Académique Documents
Professionnel Documents
Culture Documents
Labor Law
Questions Asked
More Than Once
(QuAMTO 2016)
*Bar questions are arranged per topic and were selected based on
their occurrence on past bar examinations from 1990 to 2015.
ACADEMICS COMMITTEE
KATRINA GRACE C. ONGOCO MANAGING EDITOR
LABOR LAW Arbiter holding that Article 4 applies only when the
doubt involves "implementation and interpretation"
FUNDAMENTAL PRINCIPLES AND POLICIES of the Labor Code provisions. The NLRC explained
that the doubt may not necessarily be resolved in
Q: How do the provisions of the law on labor relations favor of labor since this case involves the application
interrelate, if at all, with the provisions pertaining to of the Rules on Evidence, not the Labor Code. Is the
labor standards? (2003) NLRC correct? Reasons. (2009)
A: There are two classifications of labor legislations. They A: The NLRC is not correct. It is well settled doctrine that
are labor standards which provides for the minimum if doubts exist between the evidence presented by the
standards of terms and conditions of work; and labor employer and the employee, the scale of justice must be
relations which focuses on the regulation and tilted in favor of the latter. It is a time honored rule that
stabilization of the relationship between employers and in controversies between laborer and master, doubts
employees. Instead of being mutually exclusive, these necessarily arising from the evidence or in the
two classifications work together in forming the entire implementation of the agreement and writing should be
legal framework of Philippine labor laws. An example resolved in favor of labor.
wherein these two concepts are interrelated is during
collective bargaining. In instances of collective Article 212
bargaining, labor standards prescribe the minimum
terms and conditions of work; and as such, the employer Q: Who are the managerial, supervisory and rank
cannot negotiate for terms and conditions lower than and-file employees? (1996, 2003)
that of the prescribed minimum. On the other hand, labor
relations govern the employer-employee relationship by A: "MANAGERIAL EMPLOYEE" is one who is vested with
providing for Collective Bargaining Negotiations, which is powers or prerogatives to lay down and execute
an avenue for the parties to settle and compromise on management policies or to hire, transfer, suspend, layoff,
their differences. recall, discharge, assign or discipline employees.
Therefore, if the law prohibits transfer, conveyance or Illegal Recruitment as Economic Sabotage
assignment, then it can be inferred that it all the more
prohibits the sale of a license or authority as it is a Q: When is illegal recruitment considered a crime of
permanent transfer of the rights and privileges granted economic sabotage? Explain briefly. (2002, 2015)
to a specific individual under the license or authority.
A: Under Art. 38 (b), Illegal recruitment is considered as
Illegal Recruitment in Large Scale a crime of economic sabotage when it is committed by a
syndicate composed of three or more perpetrators or
Q: Maryrose Ganda's application for the renewal of when it is committed in large scale against three or more
her license to recruit workers for overseas persons individually or as a group.
2
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
Upon being alerted by the DFA, the Department of Q: Gil Bates, a computer analyst and programmer of
Labor and Employment issued orders cancelling the Hard Drive Company, works eight hours a day for five
licenses of XYZ, and imposing an immediate travel days a week at the main office providing customers
ban on its recruits for the Middle East. XYZ appealed information technology assistance.
to the Office of the President to reverse and set aside
the DOLE orders, citing damages from loss of On Saturdays, however, the company requires him to
employment of its recruits, and violations of due keep his cellular phone open from 8:00 A.M. to 5:00
process including lack of notice and hearing by DOLE. P.M. so that the Management could contact him in
The DOLE in its answer claimed the existence of an case of heavy work load or emergency problems
emergency in the Middle East which required prompt needing his expertise. May said hours on Saturdays
measures to protect the life and limb of OFWs from a be
considered
compensable
working
hours
while
on
clear and present danger posed by the ongoing war call?
If
so,
should
said
compensation
be
reported
to
against terrorism. the Social Security System? (2004)
Should the DOLE orders be upheld or set aside? A: Said hours on Saturdays should be considered as
(2004) compensable working hours "while on call". In
accordance with the Rules and Regulations Implementing
A: Yes, the DOLE order must be upheld. Art. 35 bestows the Labor Code, an employee who is not required to leave
upon the Secretary of Labor the power to suspend or word at his home or with company officials as to where
cancel the license or authority or recruitment agencies to he may be reached is not working while on call. But in the
recruit employees for overseas employment for question, Gil Bates was required to keep his cell phone
violations of the rules and regulations issued by DOLE, open from 8:00 A.M. to 5:00 P.M. Therefore, Bates should
the Bureau of Employment Services, the Overseas be considered as working while on call, if he cannot use
Employment Development Board, and the National effectively and gainfully for his own purpose the time
3
Q: Under what conditions may a "compressed work A: Yes. Socorro is entitled to overtime compensation. She
week" schedule be legally authorized as an exception does not fall under any of the exceptions to the coverage
to the "eight-hour a day" requirement under the of Article 82 (Hours of Work). The Labor Code is equally
Labor Code? (2005) applicable to non-profit institutions. A covered employee
who works beyond eight (8) hours is entitled to overtime
A: "Compressed work week" is resorted to by the compensation.
employer to prevent serious losses due to causes beyond
his control, such as when there is a substantial slump in Q: A case against an employer company was filed
the demand for his goods or services or when there is lack charging it with having violated the prohibition
of raw materials (Explanatory Bulletin on the Reduction against offsetting undertime for overtime work on
of Workdays on Wages Issued by DOLE, July 23, 1985). another day. The complainants were able to show
The conditions for an allowable "compressed work week" that, pursuant to the Collective Bargaining
are the following: the workers agree to the temporary Agreement (CBA), employees of the union had been
change of work schedule and they do not suffer any loss required to work "overtime" on Saturday but were
of overtime pay, fringe benefits or their weekly or paid only at regular rates of pay on the thesis that
monthly take-home pay. (DOLE Explanatory Bulletin on they were not required to complete, and they did not
the Reduction of Workdays on Wages issued on July 23, in fact complete, the eight-hour work period daily
1985). from Monday through Friday. Given the
circumstances, the employer contended that the
Overtime Work, Overtime Pay employees were not entitled to overtime
compensation, i.e., with premium rates of pay. Decide
Q: Danilo Flores applied for the position of driver in the controversy. (2003)
the motor-pool of Gold Company, a multinational
corporation. Danilo was informed that he would A: Art. 88 of the Labor Code provides that undertime
frequently be working overtime as he would have to work on any particular day shall not be offset by overtime
drive for the company's executives even beyond the work on any other day. The CBA, the law between the
ordinary eight-hour work day. He was provided with parties and the Union has shown that the employees are
a contract of employment wherein he would be paid required to render overtime work on Saturdays, thus the
a monthly rate equivalent to 35 times his daily wage, contention of the employer is not tenable. The employer
regular sick and vacation leaves, 5 day-leave with pay cannot use the undertime incurred from Monday through
every month and time off with pay when the Friday to offset the overtime on Saturday. Hence, the
company's executives using the cars do not need employees are entitled to overtime compensation, i.e.
Danilo's service for more than eight hours a day, in premium rates of pay on Saturday.
lieu of overtime. Are the above provisions of the
contract of employment in conformity with, or Q: After working from 10 a.m. to 5 p.m. on a Thursday
violative of, the law? (1997) as one of 5,000 employees in a beer factory, A hurried
home to catch the early evening news and have
A: Except for the provision that Danilo shall have time off dinner with his family. At around 10 p.m. of the same
with pay when the company's executives using the cars day, the plant manager called and ordered A to fill in
do not need Danilo's service for more than eight hours a for C who missed the second shift. (2010)
day, in lieu of overtime, the provisions of the contract of
employment of Danilo are not violative of any labor law a. May
A
validly
refuse
the
plant
managers
because they instead improve upon the present directive? Explain.
provisions of pertinent labor laws.
A: Yes. A may validly refuse to fill in for C. A may not be
Thus, the monthly rate equivalent to 35 times the daily compelled to perform overtime work considering that
wage may be sufficient to include overtime pay. There is the
plant
managers
directive
is
not
for
an
emergency
no labor law requiring the payment of sick and vacation overtime work, as contemplated under Article 89 of the
leaves except the provision for a five-day service Labor Code.
incentive leave in the Labor Code. The 5-day-leave with
4
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
b. Assuming that A was made to work from 11 p.m. integral part of the school year and no teaching
on Thursday until 2 a.m. on Friday, may the service were actually rendered by her. In short, the
company argue that, since he was two hours late University invoked the principle of "no work, no pay".
in coming to work on Thursday morning, he Lita Cruz seeks your advice on whether or not she is
should only be paid for work rendered from 1 entitled to receive her ECOLA during semestral
a.m. to 2 a.m.? Explain? breaks. How would you respond to the query? (1997)
A: No. Undertime is not off-set by overtime. (Art. 88, A: I would respond by saying that her entitlement to
Labor Code). mandatory living allowances during semestral breaks
now depends on her existing CBA with the university. The
Q: LKG Garments Inc. makes baby clothes for export. law granting ECOLA had long been repealed as the
As part of its measures to meet its orders, LKG mandatory living allowances previously granted in the
requires its employees to work beyond eight (8) repealed
PDs
are
already
integrated
by
law
in
the
basic
hours everyday, from Monday to Saturday. It pays its salary of employees.
employees an additional 35% of their regular hourly
wage for work rendered in excess of eight (8) hours Q: Are the principal officers of a corporation liable in
per day. Because of additional orders, LKG now their personal capacity for non-payment of unpaid
requires two (2) shifts of workers with both shifts wages and other monetary benefits due its
working beyond eight (8) hours but only up to a employees? (1997)
maximum of four (4) hours. Carding is an employee
who used to render up to six (6) hours of overtime A: As a general rule, the obligations incurred by the
work before the change in schedule. He complains principal officers and employees of a corporation are not
that the change adversely affected him because now theirs but the direct accountabilities of the corporation
he can only earn up to a maximum of four (4) hours' they represent. However, SOLIDARY LIABILITIES may at
worth of overtime pay. Does Carding have a cause of times be incurred but only when exceptional
action against the company? (2015) circumstances warrant such as, generally, in the
following cases, when directors and trustees or, in
A: No. A change in work schedule is a management appropriate cases, the officers of a corporation:
prerogative of LKG. Thus, Carding has no cause of action
against LKG if, as a result of its change to two (2) shifts, 1. Vote for or assent to patently unlawful acts of the
he now can only expect a maximum of four (4) hours corporation;
overtime work. Besides, Art. 87 of the Labor Code does 2. Act in bad faith or with gross negligence in directing
not guarantee Carding a certain number of hours of the corporate affairs;
overtime work. In Manila
Jockey
Employees
Union
v.
