during the pendency of their motion. On November 30, the Labor Secretary denied the reconsideration of this return to work order and further noting the strikers’ failure to immediately return to work, terminated their employment. In assailing the Labor Secretary’s decision, the Union contends that: The Labor Secretary erroneously assumed jurisdiction over the dispute since College X could not be considered and industry indispensable to national interest - ‘12 - Q1a
a)
ANOTHER SUGGESTED ANSWER
2.
The strike being legal, the employment of the striking Union officers and members cannot be terminated. Rule on these contentions (5%). ‘12 - Q1c
Responsibility of the striking members and officers must be on an individual and not collective basis. Art. 264(a) of the Labor Code mandates that “No strike or lockout shall be declared after assumption of jurisdiction by the President or the secretary of Labor. In Manila Hotel Employees Association vs. Manila Hotel Corporation [517 SCRA 349 (2007)], it was held that defiance of the Assumption Order or a returnto-work order by a striking employee, whether a Union Officer or a plain member, is an illegal act which constitutes a valid ground for loss of employment status. It thus follows that the defiant strikers were validly dismissed.
The contention has no merit. There is no doubt that the on-going labor dispute at the school adversely affects the national interest. The ongoing work stoppage at the school unduly prejudices the students and will entail great loss in terms of time, effort, and money to all concerned. More importantly, the school is engaged in the promotion of the physical, intellectual, and emotional well-being of the country’s youth, matters that are therefore of national interest. [ St. Scholastica’s College v. Ruben Toress, G.R. No. 100158, 29 June 1992 citing Philippine School of Business Administration v. Noriel, G.R. No. 80648, 15 August 1988, 164 SCRA 402]
1.
The strikers were under no obligation to immediately comply with the return to work order because of their then-pending Motion for Reconsideration of such order; - ‘12 - Q1b
This position of the union is flawed. Article 263 (g) Labor Code provides that “such assumption xxx shall have the effect of automatically enjoining the intended or impending strike xxx. If one has already taken place at the time of assumption, xxx all striking...employees shall immediately return to work.’ xxx” This means that by its very terms, a return-to-work order is immediately effective and executory notwithstanding the filing of a motion for reconsideration. [Ibid., citing University of Sto. Tomas v. NLRC, G.R. No, 89929, 18 October 1990; 190 SCRA 759].
No. The power of the Secretary of Labor under Article 263(g) is plenary. He can rule on all issues, questions or controversies arising from the labor dispute, including the legality of the strike, even those over which the Labor Arbiter has exclusive jurisdiction (Bagong Pagkakaisa ng mga Manggagawa sa Triumph International v. Secretary, G.R. Nos. 167401 and 167407, July 5,2010).
a)
cy of any petition (or Motion for Reconsideration) questioning its validity (Baguio Colleges Foundation vs. NLRC, 222 SCRA 604 [1993]; Union of Filipro Employees vs. Nestle Philippines, Inc., 193 SCRA 396 [1990]. Article 264 of the Labor Code, as amended. (Solid Bank Corporation, etc. vs. Solid Bank Union, G.R. No, 159461, 15 November 2010.) Thus, the union officers and members who defied the assumption order of the Secretary of Labor are deemed to have lost their employment status for having knowingly participated in an illegal act (Union of Filipino Employees vs. Nestle Philippines, supra)
The Secretary of Labor correctly assumed jurisdiction over the labor dispute because College X is an industry indispensable to the national interest. This is so because the administration of a school in engaged in the promotion of the physical, intellectual, and emotional well-being of the country’s youth (PSBA vs. Noriel, 164 SCRA 402 (1988)) An assumption order is executory in character and must be strictly complied with by the parties even during the penden-
On August 1, 2008, Y, a corporation engaged in the manufacture of textile garments, entered into a collective bargaining agreement with Union X in representation of the ran-and-file employees of the corporation. The CBA was effective up to June 20, 2011, Union X submitted to Y’s management their proposal for the negotiation of a new CBA. 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 textile garments. Z assumed all the assets and liabilities of Y. Union X filed a complaint with the Regional Trial Court for Specific Performance and damages with a prayer for preliminary injunction against Y and Z, and Z filed a Motion to Dismiss based on lack of jurisdiction. Rule on the Motion to Dismiss (5%) ‘12 Q3a
The Motion to Dismiss must be granted. The claim against Y and Z consists mainly of the civil aspect of the unfair labor practice charge referred to in article 247 of the Labor Code. Under Article 247 of the Code, “the civil aspects of all cases involving unfair labor practices, which may include claims for damages and other affirmative relief , shall be under the jurisdiction of the labor arbiters.” [National Union of
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Bank Employees vs. Lazaro G.R. No. 56431, January 19, 1988]. Besides, what the parties have is a labor dispute as defined in Art. 212(1) of the Labor Code “regardless of whether the disputants stand in the proximate relation of employer and employee”. Being so, the RTC is prohibited by Art. 254 of the Code from exercising jurisdiction over the case.
case should be referred to the grievance machinery pursuant to an existing CBA with Union X, and eventually to Voluntary Arbitration. Is the company correct? ’10 – Q25 YES. Termination cases arising in or resulting from the interpretation and implementation of collective bargaining agreements, and interpretation and enforcement of company personnel policies which were initially processed at the various steps at plant-level Grievance Procedure, fall within the original and exclusive jurisdiction of the voluntary arbitrator pursuant to Article 217(c) and Article 261 [now Arts. 224(c) and 273] of the Labor Code.
