POLITICAL LAW- BAR EXAM- FINAL- OCT.

6, 2013 1
2013 BAR EXAMINATIONS
POLITICAL AND INTERNATIONAL LAW
October 6, 2013 8:00A.M.- 12:00 P.M.
INSTRUCTIONS
1. This Questionnaire contains FIFTEEN (15) pages including these
Instructions pages. Check the number of pages and the page numbers
at the upper right hand corner of each page of this Questionnaire and
make sure it has the correct number of pages and their proper
numbers.
There are TWELVE (12) Essay Questions numbered I to XII
(with subquestions), and TWENTY (20) Multiple Choice Questions
(MCQs) numbered I to XX, to be answered within four (4) hours.
The essay portion contains questions that are worth 80% of the
whole examination, while the MCQ portion contains questions worth
20%.
2. Read each question very carefully and. write your answers in your
Bar Examination Notebook in the same order the questions are posed.
Write your answers only at the front, not the back, page of every sheet
in your Examination Notebook. Note well the allocated percentage
points for each number, question, or sub-question. In your answers, use
the numbering system in the questionnaire.
If the sheets provided in your Examination Notebook are not
sufficient for your answers, use the back pages of every sheet of your
Examination Notebook, starting at the back page of the first sheet and
the back of the succeeding sheets thereafter.
3. Answer the Essay questions legibly, clearly, and concisely. Start
each number on a separate page. An answer to a sub-question under
the same number may be written continuously on the same page and the
immediately succeeding pages until completed.
Your answer should demonstrate your ability to analyze the facts
presented by the question, to select the material from the immaterial
POLITICAL LAW- BAR EXAM- FINAL- OCT. 6, 2013 2
facts, and to discern the points upon which the question turns. It should
show your knowledge and understanding of the pertinent principles and
theories of law involved and their qualifications and limitations. It
should demonstrate your ability to apply the law to the given facts, and
to reason logically in a lawyer-like manner to a sound conclusion from
the given premises.
A mere "Yes" or "No" answer without any corresponding
explanation or discussion will not be given any credit. Thus, always
briefly but fully explain your answers the question does not
expressly ask for an explanation. At the same time, remember that a
complete explanation does not require that you volunteer information
or discuss legal doctrines that are not necessary or pertinent to the
solution to the problem. You do not need to re-write or repeat the
question in your Examination Notebook.
4. MCQs are to be answered by writing in your Examination
Notebook the capital letter (A, B, C, D, or E) corresponding to your
chosen answer. The MCQ answers should begin in the page following the
last page of your essay answers.
There is only one correct answer to every MCQ; choose the BEST
answer from among the offered choices. Note that some MCQs may
need careful analysis both of the questions and the choices offered.
5. Make sure you do not write your name or any extraneous note/s or
distinctive marking/s on your Examination Notebook that can serve as
an identifying markls (such as names that are not in the given questions,
prayers, or private notes to the Examiner).
Writing, leaving or making any distinguishing or identifying
mark in the Examination Notebook is considered cheating and can
disqualify you for the Bar examinations.
You can use the questionnaire for notes you may wish/need to
write during the examination.
HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE

J. ARTURO D. BRION
Chairman
2013 Bar Examinations
POLITICAL LAW- BAR EXAM- FINAL- OCT. 6, 2013 3
ESSAY QUESTIONS
I.
In the last quarter of 2012, about 5,000 container vans of imported
goods intended for the Christmas Season were seized by agents of the
Bureau of Customs. The imported goods were released only on January 10,
2013. A group of importers got together and filed an action for damages
before the Regional Trial Court of Manila against the Department of Finance
and the Bureau of Customs.
The Bureau of Customs raised the defense of immunity from suit and,
alternatively, that liability should lie with XYZ Corp. which the Bureau had
contracted for the lease of ten (1 0) high powered van cranes but delivered
only five (5) of these cranes, thus causing the delay in its cargo-handling
operations. It appears that the Bureau, despite demand, did not pay XYZ
Corp. the Php 1.0 Million deposit and advance rental required under their
contract.
(A) wm the action by the group of importers prosper? (5%)
(B) Can XYZ Corp. sue the Bureau of Customs to collect rentals
for the delivered cranes? (5''/o)
n.
While Congress was in session, the President appointed eight acting
Secretaries. A group of Senators from the minority bloc questioned the
validity of the appointments in a petition before the Supreme Court on the
ground that while Congress is in session, no appointment that requires
confirmation by the Commission on Appointments, can be made without the
latter's consent, and that an undersecretary should instead be designated as
Acting Secretary.
Should the petition be granted? (5%)
III.
A robbery with homicide had taken place and Lito, Badong and Rollie
were invited for questioning based on the information furnished by a
neighbor that he saw them come out of the victim's house at about the time
of the robbery/killing. The police confronted the three with this and other
information they had gathered, and pointedly accused them of committing
the crime.
POLITICAL LAW- BAR EXAM- FINAL- OCT. 6, 2013 4
Lito initially resisted, but eventually broke down and admitted his
participation in the crime. Elated by this break and desirous of securing a
written confession soonest, the police called City Attorney Juan Buan to
serve as the trio's counsel and to advise them about their rights during the
investigation.
Badong and Rollie, weakened in spirit by Lito's early admission,
likewise admitted their participation. The trio thus signed a joint extra-
judicial confession which served as the main evidence against them at their
trial. They were convicted based on their confession.
Should the judgment of conviction be affirmed or reversed on
appeal? (5%)
IV.
Congress enacted a law providing for trial by jury for those charged
with crimes or offenses punishable by reclusion perpetua or life
imprisonment. The law provides for the qualifications of members of the
jury, the guidelines for the bar and bench for their selection, the manner a
trial by jury shall operate, and the procedures to be followed.
Is the law constitutional? (6%)
v.
As a leading member of the Lapiang Mandirigma in the House of
Representatives, you were tasked by the party to initiate the moves to
impeach the President because he entered into an executive agreement with
the US Ambassador for the use of the former Subic Naval Base by the US
Navy, for free, i.e., without need to pay rent nor any kind of fees as a show
of goodwill to the U.S. because of the continuing harmonious RP-US
relations.
Cite at least two (2) grounds for impeachment and explain why
you chose them. (6%)
VI.
Congress passed Republic Act No. 7711 to comply with the United
Nations Convention on the Law of the Sea.