3. Are guilty of conflict of Interest to the prejudice of the
Manila Jockey Club (G.R. No. 167760, March 7, 2007), the corporation, its stockholders or members, and other
Supreme Court held that the basis of overtime claim is an persons. In labor cases, the Supreme Court has held
employees
having
been
permitted
to
work.
Otherwise,
corporate directors and officers solidarily liable with
as in this case, such is not demandable. the corporation for the termination of employment of
employees done with malice or bad faith. (Sunio v.
Night Work (R.A. No. 10151), Night Shift Differential NLRC, G.R. No. L-57767, January 31, 1984; General
Bank and Trust Co. v. Court of Appeals, 135 SCRA 659).
Q: As a tireman in a gasoline station, open twenty-
four (24) hours a day with only five (5) employees, Q: The rank-and-file union staged a strike in the
Goma worked from 10:00 P.M. until 7:00 A.M. of the company premises which caused the disruption of
following day. He claims he is entitled to night shift business operations. The supervisors union of the
differential. Is he correct? Explain briefly. (2002) same company filed a money claim for unpaid
salaries for the duration of the strike, arguing that
A: No. Under Art 86 of the Labor Code, night shift the supervisors' failure to report for work was not
differential shall be paid to every employee for work attributable to them. The company contended that it
performed between 10:00 o'clock in the evening to six was equally faultless, for the strike was not the direct
o'clock in the morning. The Omnibus Rules Implementing consequence of any lockout or unfair labor practice.
the Labor Code (In Book III, Rule II dealing with night May the company be held liable for the salaries of the
shift differential) provides that the provisions on night supervisor? Decide (2008)
shift differential shall NOT apply to employees of "retail
and service establishments regularly employing not more A: No,
I
will
apply
the
No
work,
No
pay
principle.
The
than five (5) workers". Because of this provision, Goma is supervisors are not entitled to their money claim for
not entitled to night shift differential because the gasoline unpaid salaries, as they should not be compensated for
station where he works has only five employees. services skipped during the strike of the rank-and-file
union. The age-old rule governing the relation between
WAGES labor
and
capital,
or
management
and
employee
of
a
fair
days
wage
for
a
fair
days
labor
remains
as
the
basic
Q: Lita Cruz, a full time professor in San Ildefonso factor
in
determining
employees
wages.
(Aklan Electric
University, is paid on a regular monthly basis. Cruz Cooperative, Inc. v. NLRC, G.R. No.121439, January 25,
teaches for a period of ten months in a school year, 2000).
excluding the two months summer break.
Q: Benito is the owner of an eponymous clothing
During the semestral break, the University did not brand that is a top seller. He employs a number of
pay Lita Cruz her emergency Cost of Living allowance male and female models who wear Benito's clothes in
(ECOLA) although she received her regular salary promotional shoots and videos. His deal with the
since the semestral break was allegedly not an models is that Benito will pay them with 3 sets of free
5
ALTERNATIVE ANSWER: A: No. The boatmen are considered as workers who are
paid by results. More specifically, they are task workers
The models are not employees, therefore, Art. 102 of the who are paid not based on the number of units produced,
Labor Code do not apply. The payment does not have to but are paid based on the completion of their task, with
be in legal tender. appropriate deductions based on circumstances such as
road and traffic conditions. (Adriano Quintos, et al. v. D.D.
Wage v. Salary Transportation Co., NLRC Case No. RB-IV-20941, May 31,
1979).
In
the
case
at
bar,
the
boatmens
payment
differs
Q: Distinguish "salary" from "wages." (1994) depending on conditions such as the increase or decrease
of the price of diesel, food expenses, landing fees and
A: In the case of GAA v. Court of Appeals (G.R. No. L-44169, spare parts.
Dec. 3, 1985), the Supreme Court had the opportunity to
distinguish salary and wages. According to the Supreme In connection, their payment although being direct
Court, the term wages refer to the compensation given in remunerations or compensation for their service cannot
consideration of manual labor, skilled or unskilled. On the be considered as wages for they do not partake the nature
other hand, salary denotes a compensation for a higher of wages as defined by the laws on labor. Instead, their
degree of employment. payment is considered as commissions; and as held by
the Supreme Court in the case of King of Kings Transport,
Q: Are salary subject to attachment and execution? Inc. et al. v. Mamac, (GR No. 166208, June 29, 2007),
(1994) workers who are paid by commission are not entitled to
the 13th month pay.
A: In GAA v. Court of Appeals (G.R. No. L-44169, Dec. 3,
1985), the Supreme Court ruled that by virtue of Art. 1708 Deductions from Wages
of the Civil Code, it is only wages, not salaries that are
exempted from attachment and execution. The said Q: An explosion in a mine site resulted in the death of
provision
specifically
states
that,
a
laborers
wage
shall
fifty (50) miners. At the time of the accident
not be subject to execution or attachment, except for
debts incurred for food, shelter, clothing and medical 1. The Mining Company has not yet paid the wages,
attendance. overtime, holiday and rest day compensation of
the deceased miners;
Note: The distinction between salary and wage in GAA v. 2. All the deceased miners owed the Miners
Court of Appeals (G.R. No. L-44169, Dec. 3, 1985) was for Cooperative Union sums of money;
the purpose of Article 1708 of the Civil Code which 3. The Mining Company was served by a sheriff
mandates
that,
the
laborers
wage
shall
not
be
subject
to
Writs of Garnishment of Wages of some of the
execution or attachment, except for debts incurred for deceased miners by virtue of final Judgments in
food,
shelter,
clothing
and
medical
attendance.
In
labor
several collection suits.
law, however, the distinction appears to be merely
semantics. That wage and salary are synonymous has After the accident, the wives, paramours, brothers,
been settled in Songco v. National Labor Relations sisters and parents of the deceased miners filed their
Commission (G.R. No. L-50999, March 23, 1990). Broadly, claims for unpaid wages, overtime, holiday and rest
the
word
salary
means
a
recompense
or
consideration
day compensation. The Company has acknowledged
made to a person for his pains or industry in another its obligations. However, it is in a quandary as to how
mans
business.
Whether
it
be
derived
from
salarium,
to adjudicate the conflicting claims; and whether it
or
more
fancifully
from
sal,
the pay of the Roman can deduct from the monies due the miners their
soldier, it carries with it the fundamental idea of unpaid debts with the credit union.
compensation for services rendered. Indeed, there is
eminent
authority
for
holding
that
the
words
wages
and
How will you advise the mining company on the
salary
are
in
essence
synonymous.
(Equitable Banking following:
Corporation v. Sabac, G.R. No. 164772, June 8, 2006).
a. Can the Mining Company defer payment of the
Minimum Wage of Workers Paid by Results money claims until an appropriate court has
ruled on the conflicting claims?
Workers Paid by Results
A: No. Art. 105 (b) provides that where the worker has
Q: TRX, a local shipping firm, maintains a fleet of died, in which case the employer may pay the wages of
motorized boats plying the island barangays of AP, a the deceased worker to the heirs of the latter without the
coastal
town.
At
days
end
the
boat
operators/crew
necessity of intestate proceedings. The claimants if they
6
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
are all of age shall execute an affidavit attesting to their way above the minimum pay required by law. The
relationship to the deceased and the fact that they are his company counsel further points out that the
heirs, to the exclusion of all other persons. employees are aware that their food and lodging
form part of their salary, and have long accepted the
b. Can the Mining Company deduct from the amount arrangement. Is the company's position legally
due to each miner an amount equivalent to their correct? (2013)
debt and remit the same to the Credit Union?
(1998) A: No. The following requisites were not complied with:
A: No. As a general rule Art 113 provides that no a. Proof that such facilities are customarily furnished
employer, in his own behalf or in behalf of any person, by the trade.
shall make any deduction from the wages of his b. The provision of deductible facilities is voluntarily
employees. However, by way of exception, Art. 113 (b) accepted by the employee
provides that for union dues, in cases where the right of c. The facilities are charged at the fair and reasonable
the worker or his union to check-off has been recognized value.
Mere
availment
is
not
sufcient
to
allow
by the employer or authorized in writing by the deduction
from
employees
wages.
(Mayon Hotel &
individual worker concerned. Restaurant v. Adana, G.R. No. 157634, May 16, 2005)
The case at bar falls within the general rule for there was Q: Pablo works as a driver at the National Tire
no showing that the dead miners had authorized their Company (NTC). He is a member of the Malayang
employer to deduct from their wages their unpaid union Samahan ng Manggagawa sa NTC, the exclusive rank-
dues. Moreover there can no longer be any authorization and-file collective bargaining representative in the
made for the only persons recognized by law who can company. The union has a CBA with NTC which
make the authorization are already dead. contains a union security and a check-off clause. The
union security clause contains a maintenance of
Q: A worked as a room boy in La Mallorca Hotel. He membership provision that requires all members of
sued for underpayment of wages before the NLRC, the bargaining unit to maintain their membership in
alleging that he was paid below the minimum wage. good standing with the union during the term of the
The employer denied any underpayment, arguing CBA under pain of dismissal. The check-off clause on
that based on long standing, unwritten policy, the the other hand authorizes the company to deduct
Hotel provided food and lodging to its housekeeping from union members' salaries defined amounts of
employees, the costs of which were partly shouldered union dues and other fees. Pablo refused to issue an
by it and the balance was charged to the employees. authorization to the company for the check-off of his
The
employees
corresponding
share
in
the
costs
was
dues, maintaining that he will personally remit his
thus deducted from their wages. The employer dues to the union. (2013)
concluded that such valid deduction naturally
resulted in the payment of wages below the a. Would the NTC management commit unfair
prescribed minimum. If you were the Labor Arbiter, labor practice if it desists from checking off
how would you rule? Explain. (2010) Pablo's union dues for lack of individual
authorization from Pablo?
A: I will rule in favor of A. Even if food and lodging were
provided and considered as facilities by the employer, the A: No. Check-offs in truth, impose an extra burden on the
employer could not deduct such facilities from its employer in the form of additional administrative and
workers
wages
without
compliance
with
the
law
(Mayon bookkeeping costs. It is a burden assumed by
Hotel & Restaurant v. Adana, G.R. No. 157634, May 16, management at the instance of the union and for its
2005). In Mabeza v. NLRC (G.R. No. 118506, April 18, 1997), benet,
in
order
to
facilitate
the
collection
of
dues
the Supreme Court held that the employer simply cannot necessary for the latters
life
and
sustenance.