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 5 years they decided to close the business. a)
The visitorial and enforcement powers of the DOLE Regional Director to order and enforce compliance with labor standard laws can be exercised even when the individual claim exceeds P5,000.00. ’09 – Q1e
As a counsel for the corporation, what steps will you take prior to its closure? (3%) ‘12 - Q8a
I will serve a written notice on both the workers and the Regional office of the Department of Labor and Employment, at least 1 month before the intended date of closure . (Art. 283, Labor Code); and (2) provide proof of ABC’s serious business losses or financial reverses [Balasbas v. NLRC G.R. No. 85286, August 24, 1992]
The visitorial and enforcement powers of the DOLE Regional Director to order and enforce compliance with labor standards laws can be exercised even when the individual claims exceed P5,000.00. The authority under Article 128 of the Labor Code may be exercised regardless of the monetary value involved. Under Article 129 however, the authority is only for claims not exceeding P5,000.00 per claimant.
Distinguish the terms “conciliation”, “mediation” and “arbitration.” ’10 – Q2a
What issues or disputes may be the subject of voluntary arbitration under the Labor Code? ’08 – Q2a
There is a DOLE official called a “Conciliator Mediator.” He is an officer the NCMB whose principal functions is to assist in the settlement and disposition of labor – management disputes through conciliation and preventive mediation. However, he does not promulgate decisions that settle controversies about rights, which are demandable and enforceable. The latter is called arbitration and is the function of a labor arbiter or a voluntary arbitrator.
Disputes that may be the subject of voluntary arbitration are: 1. Distortions of the wage structure within an establishment from any prescribed wage increase because of a law or wage order which any Regional Board issues (Art. 124, Labor Code); and 2. Interpretation or implementation of the parties’ collective bargaining agreement and those arising from the interpretation of company personnel policies (Article 217 [now Art. 224], as amended by R.A. No. 6715, Labor Code; Navarro III v. Damasco, G.R. No. 101875, July 14, 1995.)
Alternative Answer CONCILIATION is the process of dispute management whereby parties in dispute are brought together for the purpose of: (1) amicably settling the case upon a fair compromise; (2) determining the real parties in interest; (3) defining and simplifying the issues in the case; (4) entering into admissions or stipulations of facts; and (5) threshing out all other preliminary matters (Section 3, Rule V, 2005 NLRC Rules of Procedure.) In resolving labor disputes, this comes before arbitration, as a mandatory process, pursuant to the State policy of promoting and emphasizing conciliation as modes of settling labor disputes [Art. 211 (A)(a) [now Art. 218(A)(a), Labor Code.] MEDIATION is a voluntary process of settling a dispute whereby the parties elect a mediator to facilitate the communication and negotiation between the parties in dispute for the purpose of assisting them in reaching a compromise [Sec. 3(q), R.A. No. 9285 or the Alternative Dispute Resolution Law.] ARBITRATION is a system of dispute settlement that may be compulsory or voluntary, whereby the parties are compelled by the government, or agree to submit their dispute before an arbiter, with the intention to accept the resolution of said arbiter over the dispute as final and binding between them (Luzon Development Bank v. Association of Luzon Development Employees, 249 SCRA 162 [1995].) In this jurisdiction, a compulsory arbitration in labor disputes are submitted to a labor arbiter, whose powers and functions are clearly defined under Article 217(a) of the Labor Code: whereas in voluntary arbitration, the powers and functions elected to resolve the parties’ dispute involve the interpretation and implementation of the parties’ collective bargaining agreement, pursuant to Articles 260-262 of the Labor Code.