In a petition filed with the Supreme Court, Anak Ti !locos, an
association of Ilocano professionals, argued that Republic Act No. 7711
discarded the definition of the Philippine tenitory under the Treaty of Paris
POLITICAL LAW- BAR EXAM- FINAL - OCT. 6, 2013 5
and in related treaties; excluded the Kalayaan Islands and the Scarborough
Shoals from the Philippine Archipelagic baselines; and converted internal
waters into archipelagic waters.
Is the petition meritorious? (6%)
vn.
As he was entering a bar, Arnold - who was holding an unlit cigarette
in his right hand - was handed a match box by someone standing near the
doorway. Arnold unthinkingly opened the matchbox to light his cigarette
and as he did so, a sprinkle of dried leaves fell out, which the guard noticed.
The guard immediately frisked Arnold, grabbed the matchbox, and sniffed
its contents. After confirming that the matchbox contained marijuana, he
immediately arrested Arnold and called in the police.
At the police station, the guard narrated to the police that he
personally caught Arnold in possession of dried marijuana leaves. Arnold
did not contest the guard's statement; he steadfastly remained silent and
refused to give any written statement. Later in court, the guard testified and
narrated the statements he gave the police over Arnold's counsel's
objections. While Arnold presented his own witnesses to prove that his
possession and apprehension had been set-up, he himself did not testifY.
The court convicted Arnold, relying largely on his admission of the
charge by silence at the police investigation and during trial.
From the constitutional law perspective, was the court correct in
its ruling? (6%)
VIII.
Bobby, an incoming third year college student, was denied admission
by his university, a premiere educational institution in Manila, after he failed
in three (3) major subjects in his sophomore year. The denial of admission
was based on the university's rules and admission policies.
Unable to cope with the depression that his non-admission triggered,
Bobby committed suicide. His family sued the school for damages, citing
the school's grossly unreasonable rules that resulted in the denial of
admission. They argued that these rules violated Bobby's human rights and
the priority consideration that the Constitution gives to the education of the
youth.
You are counsel for the university. Explain your arguments in
support of the university's case. (6%)
POLITICAL LAW -BAR EXAM - FINAL - OCT. 6, 2013 6
IX.
Conrad is widely known in the neighborhood as a drug addict. He is
also suspected of being a member of the notorious "Akyat-Condo Gang" that
has previously broken into and looted condominium units in the area.
Retired Army Colonel Sangre - who is known as an anti-terrorism
fighter who disdained human and constitutional rights and has been
nicknamed "terror of Mindanao" - is now the Head of Security of Capricorn
Land Corporation, the owner and developer of Sagittarius Estates where a
series of robberies has recently taken place.
On March l, 2013, Conrad informed his mother, Vannie, that
uniformed security guards had invited him for a talk in their office but he
refused to come. Later that day, however, Conrad appeared to have relented;
he was seen walking into the security office flanked by two security guards.
Nobody saw him leave the office afterwards.
Conrad did not go home that night and was never seen again. The
following week and after a week-long search, Vannie feared the worst
because of Col. Sangre's reputation. She thus reported Conrad's
disappearance to the police. When nothing concrete resulted from the police
investigation, Vannie - at the advice of counsel - f1led a petition for a writ
of amparo to compel Col. Sangre and the Sagittarius Security Office to
produce Conrad and to hold them liable and responsible for Conrad's
disappearance.
(A) Did Vannie's counsel give the correct legal advice? (6%)
(B) If the petition would prosper, can Col. Sangre be held liable
and/or responsible for Conrad's disappearance? (6%)
X.
The Ambassador of the Republic of Kafiristan referred to you for
handling, the case of the Embassy's Maintenance Agreement with CBM, a
private domestic company engaged in maintenance work. The Agreement
binds CBM, for a defined fee, to maintain the Embassy's elevators, air-
conditioning units and electrical facilities. Section I 0 of the Agreement
provides that the Agreement shall be governed by Philippine laws and that
any legal action shall be brought before the proper court of Makati.
Kafiristan terminated the Agreement because CBM aliegedly did not comply
with their agreed maintenance standards.
POLITICAL LAW- BAR EXAM- FINAL - OCT. 6, 2013 7
CBM contested the tennination and filed a complaint against
Kafiristan before the Regional Trial Court of Makati. The Ambassador
wants you to file a motion to dismiss on the ground of state immunity from
suit and to oppose the position that under Section 10 of the Agreement,
Kafiristan expressly waives its immunity from suit.
Under these facts, can the Embassy successfully invoke immunity
from suit? (6%)
XI.
In her interview before t h t ~ Judicial and Bar Council (JBC),
Commissioner Annie Amorsolo of the National Labor Relations
Commission claims that she should be given credit for judicial service
because as NLRC Commissioner, she has the rank of a Justice of the Court
of Appeals; she adjudicates cases that are appealable to the Court of
Appeals; she is assigned car plate No. 1 0; and she is, by law, entitled to the
rank, benefits and privileges of a Court of Appeals Justice.
If you are a member of the JBC, would you give credit to this
explanation? (6%)
xn.
In the May 2013 elections, the Allied Workers' Group of the
Philippines (A WGP), representing land-based and sea-based workers in the
Philippines and overseas, won in the party list congressional elections. Atty.
Abling, a labor lawyer, is its nominee.
As part of the party's advocacy and services, Congressman Abling
engages in labor counseling, particularly for local workers with claims
against their employers and for those who need representation in collective
bargaining negotiations with employers. When labor cases arise, A WGP
enters its appearance in representation of the workers and the Congressman
makes it a point to be there to accompany the workers, although a retained
counsel also formally enters his appearance and is invariably there.
Congressman Abling largely takes a passive role in the proceedings although
he occasionally speaks to supplement the retained counsel's statements. It is
otherwise in CBA negotiations where he actively participates.
Management lawyers, feeling that a congressman should not actively
participate in cases before labor tribunals and before employers because of
the influence a congressman can wield, filed a disbarment case against the
Congressman before the Supreme Court for his violation of the Code of
Professional Responsibility and for breach of trust, in relation particularly
with the prohibitions on legislators under the Constitution.
Is the cited ground for disbarment meritorious? (6%)
POLITICAL LAW- BAR EXAM- FINAL- OCT. 6, 2013 8
I.
MULTIPLE CHOICE QUESTIONS
The equal protection clause is violated by ____ . (1%)
(A) a law prohibiting motorcycles from plying on limited access
highways.
(B) a law granting Value Added Tax exemption to electric
cooperatives that sells electricity to the "homeless poor."
