,,.

('

2008

BAR EXAMINATIO!'i

I
f

. h automatic re newal clau se of

c pla1n t e
(3o' )
Colle
..,x . . agreernen ts .
'o
r.b., ',
bargatnmg
(

al
5uGGE5

TEDAHSVIER:

,.

matic renewal clauae of Cob

The au t o
h al h
~~ ...
reement mean t at t ouch ca~ ....

uplred, '!tcil

new CBA has been entered Into (~._..

partlet u&Stevedorlng Services, Inc. v. Roldan-Cor!fi

A~~ 294 {1995/).

Thlala ao becauae the ... ~ .

:141
{the parties to keep the atatua quo 1114
It duty full effect the term and condltlona of.~
continue 1n
I
-..
exJstlnl aereement until a new agreement reache4 ~
tbe partlet (Art. 253, Labor Code).
,

Explain the e x ~en t of th ~ . worke rs' right 10

parti ipat in pol y a n? decision -making procts
ns provided und r Art1CI XIII, Se lion 3 of Lht
Philippin e Co n s tituti o n . Doe it include .
m mb rship in th e Boa rd of Directors of
corpora tion? (3%)

aforementioned Artlc:le ofthe Labor Code that t}le rfcht of

workers to participate In policy and decision maJdnC
proceaaea u provided In Article XJJI, Section 3 of the
Conatltutlon doea not Include membership In the Board of
Directors of a Corporation but this could be the proper
subject of a Collective Barcalnlnc ,Acreement.
dNQTHER SUGGE$TEDAN8WER:

bl In Manila .Electric CompanJIP. Qui.umbing (302

SCRA 173(1999J), the Supreme Court recocnbed the rlcht
of the union to participate In policy formulation and
decplon-malr.Jnc proceaa on mattera afrectln& the Union
membera' rlcht.a, dutiea and welfare. However, the Court
held that auch participation of the union in committee a of
employer Meralco It not in the nature of a co-mana1ement
control of the buslneas ofMeralco. Impliedly, therefore,
workers' participatory ri&ht In policy and dec:Pion-malr.Jn&
proceaaea doea not include the rtcht to put a union
member In the Corporation' Board of Directors.
D
aj

What issues or disputes may be the subject of

voluntary arbitration under the Labor Code? (4%1

SUGGESTED ANSWER;

bl The workers' rlcht to participate In pollq u4

decllon maklq proce11ea of the eatabllahment whtrw
tbeyue emplo1ed In 10 far aa aaJd proce ..ea aff'ect thtlt
rlrht., benenta and welfare aa embodied .I n Sectioa 3 ol
Article XIU olthe Conatltutfon Ia reiterated fo Art. 255ol
the Labor Code where it fa provfded that for the purpoet
oflmplemenUnc aucb rfcbt, worker and employer _,
form labor manacement oounclla provided that t.,
repreuntatlvea o( workera to auch labor manaltmtll
councU haJJ be elected by tbe m-.JotJty of all
employee In Nld eatabllahmtnt. It J clear froiD t.bl

t.,

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I Dlaputea or luues subject to Voluntary

Arbitration:
I.

all unreiiOlved crlevancea arlalnc from the

implementation or interpretation of the CBA
after exhauatlon of the erie vance procedure;

U.

aU unre110lvad crlevancea ariain& from the

Implementation or interpretation or company
per110nnel policies;

UJ.

all wace dPtortlon i.. uea arlalnc from the

application of any wace ordera In orcanl&ed
eatabllahments;

~....-.----- ~~.- .,

.~

---

d grievances ariat 111 ~

_.
,oJ~e
d i
1
'to
aU unre atioP an
mp emeat ~ t ~
I" illterpret
incentive programs lln ttall ~ j
producti~itY
~I (

cl,.,

6971;

bot dispute including UQfi

j
and bargaining deadloc~ir' f
pracdC
f the partieS,
I "h i
al'eeJJletlt o
'1
. . ute fa lling within the
d
/l !l a . tSPof the Labor Arbiter be SUbe"~lllsiv
di uon
l'l'lttt ~ I
jurt$
:trbitration? Why or why not'? I tQ ~
voiunt.aJ)' [
3%).

all

\'.

ll

otbt::

lcNQTHMBvoo&RDANUR;

c)
No. A dlapute faJUDc wfthba the jurlacUctJon of a
Voluntary Arbitrator caanot be subudtted lor compuleo17
arbitration. Under Art. 263(cJ or the Code, OaiJ' the
roUowlq dlaputes can be submitted lor compuleo1'7
arbitration:

Ii

Jabor dispute falling within the ~

b) Ye A Labor Arbiter may be aublllftt ~ J
JuradictJoll ~~tJon.
Any or all diaputea Ulld:cf to 1
y0]11Jltat1 ~ oJilinal jurisdiction of the Labor ~ ~
e,.cluslve ~ of the Code, may be aubmitted forVoJ11Q Itt,
7
llJlderArt b VoluntarY Arbitrator by agree 111e 11t ~
arbitratJOD 1 I
.
0 ~ .