Can a dispute falling within the exclusive jurisdiction of the Labor Arbiter be submitted to voluntary arbitration? ’08 – Q2b YES, provided that the parties to the dispute falling within the exclusive jurisdiction of the Labor Arbiter states in unequivocal language that they conform to the submission of said dispute to voluntary arbitration (Vivero v. Court of Appeals, G.R. No. 138938, October 24, 2000.) Can a dispute falling within the jurisdiction of the voluntary arbitrator be submitted to compulsory arbitration? ’08 – Q2c NO. Jurisdiction in compulsory arbitration is conferred by law, not by the agreement of the parties (Veneracion v. Mancilla, G.R. No. 158238, July 20, 2006.) The law mandates that all grievances submitted to the grievance machinery which are not settled shall be referred to voluntary arbitration as prescribed in the CBA (Article 260 [now 272], Labor Code.) This procedure providing for a conclusive arbitration clause in that CBA must be strictly adhered to and respected if its ends are to be achieved (Liberal Labor Union v. Phil. Can Co., No. L-4834, March 28 1953; cited in San Miguel Corp. v. NLRC, G.R. No. 99266, March 2, 1999.) Hence, to submit a dispute falling within the jurisdiction of a voluntary arbitration to compulsory arbitration would be to trifle with the express mandate of the law. May non-lawyers appear before the NLRC or Labor Arbiter? May they charge attorney’s fee for such appearance provided it is charged against union funds and in an amount freely agreed upon by the parties? ’07 – Q5
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 disrupted company operations. 2 employees-members of Union X were terminated from employment due to violation of the memorandum-policy. The union countered with a prohibitory injunction case (with prayer for the issuance of a TRO) filed with the RTC, challenging the validity and constitutionality of the cell phone ban. The company filed a MTD, arguing that the
YES. Non-lawyers may appear before the NLRC or Labor Arbiters: 1. If they represent themselves; 2. If they represent their legitimate labor organization or members thereof;
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If they are duly accredited members of the legal aid office recognized by the DOJ or IBP (Article 222 [now Art. 228], Labor Code.) Non-lawyers cannot charge attorney’s fees because the latter presuppose the existence of attorney-client relationship which exists only if the representative is a lawyer (PAFLU v. BISCOM, 42 SCRA 302 [1997].)
and the parties shall have been furnished with copies of the decision in accordance with these Rules but only after the expiration of the period of appeal if no appeal has been perfected. The Labor Arbiter, the Regional Director, or his duly authorized hearing officer of origin shall, motu propio or upon motion of any interested party, issue a writ of execution on a judgment within five (5) years from the date it becomes final and executory, so requiring the sheriff or duly deputized officer to execute the same. No motion for execution shall be entertained nor a writ issued unless the Labor Arbiter is in possession of the records of the case which shall include an entry of judgment in case of appeal except that, as provided for in Section 10 of Rule VI, and in those cases where partial execution is allowed by law, the Labor Arbiter shall retain duplicate original copies of the decision to be implemented and proof of service thereof for the purpose of its immediate enforcement.
Procedurally, how do you stay a decision, award or order of the Labor Arbiter? ’07 – Q6 Decisions, awards, or orders of the Labor Arbiter may be stayed by the filing of an appeal to the Commission by any or both parties within ten (10) calendar days from receipt of such decisions, awards, or orders. In case of appeal of a Labor Arbiter’s judgment involving a monetary award, it may only be stayed upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the National Labor Relations Commission in the amount equivalent to the monetary award in the judgment appealed from (Article 223 [now Art. 229], Labor Code.)
Cite two (2) instances when an order of execution may be appealed. ’07 – Q12b An Order of Execution may be appealed: 1. When the Order of Execution varies or goes beyond the terms of the judgment it seeks to enforce or the terms of the judgment are ambiguous (DBP v. Union Bank, 419 SCRA 131 [2004]); 2. Where the implementation of the Order was irregular (Metrobank v. Court of Appeals, 356 SCRA 563 [2001].)
May the NLRC or the courts take jurisdictional cognizance over compromise agreements / settlements involving labor matters? ’07 - Q6a NO. Any compromise agreement, including those involving labor standards law, voluntarily agreed upon by the parties with the assistance of the Bureau of Labor Relations of the regional office of the Department of Labor, shall be final and binding upon the parties. The National Labor Relations Commission or any court shall not assume jurisdiction over issues involved therein except of non-compliance thereof or if there is prima facie evidence that the settlement was obtained through fraud, misrepresentation or coercion (Article 227 [now Art. 229], Labor Code.)
May a decision of the Labor Arbiter, which has become final and executory, be novated through a compromise agreement of the parties? ’07 – Q13 YES. Although Article 221 [now Art. 227] of the Labor Code requires the Labor Arbiter to exert all efforts to amicably settle the case before him “on or before the first hearing”, it must be noted that neither the Labor Code nor its implementing rules as well as the NLRC Rules prohibit the amicable settlement of cases during the pendency of the proceedings or after a judgment is issued thereupon. The established rule is that the compromise agreement or amicable settlement may still be made even after the judgment has become final and executory. Settlement of cases is encouraged and authorized by law. Article 2040 of the Civil Code impliedly authorizes this. It is even encouraged by express provisions of law.