(C) a law providing that a policeman shall be preventively
suspended until the termination of a criminal case against him.
(D) a law providing higher salaries to teachers in public schools
who are "foreign hires."
(E) a law that grants rights to local Filipino workers but denies the
same rights to overseas Filipino workers.
H. Offended by the President's remarks that the Bureau of Customs is a
pit of misfits and the corrupt, the Bureau of Customs Employees Association
composed of 3,000 workers seeks your legal advice on how best to protest
what it views to be the President's baseless remarks.
A prudent legal advice is that----- ( 1%)
(A) employees can go on mass leave of absence for one week
(B) employees can march and rally at Mendiola every
Monday
(C) employees can barricade the gates of the Port of Manila at
South Harbor and call for the resignation of the incumbent
Commissioner of Customs
(D) employees can wear black arm bands and pins with the
word "UNFAIR" inscribed
(E) None of the above can legally be done.
HI. Congress enacted Republic Act No. 1234 requiring all candidates for
public offices to post an election bond equivalent to the one (I) year salary
for the position for which they are candidates. The bond shall be forfeited if
the candidates fail to obtain at least 10% of the votes cast.
Is Republic Act No. 1234 valid? (1 %)
POLITICAL LAW- BAR EXAM- FINAL- OCT. 6, 2013
(A) It is valid as the bond is a means of ensuring fair, honest,
peaceful and orderly elections.
(B) It is valid as the bond requirement ensures that only candidates
with sufficient means and who cannot be corrupted, can run
for public office.
(C) It is invalid as the requirement effectively imposes a property
qualification to run for public office.
(D) It is invalid as the amount of the surety bond is excessive and
unconscionable.
(E) It is valid because it is a reasonable requirement; the
Constitution itself expressly supports the accountability of
public officers.
9
IV. What is the legal effect of decisions of the International Court of
Justice in cases submitted to it for resolution? (1 %)
(A) The decision is binding on other countries in similar situations.
(B) The decision is not binding on any country, even the countries
that are parties to the case.
(C) The decision is binding only on the parties but only with respect
to that particular case.
(D) The decision is not binding on the parties and is only advisory.
(E) The binding effect on the parties depends on their submission
agreement.
V. Under the UN Convention on the Law of the Sea, the exclusive
economic zone refers to an area . (l %)
(A) that is at least 100 miles from the baselines from which the
outer limit of the territorial sea is measured
(B) that is at least 200 miles but not to exceed 300 miles from the
baselines from which the outer limit of the territorial sea is
measured
(C) beyond and adjacent to a country's territorial sea which cannot
go beyond 200 nautical miles from the baselines from which
the outer limit of the territorial sea is measured
(D) that can go beyond 3 nautical miles but cannot extend 300
nautical miles from the baselines from which the outer limit of
the territorial sea is measured
(E) None of the above.
VI. A child born under either the 1973 or the 1987 Constitution, whose
father or mother is a Filipino citizen at the time of his birth, is
-----
(1%)
POLITICAL LAW -BAR EXAM- FINAL- OCT. 6, 2013
(A) not a Filipino citizen as his father and mother must both be
Filipino citizens at the time of his birth
(B) not a Filipino citizen if his mother is a Filipino citizen but his
father is not, at the time of his birth
(C) a Filipino citizen no matter where he or she may be born
10
(D) a Filipino citizen provided the child is born in the Philippines
(E) a Filipino citizen if he or she so elects upon reaching the age of
21
VII. Who has control of the expenditure of public funds? (I%)
(A) The Office of the President through the Department of Budget
and Management.
(B) The House of Representatives from where all appropriation
bills emanate.
(C) The Senate through its Committee on Finance.
(D) The Congress of the Republic ofthe Philippines.
(E) Both the members of Congress and the President acting jointly,
if so provided by the General Appropriations Act.
VIII. May the power of cities to raise revenues be limited by an executive
order of the President? ( 1%)
(A) Yes, because local government units are under the
administrative control of the President through the Department
of Interior and Local Government.
(B) No, because local government units now enjoy full local fiscal
autonomy.
(C) No, because only limitations established by Congress can
define and limit the powers of local governments.
(D) Yes, because the President has the power and authority to
impose reasonable restrictions on the power of cities to raise
revenues.
(E) Yes, if so provided in a city's charter.
IX. The provision under the Constitution - that any member who took no
part, dissented, or inhibited from a decision or resolution must state the
reason for his dissent or non-participation- applies . . (1 %)
(A) only to the Supreme Court
(B) to both the Supreme Court and the Court of Appeals
(C) to the Supreme Court, Court of Appeals and the
Sandiganbayan
(D) to the Supreme Court, the Court of Appeals, the Sandiganbayan
and the Court of Tax Appeals
(E) to all collegial judicial and quasi-judicial adjudicatory bodies
POLITICAL LAW- BAR EXAM- FINAL- OCT. 6, 2013
11
X. Choose the least accurate statement about the independence
guaranteed by the 1987 Constitution to the following constitutional bodies:
(1%)
(A) The Constitution guarantees the COMELEC decisional and
institutional independence similar to that granted to the
Judiciary.
(B) All bodies labeled as "independent" by the Constitution enjoy
fiscal autonomy as an attribute of their independence.
(C) Not all bodies labeled as "independent" by the Constitution
were intended to be independent from the Executive branch of
government.
(D) The Constitution guarantees various degrees of independence
from the other branches of government when it labels bodies as
"independent".
(E) The COMELEC, the COA, and the CSC enjoy the same degree
of indepenc:!ence.
XI. At the Senate impeachment trial of Justice Pablo P. San Quintin, Hon.
Emilio A. Tan, Congressman and Impeachment Panel Manager, wrote the
Supreme Court requesting that the prosecutors be allowed to examine the
court records of Stewards Association of the Philippines, Inc. (SAP!) v.
Filipinas Air, et al., G.R. No. 987654, a case that is still pending. The High
Court . (1%)
(Af may grant the request by reason of inter-departmental courtesy
(B) may grant the request as the records of the Filipinas Air case are
public records
(C) should deny the request since records of cases that are pending
for decision are privileged except only for pleadings, orders and
resolutions that are available to the public
(D) should deny the request because it violates the Court's
independence and the doctrine of separation of powers
(E) should grant the request because of the sui generis nature of the
power of impeachment, provided that the Bill of Rights is not
violated
XII. Mr. Sinco sued the government for damages. After trial, the court
ruled in his favor and awarded damages amounting to P50 million against
the government. To satisfY the judgment against the government, which
valid option is available to Mr. Sinco? ( 1%)
POLITICAL LAW -BAR EXAM- FINAL - OCT. 6, 2013 12
(A) Garnish the government funds deposited at the Land Bank.