parties.
"Art 162. Jurisdiction over labor diapu~. 1\e
voluntar1 arbitrator o~--=~el ohfallvoalluntaryh arbftraton,
upon apeement of the!'- ..es, I
so ear a11d decf4t
all other labor dilputea, ~cludiq unfair labor Pl'lctJee
and barga.lninl deadlocks.

c)

cj A clilpute CaJllng within the jurlaclictlon of a

voluntary arbitrator can be submitted to compullory
arbitration. This situation can arise when the Secretary
olLabor aDd Employment has assumed jurisdiction om
alabor dispute iD an industry fndfapenaable to the natioaal
Interest. In the foregoing situation, in accordance with

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1)

Labor dlapute cauafDc or like~ to caue a strike

or lockout bs aa IDduetry bullapenuble to the
national IDter. .t; aad

2)

8trlba aad lockouta bs Jao.pltala,

alm.llu mecUcalt.Datftutfoaa.

Can a dispute falling within the jurisdiction of a l

voluntary arbitrator be submitted to compulsory f
arbitration? Why or why not? (3%)
'

SUOOESTEDANSWER:

applicable Supreme Court declaJou, tlae Secretary of

Labor and Emplo)'IIMnt 1baU a1ao uaume jurladlcdoD
over aub .. quent labor ca .. , fnvolvfnc the aaaae
estabU.Iunent, bscludfaa thOM that ma,-be n.olnd b1 a
Voluntary Arbitrator.

ciJDjca,

a.Dd

m
Savoy Department Store (SDS) adopted a policy of
hiring salesladies on five-month cycles. At the end of a
saleslady's five-month term, another person is hired as
replacement. Salesladies attend to store customers, wear
SDS uniforms, report at specified hours, and are subject. to
SDS workplace rules and regulations. Those who refuse the
5-month employment contract are not hired.
The day after the expiration of her 5-month engagement,
Lina wore her SDS white and blue uniform and reported for
work but was denied entry into the store premises. Agitated,
she went on a hunger strike and stationed herself in front
of one of the gates of SDS. Soon thereafter, other employees
whose 5-month term had also elapsed, joined Una's hunger
strike.
a)

Lina and 20 other salesladies ftled a complaint for

illegal dismissal, contending that they are SDS'

Scanned by CamScanner
-'

tm tlo)'IJtt nt va1l4 ~~

t b

,..~ , .,..

t tall U, je t~t~ia.t.Uh.. fl t bllU f J,

i) f . ....... .., ,......

_u,

. . , .. . . . , . . . . .. ,

ja fl4

y-t)hUJtarllj llrd 'i pOu bf ' b JHU1.t wl t)Jout

lutn,
du " " lruprPr pru ur blrll f,tunlht. tv blf " J'Qfi
ntpi.:Jt.........., ~- 1. .-.yut.hr oirm aDo vlt.-.e ,,.,
hit oon ntl .,,4 (:-1) U iul1 ploy r anti m pl.,)'t
wtth tHaa h ot httr on anor or qual tetr wlt li no tnur J
ctomlnrat') e o n t h lat tr,

tl''

'JG:i&"'~

1 lnfavorofLina,etal. ln.Pu,..,
al Jwoul~~ 12 83 seRA 13 5[1997]), the ch:oq
corporation 11 . In blriPi worke r on a unlforntty Qle
the employer 1110nth and replacing thern upo fbce4
1
15
~ontract bui;:clr contract with other work en Wit: :~~
expiration olment statu wa found to have been deaJ be
,. ernployect from attalnfnc the ,.~fled
11111 eemploy
to prevent "casua1
-..tu,
pJoyee.
ola retu1ar e 111
.
GGESTED ANSWER:

ANOTHER SU

al

The Complaint of Lina and 20 other employe,,

. 1-aed Underexistingjurfsprudence ' there
sbouldb e dtl 111 ,.
is 00 dismissal to speak of when the term of a fixed-perf04
employments expires.
AJ such, there is no violation of the right to &eCUrfty
of tenure of these fiXed-period employees even if they
performed activities usually necessary or desirable in the
usual trade of business, because they knew beforehand
that their contract is to expire after five 15) months.