How sacrosanct are statements/data made at conciliation proceedings in the DOLE? What is the philosophy behind your answer? ’07 – Q7b It is sacrosanct as privilege communication. This is so because information and statements at conciliation proceedings cannot be used as evidence in the NLRC. Conciliators and similar officials cannot testify in any court or body regarding any matter taken up at conciliation proceedings conducted by them (Article 233 [now Art. 238], Labor Code.) This is to enable the conciliator to ferret out all the important facts of the controversy which the parties may be afraid to divulge if the same cannot be used against them.
P.D. No. 1508 requires the submission of disputes before the Barangay Lupong Tagamayapa prior to the filing of case with the courts or other government bodies. May this decree be used to defeat a labor case directly filed directly with the Labor Arbiter? ’07 – Q16
Discuss in full the jurisdiction over the civil and criminal aspects of a case involving an unfair labor practice for which a charge is pending with the DOLE. ’07 – Q8
NO. Requiring conciliation of labor disputes before the Barangay Lupong Tagamayapa would defeat the salutary purposes of the law. Instead of simplifying labor proceedings at expeditious settlement or referral to the proper courts or office to decide it finally, the conciliation of the issues before the Barangay Lupong Tagamayapa would only duplicate the conciliation proceedings and unduly delay the disposition of labor cases (Montoya v. Escayo, 171 SCRA 446 [1989].)
Unfair labor practices are not only violations of the civil rights of both labor and management but are also criminal offenses against the State. The civil aspect of all cases involving unfair labor practices, which may include claims for actual, moral, exemplary and other forms of damages, attorney’s fee and other affirmative relief, shall be under the jurisdiction of the Labor Arbiters. However, no criminal prosecution shall be instituted without a final judgment, finding that an unfair labor practice was committed, having been first obtained in the administrative proceeding. During the pendency of such administrative proceedings, the running of the period for prescription of the criminal offense herein penalized shall be interrupted. The final judgment in the administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt but merely compliance of the requirements set forth by law (Article 247 [now Art. 257, Labor Code).
Is the commission of an unfair labor practice by an employer subject to criminal prosecution? ’05 – Q2(1)(b) YES, the second paragraph of Article 247 [now 257] of the Labor Code expressly so provides. The last paragraph of said Article provides that no criminal prosecution for unfair labor practice may be made without a prior final judgment in an unfair labor practice administrative case [filed before the Labor Arbiter of the NLRC pursuant to Article 217(a)(1) [now Art. 224 (a)(1)] of the Labor Code.] And even with such final judgment in an administrative case, still, the final judgment would not be binding in the criminal case. Neither would such final judgment be considered as evidence in the criminal case. At best, it would serve as proof of compliance of the required prior exhaustion of an administrative complaint.
How do you execute a labor judgment which, on appeal, had become final and executory? ’07 – Q12a
Under a seaman’s contract of employment with a local manning agent of a foreign shipping company, Capt. TROY embarked on an ocean-going vessel in good health. One stormy night at sea, he
Execution shall issue upon final order, resolution or decision that finally disposes of the action or proceedings after the counsel of record
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was drenched with rainwater. The following morning, he contracted fever which lasted for days. He suffered loose bowel movement, lost his appetite, and eventually he died before a scheduled airlift to the nearest port. Subsequently, the widow of Capt. TROY complained against the local manning agent and its foreign principal before the Regional Arbitration Branch of DOLE, for actual and exemplary damages and attorney’s fees. She invoked the Labor Code provision which requires the employer to provide all necessary assistance to ensure the adequate and necessary medical attendance and treatment of the injured or sick employee in case of emergency. Respondents moved to dismiss the complaint on the ground that the LA has no jurisdiction over the complaint for damages arising from illness and death of Capt. TROY abroad. Resolve the motion. '04 - Q4a
The period of prescription in Article 291 [now Art. 305] of the Labor Code applies only to money claims so that the period of prescription for other cases of injury to the rights of employees is governed by the Civil Code. Thus, an action for reinstatement for injury to an employee's rights prescribes in four (4) years as provided in Article 1146 of the Civil Code. ’02 – Q1b I agree with the statement. A case of illegal dismissal filed by an employee who has been terminated without a just or authorized cause is not a money claim covered by Article 291 [now Art. 305] of the Labor Code. An employee who is unjustly dismissed from work is entitled to reinstatement and to his backwages. A case of illegal dismissal is based upon an injury to the right to security of tenure of an employee. Thus, in accordance with Art 1146, it must be instituted within four (4) years (Callanta v. Carnation Phil., 145 SCRA 268 [1986]; Baliwag Transit v. Ople 171 SCRA 250 [1989]; International Harvester Macleod, Inc. v. NLRC, 200 SCRA 817 [1991].)