(B) File a claim with the Commission on Audit (COA) pursuant to
Commonwealth Act 327, as amended by Presidential Decree
1445.
(C) Make representations with the Congress to appropriate the
amount to satisfy the judgment.
(D) File a petition for mandamus in court to compel Congress to
appropriate P50 million to satisfy the judgment.
(E) Proceed to execute the judgment as provided by the Rules of
Court because the State allowed itself to be sued.
XHI. Which of the following provisions of the Constitution does not confer
rights that can be enforced in the courts but only provides guidelines for
legislative or executive action? ( l%)
(A) The maintenance of peace and order, the protection of life,
liberty, and property, and promotion of the general welfare are
essential for the enjoyment by all the people of the blessings of
democracy.
(B) The State shall give priority to education, science and
technology, arts, culture, and sports to foster patriotism and
nationalism, accelerate social progress, and promote total
human liberation and development.
(C) The natural and primary right and duty of parents in the rearing
of the youth for civic efficiency and the development of moral
character shall receive the support of the Government.
(D) The right of the people to information on matters. of public
concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions,
or decisions, as well as to government research data used as
basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.
(E) All the above only provide guidelines and are not self-
executing.
XIV. The President entered into an executive agreement with Vietnam for
the supply to the Philippines of animal feeds not to exceed 40,000 tons in
any one year. The Association of Animal Feed Sellers of the Philippines
questioned the executive agreement for being contrary to R.A. 462 which
prohibits the importation of animal feeds from Asian countries.
Is the challenge correct? (1%)
POLITICAL LAW- BAR EXAM- FINAL- OCT. 6, 2013 13
(A) Yes, the executive agreement is contrary to an existing
domestic law.
(B) No, the President is solely in charge of foreign relations and all
his actions in this role form part of the law of the land.
(C) No, international agreements are sui generis and stand
independently of our domestic laws.
(D) Yes, the executive agreement is actually a treaty which does not
take effect without ratification by the Senate.
(E) Yes, the challenge is correct because there is no law
empowering the President to undertake the importation.
XV. The separation of Church and State 1s most clearly violated when
------- (1 %)
(A) the State funds a road project whose effect is to make a church
more accessible to its adherents
(B) the State declares the birthplace of a founder of a religious sect
as a national historical site
(C) the State expropriates church property in order to construct an
expressway that, among others, provides easy access to the
Church's main cathedral
(D) the State gives vehicles to bishops to assist them in church-
related charitable projects
(E) the State allows prayers in schools for minor children without
securing the prior consent of their parents
XVI. Patricio was elected member of the House of Representative in the
May 2010 Elections. His opponent Jose questioned Patricio's victory before
the House of Representatives Electoral Tribunal and later with the Supreme
Court.
In a decision promulgated in November 2011, the Court ruled in
Jose's favor; thus, Patricio was ousted from his seat in Congress. Within a
year from that decision, the President can appoint Patricio ____ _
(1%)
(A) only as a member of the board of directors of any government
owned and controlled corporation
(B) only as a deputy Ombudsman
(C) only as a Commissioner of the Civil Service Commission
(D) only as Chairman of the Commission on Elections
(E) to any position as no prohibition applies to Patricio
POLITICAL LAW- BAR EXAM- FINAL- OCT. 6, 2013 14
XVII. Senator GSC proposed a bill increasing excise taxes on tobacco
and alcohol products. The generated incremental revenues shall be used for
the universal health care program for all Filipinos and for tobacco farmers'
livelihood. After the Senate passed the bill on third reading, it was
transmitted to the House of Representatives which approved the bill in toto.
The President eventually signed it into law. Atty. JFC filed a petition before
the Supreme Court, questioning the constitutionality of the new law.
Is the law constitutional? ( 1%)
(A) The law is constitutional because it is for a public purpose and
has duly satisfied the three-readings-on-separate-days rule in
both Houses.
(B) The law is unconstitutional because it violates the equal
protection clause of the Constitution; it is limited only to
alcohol and liquor products.
(C) It is constitutional because of the Enrolled Bill Theory.
(D) It is constitutional because it is valid in form and substance and
complied with the required lawmaking procedures.
(E) None of the above is CO!Tect.
XVIII. Which of the following statements is correct? (I%)
(A) The President, with the concurrence of the Monetary Board, can
guarantee a foreign loan on behalf of the Republic of the
Philippines.
(B) Congress may, by law, provide limitations on the President's
power to contract or guarantee foreign loans on behalf of the
Republic of the Philippines.
(C) In order to be valid and effective, treaties and executive
agreements must be concurred in by at least two-thirds of all the
Members of the Senate.
(D) The President shall, at the end of every quarter of the calendar
year, submit to Congress a complete report of the loans
contracted or guaranteed by the Government or government-
owned and controlled corporations.
(E) All the above choices are defective in some respects.
XIX. Candida has been administratively charged of immorality for
openly living with Manuel, a married man. Candida argues that her conjugal
arrangement with Manuel fully conforms with their religious beliefs and
with the teachings of their church.
POLITICAL LAW- BAR EXAM- FINAL- OCT. 6, 2013 15
In resolving whether Candida should be administratively penalized,
which is the best test to apply? ( 1%)
(A) Clear and Present Danger Test
(B) Compelling State Interest Test
(C) Balancing ofinterests Test
(D) Conscientious Objector Test
(E) Dangerous Tendency Test
XX. Rafael questioned the qualifications of Carlos as congressman
of the Third District of Manila on the ground that Carlos is a citizen of the
USA. The decision disqualifying Carlos for being a US citizen came only in
March 2010, i.e., after the adjournment of the session of Congress on the 3'd
year of the position's three-year term.
What was Carlos' status during his incumbency as congressman?
(1%)
(A) He was a de jure officer, having been duly elected and
proclaimed.
(B) He was not a public officer because he effectively was not
entitled to be a congressman.
(C) He was a de jure officer since he completed the service of his
term before he was disqualified.
(D) He was a de facto officer since he had served and was only
disqualified later.
(E) He neither possesses de jure nor de facto status as such
determination is pointless.