ANOTHER SUGGESTED ANSWER:

J w-ill resolve the illegal dismissal case in favor of
Jn Brent, the Supreme Court En Bane held that
while fi.ud term employment has already been repealed
by the various amendments to the Labor Code, the Civil
Code still allows futed term employment. Such kind of
SDS.

snc admlttdly, Llna, el cal. rd, prlor t o

en&lnnt, to t.h f~d term emplo1mnt , and It
appearlnl that t b elr oonaot pot ovlt &at d, aDd
ooaaldednl further that lt tu.e llOt beP ar~ud tbat t h
part I dealt with aoh other on 1 q\Ull t. rm, It t hea
follow that J.lna, t e~l' flxed term. emploJnt le valid.
Ho Ullal dlamlaaal CaP tall place upon plr1ltlon or
auch fbutd term emploJmnt.

bl

The owner of SDS conside red the hunger etrike

staged by Lina, et al., an eyesore and disruptive of
SDS' business. He wrote the Secretary of Labor a
letter asking him to assume jurisdiction over the
dispute and enjoin the hunger "strike". What
answer will you give if you were the Secretary of
Labor? (3%)

SUQGESTEDANSWER;

bJ I wW deny the letter-reque1t of SDS becauee Ita

buslnes1 11 not indispensable to the national lntereat.
Although the Secretary or Labor ha a wide latitude or
discretion In decldlnc whether or Dbt to auume juriadlctlon
over a labor dispute or certify the same to the NLRC for
compulsory arbitration, SDS'a butlneaa Ia clearly not one
which is indispensable to the national Interest. Moreover,
the grounds relled upon by SDS, to wit: .. eyeaore and
disruptive or ita buelneu", betrays the weakneu or Ita
case.

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..

,.,.Ices skipped durlnl tb strike of the rank-an

union.
d-IIJ,

..

If Indeed the local union waa diaaolved ill accordance

with the above provialon oflawt the arcument of"Puwena"
is not tenable. Thla is ao becauae "Puwena" only had the
atatua of an agent, while the local union remained the
basic unit of the auociation (Liberti/ Cotton MflZ. Worker
Union v. Ubert11 Cotton Jlfll, Inc., 66 SCRA $2(1975];
cited in Ftlipino Pipe and FoundrJJ Corp . .,. NLRC, 318
seRA 68{1999JJ.

The age-old rule go"erning the relation b

labor and capital, or ,.aoaged1ent and employee ;
day's wage for a fair day's labor red1alns as , : a "Ia!,
factor! deter,.loll .,ployees' ,.ages (Ak fan; hoar.
Coope.-otive,ln< v. NIJ!C, 323 SCRA 258[2000JJ. fectrf,

ANOTHER SUQG&STEDANWER:

XIV

No. Local unions do not owe their creation aDAl

existence to the national federation to which theJ' are
afflllated, but to the wW of their members. The act of
voluntary diuolutlon already conatitutea a cround for
cancellation for union registration under Article 239 as
amended by Republic Act No. 9481. Hence, the collective
bargaining agent's legal peraonaUty has been
extinplshed, with Puwena reduced to beJ.n& an acent
without a principal.

puwersa"' a. la bor federation

, after h aving
. a
.
. won m
certi fication elect1on held m the c~mpany pre~mses , sent a

lett er to respondent compa

. nYhremmdmg
r d
. It of tts obligat ton
to recognize the local unwn
.
ht e I,e era
I tton
. represents and
to enter into a CBA wtth t .e . oca'II ' umonh . Re spond ent
Company re plied that thoug h 1t IS wt mg , t e rank -a nd -fi
em ployees had already lost interest in joining the 1 tie
oca)
"
. I d . "Pu
umon as they ha d d tsso ve 1t.
wersa argu ed that
it won in a certification election , it can validly pe rfor sm_ce
function as a bargaining agent and represe nt the rank-m, tts
file employees despite the union 's d issolution .
and ls the argument of "Puwersa" tena ble?
reasons. (6%)

Decid

ALTERNA TIVESUGGESTEDANSWER;

.
e Wtth

SUGGESTED ANSWER:

A new provision, Article 239-A is inserted into the

Labor Code by RA 9481, as follows:

"ART. 239-A. Voluntary Cancellation ofRegistration.

-The registration of a legitimate labor organization may
be cancelled by the organization itself: Provided, That at
least two-thirds 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."

-
!t .

Yes, Puwena is right. Article 256 of the Labor

Code mandates that the "Labor union receiving the
majority of the valid votea caat shall be certified aa the
exclusive bargaining agent of all the workers In the
unit." On the assumption that it has been so certified,
Puwersa is then correct In ita argument that "since it won
In the certification election, it can validly perform its
functions as a bargaining agent and repreaent the rankand-me employees despite the (localt union's dlsaolution".
The refusal of the company to bargain with Puwena is
violative of its duty to bargain collectively under Arts.
251 and 252 of the Code, thereby subjecting it to the
penalty of considering Puweraa's proposed CBA as the
parties' effective CBA. Such was the ruling of the Supreme
Court in Divine Word Uni11ersity ofTacloban vs. Secretary
of Labor and Employment (213 SCRA 759 {1992}}.