In Tolosa v. NLRC, (G.R. 149578, April 10,2003), the Supreme Court held that what we have in this case is a claim arising from tort or quasi-delict. In such a situation, the seaman who died on November 18, 1992, cannot sue before the Labor Arbiter. But this will not apply now, as under Section 10, R.A. No. 8042, [effective June 7, 1995], what we have is a claim "arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages", cognizable by the "Labor Arbiters of the National Labor Relations Commission" (NLRC) who have the original and exclusive jurisdiction thereon.
"A", an employee, sued company "B" for unfair labor practice, Illegal dismissal and damages as a consequence thereof. The Arbiter granted A's prayer for reinstatement, backwages, and included an award for attorney's fees. On appeal to the NLRC, the Commission affirmed the Arbiter's decision but deleted the award for attorney's fees since fees were not claimed in A's complaint. Who was correct, the Arbiter or the NLRC? Would your answer be different if the attorney's fees awarded by the Arbiter was over 15% percent of the total award? ’01 – Q2b & 2c
The employer company, in a directive to the union president, ordered the transfer of some of its employees, including a number of union officials, to its plant offices. The order was opposed by the union. Ultimately, the union filed an ULP case against the company alleging that the purported transfer of its union officials was unjust and in violation of the CBA. Pursuant to the terms of the CBA, the dispute was referred to a voluntary arbitrator who later ruled on the issues raised by the parties. Could it later be validly asserted that the "decision" of the voluntary arbitrator would have no "compulsory" effect on the parties? '03 - Q8
The NLRC was correct in deleting the award for attorney's fees if an employee did not include attorney's fees among his claims and, therefore, did not give any evidence to support the payment of attorney's fees. An award of attorney's fees which is over fifteen percent of the total award is not in conformity with the provision of the Labor Code [Art. 111(a)] that in cases of unlawful withholding of wages, the culpable party may be assessed attorney's fees equivalent to ten percent of the amount of wages recovered.
NO. A voluntary arbitrator chosen under the Grievance Machinery of a CBA can exercise jurisdiction not only on disputes involving interpretation/implementation of a CBA and/or company rules, personnel policies (Article 261 [now Art. 273], Labor Code) but also, upon agreement of the parties, "all other labor disputes including unfair labor practice" (Article 262 [now Art. 274], Labor Code). As no objection was raised by any of the parties when 'the dispute was referred to a voluntary arbitrator who later ruled on the issues raised by the parties", it follows that what we have is voluntary arbitration agreed upon by the parties. His decision is binding upon the parties and may be enforced through any of the sheriffs, including those of the NLRC, he may deputize.
The affected members of the rank and file elevated a LA's decision to the NLRC via a petition for review filed after the lapse of the ten-day reglementary period for perfecting an appeal. Should the NLRC dismiss the petition outright or may the NLRC take cognizance thereof? ’01 – Q8 The NLRC should dismiss the appeal outright because the same was filed beyond the reglementary period of appeal. Article 223 [now Art. 229] of the Labor Code reads: "Decisions, awards, or orders of the Labor Arbiter are final and executory unless appealed to the Commission by any or both parties within ten (10) calendar days from, receipt of such decisions, awards, or orders."
A criminal case filed against an employee does not have the effect of suspending or interrupting the running of the prescriptive period for the filing of an action for illegal dismissal. '02 - Q1a
Another Suggested Answer: I agree. The two (2) cases, namely: the criminal case where the employee is the accused; and the case for illegal dismissal, where the employee would be the complainant, are two (2) separate and independent actions governed by different rules, venues, and procedures. The criminal case is within the jurisdiction of the regular courts of law and governed by the rules of procedure in criminal cases. The action for the administrative aspect of illegal dismissal would be filed with the NLRC and governed by the procedural rules of the Labor Code.
The NLRC could dismiss outright the appeal for being filed out of time. But if there are good reasons that may justifiably explain why there was a delay in the filing of the appeal, substantial justice may be the basis for the NLRC to take cognizance of the appeal. Company "A", within the reglementary period, appealed the decision of a LA directing the reinstatement of an employee and awarding backwages. However, A's cash bond was filed beyond the ten day period. Should the NLRC entertain the appeal? ’01 – Q9
Another Suggested Answer: I agree. An action for illegal dismissal is an administrative case which is entirely separate and distinct from a criminal action. Each may proceed independently of each other. The right to file an action for illegal dismissal is not dependent upon the outcome of the criminal case. Guilt or innocence in the criminal case is not determinative of the existence of a just or authorized cause for a dismissal (Pepsi-Cola Bottling Co. v. Guanzon, 172 SCRA 571 [1989].)
NO, the NLRC should not entertain the appeal, as the same was not perfected for failure to file a bond. Art. 223 (now Art. 229) of the Labor Code reads: "In case of a judgment involving a monetary award, an appeal by the employer may be perfected only upon the posting of cash or surety bond... In the amount equivalent to the monetary award in the judgment appealed from."