But
the
deduct
the
value
from
the
employees
wage
without
obligation to pay union dues and agency fees obviously
satisfying the following: devolves not upon the employer, but the individual
employee. It is a personal obligation not demandable
a. Proof that such facilities are customarily furnished from the employer upon default or refusal of the
by the trade; employee to consent to a check-off. The only obligation of
b. The provision of deductible facilities is voluntarily the employer under a check-off is to effect the deductions
accepted in writing by the employee; and and remit the collections to the union. (Holy Cross of
c. The facilities are charged at fair and reasonable Dauan College v. Joaquin, G.R. No. 110007, October 18,
value. 1996).
Q: Gamma Company pays its regular employees b. Can the union charge Pablo with disloyalty for
P350.00 a day, and houses them in a dormitory inside refusing to allow the check off of his union dues
its factory compound in Manila. Gamma Company and, on this basis, ask the company to dismiss
also provides them with three full meals a day. In the him from employment?
course of a routine inspection, a Department of Labor
and Employment (DOLE) Inspector noted that the A: No.
The
check-off
clause
in
the"
CBA
will
not
sufce.
workers' pay is below the prescribed minimum wage The law prohibits interference with the disposition of
of P426.00 plus P30.00 allowance, and thus required ones
salary.
The
law
requires
individual
written
Gamma Company to pay wage differentials. Gamma authorization
to
deduct
union
dues
from
Pablos
Company denies any liability, explaining that after salaries. For as long as he pays union dues, Pablo cannot
the market value of the company-provided board and be terminated from employment under the union
lodging are added to the employees' P350 cash daily security
clause.
As
a
matter
of
fact,
ling
a
complaint
wage, the employees' effective daily rate would be against the union before the Department of Labor for
7
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
Wage Distortion/Rectification whether operating for profit or not. (See Article 91 of the
Labor Code).
Q: Define Wage Distortion. May a wage distortion,
alleged by the employees but rejected by the Q: This year, National Heroes Day (August 25) falls on
employer to be such, be a valid ground for staging a a Sunday. Sunday is the rest day of Bonifacio whose
strike? (1997, 2006, 2009) daily rate is P500.00.
A: (a) A WAGE DISTORTION is that brought about where a. If Bonifacio is required by his employer to work
an increase in the prescribed wage rates results in the on that day for eight (8) hours, how much should
elimination or severe contraction of intentional he be paid for his work? Explain.
quantitative differences in wage or salary rates between
and among employee groups in an establishment as to A: For working on his scheduled rest day, according to
effectively obliterate the distinctions embodied in such Art 93(a), Bonifacio should be paid P500.00 (his daily
wage rates based on skills, length of service and other rate) plus P150.00 (30% of his daily rate) = P650.00. This
logical bases of differentiation. amount of P650.00 should be multiplied by 2 = P1,300.00.
This is the amount that Bonifacio as employee working
(b) No, the existence of wage distortion is not a valid on his scheduled rest day which is also a regular holiday,
ground for a strike because Art. 124 of the Labor Code should receive. Art. 94(c) of the Labor Code provides that
provides for a specific method of procedure for an employee shall be paid a compensation equivalent to
correcting wage distortion. In Ilaw at Buklod ng twice his regular rate for work on any regular holiday.
Manggagawa vs. NLRC (G.R. No. 91980, June 27, 1991), the The "regular rate" of Bonifacio on May 1, 2002 is with an
Court said: It goes without saying that these joint or additional thirty percent because the day is also his
coordinated activities may be forbidden or restricted by scheduled rest day.
law or contract. For the particular instance of "distortions
of the wage structure within an establishment" resulting b. If he works for ten (10) hours on that day, how
from the application of any prescribed wage increase by much should he receive for his work? Explain.
virtue of a law or wage order. Section 3 of Republic Act (2002)
No. 6727 prescribes a specific, detailed and
comprehensive procedure for the correction thereof, A: P1,300.00 which is the amount that Bonifacio is to
thereby implicitly excluding strikes or lockouts or other receive for working on May 1, 2002 should be divided by
concerted activities as modes of settlement of the issue. 8 to determine his hourly rate of P162.50. This hourly
rate should be multiplied by 2 (the number of hours he
Q: How should a wage distortion be resolved (1) in worked overtime). Thus, the amount that Bonifacio is
case there is a collective bargaining agreement and entitled to receive for his overtime work on May 1, 2002
(2) in case there is none? Explain briefly. (2002, is P325.00.
2009)
HOLIDAY PAY/PREMIUM PAY
A: Art. 126 provides for the resolution of wage
distortions. Coverage, Exclusions
In cases where there is a CBA, the law provides that any Q: Nemia earns P7.00 for every manicure she does in
dispute arising from wage distortions shall be resolved the barber shop of a friend which has nineteen (19)
through the grievance procedure under their CBA and, if employees. At times she takes home P175.00 a day
it remains unresolved, through voluntary arbitration. and at other times she earns nothing. She now claims
Unless otherwise agreed by the parties in writing, such holiday pay. Is Nemia entitled to this benefit? Explain
dispute shall be decided by the voluntary arbitrator or briefly (2002)
panel of voluntary arbitrators within 10 calendar days
from the time the said dispute was referred to voluntary A: No. Sec. 1, Rule IV, Book III of the IRR provides that the
arbitration. rule on holiday pay shall apply to all employees except:
On the other hand, in cases where there is no CBA, the law a. Those of government and any of the political
provides that the employers and employees shall subdivisions, including government owned and
endeavour to correct such distortions. Any dispute controlled corporations;
arising therefrom shall be settled through the NCMB, and b. Those of retail and service establishments regularly
if it remains unresolved after 10 calendar days of employing less than 10 workers;
conciliation, shall be referred to the appropriate branch c. Domestic helpers and persons in the personal service
of the NLRC. of another;
d. Managerial employees as defined in Book III of the
REST PERIODS Code;
e. Field personnel and other employees whose time and
Weekly Rest Day performance is unsupervised by the employer
including those who are engaged on task or contract
Q: A Ladies Dormitory run or managed by a basis, purely commission basis or those who are paid
charitable non-profit organization claims that it is a fixed amount for performing work irrespective of
exempt from the coverage of the Weekly Rest Period the time consumed in the performance thereof.
provision of the Labor Code. Is the claim valid?
(1998) Nemia clearly falls under letter (e) of the exception for
she is paid purely on commission basis.
A: No. The claim is not valid. The provisions on weekly
rest periods in the Labor Code cover every employer,
9
Paternity Leave (R.A. No. 8187) Q: Concepcion Textile Co. included the overtime pay,
night-shift differential pay, and the like in the
Q: How many times may a male employee go on computation of its employees' 13th month pay.
Paternity Leave? Can he avail himself of this benefit Subsequently, with the promulgation of the decision
for example, 50 days after the first delivery by his of the Supreme Court in the case of San Miguel
wife? (2002) Corporation vs. Inciong (G.R. No. L-49774, February
24, 1981) holding that these other monetary claims
A: A male employee may go on Paternity Leave up to four should not be included in the computation of the 13th
(4) children. (Sec. 2, RA 8187) On the question of month pay, Concepcion Textile Co. sought to recover
whether or not he can avail himself of this benefit 50 days under the principle of solutio indebiti its overpayment
after the delivery of his wife, the answer is: Yes, he can of its employees' 13th month pay, by debiting against
because the Rules Implementing Paternity Leave Act says future 13th month payments whatever excess
that the availment should not be later than 60 days after amounts it had previously made.
the date of delivery.
a. Is the Company's action tenable?
Note: Delivery may include childbirth or miscarriage.
Abortion, however, was not mentioned in the law. A: No,
the
companys
claim
is
not
tenable.
The
principle
of solutio indebitii only arises where there is a mistake in
Q: Mans Weto had been an employee of Nopolt the payment. In the case at bar, when the company paid
Assurance Company for the last ten (10) years. His the employees, there was no mistake yet, for the mistake
wife of six (6) years died last year. They had four (4) in the payment that the company alleged occurred later
children. He then fell in love with Jovy, his on when the decision in the San Miguel case was
coemployee, and they got married. In October this promulgated. Therefore, it can be concluded that when
year, Weto's new wife is expected to give birth to her the payment was made, it was valid and due to the
first child. He has accordingly filed his application for employees for all intents and purposes.
paternity leave, conformably with the provisions of
the Paternity Leave Law which took effect in 1996. If the company would deduct the said overpayment, it
The HRD manager of the assurance firm denied his would be similar to a situation where an employee is
application, on the ground that Weto had already punished for an act that was valid when committed but
used up his entitlement under the law. Weto argued was subsequently invalidated.
that he has a new wife who will be giving birth for the
first time, therefore, his entitlement to paternity b. With respect to the payment of the 13th month
leave benefits would begin to run anew. pay after the San Miguel Corporation, ruling,
what arrangement, if any, must the Company
a. Whose contention is correct, Weto or the HRD make in order to exclude from the 13th month pay
manager? all earnings and remunerations other than the
basic pay. (1994)
A: The contention of Weto is correct. The law provides
that every married male is entitled to a paternity leave of A: After the 1981 San Miguel ruling, the High Court
seven (7) days for the first four (4) deliveries of the decided the case of Philippine Duplicators Inc. vs. NLRC, on
legitimate spouse with whom he is cohabiting. Jovy is 11 November 1993, Accordingly, management may
Weto's legitimate spouse with whom he is cohabiting. undertake to exclude sick leave, vacation leave, maternity
The fact that Jovy is his second wife and that Weto had 4 leave, premium pay for regular holiday, night differential
children with his first wife is beside the point. The pay and cost of living allowance. Sales commissions,
important fact is that this is the first child of Jovy with however, should be included based on the settled rule as
Weto. The law did not distinguish and we should earlier enunciated in Songco v. National Labor Relations
therefore not distinguish. The paternity leave was Commission (G.R. No. L-50999, March 23, 1990)
intended to enable the husband to effectively lend
support to his wife in her period of recovery and/or in the Q: What would be your advice to your client, a
nursing of the newly born child (Sec. 3, RA. No. 8187). To manufacturing company, who asks for your legal
deny Weto this benefit would be to defeat the rationale opinion on whether or not the 13th Month Pay Law
for the law. Moreover, the case of Weto is a gray area and (Presidential Decree No. 851) covers a casual
the doubt should be resolved in his favor. employee who is paid a daily wage? (1998)
10
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
A: I would advise him that a casual employee who is paid A: No. Since he is not entitled to 13th month pay and SIL,
a daily wage is entitled to 13th month pay for only those his retirement pay should be computed solely on the
employers who under Sec. 3 of the said decree are basis of his salary. (R&E Transport v. Latag G.R. No.