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:...-~

....
uulc , b:lf or s imilar establishment
n,,.uaie c . . t. rol or supervision of the em '"ttder
P o"
t' ffectlvc. con dod oftine as d etcrmined by th
,.er t tL
'<It
ubstant 1a1pe l be constdere
.
d as an cmplo"e Se Crt~
Or '
c.t.abor,
b al for purposes oflabor and social ,.ee
' h snt
I
or ...~"'
t.abbS m1.1
egiela t!oll
"~b.,

e said waitresses arc employ e

u~ th .
.
ea -i
' ohtTh
to security of t enure and cannot be dis .... i 11 tb u.
n.
1 t
'

td '"'
....,eca use they filed conP a1n agamst the 0 ,..
~._
-ner ,~.~,t
ock.taillounge .
or til.
And as such waitresses, who are considered em
of the cocktail lounge
Plo)'tt '
. , Ithey .are
. at the very lea s t entf
to receive the apphcab e mlPimum wage.
tltd
,.V.UTHERS UGGESTEDANSWER:

Complainants are not employees of th

lounge, hence , they are not entitled to cove e coc:kt.iJ
Labor Code . There is no finding that they are
of the
effective control or supervision of the em 1 under the
substantial period time as determined by th
for il
Labor." The Labor Code reads
e ecretat)'or

~ge
~oyer

" ..ut.. 138. Classification of certain workers. Ant

worker who is permitted to work, with or without
com pen.sation, in any night clubs, cocktail lounge' massace
clinic, bar or similar establishment, under the effective
control or supervision of the employer for a substant'j;j
e:""iod of time as determined by the Secretary of Labo'7
shall be considered an employee, of such establishmeo;
for purposes of labor and social legislation."

XII
Arnalda , Presiden t of "Bisig" Union i n Fcmwear
Companv, readied himsel f to leave exac tl y at 5 :00 p .m.
wh1ch "as the end ofh 1s norm al sh1ft to be ab le to send off
hts 1\ Jfe who was scheduled to leave for over seas . However,
th e Genera l Manage r requ 1red h1m to rend er o vertime work
lo meet th e co mpany's ~xport quo tA. Arn a ld a begged off,

explaining to the General Manage r that he had to 11 off his

wife who was leaving to work abroad . The company dismissed
Arnalda for insubordination . He filed a case for illegal
di1miaaal. Decide. (6%1
jWQHml)A!Wp;

ArDaldo wu Wecally cllaadaaed. lfone of the c&Ma

aUowiD& compulaory overtime work wen pre. .nt. HeDCe,
the empto,.er'a demaJicl for Anaalclo to nadeuucb cwertJme
work waa uDjuatlfled.
6NQTHER SOOETDANSWZB;
ArDaldo caJlllot be dlaadaaed for illauborclillatloll.
This ia so becauae oae of the requisites for IDauborclillatJon
Ia abaent. It e&Jlllot be aald that Arnaldo'a conduct wu
characterized by a .._,.on.cful and perYerH attitude.
Arnaldo can be u.ld to have been motivated by bla honest
belief that the order wu unreasonable becauae be bad to
send off his wife who wu scheduled to leave for overaeaa.

XIII
The rank-and -file union staged a strike in the company
premises which caused the disruption of business operations.
The supervisors' union of the same company filed a money
claim for unpaid salaries for the duration of the strike,
arguing that the supervisors' failure to report for work was
not attributable to them . The company contended that it
was equally faultless, for the strike was not the direct
consequence of any lockout or unfair labor practice. May
the company be held liable for the salaries of the supervisors?
Decide. (6%1
SUGGESTED ANSWER;
No. I will apply the .. No Work No Pay" principle. The
superviaora are not entitled to their money claim for
unpaid aalarles, as they ahould not be compensated for

g to her place of_.OrJt

1tbJJe go n Employees Co- 4, ..

14fe d
no v.
Pert "'tl~
caro
of Ala:llA 66 9[1988/), she waa at tb IQtl,.
tbt c~se(1 58 SC ilY required her to be if aL e Jll.o~
i 11
51 on
.
Th
e "' ~
51ar
com"' 1s ob oece "ot.k on time.
ere "' ll - to
.,bert btf j JaCt of
t Carol's place being at tL OtJa111..
reach bet PersoJJI Jabou5 there b ecause h er eltlpJ..e "'-~."
tt ot p
sbe "''
o, .,

pri: accideJlt be there.

~'lit
bet to
4
require
..rcWER:
TDA~~
lfi
s a claim for elll
t Prosp
..,ill norosper
i th e event OfPlo,e._
.. .
Tbt cfaitJJ
only n
,atioll
'
!
Vill
p
r
death
and
the
death
of
C...
"of\.
11
coDlPected disability od as work connected on) .. ,,.~~de~
oJJlle
Jdere
, "' t
c .,ilf be coJJS ident arising out of and in tbe
-._
CruZ
u 11yacc
Coli,...
because of a , This was not the case o 1 Carol deq C oc
DJploytJJellt
._,.,d when the accident that
~
of e
t yet "or...-.
Cl111e4
11
She "' Jl;ook place.