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LABOR LAW- BAR EXAM- FINAL- OCT. 6, 2013
1
BAR EXAMINATIONS 2013
LABOR LAW
October 6, 2013 2:00-6:00 P.M.
INSTRUCTIONS
1. This Questionnaire contains SEVENTEEN (17) pages including
these Instructions pages. Check the number of pages and the page
numbers at the upper right band corner of each page of this
Questionnaire and make sure it has the correct number of pages and
their proper numbers.
There are TEN (10) Essay Questions numbered I to X (with
subquestions), and EIGHTEEN (18) Multiple Choice Questions (MCQs)
numbered I to XVIII (with subquestions), to be answered within four (4)
hours.
The essay portion contains questions that are worth 80% of the
whole examination, while the MCQ portion contains questions worth
20%.
2. Read each question very carefully and write your answers in your
Bar Examination Notebook in the same order the questions are posed.
Write your answers only on the front, not the back, page of every sheet
in your Examination Notebook. Note well the allocated percentage
points for each number, question, or sub-question. In your answers, use
the numbering system in the questionnaire.
If the sheets provided in your Examination Notebook are not
sufficient for your answers, use the back pages of every sheet of your
Examination Notebook, starting at the back page of the first sheet and
the back ofthe succeeding sheets thereafter.
3. Answer the Essay questions legibly, clearly, and concisely. Start
each number on a separate page. An answer to a sub-question under
the same number may be written continuously on the same page and the
immediately succeeding pages until completed.
Your answer should demonstrate your abmty to analyze the facts
presented by the question, to select the material from the immaterial
facts, and to discern the points upon which the question turns. It should
LABOR LAW- BAR EXAM- FINAL- OCT. 6, 2013
2
show your knowledge and understanding of the pertinent principles and
theories of law involved and their qualifications and limitations. It
should demonstrate your ability to apply the law to the given facts, and
to reason logically in a lawyer-like manner to a sound conclusion from
the given premises.
A mere "Yes" or "No" answer without any corresponding
explanation or discussion will not be given any credit. Thus, always
briefly but fully explain your answers although the question does not
expressly ask for an explanation. At the same time, remember that a
complete explanation does not require that you volunteer information
or discuss legal doctrines that are not necessary or pertinent to the
solution to the problem. You do not need to re-write or repeat the
question in your Examination Notebook.
4. MCQs are to be answered by writing in your Examination
Notebook the capital letter (A, B, C, D, or E) corresponding to your
chosen answer. The MCQ answers should begin in the page following the
last page of your essay answers.
There is only one correct answer to every MCQ; choose the BEST
answer from among the offered choices. Note that some MCQs may
need careful analysis both ofthe questions and the choices offered.
5. Make sure you do not write your name or any extraneous note/s or
distinctive markingls on your Examination Notebook that can serve as
identifying mark/s (such as names that are not in the given questions,
prayers, or private notes to the Examiner).
Writing, leaving or making any distinguishing or identifying
mark in the Examination Notebook is considered cheating and can
disqualify you for the Bar examinations.
You can use the questionnaire for notes you may wish/need to
write during the examination.
HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE
q ~ ~
Chairman
2013 Bar Examinations
LABOR LAW- BAR EXAM- FINAL- OCT. 6, 2013
3
ESSAY QUESTIONS
I.
Jose and Erica, former sweethearts, both worked as sales
representatives for Magna, a multinational finn 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.
One afternoon, Jose chanced upon Erica riding in the car of Paolo, a
co-employee and Erica's ardent suitor; the two were on their way back to the
office from a sales call on Silver Drug, a major drug retailer. In a fit of
extreme jealousy, Jose rammed Paolo's car, causing severe injuries to Paolo
and Erica. Jose's flare up also caused heavy damage to the two company-
owned cars they were driving.
(A) As lawyer for Magna, advise the company on whether just
and valid grounds exist to dismiss Jose. (4%)
(B) Assuming this time that Magna dismissed Jose from
employment for cause and you are the lawyer of Jose, how would you
argue the position that Jose's dismissal was illegal? (4%)
II.
Gamma Company pays its regular employees P350.00 a day, and
houses them in a dormitory inside its factory compound in Manila. Gamma
Company also provides them with three full meals a day.
In the course of a routine inspection, a 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 above 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.
Is the company's position legally correct? (8%)
LABOR LAW- BAR EXAM- FINAL- OCT. 6, 2013
4
HI.
Inter-Garments Co. manufactures garments for export and requires its
employees to render overtime work ranging from two to three hours a day to
meet its clients' deadlines. Since 2009, it has been paying its employees on
overtime an additional 35% of their hourly rate for work rendered in excess
of their regular eight working hours.
Due to the slowdown of its export business in 2012, Inter-Garments
had to reduce its overtime work; at the same time, it adjusted the overtime
rates so that those who worked overtime were only paid an 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.
Vigilant Union, the rank-and-file bargaining agent, charged the
company with Unfair Labor Practice on the ground that (1) no consultations
had been made on who would render overtime work; and (2) the unilateral
overtime pay rate reduction is a violation of Article 100 (entitled Prohibition
Against Elimination or Diminution of Benefits) of the Labor Code.
Is the union position meritorious? (8%)
IV.
Bobby, who was assigned as company branch accountant in Tarlac
where his family also lives, was dismissed by Theta Company after
anomalies in the company's accounts were discovered in the branch. Bobby
filed a complaint and was ordered reinstated with full backwages after the
Labor Arbiter found that he had been denied due process because no
investigation actually took place .
. Theta Company appealed to the National Labor Relations
Commission (NLRC) and at the same time wrote Bobby, advising him to
report to the main company office in Makati where he would be reinstated
pending appeaL Bobby refused to comply with his new assignment because
Makati is very far from Tarlac and he cannot bring his family to live with
him due to the higher cost of living in Makati.
(A) Is Bobby's reinstatement pending appeal legally correct?
(4%)
(B) Advise Bobby on the best course of action to take under the
circumstances. (4%)
LABOR LAW -BAR EXAM-FINAL- OCT. 6, 2013
5
v.
Cris filed a complaint for illegal dismissal against Baker Company.
The Labor Arbiter dismissed the complaint but awarded Cris financial
assistance. Only the company appealed from the Labor Arbiter's ruling. It
confined its appeal solely to the question of whether financial assistance
could be awarded. The NLRC, instead of ruling solely on the appealed issue,
fully reversed the Labor Arbiter's decision; it found Baker Company liable
for illegal dismissal and ordered the payment of separation pay and full
backwages.