exempted from paying such. Sec. 3 of PD 851 provides 155214, February 13, 2004).
that the following employers are exempt from paying 13th
month pay: SEPARATION PAY
a. Distressed employers, such as (1) those which are Q: Robert Suarez is a salesman for Star
currently incurring substantial losses or (2) in the case of Pharmaceuticals, Star Pharmaceuticals has applied
non-profit institutions and organizations, where their with the Department of Labor and Employment for
income, whether from donations, contributions, grants clearance to terminate (by way of retrenchment) the
and other earnings from any source, has consistently services of Suarez due to financial losses. Robert
declined by more than forty (40%) percent of their Suarez, aside from his monthly salary, receives
normal income for the last two (2) years, subject to the commissions on the sales he makes. He also receives
provision of Section 7 of this issuance; allowances. The existing CBA between Star
b. The Government and any of its political subdivisions, Pharmaceuticals and the union, of which Robert
including government-owned and controlled Suarez is a member, states that any employee
corporations, except those corporations operating separated from employment for causes not due to the
essentially as private subsidiaries of the Government; fault of the employee shall receive from the company
c. Employers already paying their employees 13-month a retirement gratuity in an amount equivalent to one
pay or more in a calendar year of its equivalent at the time month's salary per year of service.
of this issuance;
d. Employers of household helpers and persons in the Robert Suarez contends that in computing his
personal service of another in relation to such workers; separation pay, his sales commission and his
and allowances should be included in the monthly salary.
e. Employers of those who are paid on purely Do you agree? (1997)
commission, boundary, or task basis, and those who are
paid a fixed amount for performing a specific work, A: It depends. If the sales commissions and his allowances
irrespective of the time consumed in the performance are deemed included in his salary, it should be included
thereof, except where the workers are paid on piece-rate in the computation of his separation fee. If they are not
basis in which case the employer shall be covered by this deemed part of his salary, they should not be included in
issuance insofar as such workers are concerned. the computation.
Clearly, the employer seeking the advice does not fall Q:
Company
A
was
engaged
in
the
manufacture
of
within any of the exceptions provided by law. goods using the by-products of coconut trees and
employed some fifty workers who lived in the
Q: Dennis was a taxi driver who was being paid on the coconut plantation in Quezon Province. The land
"boundary" system basis. He worked tirelessly for upon which A conducted its operation was subjected
Cabrera Transport Inc. for fourteen (14) years until to land reform under R.A. 6657 for distribution to the
he was eligible for retirement. He was entitled to tenants and residents of the land. Consequently, A
retirement benefits. During the entire duration of his had to close its operation and dismiss its workers.
service, Dennis was not given his 13th month pay or The union representing the employees demanded
his service incentive leave pay. (2012) that A pay the dismissed workers separation pay
under Art.283 of the Labor Code that requires, among
a. Is Dennis entitled to 13th month pay and service others, the payment of separation pay to employees
leave incentive pay? Explain. (2012) in
cases
of
closing
or
cessation
of
operations
of
the
establishment
or
undertaking.
Is
the
unions
claim
A: No.
A
taxi
driver
paid
under
the
boundary
system
is
correct or not? Why (2001)
not entitled to a 13th month and a SIL pay. Hence, his
retirement pay should be computed solely on the basis of A: The
unions
claim
is
not
correct.
In
the
case
of
National
his salary. Specifically, Sec. 3(e) of the Rules and Federation of Labor v. NLRC (G.R. No. 127718, March 2,
regulations Implementing P.D. 851 excludes from the 2000), the Supreme Court ruled that where the closure of
obligation of 13th Month
Pay
Employers
of
those
who
are
the establishment was due to the act of the government
paid on xxx boundary basis. On the other hand, Sec. 1(d), acquiring the land to the benefit of the employees by
Rule V, Book III of the Omnibus Rules provides that those making them agrarian lot beneficiaries, they are not
employees
whose
performance
is
unsupervised
by
the
entitled to separation pay.
employer
are
not
entitled
to
Service
Incentive
Leave.
A
taxi
driver
under
Boundary
System
in
an
unsupervised
In
the
instant
case,
Company
A
was
closed
down
employee. because the land upon which A conducted its operation
was acquired by the DAR pursuant to the CARP. Since the
b. Since he was not given his 13th month pay and closure was due to the act of the government and not
service incentive leave pay, should Dennis be effected unilaterally and voluntarily by the respondent,
paid upon retirement, in addition to the salary the workers cannot claim separation pay.
equivalent to fifteen (15) days for every year of
service, the additional 2.5 days representing one- Q: Premiere Bank, a banking corporation, being the
twelfth (1/12) of the 13th month pay as well as creditor-mortgagee of XYZ & Co., a garment firm,
the five (5) days representing the service foreclosed the hypothecated assets of the latter.
incentive leave for a total of 22.5 days? Explain. Despite the foreclosure, XYZ & Co. continued its
business operations. A year later, the bank took
11
year of service, based on Ukol's highest salary during plan or other applicable agreement providing for
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
retirement benefits of underground mine employees in Anti-Sexual Harassment Act (R.A. 7877)
the establishments, any such employee may retire upon
reaching the age of 50 years or more if he has served for Q: A Personnel Manager, while interviewing an
at least five years as underground mine employee or in attractive female applicant for employment, stared
underground mine of the establishment. directly at her for prolonged periods, albeit in a
friendly manner. After the interview, the manager
WOMEN WORKERS accompanied the applicant to the door, shook her
hand and patted her on the shoulder. He also asked
Provisions against Discrimination the applicant if he could invite her for dinner and
dancing at some future time. Did the Personnel
Q: Mam-manu Aviation Company (Mam-manu) is a Manager, by the above acts, commit sexual
new airline company recruiting flight attendants for harassment? Reason. (2000)
its domestic flights. It requires that the applicant be
single, not more than 24 years old, attractive, and A: Yes. The manager committed sexual harassment,
familiar with three (3) dialects, viz: llonggo, Cebuano specifically sexual harassment in a work related or
and Kapampangan. lngga, 23 years old, was accepted employment environment. Under Sec. 3 (a) of the Anti-
as she possesses all the qualifications. After passing Sexual Harassment Act of 1995, even if the act of the
the probationary period, lngga disclosed that she got manager is friendly, and the employment of the applicant
married when she was 18 years old but the marriage is not conditioned upon her agreement to go out with
was already in the process of being annulled on the him, the act of the manager will result in an intimidating,
ground that her husband was afflicted with a sexually hostile, or offensive environment for the female
transmissible disease at the time of the celebration of employee in the future.
their marriage. As a result of this revelation, lngga
was not hired as a regular flight attendant. Q: Can an individual, the sole proprietor of a business
Consequently, she filed a complaint against Mam- enterprise, be said to have violated the Anti-Sexual
manu alleging that the pre-employment Harassment Act of 1995 if he clearly discriminates
qualifications violate relevant provisions of the against women in the adoption of policy standards
Labor Code and are against public policy. Is the for employment and promotions in the enterprise?
contention of lngga tenable? Why? (1995, 2012) Explain. (2003)
A: Yes. Man-manus
pre-employment requirement A: No. In order for the employer to commit sexual
cannot be justified as a bona
fide occupational harassment under the Anti-Sexual Harassment Act of
qualification,
where the particular requirements of the 1995, there must be a solicitation of sexual favor from the
job would justify it. The said requirement is not valid employee; and the refusal of the employee resulted to his
because it does not reflect an inherent quality that is discrimination by gender. However in this case, the
reasonably necessary for a satisfactory job performance. employer did not solicit any sexual favor. Instead, he had
(PT&T v. NLRC, G.R. No. 118978, May 23, 1997 citing 45A gone outright and discriminated the female employees.
Am. Jur. 2d, Job Discrimination, Section 506, p.486). At most, the employer would be liable for the violation of
the prohibition against discrimination against women as
Q: At any given time, approximately ninety percent provided under Art. 153.
(90%) of the production workforce of a
semiconductor company are females. Seventy-five Q: Pedrito Masculado, a college graduate from the
percent (75%) of the female workers are married province, tried his luck in the city and landed a job as
and of child-bearing years. It is imperative that the utility/maintenance man at the warehouse of a big
Company must operate with a minimum number of shopping mall. After working as a casual employee
absences to meet strict delivery schedules. In view of for six months, he signed a contract for probationary
the very high number of lost working hours due to employment for six months. Being well-built and
absences for family reasons and maternity leaves, the physically attractive, his supervisor, Mr. Hercules
Company adopted a policy that it will employ Barak, took special interest to befriend him. When
married women as production workers only if they his probationary period was about to expire, he was
are at least thirty-five (35) years of age. Is the policy surprised when one afternoon after working hours,
violative of any law? (1998) Mr.
Barak
followed
him
to
the
mens
comfort
room.
After seeing that no one else was around, Mr. Barak
A: No. Despite the prohibition against discrimination placed
his
arm
over
Pedritos
shoulder
and
softly
against age, it cannot be said that the qualification said:
You
have
great
potential
to
become
regular
imposed by the management falls within the said employee and I think I can give you a favorable
provision. There is no violation because the qualification recommendation. Can you come over to my condo
imposed
is
justified
by
the
companys
goal
to meet the unit on Saturday evening so we can have a little
strict delivery schedules. The act of the management is a drink?
Im
alone,
and
Im
sure
you
want
to
stay
longer
valid exercise of management prerogative which must be with
the
company.
respected by law.
Is Mr. Barak liable for sexual harassment committed
In addition, simple logic would prove that in order for a in a work-related or employment environment?
policy to be declared discriminatory, the said policy must (2004)
be without basis, whimsical and capricious on the part of
the employer. In this case, the policy is clearly justified. A: Yes, Mr. Barak is liable for sexual harassment. Under
Sec. 3 (a.1) of the Anti-Sexual Harassment Act of 1995, a
work related sexual harassment can be committed when
the sexual favor is made as a condition for the hiring,
13
The case at bar clearly falls within Sec. 3 (a.1) of the Anti- The exception provided under RA 9231 is very clear. And
Sexual Harassment Act of 1995 because the invitation of since a school teacher is neither a parent nor a legal
Mr.