her 4eatb
oft

IX
an RSC rnem~,..
th at in Problem 5,fhMario,
Assume' hthe
h ts h Iftdifferenr

vtT
non -paymento sng
disguste~ wt y tiled a compla in t with th e DOLE Rea-io lall
d overtJme pa '
At"
.
~ na
an
. RSC and PizCorp.
te r mspection It w
office agams 1
.
.
.
as
~ d that indeed Ma no was not ge ttmg his correcr
d~~;rential and overtime pay an~ tha t h e was not declared
an sss member (so that no ~remi~ms for ss~ membership
ever remitted). On th1s bas is, th e Regional Director
were
. p C
issueda compliance order holdmg IZ orp a nd RSC solidarilr
liable for the payment ofthe correc t differe ntial and overtim~
pay and ordering PizCorp to report Ma rio for membership
with SSS and remit th e overdue SSS pre miums.
Who has the obligation t.o report the RSC members for
membership with the SSS, with the concomitant obligation
to remit SSS premiums ? Why? (6%)

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jiJOOE8T6DANSWER;

OrdJnarUy, Jl RBC fa encaced fn permiaalble Job

c:ontractfnc, ft would be R8C who would be the employer
aad, therefore, would have the oblfcatfoa to report fta
eJDployeea to the 888 and remit fta prem.fwna.
However, afnce R8C fa oDiy a .. labor-only" contractor
and, therefore, c:onafdered merely aa aceat ol P.f&Corp,
the latter (PiaCorp) u the real employer baa the lecal
obUcatfon to report the R8C memben .fta employee
lor membenh.fp with the SSS and remit lta prem.fuma.

X
Pepe Santos was an international Flight steward of
FlySafe Airlines. Under FSA's Cabin Crew Administration
Manual, Santos must maintain, given his height and body
frame, a weight of ISO to 170 pounds.
After 5 years as a tligh t steward, Santos began struggling
with his weight; he weighed 200 lbs., 30 pounds over the
prescribed maximum weight. The Airline gave him a oneyear period to attain the prescribed weight, and ~nrolled
him in several weight reduction programs. He consistently
failed to meet his target. He was given a 6 -month grace
period, after which he still failed to meet the weight limit.
FSC thus send h im a Notice of Administrative Charge for
violation of company standards on weight requirements. He
stated in rus answer that, for medical reasons, he cannot
have a rapid weight loss. A clarificatory hearing was held
where Santos fuJJy explained his predicament. The
explanation did not satisfy FSA and so it decided to terminate
Santos's service for violation of company standards.
Santos filed a complaint for illegal dismissal , arguing
that the company 's weight requirement policy is
unreasonable and that his case is not"a disciplinary but a
medical issue (as one gets older, the natural tendency is to
grow heavier). FSA defended its policy as a valid exercise of
management prerogative and from the point of view of

'

' '

a) Yea, there wu a at:ri.k.e be-ca.u ae of the concerted

toppate ofwodr by the wlioa membe-n.
AH01'!IE_R SUGGESTED ANSWER:

Yes, the-re wu a at:ri.k.e. lfo matt.eT bow they call It,

the co atmu..lnc protest rally q.a.J.n.t tbe company' a.Ileced
u.Dfair labor practices" co as~ a '"wmporary stoppace
o(work by b.e concerted act:loa of employees u a re.Wt o(
an Uiduatrlal OT labor dJ.apute - a cue of rtrilte u d.e fined
iD Art. 212(o} of the Labor Cocle.
Re.ceatly, lzl Santa R.o.a Coca-Cola Plant EmploJien
Unto~ d aL ~. Coca-Cola Bottlen Phl. Z.., Inc. (!512 SCRA

437 {2007]), the Supreme Court clarlfled that a at.rike

come aiD Yaried lonna, from aJowdOWDS, mau leave.a, aft
d~ to otber similar actfritJea. A pnteat rally whJcb
results iD temporary stoppace of work by the concerted
actloD of employe:~ u a result of a la.bor OT industrial
cUapute, Ia clearly a cue ofatrike.
~

We; e th e em ployees s im ply exerct sm g their

const itutional right to petition fo r red ress o f their
grY-.ances? (3%)

b)
Jlfo. After the lssuaDce of a retura to wo1'k order
baaed on the usumptloll powen of the Secretary oft.abor
U.Dcle.r Art. 263(C) of the Labor Code~ the strike was already
take.n outside of the employee.a ' coDStitutJoa.ally protected
right to e.nca~e iD peaceful collcerted activities for redraa
of the.lr eva.nces.