Through a petition for certiorari under Rule 65 of the Rules of Court,
Baker Company challenged the 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.
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%)
VI.
Because of the stress in caring for her four (4) growing children,
Tammy suffered a miscarriage late in her pregnancy and had to undergo an
operation. In the course of the operation, her obstetrician further discovered
a suspicious-looking mass that required the subsequent removal of her uterus
(hysterectomy). After surgery, her physician advised Tammy to be on full
bed rest for six ( 6) weeks. Meanwhile, the biopsy of the sample tissue taken
from the mass in Tammy's uterus showed a beginning malignancy that
required an immediate series of chemotherapy once a week for four (4)
weeks.
(A) What benefits can Tammy claim under existing social
legislation? (4%)
(B) What can Roger- Tammy's 2nd husband and the father of
her two (2) younger children - claim as benefits under the
circumstances? (4%)
LABOR LAW - BAR EXAM - FINAL - OCT. 6, 2013
6
vu.
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 discuss the merits of their proposals and counter-proposals in any
formal negotiation meeting because their talks already bogged down on the
negotiation ground rules, i.e., on the question of how they would conduct
their negotiations, particularly on whether to consider retirement as a
negotiable issue.
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
himself) on the validity of the union's strike and on the wage and other
economic issues (including the retirement issue), the DOLE Secretary ruled
on the validity of the strike and on the disputed CBA issues, and ordered the
parties to execute a CBA based on his rulings.
Did the Secretary of Labor exceed his jurisdiction when he
proceeded to rule on the parties' CBA positions even though the parties
did not fully negotiate on their own? (8%)
VIII.
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 that he used to enjoy.
After five (5) years under this arrangement, the company finally
severed all employment relations with Albert; he was declared fully retired
in a fitting ceremony but the company did not give him any further
retirement benefits. Albert thought this treatment 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 five (5) working years, based either on the
company's Retirement Plan or the Retirement Pay Law, whichever is
applicable.
LABOR LAW- BAR EXAM- FINAL- OCT. 6, 2013
7
(A) After Albert's retirement at age 65, should he be considered
a regular employee entitled to all his previous salaries and benefits
when the company allowed him to continue working? (4%)
(B) Is he entitled to additional retirement benefits for the
additional service he rendered after age 65? (4%)
IX.
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 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 term of the CBA
under pain of dismissal. The check-off 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 an authorization to the
company for the check-off of his dues, maintaining that he will personally
remit his dues to the union.
(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%)
(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%)
X.
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 Services (agency), in accordance with the 2000
Philippine Overseas Employment Administration Standard Employment
Contract (2000 POEA-SEC). Cesar's employment was also covered by a
CBA between the union, AMOSl.JP, and Meritt Shipping. Both the 2000
POEA-SEC and the CBA commonly provide the same mode and procedures
for claiming disability benefits. Cesar's last contract (for nine months)
expired on July 15, 2013.
Cesar disembarked from the vessel MIV 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,
LABOR LAW -BAR EXAM -FINAL - OCT. 6, 20 !3
8
general weakness, and difficulty in breathing. The agency referred him to
Dr. Sales, a cardio-pulmonary 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.
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"/o)
MULTIPLE CHOICE QUESTIONS
I. The parties to a labor dispute can validly submit to voluntary
arbitration (1%)
(A) any disputed issue they may agree to voluntarily arbitrate
(B) only matters that do not fall within the exclusive jurisdiction of
the Labor Arbiter
(C) any disputed issue but only after conciliation at the National
Conciliation and Mediation Board fails
(D) any disputed issue provided that the Labor Arbiter has not
assumed jurisdiction over the case on compulsory arbitration
(E) only matters relating to the interpretation or implementation of
a collective bargaining agreement
H. When there is no recognized collective bargaining agent, can a
legitimate labor organization validly declare a strike against the
employer? (1%)
(A) Yes, because the right to strike is guaranteed by the
Constitution and cannot be denied to any group of employees.
(B) No, because only an exclusive bargaining agent may declare a
strike against the employer.
LABOR LAW -BAREXAM-FINAL- OCT. 6, 2013
9
(C) Yes, because the right to strike is a basic human right that the
country's international agreements and the International Labor
Organization recognize.
(D) Yes, but only in case of unfair labor practice.
(E) No, in the absence of a recognized bargaining agent, the
workers' recourse is to file a case before the Department of
Labor and Employment.
HI. Mr. Del Carmen, unsure if his foray into business (messengerial
service catering purely to law firms) would succeed but intending to go
long-term if he hurdles the first year, opted to open his operations with one-
year contracts with two law firms although he also accepts messengerial
service requests from other firms as their orders come. He started with one
permanent secretary and six (6) messengers on a one-year, fixed-term,
contract.
Is the arrangement legal from the perspective of labor standards?
(1%)
(A) No, because the arrangement will circumvent worker's right to
security of tenure.
(B) No. If allowed, the arrangement will serve as starting point in
weakening the security of tenure guarantee.
(C) Yes, if the messengers are hired through a contractor.
(D) Yes, because the business is temporary and the contracted
undertaking is specific and time-bound.
(E) No, because the fixed term provided is invalid.
IV. Chito was illegally dismissed by DEF Corp. effective at the close of
business hours of December 29, 2009.
IV(1). He can file a complaint for illegal dismissal without any
legal bar within . (1%)
(A) three (3) years
(B) four (4) years
(C) five (5) years
(D) six (6) years
(E) ten (10) years
IV(2). If he has money claims against DEF Corp., he can make
the claim without any legal bar within . (1%)
(A) three (3) years
(B) four (4) years
(C) five (5) years
(D) six (6) years
(E) ten (10) years
LABOR LAW- BAR EXAM-FINAL- OCT. 6, 2013
10
V. After vainly struggling to stay financially afloat for a year, LMN
Corp. finally gave up and closed down its operations after its major creditors
filed a petition for LMN's insolvency and liquidation.
In this situation, LMN's employees are entitled to ______ .as
separation pay. (1%)
(A) one-half month pay for every year of service
(B) one month pay for every year of service
(C) one-half month pay
(D) one month pay
(E) no separation pay at all
VI. At age 65 and after 20 years of sewing work at home on a piece rate
basis for PQR Garments, a manufacturer-exporter to Hongkong, Aling Nena
decided it was time to retire and to just take it easy.