Barak,
most
especially
the
phrase
Im
alone,
and
Im
guardian; and the attendant circumstances of the case
sure
you
want
to
stay
longer
with
the
company.;
taking
does not fall within the circumstances exempted by law
into consideration on how most people use such term in because
no
one
in
the
students
family
is
employed
by
the
the ordinary course of living, is clearly insinuating a teacher, the defense of the teacher is not tenable on the
meeting that is sexual in nature. More importantly, the ground that it does not fall under the exceptions provided
favorable recommendation needed by Pedrito in order to for by law. Moreover, notwithstanding the Department
be promoted as a regular employee is conditioned upon Order of DOLE invoked by the teacher, the defense is still
his meeting with Mr. Barak in his condominium. untenable for mere department orders cannot prevail
over the clear wordings of the law; and department
EMPLOYMENT OF MINORS orders cannot go beyond the scope of the statute it seeks
(LABOR CODE AND R.A. NO. 7678, R.A. NO. 9231) to implement.
Q: You were asked by a paint manufacturing company Q: Discuss the statutory restrictions on the
regarding the possible employment as a mixer of a employment of minors? (2007)
person, aged seventeen (17), who shall be directly
under the care of the section supervisor. What advice A: Art. 140 of the Labor Code provides that employers
would you give? Explain briefly. (2002) shall not discriminate against any person in respect to
terms and conditions of employment on account of his
A: I would advise the company not to hire the 17-year old. age. The employer is duty-bound to submit a report to
Under Sec. 3, Rule XI, Book III of the Implementing Rules DOLE of all children under his employ, with a separate
and Regulations, any person of either sex, between 15 report on children found to be handicapped after a
and 18 years of age may be employed in any non- conduct of medical examination. Moreover, an employer
hazardous work. Under the same section, the IRR in any commercial, industrial, or agricultural
clarified that non-hazardous work would mean an establishment or enterprise is required to keep a register
undertaking or activity in which the employee is not of all children under his employ, indicating therein their
exposed to any risk which constitutes an imminent respective dates of birth; and a separate file on written
danger to his safety and health. consent of their respective parents/guardians, another
file for their education and medical certificates, and a
Applying the said legal principles to the case at bar, separate file for special work permits issued by the
although the law allows the hiring of minors between the Secretary of DOLE. For children employed as domestic,
ages of 15 and 18, it is subject to the condition that the the head of the family shall give the domestic an
nature of the work for which they were hired must not opportunity to complete at least elementary education.
post a threat to their health and safety. Therefore, under Other provisions are Art. 272, 278; Art. 107 of PD 603 and
the circumstances, it is not only unwise, but also illegal RA 6710.
for the company to hire the 17- year old because the
nature of the work of a paint mixer clearly posed a threat Q: A spinster school teacher took pity on one of her
to the health and safety of the child. Clearly, the company pupils, a robust and precocious 12-year old boy
cannot meet the condition imposed by law. whose poor family could barely afford the cost of his
schooling. She lives alone at her house near the
Q: A spinster school teacher took pity on one of her school after her housemaid left. In the afternoon, she
pupils, a robust and precocious 12-year old boy lets the boy do various chores as cleaning, fetching
whose poor family could barely afford the cost of his water and all kinds of errands after school hours. She
schooling. She lives alone at her house near the gives him rice and P30.00 before the boy goes home
school after her housemaid left. In the afternoon, she at 7:00 every night. The school principal learned
lets the boy do various chores as cleaning, fetching about it and charged her with violating the law which
water and all kinds of errands after school hours. She prohibits the employment of children below 15 years
gives him rice and P30.00 before the boy goes home of age. In her defense, the teacher stated that the
at 7:00 every night. The school principal learned work performed by her pupil is not hazardous, and
about it and charged her with violating the law which she invoked the exception provided in the
prohibits the employment of children below 15 years Department Order of DOLE for the engagement of
of age. In her defense, the teacher stated that the persons in domestic and household service. Is her
work performed by her pupil is not hazardous, and defense tenable? Reason. (2004, 2012, 2015)
she invoked the exception provided in the
Department Order of DOLE for the engagement of A: No, her defense is not tenable. Under Article 139 of the
persons in domestic and household service. Is her Labor Code on "minimum employable age", no child
defense tenable? Reason. (2004, 2012, 2015) below 15 years of age shall be employed except when he
works directly under the sole responsibility of his
A: No. Sec.12 (1) of RA 9231 provides that children below parents or guardian or
where
a
childs
employment or
15 years of age shall not be employed except when a child participation in public entertainment or information
works directly under the sole responsibility of his/her through cinema, theater, radio, television or other forms
parents or legal guardian and where only members of his of
media
is
essential
xxx.
(Section 12, R.A. 7610, as
family are employed. Provided however, that his/her amended by R.A. 9231), the provisions of the alleged
employment neither endangers his/her normal Department Order of DOLE to the contrary
development. Provided further, that the parent or legal notwithstanding. A mere Department Order cannot
14
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
prevail over the express prohibitory provisions of the because she does not contract work in which the finished
Labor Code. product will be returned or repurchased by the bank.
Rather, she performs secretarial work which does not
HOUSEHELPERS produce several finished products to be sold or
(LABOR CODE AS AMENDED BY R.A. NO. 7655, AN distributed.
ACT INCREASING THE MINIMUM WAGE OF
HOUSEHELPERS; SEE ALSO HOUSEHOLD SERVICE PERSONS WITH DISABILITY
UNDER THE CIVIL CODE) (R.A. NO. 7277, AS AMENDED BY R.A. NO. 9442)
A: No. In the case of Apex Mining Co., Inc. v. NLRC, et al. (GR A: No. The mere fact that a worker has a disability does
No. 94951, April 22, 1991), the Supreme Court ruled that not make her a handicapped worker if despite her
the
legal
definition
of
a
domestic
employee
or
a
disability, she can still efficiently perform her work. She
househelp
cannot
be
interpreted
as to include must be considered as a qualified disabled worker who is
employees who are working in staff houses, or in this case entitled to the same treatment as qualified able-bodied
the rest house of Nova Banking Corporation, which is workers. (Alcantara, 2009).
primarily for the use of its top executives and corporate
clients. The rationale behind the ruling is that the Q: Ana Cruz has a low IQ. She has to be told at least
Supreme Court recognized that in order for an employee three times before she understands her daily work
to be regarded as a househelp, the criteria that must be assignment. However, her work output is at least
satisfied is the nature of his/her work which is for the equal to the output of the least efficient worker in her
personal comfort and enjoyment of the family of the work section. Is Ms. Cruz a handicapped worker?
employer in the home of the said employer. In this case, Explain. (2000)
while it may be true that the nature of the work of the
caretaker, 2 cooks and laundrywoman in a home and in a A: No. Low IQ or low efficiency does not make the worker
company rest house may be of similar in nature, the "handicapped" in the contemplation of law. Under Art. 78,
difference in their circumstances is that in the former a handicap means such physical or mental infirmity that
instance, they are actually serving the family while in the impairs capacity to work. The deficiency may also be due
latter case, whether it is a corporation or a single to age or injury.
proprietorship engaged in business or industry or any
other agricultural or similar pursuit, service is being Rights of Persons with Disability
rendered in the staff houses, in this case rest houses or
within the premises of the business of the employer for Q: For humanitarian reasons, a bank hired several
the benefit of the employer, other employees and clients. handicapped workers to count and sort out
In such instance, they are employees of the company or currencies. Their employment contract was for six
employer in the business concerned entitled to the (6) months. The bank terminated their employment
privileges of regular employees. on the ground that their contract has expired
prompting them to file with the Labor Arbiter a
EMPLOYMENT OF HOMEWORKERS complaint for illegal dismissal. Will their action
prosper? (2006, 2012)
Q: Mrs. Josie Juan is the confidential secretary of the
Chairman of the Board of the bank. She is presently A: No. Art. 80 provides that in cases of employing
on maternity leave. In an arrangement where the handicapped workers, an employment agreement must
Chairman of the Board can still have access to her be contracted. Art. 80 further provides that such
services, the bank allows her to work in her employment agreement shall contain the duration of the
residence during her leave. For this purpose, the employment period.
bank installed a fax machine in her residence, and In the case at bar, the action will not prosper for the bank
gave her a cellphone and a beeper. Is Mrs. Juan a cannot be held liable for illegal dismissal for the
homeworker under the law? Explain. (2000) handicapped employees themselves have agreed that
their term of employment will only be limited to 6
A: No. A homeworker under the law is defined as a person months.
who carries out a work for an employer at home. Under
this scheme, the employer may or may not furnish the Note: The contract signed by the workers is akin to a
materials needed for the completion of the task. probationary employment, during which the bank
Thereafter, the homeworker delivers the finished determined the employees
fitness
for
the
job.
If
the
bank
product to the employer. renewed the contract after the lapse of the six-month
probationary period, the employees will then become
Applying the legal definition, it is clear that Mrs. Juan is regular employees since the task of counting and sorting
15
not a homeworker; instead, she is an officeworker bills is necessary and desirable to the business of the
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
dismissal;
and
4)
the
employers
power
to
control
the
because in so far as Teofilo Lacson is concerned, it is only
employees
conduct. LBM which controls, directs and pays for his
employment. Moreover, in the case of Concept Builders v.
Therefore, under the circumstances as well as the NLRC (G.R. No. 108734, May 29, 1996), the Supreme Court
general rule and the exception provided by law, it ruled that as a fundamental principle of Corporation Law,
appears that BARON had hired the security guards as corporations are considered to have a separate and
its employees. distinct entity from its stock holders and from other
corporations which it may be connected to.
b. Yes.
Art.