ANQTilBRSQGGESTBDAJiSWER:
b) The employees were Dot aim ply e.xereisinc their
coastitutloa.al rf&bt to petition for redreu of their
pieva.ncea. Specifically, they wer focua{Jll on allcced

Scanned by CamScanner

:~,j ~-

tfo , A 'fli(l' mplo,f1 ;, I tHt tf(rlllid ~1 lw ~, ' mU ~~

. JtUtifllJ WE1
ll'

IJ of d ,.,.,.,
u( t ' k
emplo1m nt ut U tl t"t~.
I
I l
'fb "'OI"Ic: ,.
k Otlllf J.t lub
Ill , tv
~
~~~ 1111 t;d l.ot~~~tT ,It r tb f 8u u of the I<;~~"~
P
trllre , c

tbelt
me court lo Phil om ltmploll tJ
the StJ prebal communication (496 8CA :l 1<f 'tlo,.

CJfJ()$

Tb

utJ'

tJ

~ vf

t,.

d{J '

f~~A

Philtpptn oto
r1Jled:

e undertaken detplte the Secret., fa faa

tf
01 certfncaUoa order be.. ""'
.,urnP 0 0
UJ
J
.. oaa,
ol llD ' activity, aod tbul ega , under .ArtfoJe ~ i
prohibited Code Tbe union offlcen who kn ~
b Labor

01rfa...
o( t e . iD tbat WetaJ 1trlke are deemed to ha ._..,
partlclpa\: ment statu the uaJoa membera, fnc;: loet
1111
tbelt ,! : who commit specfflc illecat acta
clfac
utJfotJ o&uce ,
k d
or -~ ,
e,.
a
return
to
wor
or
er
are
alao
dee

ktJotrinlJ1 d 1
"
llled to
have lost tbeir employment atatus.
.

8 1 Itt;' ,.,,_.,,,, tlllt.tlf,ltlt.m , 7 hfJ 1J Ylf.frl ., , tt1

li ''"'" tifltllil,)~t~ldl tl, dfJ n tl~ ur 1111 IJtJ, tnYlitln
11 Pllllpplf 111 trd,IJtil" h, lm1t~st-ly, utU1fJtt"'"* '''
, tl~lt1 rut t!J J th au~ ' fJ f 4111 ft;t und t t.11 uftl '
d tfiJptd mpjuymen

8flfftl).

Ti omi'\IIM.Itf ov ,,_. rAtmf'lfl7 rtalld rnpl&y

under tb 888 Jaw It uaUy I p1 lmpotlt1oo fltJ tb
empluy,. and ernpJoye a, dIJoed to pfcl1f14 ~(ILaJ
.. c urfty to orJrJ.otmen.
Mm benblp ln
8 ta In
compUaoce wfth a lawful urol .. of tbe poUe e power of
tbe State, and may not be waJved by aveemnt of any
,.,ty (PbJJ. BloomfnJ MWa, Co., J110. v. 888, 17 8CRA

1077(1966Jf.

"/.ttrlk

VII
Tito Paciencioso is a n emplo ee of a foundry shop
Malabon, Metro Mani la . He is barely able to make e~
meer "~th his salal} of P4 000.00 a month. One day he
as ed his employer to stop deducting from his saJaryru;
SSS monthly contribut ion , reasoning out that he is waivin6
his social security coverage.
Ifyo wereTito'semployer, would y ou grant his request?
Wb ?!

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VIJJ
Carol de Ia Cruz is the secretary of the proprietor of a.n
auto dealership in Quezon City. She re sides in Ca loocan
City. Her office hours start at 8 a .m . and end at 5 p .m . On
July 30, 2008, at 7 a .m. while waiting for public transport at
Rizal Avenue Extension as has been her routine, she was
sideswiped by a speeding taxicab resulting in her death.
The father of Carol filed a claim for employee's compensation ,
with the Social Security System. Will the claim prosper?
Why? (6%)
SUGGE8TEDANSWEB;

Yes, the claim wW proaper.

Ia a Une of caaea, it baa been held that an injury
suatalaed by the employee while on hla way to or from hla
place of work, and which is otherwise compenaable, Ia
deemed to have arisen out of and in the courae of hi
employment (Lentejas v. Employ' Compensation
Commission, 197SCRA 44{199lJJ.

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./

~rfl@.~!::
;:.secretarY of Labor,

I could
b) . As ver the bunger strike, simply b llot .J dicuon o
j\lras
c to speak of . Li na e t al. bad . ec lllllt-..

"~

DO
thY sta,ed their con alre'dt II.;
'""'"'" ' ,,.,porary stoppage 0 ;rted , ...'

hence tbc:re

lVorJt
.
..t

~tfo'
'lle' f

A"""" th.t no. r.xed -tenn

work er c
,
.
;et Ill a rouune ,nspectJOn a la bor ins onlpJ.a;h
RegJonal Office of th~ DOLE found tPector;~
renn pohcy of SDS VIOla tive of th
he S-Ill0 lht
securi tY of tenure provisions and e Labor C 1'l tl!1
to rhe Regiona l Direc tor the 1ssu
. recorn 01enn. .
compliance order. The Regional 0 .
ance -~
rhe recommendation and issu dIrector ad or ij
order. Is the compliance order
answer. (3%}
Explainyollr

Od~

va~id?a cornpl~Pt~d
~e

J!GGESTEDANSWER:
c) No, the ~mpUance Order is not va1i
Regional Director only exercises both visitor: 1\e
enforcement powers over labor standard case aaJ ll4
empowered to adjudicate uncontested money c 114
persons still employed.
la.Una o(

The Regional Director has no jurisdiction

SDS' 5-month term policy.
to rule o11
ANOTHER SUGGESTED ANSWERS:
c) The compliance order is not valid. Without uy