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In ABA v. NLRC, G.R. No. 122627, July 18, 1999, the Supreme Court ruled: "An appeal bond is necessary......the appeal may be perfected only upon the posting of cash or surety bond issued by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary award in the judgment appealed from."
be considered as a part of an equitable relief awarded in the concept of damages. Company "A" and Union "B" could not resolve their negotiations for a new CBA. After conciliation proceedings before the NCMB proved futile, B went on strike. Violence during the strike prompted A to file charges against striker-members of B for their illegal acts. The Secretary of Labor assumed jurisdiction, referred the strike to the NLRC and issued a return-to-work order. The NLRC directed the parties to submit their respective position papers and documentary evidence. At the Initial hearing before the NLRC, the parties agreed to submit the case for resolution after the submission of the position papers and evidence. Subsequently, the NLRC issued an arbitral award resolving the disputed provisions of the CBA and ordered the dismissal of certain strikers for having knowingly committed Illegal acts during the strike. The dismissed employees elevated their dismissal to the CA claiming that they were deprived of their right to due process and that the affidavits submitted by A were self-serving and of no probative value. Should the appeal prosper? ’01 – Q14
Another Suggested Answer: The NLRC may still entertain the appeal. It is true that the Labor Code (in Art. 223 [now Art. 229]) provides that appeal is perfected only upon the posting of a cash or surety bond. But if Company A filed a motion for the reduction of the bond, and said motion was only acted upon after the reglementary period, then, the NLRC, in the interest of substantial justice, may still take cognizance of the appeal. "A" was able to obtain a Judgment against his former employer, Company "B", for P750,000.00. In executing the judgment in favor of A, the LA sought to levy on B's office equipment. B filed an action for damages and injunction against the LA before the RTC of the province where B's offices are located. Is B's action tenable? ’01 – Q10
The appeal should not prosper. The Supreme Court, in many cases, has ruled that decisions made by the NLRC may be based on position papers. In the question, it is stated that the parties agreed to submit the case for resolution after the submission of position papers and evidence. Given this fact, the striker-members of B cannot now complain that they were denied due process. They are in estoppel. After voluntarily submitting a case and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court. A party cannot adopt a posture of double dealing (Marquez vs. Secretary of Labor, 16 March 1989.)
B's action is not tenable. In the case of Delta Ventures Resources v. Hon. Fernando P. Labato, G.R. No. 118216, March 9, 2000, the Supreme Court ruled that the regular courts have no jurisdiction to act on labor cases or various incidents arising therefrom, including the execution of decisions, awards or orders. Another Suggested Answer:
Another Suggested Answer: YES, B's action before the Regional Trial Court is tenable if said action is limited to the filing of a damage suit against the Labor Arbiter because there exists no employer-employee relationship between "B" and the Labor Arbiter, and there is no labor dispute between them. In Lapanday Agricultural Development Corporation v. Court of Appeals, G.R. No. 112139, January 31, 2000, the Supreme Court, ruled: "It is well settled in law and jurisprudence that where NO employer-employee relationship exists between the parties and no issue is involved which may be resolved by reference to the Labor Code, other labor statutes or any collective bargaining agreement, it is the Regional Trial Court that has jurisdiction."
NO, the appeal will not prosper. In CMP Federal Security Agency v. NLRC, G.R. No. 125298, February 11, 1999, the Supreme Court ruled: "The standard of due process that must be met in administrative tribunals allows a certain degree of latitude as long as fairness is not ignored. Hence, it is not legally objectionable for being violative of due process, for the labor arbiter to resolve a case based solely on the position papers, affidavits or documentary evidence submitted by the parties. The affidavits of witnesses in such case may take the place of direct testimony."
What damages can an illegally dismissed employee collect from his employer? ’01 – Q11a
Eduardo, a project worker, was being assigned by his employer, Bagsak Builders, to Laoag, Ilocos Norte. Eduardo refused to comply with the transfer claiming that it, in effect, constituted a constructive dismissal because it would take him away from his family and his usual work assignments in MM. The LA found that there was no constructive dismissal but ordered the payment of separation pay due to strained relations between Santiago and Bagsak Builders plus attorney's fees equivalent to 10% of the value of Eduardo's separation pay. 1. Is the award of attorney's fees valid?
An illegally dismissed employee may collect from his employer ACTUAL or COMPENSATORY damages, MORAL damages and EXEMPLARY damages, as well as attorney's fees as damages. Another Suggested Answer: Moral and exemplary damages are only proper where the employee has been harassed and arbitrarily terminated by the employer (Nueva Ecija v. Electric Cooperative Employees Association, G.R. No. 116066, January 24, 2000; Cruz v. NLRC, G.R. No. 16384, February 7, 2000; Philippine Aeolus etc., v. Chua (G.R. No. 124617, April 28, 2000; and Lucas v. Royo, G.R. No. 136185, October 30, 2000.)