286
recognizes
the
so
called
floating
status
of an employee. Under such status, the employer- In conclusion, Lastimoso Construction Inc. and RL Realty
employee relationship is not terminated, rather it is & Development must not be burdened with the fault of
suspended for reasons such as suspension of LBM in the ground that the sister companies had no
business operations or the fulfillment by the control over the employment of Teofilo Lacson and the
employee of a military or civic duty. Art. 286 also decision to dismiss him was purely made on the part of
mandates that the floating status of an employee LBM.
shall not exceed 6 months. If the floating status
exceeds the allowable period, the employee is Q: Metro Grocery Inc. arranged with Mr. Juan Dado, a
deemed to have been illegally dismissed. (Valdez v. Barangay Chairman, to provide the grocery with
NLRC et al., G.R. No. 125028, February 9, 1998). workers who will work as cashiers, bag boys, shelf
counter helpers and sanitation workers. The grocery
Therefore, ASIA, for reasons that there are no jobs will pay Mr. Dado an amount equivalent to the direct
available for the security guards, may lawfully place and hidden costs of the wages of each worker
them under floating status for a period not exceeding assigned, plus ten percent (10%) to cover the
6 months and shall reinstate them thereafter. Only administrative costs related to their arrangement.
when the floating status exceeds 6 months without Mr. Dado, in turn, will pay directly the workers their
reinstatement will ASIA be liable for illegal dismissal. wages. As far as the workers are concerned, Mr. Dado
is their employer. A group of concerned workers
Q: Teofilo Lacson was one of more than one hundred consulted you if Mr. Dado is really under the law their
(100) employees who were terminated from employer.
employment due to the closure of LBM Construction
Corporation (LBM). LBM was a sister company of a. How will you analyze the problem in order to
Lastimoso Construction, Inc. and RL Realty & formulate your answer?
Development Corporation. All three (3) entities b. What is the legal significance, if any, of the
formed what came to be known as the Lastimoso question of the concerned workers as to who is
Group of Companies. The three (3) corporations were their employer? (2000)
owned and controlled by members of the Lastimoso
Family; their incorporators and directors all A:
belonged to the Lastimoso family. The three (3) a. I will use the four-fold test in analyzing the situation.
corporations were engaged in the same line of Under this test, in order to determine the existence of
business, under one management, and used the same an employer-employee relationship, the following
equipment including manpower services. elements must be present: (1) the manner of
selection and engagement; (2) the payment of wages;
Teofilo Lacson and his co-employees filed a (3) the presence or absence of the power of dismissal
complaint with the Labor Arbiter against LBM, RL and (4) the presence or absence of the power to
Realty and Lastimoso Construction to hold them control. (Abante, Jr. v. Ladmadrid Bearing and Parts
jointly and severally liable for backwages and Corporation et al., GR No. 159890, May 28, 2004).
separation pay. Lastimoso Construction, Inc. and RL
Realty & Development Corporation interposed a In the case at bar, it is clear that the grocery store is
Motion to Dismiss contending that they are Juridical the employer because it pays to Mr. Dado of the
entitles with distinct and separate personalities from hidden costs and other administrative costs related
LBM Construction Corporation and therefore, they to the arrangement of the workers. This means that,
cannot be held jointly and severally liable for the although the manner of selection and engagement of
money claims of workers who are not their the employees were in the hands of Mr. Dado, such is
employees. Rule on the Motion to Dismiss. Should it not within his full control for the funds needed for the
be granted or denied? Why? (1999) selection and engagement were given by the grocery
store. Secondly, it is the grocery store who pays their
A: The Motion to Dismiss must be granted. In determining wages via the payment it gave to Mr. Dado for hidden
the existence of an employer-employee relationship, the costs. Lastly, it is clear that it is the grocery store who
following elements must be taken into consideration: 1) has
complete
control
over
the
workers
conduct
and
the selection and engagement of the employee; 2) the it also had the power to dismiss them. Mr. Dado was
payment of wages; 3) the power of dismissal; and 4) the only there to furnish the grocery store with its
employers
power
to
control
the
employees
conduct. needed employees.
Applying the said elements in the case at bar, there is no b. The legal significance of the above stated problem
doubt that it is LBM alone which is the employer of would arise in cases where the employees were
Teofilo Lacson because it is only LBM which exercises the illegally dismissed. Since the employee arrangement
abovementioned requisites. The fact that LBM and its is that of a Labor Only Contracting, it is prohibited by
sister companies Lastimoso Construction Inc. and RL law. Under Sec. 6 of DO 18-02 Series of 2002, labor
Realty & Development are inter-related in terms of only contracting has been expressly declared
17
Applying the four-fold tests in determining who the Q: Assume that in the previous problem, Mario, an
employer of Y is, the following elements must be present: RSC member disgusted with the non-payment of his
(1) the selection and engagement of the employee; (2) the night shift differential and overtime pay, filed a
payment of wages; (3) the power of dismissal and (4) the complaint with the DOLE Regional Office against RSC
employers
power
to
control
the
employees
conduct. and PizCorp. After inspection, it was found that
indeed Mario was not getting his correct differential
In the present case, it is clear that the following elements and overtime pay and that he was declared an SSS
are present in the relationship between X and Y. The fact member (so that no premiums for SSS membership
that
Zs
supervisors
give
verbal
orders
to
Y
during
the
were never remitted). On this basis, the Regional
performance of his service which may denote control Director issued a compliance order holding PizCorp
over his conduct, it is insufficient to overthrow the other and RSC solidarily liable for the payment of the
3 elements present in the relationship of X and Y namely, correct differential and overtime pay and ordering
(1) that it was X who selected and engaged in the PizCorp to report Mario for membership with SSS and
employment
of
Y;
(2)
that
it
was
X
who
paid
Ys
salaries
remit overdue SSS premiums. Who has the obligation
and (3) that it was X who had the power to dismiss X. to report the RSC members for membership with the
SSS, with the concomitant obligation to remit SSS
Q: The Pizza Corporation (PizCorp) and Ready Supply premiums? Why?
Cooperative (RSC) entered into a "service
agreement" where RSC in consideration of service A: Ordinarily, if RSC is engaged in permissible job
fees to be paid by PizCorp's will exclusively supply contracting, it would be RSC who would be the employer
PizCorp with a group of RSC motorcycle-owning and, therefore, would have the obligation to report its
cooperative members who will hence forth perform employees to the SSS and remit its premiums.
PizCorp's pizza delivery service. RSC assumes under
the agreement --- full obligation for the payment of However,
since
RSC
is
only
a
labor-only
contractor
and,
the salaries and other statutory monetary benefits of therefore considered merely as agent of PizCorp, the
its members deployed to PizCorp. The parties also latter as the real employer has the legal obligation to
stipulated that there shall be no employer-employee report the RSC members as its employees for
relationship between PizCorp and the RSC members. membership with the SSS and remit its premiums.
However, if PizCorp is materially prejudiced by any
act of the delivery impose disciplinary sanctions on, Q: Don Luis, a widower, lived alone in a house with a
including the power to dismiss, the erring RSC large garden. One day, he noticed that the plants in
member/s. (2008) his garden needed trimming. He remembered that
Lando, a 17-year old out-of-school youth, had
a. Is the contractual stipulation that there is no contacted him in church the other day looking for
employer-employee relationship binding on labor work. He contacted Lando who immediately attended
18
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
to
Don
Luiss
garden
a
nd
finished
the
job
in
three
compulsory upon all employees not over sixty (60) years
days. of age and their employers.
There was also no showing that Lando has his own tools, Probationary
or equipment so as to qualify him as an independent
contractor. Q: What limitations, if any, do the law and
jurisprudence impose on an employer's right to
ALTERNATIVE ANSWER: terminate the services of a probationary employee?
None. Lando is an independent contractor for Don Luis (2001)
does
not
exercise
control
over
Landos
means
and
method
in
tending
to
the
formers
garden. A: The Labor Code [in Art. 281) provides that the services
of an employee who has been engaged on a probationary
b. Does Don Luis need to register Lando with the basis may be terminated for a just cause or when he fails
Social Security System (SSS)? (2014) to qualify as a regular employee in accordance with
reasonable standards made known by the employer to
A: Yes. Coverage in the SSS shall be compulsory upon all the employee at the time of his engagement. If the
employees not over sixty (60) years of age. probationary employee is being terminated for just
cause, he must, of course, be given due process before his
ALTERNATIVE ANSWER: termination
No. Lando is not an employee of Don Luis. What the
parties have is a contract for a piece of work which, while Regular
allowed by Article 1713 of the Civil Code, does not make
Lando an employee under the Labor Code and Social Q: A Construction Group hired Engineer "A" as a
Security Act. Project Engineer in 1987. He was assigned to five (5)
successive separate projects. All five (5) Contracts of
Q: Ador is a student working on his master's degree Employment he signed specified the name of the
in horticulture. To make ends meet, he takes on jobs project, its duration, and the temporary-project
to come up with flower arrangements for friends. His nature of the engagement of his services. Upon
neighbor, Nico, is about to get married to Lucia and completion of the fifth [5th) project in August 1998,
needs a floral arranger. Ador offers his services and his services were terminated. He worked for a total of
Nico agrees. They shake hands on it, agreeing that ten (10) years (1987-1998) in the five (5) separate
Nico will pay Ador P20,000.00 for his services but projects. Six months after his separation, the Group
that Ador will take care of everything. As Ador sets won a bid for a large construction project. The Group
about to decorate the venue, Nico changes all of did not engage the services of Engineer "A" as a
Ador's plans and ends up designing the Project Engineer for this new project; instead, it
arrangements himself with Ador simply executing engaged the services of Engineer "B". Engineer "A"
Nico's instructions. (2015) claims that by virtue of the nature of his functions,
i.e., Engineer in a Construction Group, and his long
a. Is there an employer-employee relationship years of service he had rendered to the Group, he is a
between Nico and Ador? regular employee and not a project engineer at the
time he was first hired. Furthermore, the hiring of
A: Yes.
With
Adors
simply
executing
Nicos
instruction,
Engineer "B" showed that there is a continuing need
Nico,
who
now
has
control
over
Adors
work,
has
become
for his services.
the employer of Ador. In Royale Homes Marketing Corp. v.
Fidel Alcantara (G.R. No. 195190, July 28, 2014) the Is the claim of Engineer "A" correct? (1998)
Supreme Court held that control is the most important
determinant of employer-employee relationship. A: The claim of Engineer "A" that he is a regular employee
and not a project employee is not correct. The Labor Code
ALTERNATIVE ANSWER: provides:
There is no employer-employee relationship. The case at Art. 280. Regular and Casual Employment. -
hand pertains to a civil law arrangement. There is no An employment shall be deemed to be regular
business undertaken by Nico; what the parties have is a where the employee has been engaged to
contract for a specific service. perform activities which are usually necessary
or desirable in the usual business or trade of
b. Will Nico need to register Ador with the Social the employer, except, where the employment
Security System (SSS)? has been fixed for a specific project or
undertaking the time of the engagement of the
A: Yes, as under Section 9 of the Social Security Law (Art. employee.