olthe salesladles complaining, there could be no baais for
a finding that their employment contract for a fixed term
was invalid.

IV
Su per Comfort Hotel employed a regular pool ofextra
waiters" who are ca lled or asked to report for duty when the

Hotel's volume of business is beyo nd the capacity of he

regularly employed waiten to undertake. Ped ro ha.a been
an ext ra walter for more than 10 years. He is ahw called
upon to work on weekends, on holidays and whe n there a re
big affairs at the hotel.
What is Pedro's status as an employee under t he Labor
Code? Why? Explain your answer fully . (6% )
UQGESTEDANSWQ:

Pedro has acquired the status of a reJUlar employee.

Pedro was encqed to perfol'Dl activities which are
aecea..ry or desirable lD the usual buslDe.. or trade of
the employer.
Moreover, Pedro baa been .. extra walter' for more
thaD 10 yeara. Under the law, any employee who baa
rendered service at least one year of Hrvlce, whether
such service ia continuous or broken. shall be considered
a recular employee with respect to the activity lD which
he Is employed and his employment shall continue whlle
such activity exlata (Art. 280, Labor Code).
ANOTHER SUGGESTED ANSWER:

Pedro Ia a re&War, but seasonal worker. He Ia recuJar

because as waiter, he was encaced to perfol'Dl activities
which are usually necessary or desirable lD the usual
bualaeas or trade of employer Super Comfort Hotel.
However, his security of tenure Ia cotel'DllDoua with the
seasonal need for which he was hired (Art. 280, 1st par.,
Labor Code).

v
The Pizza Corporation (PizCorp) and Ready Supply
Cooperative (RSC) entered into a "service agreement" where
RSC, in consideration of service fees to be paid by PizCorp,
will exclusively supply PizCorpwith agroupofRSC motorcycleowning cooperative members who will henceforth perform

"\--

: . h'
service. RSC assumes_ u
izZ8 deliverY . n {or the payment of th 11 d~t
pjZCorp's P full obJigatl~fits of its members dee Sal~~
ben .
d th
Plo~t\
agreement-tarutof), alsO
at there sh J~d
5 upulate
and orherr~e parties Jationship .between PizCorp a..IJ ~ .tc
pjzCof'P mpJoyee re if pjzCorp is materially p ~d 1 ~
Iover-e
f1 wever,
th t .
l"eJU(j ~It
ernP embers 0 delivery crew
a VJ~lates P;...,.~1~
RSC Ill act of thed 5 pizCorp can directly- ~\:o"ll,

th e power to d''I'll Jlo't'

b anY
ves an d or
. eron' inclu d mg
direct~
sancuons ,
l&rru
discipll~8!Y sc mernt>erfs.
'-.
th ernng R
e
tractual stipulation hat there .
Is the c~~rnployee relationship binding 18 no
0
ernP!oyer Why? Explain fully. (3%)
n labor
otlicals?

~
uactual tipulation that

6_rJGOISmDANSWER;
b) UJnl the control tet, the employer of the R8C
memben b PfzCorp. Accordinl to the fact., the R8C
memben are auppoaed to make their dellverle in
accordance with PlzCorp directive and orden. ID aclditJon.
the PUCorp can directly fmpoae dbciplfnary aanctlon,
f.Dcludiq the pPWer to dbmJn the R8C members.
c)

Assume that RSC has a paid-up capitalization of

Pl,OOO,OOO.OO. Is RSC engaged in labor only"
contracting, permissible job contracting or simply.
recruitment? (3%)

slKjO&ST&DANSWERi
there Ja

The coo e reJadouhlp between PfzCo

Go
1111 ploytrt 01P101~ not bindine on labor officiaJa betp '-'II
"'"" 111e111bert =ct~~ee
the"""
foes the e.dtence or non-ellfateaace
what deterlll 1 yee reladonhlp J the actuaJ '- ~
elllployer;:~:eo PfsCorp and RSC membera atldc
altuatJootJ uJated in the contract.
llot
w.bat l P
al

cJ Even if the R8C ha a paid up capitalization of

Pl,OOO,OOO.OO It b not encaaed Jn labor-only contractlnl,
or permlaalble job contractJne. It b en&aaed Imply in
recruitf.ne. RSC merely providea PUCorp the former'
motorcycle-ownJne memben to deliver the product of
PfsCorp Jn accordance with PlzCorp' directJve and orden.
ANOTHER SUGQESTEDAN8WER;

AMl_THERSUOO.ESTEDANfiWER:
c)

I The acreement between PfzCorp and RSc, that

there il, or.Woot be, an employer-employee relatJoDihf,
between the RSC motorcycle-own.J.nc cooperative llleJDben
perfolTillnl dcUvery terricn b not bJndJne on labor
official bccauu "the ted of employer-e~~aployee
relatJoDJhJpillawaodootaereement between the partje,
tlnsular Ltfutc., 11. NLRC, 287 SCRA 476{19980.
~

Based on the test/ s for employer-employee