NO, the award of attorney's fees is not valid. According to the Labor Code [Art. 111 (a)], attorney's fees may be assessed in cases of unlawful withholding of wages which does not exist in the case. The worker refused to comply with a lawful transfer order, and hence, a refusal to work. Given this fact, there can be no basis for the payment of attorney's fees.
May the LA, NLRC or CA validly award attorney's fees in favor of a complainant even if not claimed or proven in the proceedings? ’01 – Q11b
2.
A Labor Arbiter, NLRC and Court of Appeals may validly award attorney's fees in favor of a complainant only if the claimant claimed and proved that he is entitled to attorney's fees.
Could the LA have validly awarded moral and exemplary damages to Eduardo instead of attorney's fees? ’01 Q17
NO, moral and exemplary damages can be awarded only if the worker was illegally terminated in an arbitrary or capricious manner (Nueva Ecija v. Electric Cooperative Employees Association, G.R. No. 116066, January 24, 2000; Cruz v. NLRC, G.R. No. 16384, February 7, 2000; and Philippine Aeolus etc., v. Chua (G.R. No. 124617, April 28, 2000.)
Another Suggested Answer: Article 2208 of the New Civil Code allows the award of attorney's fees when the defendant's act or omission has compelled the plaintiff to litigate or incur expenses to protect his interest. Attorney's fees may
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The Sigma Rho Fraternity Bar Operations 2018 Bar Questions and Answers
Some disgruntled members of Bantay Labor, Union filed with the Regional Office of the DOLE a written complaint against their union officers for mismanagement of union funds. The Regional Director did not rule in the complainants' favor. Not satisfied, the complainants elevated the Regional Director's decision to the NLRC. The union officers moved to dismiss on the ground of lack of Jurisdiction. Are the union officers correct? ’01 – Q18b
2.
May the NLRC order the payroll reinstatement of Sharon Cometa? ’99 – Q9
The NLRC may NOT order the payroll reinstatement of Sharon Cometa. The Labor Code (Article 223) provides that in the immediate reinstatement of a dismissed employee, the employee shall be admitted back to work under the same terms and conditions prevailing prior to the employee's dismissal or, at the option of the employer, merely reinstated in the payroll. Thus, the reinstatement of the employee in the payroll is at the option of the employer and not of the NLRC or the Labor Arbiter who have the power only to direct reinstatement.
YES, the union officers are correct in claiming that the NLRC has no jurisdiction over the appealed ruling of the Regional Director. In Barles v. Bitonio, G.R. No. 120220, June 16, 1999, the Supreme Court ruled: 'Appellate authority over decisions of the Regional Director involving examination of union accounts is expressly conferred on the Bureau of Labor Relations (BLR) under the Rule of Procedure on Mediation- Arbitration. xxx Section 4. Jurisdiction of the Bureau — (b) The Bureau shall exercise appellate jurisdiction over all cases originating from the Regional Director involving .... Complaints for examination of union books of accounts. The language of the law is categorical. Any additional explanation on the matter is superfluous."
Teofilo Lacson was one of more than 100 employees who were terminated from employment due to the closure of LBM Construction Corp. LBM was a sister company of Lastimoso Construction, Inc. (LRI) and RL Realty & Development Corporation (RLRDC). All 3 entities formed what came to be known as the Lastimoso Group of Companies. The 3 corporations were owned and controlled by members of the Lastimoso Family; their incorporators and directors all belonged to the Lastimoso family. The 3 corporations were engaged in the same line of business, under one management, and used the same equipment including manpower services. Teofilo Lacson and his co-employees filed a complaint with the LA against LBM, RLRDC and LCI to hold them jointly and severally liable for backwages and separation pay. LCI and RLRDC interposed a MTD contending that they are Juridical entitles with distinct and separate personalities from LBM 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 denied? ’99 – Q10
Professor Juan dela Cruz, an author of the textbook Commentaries on the Labor Code of the Philippines, citing an American case, wrote: “It is said that the prohibition against the issuance of a writ of Injunction in labor cases creates substantive and not purely procedural law.” Is there any statutory basis for the statement/comment under Philippine law? ’00 – Q5 YES. The statutory basis is Article 254 [now Art. 265] of the Labor Code. It prohibits issuance of injunction, as a matter of policy, to resolve disputes except as otherwise provided in Articles 218 [now 225] and 264 [now 278] of the Labor Code (Caltex Filipino Managers and Supervisors Association v. CIR, 44 SCRA 350 [1972].)