19
treatment unfair as he had rendered full service at CALLHELP, a call center. His contract is expressly for
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
a term of 4 months. Don Don is hired for 3 straight that the contract of project employment clearly specifies
contracts of 4 months each but at 2-week intervals the project and the duration thereof. (Palomares v. NLRC,
between contracts. After the third contract ended, G.R. No. 120064, August 15, 1997).
Don Don is told that he will no longer be given
another contract because of "poor performance." Q: Tomas and Cruz have been employed for the last
Don Don files a suit for "regularization" and for illegal 22 years in various capacities on board the ships of
dismissal, claiming that he is a regular employee of BARKO Shipping Company. Their employment was
CALLHELP and that he was dismissed without cause. made through a local manning company. They have
You are the Labor Arbiter. How would you decide the signed several ten (10) month employment contracts
case? (2005, 2015) with BARKO Shipping. The NLRC ruled that they were
contractual employees and that their employment
A: As Labor Arbiter, I will decide the case in favor of Don was terminated each time their contracts expired. Is
Don.
Given
the
nature
of
Don
Dons
work,
which
consists
the ruling of the NLRC correct?
of activities usually or desirable in the usual business of
CALLHELP, Don Don should be considered a regular Explain your answer fully. (2002)
employee. Where a person thus engaged has been
performing the job for at least one year, even if the A: Yes. A contract of employment for a definite period
performance is not continuous or is merely intermittent, terminates by its own terms at the end of such period.
the law deems the employment as regular with respect to Since Tomas and Cruz signed ten (10)-month contracts,
such activity and whiles such activity exists (Paguio v. their employment terminates by its own terms at the end
NLRC, G.R. No. 147816, May 9, 2003). of each ten (10)-month period. The decisive determinant
in the term of employment should not be the activities
CALLHELPs
termination
of
service
in
the
guise
of
poor
that the employee is called upon to perform but the day
performance
is
not
valid.
Hence, Don Don is considered certain agreed upon by the parties for the
a regular employee of CALLHELP and as such, he cannot commencement and termination of their employment
be terminated except for cause and only after due relation (not the character of his duties as being "usually
process. necessary or desirable in the usual business of the
employer"). Stipulation in the employment contracts
Project Employment providing for "term employment" or "fixed period
employment" are valid when the period are agreed upon
Q: Design Consultants, Inc. was engaged by the PNCC knowingly and voluntarily by the parties without force,
to supervise the construction of the South duress or improper pressure exerted on the employee;
Expressway Extension. Design Consultants, Inc. hired and when such stipulations were not designed to
Omar as a driver for two (2) years. After his two-year circumvent the laws on security of tenure (Brent School v.
contract expired, he was extended another contract Zamora, G.R. No. L-48494, February 5, 1990). Moreover, in
for nine (9) months. These contracts were entered Brent School v. Zamora, supra, the Supreme Court stated
into during the various stages and before the that Art. 280 of the Labor Code does not apply to overseas
completion of the extension project. Omar claims that employment. In Pablo Coyoca v. NLRC (G.R. No. 113658,
because of these repeated contracts, he is now a March 31, 1995), the Supreme Court also held that a
regular employee of Design Consultants. Inc. seafarer is not a regular employee and Filipino seamen
are governed by the rules and regulations governing
Is he correct? Explain briefly. (2002) overseas employment and the said rules do not provide
for separation or termination pay.
A: Yes. The principal test for determining whether a
particular employee is a "project employee" as From the foregoing cases, it is clear that seafarers are
distinguished from a "regular employee" is whether or considered contractual employees. They cannot be
not the "PROJECT EMPLOYEE" was assigned to carry out considered as regular employees under Art 280 of the
a "specific project or undertaking," the duration and Labor Code. Their employment is governed by the
scope of which were specified at the time the employee contracts they sign every time they are rehired and their
was engaged for the projects. In the problem given, there employment is terminated when the contract expires.
is no showing that Omar was informed that he was to be Their employment is contractually fixed for a certain
assigned to a "specific project or undertaking." Neither period of time. They fall under the exception of Art 280
has it been established that he was informed of the whose employment has been fixed for a specific project
duration and scope of such project or undertaking at the or undertaking the completion or termination of which
time of his engagement (Philex Mining Corp. v. NLRC, G.R. has been determined at the time of engagement of the
No. 125132, August 10, 1999). Moreover, the re-hiring of employee or where the work or services to be performed
Omar is sufficient evidence of the necessity or the is seasonal in nature and the employment is for the
indispensability of his services to the company's business duration of the season. We need not depart from the
(Aurora Land Projects Corp v. NLRC, G.R. No. 114733, rulings of this court in the two aforementioned cases
January 2, 1997) Hence, Omar is correct in claiming that which indeed constitute stare decisis with respect to the
he is a regular employee of Design Consultants, Inc. employment status of seafarers. (Douglas Millares v.
NLRC, et. al, G.R. No. 110524, March 14, 2000) Therefore,
ALTERNATIVE ANSWER: Tomas and Cruz are contractual employees. The ruling of
Omar is not correct Omar is a project employee as defined the NLRC is correct.
by Art. 280 of Labor Code. He was hired for a specific
project with fixed periods of employment, specifically: Q: A, a driver for a bus company, sued his employer
two (2) years for the first contract, and nine (9) months for nonpayment of commutable service incentive
for the second contract. A project employee who is hired leave credits upon his resignation after five years of
for a specific project only is not a regular employee employment. The bus company argued that A was not
21
notwithstanding an extension of the project provided entitled to service incentive leave since he was
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
thus waived their right to full-term tenure. Decide the observance of procedural due process prescribed under
dispute. (2008) said law. (Magsalin, et. Al. v. NOWNM, G.R. No. 14892, May
9, 2003).
A: I would rule in favor of Lina et. al. In Pure Foods
Corporation v. NLRC (G.R. No. 122653, December 12, 1997), JOB CONTRACTING
the scheme of the employer in hiring workers on a
uniformly fixed contract basis of 5 months and replacing Articles 106 to 109 of the Labor Code
them upon the expiration of their contracts with other
workers with the same employment status was found to Q: Distinguish the liabilities of an employer who
have
been
designed
to
prevent
casual
employees
from
engages the services of a bonafide "independent
attaining the status of a regular employee. contractor" from one who engages a "labor-only"
contractor? (1994)
ANOTHER SUGGESTED ANSWER:
I will resolve the illegal dismissal case in favor of SDS. In A: An employer who engages the services of a bona fide
Brent case, the Supreme Court en banc held that while independent contractor is jointly and severally liable
fixed term employment has already been repealed by the with the said independent contractor in the event that it
various amendments to the Labor Code, the Civil Code fails to pay the recruited workers of their wages in
still allows fixed term employment. Such kind of accordance with the law, as provided under Art. 106.
employment is valid as long as it is established that:
Similarly, under the same above stated provision, an
1. The fixed period of employment was knowingly and employer who engages into a labor only contracting, shall
voluntarily agreed upon by the parties, without any be fully responsible for the employees in the same
force, duress or improper pressure being brought to manner and extent as if he is the one who directly
bear upon the employee and absent any other employed or recruited them; as the labor-only contractor
circumstance vitiating his consent; and is considered by law as merely an agent of the employer.
2. The employer and employee dealt with each other on
more or less equal terms with no moral dominance Q: Pandoy, an electronics technician, worked within
on the latter. the premises of Perfect Triangle, an auto accessory
shop. He filed a complaint for illegal dismissal,
Since it is admitted, that Lina, et.al. agreed, prior to their overtime pay and other benefits against Perfect
engagement, to the fixed term employment, and it Triangle, which refused to pay his claims on the
appearing that their consent was not vitiated, and ground that Pandoy was not its employee but was an
considering further that it has not been argued that the independent contractor. It was common practice for
parties dealt with each other on less equal terms, it then shops like Perfect Triangle to collect the service fees
follows that Lina et.al.s
fixed term employment is valid. from customers and pay the same to the independent
No illegal dismissal can take place upon expiration of contractors at the end of each week. The auto shop
such fixed term employment. explained that Pandoy was like a partner who
worked within its premises, using parts provided by
Q: Lucy was one of approximately 500 call center the shop, but otherwise Pandoy was free to render
agents at Hambergis, Inc. She was hired as a service in the other auto shops. On the other hand,
contractual employee four years ago. Her contracts Pandoy insisted that he still was entitled to the
would be for a duration of five (5) months at a time, benefits because he was loyal to Perfect Triangle, it
usually after a one month interval. Her re-hiring was being a fact that he did not perform work for anyone
contingent on her performance for the immediately else. Is Pandoy correct? Explain briefly. (2002)
preceding contract. Six (6) months after the
expiration of her last contract, Lucy went to A: Pandoy is incorrect. An independent contractor is
Hambergis personnel department to inquire why she defined as one who exercises independent employment
was not being recalled to work. She was told that her and contracts to do a piece of work according to his own
performance
during
her
last
contract
was
below
methods and without being subject to the control of his
average.
Lucy
seeks
your
legal
advice
about
her
employer except as to the result of the work.
chances of getting her job back. What will your advice
be? (2014) In this case, the fact that Pandoy works within the
premises
of
Perfect
Triangles
shop
is
not
tantamount
to
A: Lucy cannot get her job back. She is a fixed-term his employment as a worker of Perfect Triangle. The
employee and as such, her employment terminates upon common practice for auto accessory shops like the
the expiration of her contract. (Rowell Industrial Perfect Triangle in engaging the services of Pandoy and
Corporation v. Court of Appeals, G.R. No. 167714, March 7, allowing him to conduct his work in accordance to his
2007). own methods and in permitting him to contract other
services outside Perfect Triangle falls squarely within the
ALTERNATIVE ANSWER: definition of an independent contractor. Therefore, not
I will advice Lucy that she can get her job back if she files being an employee, his claim will not stand as he is not
a case for illegal dismissal where, as a general rule, the legally entitled to the remedies accorded by law only to
twin reliefs of backwages and reinstatement are employees, no matter how loyal he is to Perfect Triangle.
available. In the instant case, Lucy is a regular employee
because the employment contract for five (5) months at a Q: Sta. Monica Plywood Corporation entered into a
time, for four (4) years are obviously intended to contract with Arnold for the milling of lumber as well
circumvent
an
employees
security
of
tenure
and
are
as the hauling of waste wood products. The company
therefore void. As a regular employee, Lucy may only be provided the equipment and tools because Arnold
dismissed from service based on just and authorized had neither tools and equipment nor capital for the
23
causes enumerated under the Labor Code, and after job. Arnold, on the other hand, hired his friends,
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
present, Star Crafts becomes the employer of the supplies prescribed weight, and enrolled him in several
worker. weight reduction programs. He consistently failed to
meet his target. He was given a 6-month grace period,
As principal, Star Crafts will always be an employer in after which he still failed to meet the weight limit. FSC
relation to the workers supplied by its contractor. Its thus sent him a Notice of Administrative Charge for
status as employer is either direct or indirect depending violation of company standards on weight
on whether the contractor is legitimate or not. Thus even requirements. He stated in his answer that, for
if People Plus were a legitimate contractor, still Star medical reasons, he cannot have a rapid weight loss.