relationship, determine the issue of who is the
employer of the RSC members. (4%)

RSC b en&aeed Jn "labor-only" contractine.

It i not enough to ahow ubatantJal c;apltallzatfon or

lnvetment Jn the form of tools, equipment, machinery
and work premlaea. In addition, the followfne facton have
to be conldered: (a) whether the contractor b carryine on
an Independent bulneaa; (b) the nature and extent of the
work; (c) the aldll required; (d) the term and duration of
the relationship; (e) the rieht to a ..ign the performance
ohpecJfied piece of work; (f) the con troland upervision
of the worken; (C) the power of employer with reapect to
the b.Jrine, f1rinc and payment ofworken of the contractor;
(h) the control and uperviaion of the worken; (C) the
power of employer with re.pect to the hirJng, flrlne and
payment ofworken of the contractor; (h) the control of
the prembe; UJ the mode, manner and term of payment

(Alexander Vinoya

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11.

NLRC, Regent Food Corporation

traordina ry dilige nce

d e~
. d
teq
fe
t
a~ . tt a lso pos1te that Sa
llit~
5
55 enger ~ ~arne r~. ht constituted gross , ~'1tos f:. rJ
pa f ornnt 11 I welg
f 1 d. b
~nq h -<1/~ .
)all o c htS idea
11 s will u tso edienc
&b r,
o
achiever
dutY

as
we
'
"'
bor
a
rbite
r
found
the
to
'-\
t
o
Th e lJ"
.
e q -q ~r
neglect orders.
ither gross a nd habitual tsi'IJI
Jore r
was ne
ne ~. ern P -~ r there . bedience.
&I~ .
tilegal o Jlflll dt SO
~
nor WI
dlll)
b'ter correct? Why or why not?
bOr Af I

Js the La
ltpJ,It. '
fuilY (6o/o)

biter is correct. There is 110

The Labor Arb cause it appears that Pepe
h ,
tect e
j t
ld
lla t ..."'~
bitual neg . ht Ulllit, but us cou not do ao. ..,~
ba..,eet the "e1g ot willfully or intentionau. d lfia.,.,.
~~
, ,~n
~
o~~
isStons n ence to the consequences of a
~
or 0111 . indluer
Uc:b

.:ro"

conscto~s

or olllissons.

.
willful disobedience becaua
'lf&S no
e Pe
There . 'ons were not motivated by a wr
Pt'1
Ollfflll
0 r otntSSl
actions
't de Besides, the rigid require- Or
e attl u .
i
i
...ellt '
perv~rs the 170-pound max mum we ght lilllit ia ~ .
meeting considering a person who could juat be Got
reasonable, hall already be terminated. At wo-t lftt
nds over s
' Pe...
pou
ended or reprimanded for his inab=' ,...
ould be susp
. i a1
u1
oqty 1e
c
h edht lirnit. Dtsm ss wo d be too L.

~~hteW~

~~.

penalty to impose.

frame, he must maintain his weight between 130 and 170

pounds. This pre-requiafte fa an exercfae of manacement
prerogative. When Santos became a flllht steward at FSA,
he accepted his employment with this prerequisite which
fa not violative of any law but fa instead positively based
on pasaen1er safety and extraordinary dWgence required
by law of common carrier.
Thus, the termination of Santos was for a valid
reason: He was no longer complyfn& with a pre-requisite
which wu In hfa contract of employment from the very
belfDDinl

XI
Complainants had worked five (5) years as waitresses
in a cocktail lounge owned by the respondent . They did not
receive any salary directly from the respondent but shared
in all services 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 five (5) years, the complainants' individual snares in
the collected service charges dipped to below 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.

ANOTHER SUGGESTED ANSWER:

The Labor Arbiter is not correct in findinc ~

dismissal of Santos illegal.
Pepe Santos, right at the commencement of bis
employment at FSA as flJght steward, knew that he n11111
maintain, tiven hia height and body frame, a wefcht of
130 to 170 pounds.
The FSA, through its Cabin Crew Adminiatratm
Manual, told Santos, that given his height and body

7?

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Respondent terminated the services of the

complainants who coun tered by filing a consolidated
complaint or unlawful dismissal, with prayer for 85% of the
collected services or the minimum wage for the appropriate
periods, whichever is higher. Decide. (6%)
SUGGESTED ANSWER:

The waitresses were employees of the owner of the

cocktaU lounge. Article 138 of the Labor Code provides:
..Any woman who Is permitted or suffered to work, with or
without compensation, In any night club, coclrtaU lounge,

73