Is she entitled to retirement pay from PQR? (1%)
(A) Yes, but only to one month pay.
(B) No, because she was not a regular employee.
(C) Yes, at the same rate as regular employees.
(D) No, because retirement pay is deemed included in her
contracted per piece pay.
(E) No, because homeworkers are not entitled to retirement pay.
VII. The minimum wage prescribed by law for persons with disability is
_____ .(1%)
(A) 50% of the applicable minimum wage
(B) 75% ofthe applicable minimum wage
(C) 100% of the applicable minimum wage
(D) the wage that the parties agree upon, depending on the
capability of the disabled.
(E) the wage that the parties agree upon, depending on the
capability of the disabled, but not less than 50% of the
applicable minimum wage
VHI. What is the financial incentive, if any, granted by law to SPQ
Garments whose cutters and sewers in its garments-for-export operations are
80% staffed by deaf and deaf-mute workers? (1%)
LABOR LAW- BAR EXAM- FINAL- OCT. 6, 2013
11
(A) Additional deduction from its gross income equivalent to 25%
of amount paid as salaries to persons with disability.
(B) Additional deduction from its gross income equivalent to 50%
of the direct costs of the construction of facilities for the use of
persons with disability.
(C) Additional deduction from its net taxable income equivalent
to 5% ofits total payrolL
(D) Exemption from real property tax for one (1) year of the
property where facilities for persons with disability have been
constructed.
(E) The annual deduction under (A), plus a one-time deduction
under (B).
IX. Mr. Ortanez has been in the building construction business for several
years. He asks you, as his new labor counsel, for the rules he must observe
in considering regular employment in the construction industry.
You clarify that an employee, project or non-project, will acquire
regular status if (1%)
(A) he has been continuously employed for more than one year
(B) his contract of employment has been repeatedly renewed, from
project to project, for several years
(C) he performs work necessary and desirable to the business,
without a fixed period and without reference to any specific
project or undertaking
(D) he has lived up to the company's regularization standards
(E) All ofthe above.
X. Samahang Tunay, a union of rank-and-file employees lost in a
certification election at Solam Company and has become a minority union.
The majority union now has a signed CBA with the company and the
agreement contains a maintenance of membership clause.
What can Samahang Tunay stm do within the company as a union
considering that it stm has members who continue to profess continued
loyalty to it? (1%)
(A) It can still represent these members in grievance committee
meetings.
(B) It can collect agency fees from its members within the
bargaining unit.
(C) It can still demand meetings with the company on company
time.
(D) As a legitimate labor organization, it can continue to represent
its members on non-CBA-related matters.
(E) None of the above.
(F) All of the above.
LABOR LAW- BAR EXAM- FINAL- OCT. 6, 2013
12
XI. The members of the administrative staff of Zeta, a construction
company, enjoy ten (10) days of vacation leave with pay and ten (10) days
of sick leave with pay, annually. The workers' union, Bukluran, demands
that Zeta grant its workers service incentive leave of five (5) days in
compliance with the Labor Code.
Is the union demand meritorious? (1%)
(A) Yes, because non-compliance with the law will result in the
diminution of employee benefits.
(B) Yes, because service incentive leave is a benefit expressly
provided under and required by the Labor Code.
(C) No, because Zeta already complies with t.'Ie law.
(D) No, because service incentive leave is a Labor Code benefit that
does not apply in the construction industry.
(E) Yes, because Labor Code benefits are separate from those
voluntarily granted by the company.
XU. Upon the expiration of the first three (3) years of their CBA, the union
and the company commenced negotiations. The union demanded that the
company continue to honor their 30-day union leave benefit under the CBA.
The company refused on the ground that the CBA had already expired, and
the union had already consumed their union leave under the CBA.
Wbo is correct? (1%)
(A) The company is correct because the CBA has expired; hence it
is no longer bound to provide union leave.
(B) The company is correct because the union has already
consumed the allotted union leave under the expired CBA.
(C) The union is correct because it is still the bargaining
representative for the next two (2) years.
(D) The union is correct because union leaves are part of the
economic tenns that continue to govern until new terms are
agreed upon.
(E) They are both wrong.
XIII. Hector, a topnotch Human Resource Specialist who had worked in
multinational firms both in the Philippines and overseas, was recruited by
ABC Corp., because ofhis impressive credentials. In the course of Hector's
employment, the company management frequently did not follow his
recommendations and he felt offended by this constant rebuff.
LABOR A W ~ BAR X A M ~ FINAL- OCT. 6, 2013
13
Thus, he toyed with the idea of resigning and of asking for the same
separation pay that ABC earlier granted to two (2) department heads when
they left the company.
To obtain a legal opinion regarding his options, Hector sent an email
to ABC's retained counsel, requesting for advice on whether the grant by the
company of separation pay to his resigned colleagues has already ripened
into a company practice, and whether he can similarly avail of this benefit if
he resigns from his job.
As the company's retained legal counsel, how will you respond to
Hector? (1%)
(A) I would advise him to write management directly and inquire
about the benefits he can expect if he resigns.
(B) I would advise him that the previous grant of separation pay to
his colleagues cannot be considered a company practice
because several other employees had resigned and were not
given separation pay.
(C) I would advise him to ask for separation pay, not on account of
company practice, but on the basis of discrimination as he is
similarly situated as the two resigned department heads who
were paid their separation pay.
(D) I would not give him any legal advice because he is not my
client.
(E) I would maintain that his question involves a policy matter
beyond the competence of a legal counsel to give.
XIV. Aleta Quiros was a faculty member at BM Institute, a private
educational institution. She was hired on a year-to-year basis under the
probationary employment period provision of the Manual of Regulations for
Private Schools. The terms and conditions of her engagement were defined
under her renewable yearly contract.
For reasons of its own, BM Institute no longer wanted to continue
with Aleta's teaching services. Thus, after the contract for her second year
expired, BM Institute advised Aleta that her contract would no longer be
renewed. This advice prompted Aleta to file a complaint for illegal dismissal
against BM Institute.
wm the complaint prosper? (1'%)
(A) Yes, because no just or authorized cause existed for the
termination of her probationary employment.
(B) Yes, because under the Labor Code, Aleta became a regular
employee after 6 months and she may now only be dismissed
for cause.
LABOR LAW- BAR EXAM-- FINAL- OCT. 6, 2013
14
(C) No, because there was no dismissal to speak of. Her
employment was automatically terminated upon the expiration
of her year-to-year fixed term employment.