It is very clear that even if LBM Construction Company, Lastimoso Construction Company, Inc. and RL Realty & Development Corporation all belong to the Lastimoso family and are engaged in the same line of business under one management and used the same equipment including manpower services, these corporations were separate juridical entities. Thus, only the LBM Construction Corporation is the employer of Teofllo Lacson. The other corporation do not have any employer-employee relations with Lacson. The case in question does not include any fact that would justify piercing the veil of corporate fiction of the other corporations in order to protect the rights of workers. In a case (Concept Builders, Inc. v. NLRC. 257 SCRA 149), the Supreme Court ruled that it is a fundamental principle of corporation law that a corporation is an entity separate and distinct from its stockholders and from other corporations to which it may be connected. But this separate and distinct personality of a corporation is merely a fiction created by law for convenience and to promote justice. So, when the notion of separate juridical personality is used to defeat public convenience, justify wrong, protect fraud or defend crime, or is used as a device to defeat the labor laws, this separate personality of the corporation maybe disregarded or the veil of corporate fiction pierced.
In the illegal dismissal case filed by Sharon against Up & Down Company, the LA rendered a decision directing her immediate reinstatement and payment of full backwages. The Company appealed to the NLRC. Following her lawyer's advice that the reinstatement aspect of the decision is immediately executory, Sharon went to the HRD Office of the Company and demanded immediate reinstatement. When the Company refused, her lawyer filed a motion to cite the employer in contempt. Acting on the motion, the NLRC ordered the payroll reinstatement of Sharon Cometa. 1. Can the company or any of its officials be cited for contempt for refusing to reinstate Sharon Cometa? YES. The company or any of its officials can be cited for contempt. It is noted that in his decision, the Labor Arbiter specifically directed the immediate reinstatement of Sharon Cometa. This directive under the Labor Code (Article 223 [now Art. 229]) is immediately executory, even pending appeal (Pioneer Texturizing Corporation v. NLRC, 280 SCRA 806.)
Can a final and executory judgment be compromised under a "Release and Quitclaim" for a lesser amount? '99 - Q12(1)
Alternative Answer: YES, as long as the "Release and Quitclaim" is signed by the very same person entitled to receive whatever is to be paid under the final and executory judgment that was the subject of the compromise agreement and that the "Release and Quitclaim" was signed voluntarily. In Alba Patio de Makati v. NLRC: A final and executory judgment can no longer be altered, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the highest court of the land. Moreover, a final and executory judgment cannot be negotiated, hence, any act to subvert it is contemptuous. It was incumbent upon the counsel for the complainant to have seen to it that the interest of all complainants was protected. The quitclaim and the release in the preparation of which he assisted clearly worked to the grave disadvantage of the complainants. To render the decision of this Court meaningless by paying the back-wages of the
YES. Under Article 223 [now Art. 229] of the Labor Code, an employer has two options in order for him to comply with an order of reinstatement, which is immediately executory, even pending appeal. FIRSTLY, he can admit the dismissed employee back to work under the same terms and conditions prevailing prior to his dismissal or separation or to a substantially equivalent position if the former position is already filled up. SECONDLY, the employer can be reinstated in the payroll. Failing to exercise any of the above options, the employer can be compelled under PAIN OF CONTEMPT, to pay instead the salary of the employee effective from the date the employer failed to reinstate despite an executory writ of execution served upon him. Under Article 218[now Art. 225] of the Labor Code, the NLRC has the power to cite persons for direct and indirect contempt.
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affected employees in a much lesser amount clearly manifested a willful disrespect of the authority of this Court as the final arbiter of cases brought to it. A final and executory judgment cannot be compromised under a "Release and Quitclaim" if said "Release and Quitclaim is clearly to the grave disadvantage of the affected employees by paying them much lesser amounts than what they were entitled to receive under the judgment (See Alba Patio de Makati v. NLRC, 201 SCRA 355). The LA dismissed the complaint for illegal dismissal filed by Genevieve Cruz against Bulag Optical Inc. (BOI) which denied her prayer for reinstatement but awarded financial assistance in her favor. BOI appealed the decision of the LA to the NLRC within the reglementary period. Genevieve filed an opposition to the appeal. The NLRC affirmed in toto the decision of the LA. Both the BOI and Genevieve are not satisfied with the decision of the NLRC, 1. What is the remedy, if any, of BOI and before what forum? BOI can file a Motion for Reconsideration with the NLRC after ten (10) calendar days from receipt of the decision. If the NLRC denies the Motion for Reconsideration, BOI can file a petition for certiorari with the Court of Appeals under Rule 65 of the Rules of Court since the decision of the NLRC is final and executory. 2.
Can Genevieve Cruz avail herself of the same remedy as that of BOI? ’99 – Q15
Genevieve Cruz can avail herself of the same remedy as that of the BOI. The remedies described for the BOI are also the same remedies available to Genevieve Cruz as a party to the case, pursuant to the Labor Code (Article 223 [now Art. 229]) and the Rules of Court (Rule 65). Panel: But the facts of the case indicate that Genevieve did not appeal. She therefore cannot avail of the remedy.
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