(D) No, because BM Institute may dismiss its faculty members at
will in the exercise of its academic freedom.
(E) No, because Aleta was still on probationary employment.
XV. Robert, a,'l employee of ABC Company, is married to Wanda. One
day, Wanda visited the company office with her three (3) emaciated minor
children, and narrated to the Manager that Robert had been squandering his
earnings on his mistress, leaving only a paltry sum for the support of their
children. Wanda tearfully pleaded with the Manager to let her have one half
of Robert's pay every payday to ensure that her children would at least have
food on the table. To support her plea, Wanda presented a Kasulatan signed
by Robert giving her one half of his salary, on the condition that she would
not complain if he stayed with his mistress on weekends.
If you were the Manager, would you release one half of Robert's
salary to Wanda? (1%)
(A) No, because an employer is prohibited from interfering with the
freedom of its employees to dispose of their wages.
(B) Yes, because ofRobert's signed authorization to give Wanda
one half of his salary.
(C) No, because there is no written authorization for ABC
Company to release Robert's salary to Wanda.
(D) Yes, because it is Robert's duty to financially support his minor
children.
(E) No, because Robert's Kasulatan is based on an illegal
consideration and is of doubtful legal validity.
XVI. Ricardo operated a successful Makati seafood restaurant patronized
by a large clientele base for its superb cuisine and impeccable service.
Ricardo charged its clients a 10% service charge and distributed 85% of the
collection equally among its rank-and-file employees, 10% among
managerial employees, and 5% as reserve for losses and breakages. Because
of the huge volume of sales, the employees received sizeable shares in the
collected service charges.
As part of his business development efforts, Ricardo opened a branch
in Cebu where he maintained the same practice in the collection and
distribution of service charges. The Cebu branch, however, did not attract
the forecasted clientele; hence, the Cebu employees received lesser service
charge benefits than those enjoyed by the Makati-based employees. As a
result, the Cebu branch employees demanded equalization of benefits and
LABOR LAW- BAR EXAM- FINAL- OCT. 6, 2013
15
filed a case with the NLRC for discrimination when Ricardo refused their
demand.
XVI(l) wm the case prosper? (1%)
(A) Yes, because the employees are not receiving equal treatment in
the distribution of service charge benefits.
(B) Yes, because the law provides that the 85% employees' share in
the service charge collection should be equally divided among
all the employees, in this case, among the Cebu and Makati
employees alike.
(C) No, because the employees in Makati are not similarly situated
as the Cebu employees with respect to cost ofliving and
conditions of work.
(D) No, because the service charge benefit attaches to the outlet
where service charges are earned and should be distributed
exclusively among the employees providing service in the
outlet.
(E) No, because the market and the clientele the two branches are
serving, are different.
XVI(2). In order to improve the Cebu service and sales, Ricardo
decided to assign some of its Makati-based employees to Cebu to train Cebu
employees and expose them to the Makati standard of service. A chef and
three waiters were assigned to Cebu for the task. While in Cebu, the
assigned personnel shared in the Cebu service charge collection and thus
received service charge benefits lesser than what they were receiving in
Makati.
If you were the lawyer for the assigned personnel, what would you
advice them to do? (1%)
(A) I would advise them to file a complaint for unlawful diminution
of service charge benefits and for payment of differentials.
(B) I would advise them to file a complaint for illegal transfer
because work in Cebu is highly prejudicial to them in terms
of convenience and service charge benefits.
(C) I would advise them to file a complaint for discrimination in
the grant of service charge benefits.
(D) I would advise them to accept their Cebu training assigmnent
as an exercise of the company's management prerogative.
(E) I would advise them to demand the continuation of their
Makati-based benefits and to file a complaint under (B)
above if the demand is not heeded.
LABOR LAW- BAR EXAM- FINAL- OCT. 6, 2013
16
XVII. Constant Builders, an independent contractor, was charged with
illegal dismissal and non-payment of wages and benefits of ten dismissed
employees. The complainants impleaded as co-respondent Able Company,
Constant Builder's principal in the construction of Able's office building.
The complaint demanded that Constant and Able be held solidarily liable for
the payment of their backwages, separation pay, and all their unpaid wages
and benefits.
If the Labor Arbiter rules in favor of the complainants, choose the
statement that best describes the extent of the liabilities of Constant and
Able. (1%)
(A) Constant and Able should be held solidarily liable for the
unpaid wages and benefits, as well as backwages and separation
pay, based on Article 109 of the Labor Code which provides
that "every employer or indirect employer shall be held
responsible with his contractor or subcontractor for any
violation of any provision of this Code."
(B) Constant and Able should be held solidarily liable for the
unpaid wages and benefits, and should order Constant, as the
workers' direct employer, to be solely liable for the backwages
and separation pay.
(C) Constant and Able should be held solidarily liable for the
unpaid wages and benefits and the backwages since these
pertain to labor standard benefits for which the employer and
contractor are liable under the law, while Constant alone - as
the actual employer- should be ordered to pay the separation
pay.
(D) Constant and Able should be held solidarily liable for the
unpaid wages and benefits, and Constant should be held liable
for their backwages and separation pay unless Able is shown to
have participated with malice or bad faith in the workers'
dismissal, in which case both should be held solidarily liable.
(E) The above statements are all inaccurate.
XVIII. The Pinagbuklod union filed a Petition for Certification Election,
alleging that it was a legitimate labor organization of the rank-and-file
employees of Delta Company. On Delta's motion, the Med Arbiter
dismissed the Petition, based on the finding that Pinagbuklod was not a
legitimate labor union and had no legal personality to file a Petition for
Certification Election because its membership was a mixture of rank-and-file
and supervisory employees.
LABOR L A W ~ BAR E X A M ~ FINAL- OCT. 6. 2013
Is the dismissal of the Petition for Certification Election by the
Med-Arbiter proper? (1 /o)
(A) Yes, because Article 245 of the Labor Code prohibits
supervisory employees from joining the union of the rank and
file employees and provides that a union representing both rank
and file and supervisory employees as members is not a
legitimate labor organization.
(B) No, because the grounds for the dismissal of a petition for
certification election do not include mixed membership in one
umon.
(C) No, because a final order of cancellation of union registration is
required before a petition for certification election may be
dismissed on the ground oflack of!egal personality of the
umon.
(D) No, because Delta Company did not have the legal personality
to participate in the certification election proceedings and to file
a motion to dismiss based on the legitimacy status of the
petitioning union.
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