Crafts will be treated as a statutory employer for A clarificatory hearing was held where Santos fully
purposes
of
paying
the
workers
unpaid
wages
and
explained his predicament. The explanation did not
benefits. satisfy FSA and so it decided to terminate Santos's
service for violation of company standards. Santos
Department Order No. 18-A filed a complaint for illegal dismissal, arguing that
the company's weight requirement policy is
Q: What is a "labor-only" contract? (1994) unreasonable and that his case is not a disciplinary
but a medical issue (as one gets older, the natural
A: A labor-only contract shall refer to an arrangement tendency is to grow heavier). FSA defended its policy
where the contractor or subcontractor merely recruits, as a valid exercise of management prerogative and
supplies or places workers to perform a job, work or from the point of view of passenger safety and
service for a principal, and any of the following elements extraordinary diligence required by law of common
are present: (a) the contractor or subcontractor does not carriers; it also posited that Santos failure to achieve
have substantial capital or investment which relates to his ideal weight constituted gross and habitual
the job, work or service to be performed and the neglect of duty, as well as willful disobedience to
employees recruited, supplied or placed by such lawful orders of the employer. The Labor Arbiter
contractor or subcontractor are performing activities found the dismissal illegal for there was neither gross
which are directly related to the main business of the nor habitual neglect of duty nor willful disobedience.
principal; or (b) the contractor does not exercise the right Is the Labor Arbiter correct? Why or why not? Explain
to control over the performance of the work of the fully. (2008)
contractual employee. This form of arrangement is
expressly prohibited by law. (Sec. 5 DOLE DO 18-02 A: The Labor Arbiter is not correct in finding the
SERIES OF 2002). dismissal of Santos illegal. Pepe Santos, right at the
commencement of his employment at FSA as flight
DISMISSAL FROM EMPLOYMENT steward, knew that he must maintain, given his height
and body frame, a weight of 130 to 170 pounds as stated
Q: Gabriela Liwanag has been working as a in
the
FSAs
Cabin Crew Administrative Manual. This
bookkeeper at Great Foods, Inc. which operates a prerequisite is an exercise of management prerogative.
chain of high-end restaurants throughout the When Santos became a flight steward at FSA, he accepted
country, since 1970 when it was still a small eatery at his employment with this pre-requisite which is not
Binondo. In the early part of the year 2003, Gabriela, violative of any law but is instead positively based on
who was already 50 years old, reported for work passenger safety and extraordinary diligence required by
after a week-long vacation in her province. It was the law of common carrier. Thus, the termination of Santos
height of the SARS (Severe Acute Respiratory was for a valid reason. He was no longer complying with
Syndrome) scare, and management learned that the a pre-requisite which was in his contract of employment
first confirmed SARS death case in the Philippines, a from the very beginning.
balikbayan
nurse
from
Canada,
is
a
townmate
of
Gabriela. Immediately, a memorandum was issued by Q: Flight attendant A, five feet and six inches tall,
management terminating the services of Gabriela on weighing 170 pounds ended up weighing 220 pounds
the ground that she is a probable carrier of SARS in two years. Pursuant to the long standing Cabin and
virus and that her continued employment is Crew Administration Manual of the employer airline
prejudicial to the health of her co-employees. Is the that set a 147-pound limit
for
As
height,
management
action taken by the employer justified? (2004) sent
A
a
notice
to
shape
up
or
ship
out
within
60
days. At the end of the 60-day period, A reduced her
A: The
employers
act
of
terminating
the
employment
of
weight to 205 pounds. The company finally served
Gabriela is not justified. There is no showing that said her a Notice of Administration Charge for violation of
employee is sick with SARS, or that she associated or had company standards on weight requirements. Should
contact with the deceased nurse. They are merely A be dismissed? Explain. (2010)
townmates. Furthermore, there is no certification by a
competent authority that the disease is of such a nature A: No. While the weight standards for cabin crew may be
or such a stage that it cannot be cured within a period of valid company policy in light of its nature as a common
six months even with proper medical treatment. carrier, the airline company is now estopped from
(Implementing Rules, Book VI, Rule 1, Sec. 8, Labor Code). enforcing the Manual as a ground for dismissal against A.
It hired A despite her weight of 170 pounds, in
Q: Pepe Santos was an international flight steward of contravention of the same Manual it now invoked. The
Flysafe Airlines. Under FSA's Cabin Crew Labor Code gives to an airline the power to determine
Administration Manual, Santos must maintain, given appropriate minimum age and other standards for
his height and body frame, a weight of 150 to 170 requirement or termination in special occupation such as
pounds. After 5 years as a flight steward, Santos those of flight attendants and the like. Weight standards
began struggling with his weight; he weighed 200 for cabin crew are a reasonable imposition by reason of
lbs., 30 pounds over the prescribed maximum weight. flight safety (Yrasuegi v. PAL, G.R. No. 168081, October 17,
25
The Airline gave him a one-year period to attain the 2008). However, A had already been employed for two (2)
employment of Sergio for serious misconduct. Sergio No. 168637/ 170684, September 12, 2008). Additionally,
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
there was no compliance with the rudimentary Q: Domingo, a bus conductor of San Juan
requirements of due process. Transportation Company, intentionally did not issue
a ticket to a female passenger, Kim, his long-time
Q: International Motors Corporation (IMC) crush. As a result, Domingo was dismissed from
undertook a reorganization of the company and employment for fraud or willful breach of trust.
right-sizing of its personnel complement due to the Domingo contests his dismissal, claiming that he is
current financial crisis. The affected employees were not a confidential employee and, therefore, cannot be
given the option to resign with corresponding dismissed from the service for breach of trust. Is
generous benefits attending such option. The said Domingo correct? Reasons. (2009)
employees opted to resign on account of these
negotiated benefits; and after receipt of which, they A: Domingo as bus conductor holds a position wherein he
executed quitclaims in favor of IMC. Immediately was
reposed
with
the
employers
trust
and
confidence.
In
thereafter, the employees voluntarily resigned for Bristol Myers Squibb (Phils.) v. Baban (G.R. No. 167449,
valuable consideration and that, in any case, they December 17, 2008), the Court establishes a second class
have executed quitclaims in favor of the company. of positions of trust that involve rank-and-file employees,
The employees, however, claimed that they were who, in the normal and routine exercise of their
forced to resign, and that they executed the functions, regularly handle significant amounts of money.
quitclaims only because of dire necessity. A bus conductor falls under such second class of persons.
This does not mean, however, that Domingo should be
Is the company guilty of Illegal dismissal? Why? dismissed. In Etcuban v. Sulpicio Lines (G.R. No. 148410,
(1999) January 17, 2005), the Court held that where the amount
involved is miniscule, an employee may not be dismissed
A: No. The company is not guilty of illegal dismissal since for loss of trust and confidence.
the facts clearly indicate that the "employees were given
the option to resign with corresponding generous Q: Daisy, the branch manager of Tropical Footwear
benefits attending such option" and that these employees Inc.. was dismissed for serious misconduct. She filed
"opted for resignation on account of these negotiated a complaint for illegal dismissal and damages. The
benefits". Nothing in the facts indicate that their consent Labor Arbiter sustained Daisy's dismissal but
to the waiver of benefits under the Labor Code was awarded her separation pay based on social justice
vitiated by fraud, violence, undue influence or any other and as an act of compassion considering her 10-year
vice or defect. service with the company.
Q: During their probationary employment, eight (8) Was the award of the separation pay proper? Explain.
employees were berated and insulted by their (1996)
supervisor. In protest, they walked out. The
supervisor shouted at them to go home and never to A: No, the award of separation pay is not proper because
report back to work. Later, the personnel manager the employee was terminated for serious misconduct and
required them to explain why they should not be payment of separation pay will be to reward an employee
dismissed from employment for abandonment and for a wrong doing. In Philippine Long Distance Telephone
failure to qualify for the positions applied for. They Co., vs NLRC, (G.R. No. 80609, August 23, 1988) the Court
filed a complaint for illegal dismissal against their held that henceforth separation pay shall be allowed as a
employer. measure of social justice only in those instances where
the employee is validly dismissed for causes other than
As a Labor Arbiter, how will you resolve the case? serious misconduct or those reflecting his moral
(2006) character. The policy of social justice is not intended to
countenance wrongdoing. Compassion for the poor is an
A: As a Labor Arbiter I will resolve the case in favor of the imperative of every human society but only when the
eight (8) probationary employees due to the following recipient is not a rascal claiming an undeserved privilege.
considerations: Those who invoke social justice may do so only if their
hands are clean and their motives blameless. A contrary
a. Probationary employees also enjoy security of rule would have the effect of rewarding rather than
tenure (Biboso v. Victoria Milling, G.R. No. L- 44360, punishing the erring employee for his offense.
March 31, 1977).
b. In all cases involving employees on probationary ALTERNATIVE ANSWER:
status, the employer shall make known to the The award of the separation pay was not proper.
employee at the time he is hired, the standards by According to the Labor Code, SEPARATION PAY is to be
which he will qualify for the positions applied for. paid to an employee whose employment is terminated
c. The filing of the complaint for illegal dismissal due to the installation of labor saving devices,
effectively negates the employer's theory of redundancy, retrenchment to prevent losses or the
abandonment (Rizada v. NLRC, G.R. No. 96982, closing or cessation of operation of the establishment or
September 21, 1999). undertaking. When an employer terminates the services
d. The order to go home and not to return to work of an employee who has been found to be suffering from
constitutes dismissal from employment. any disease, the employee is also to be paid separation
e. The eight (8) probationary employees were pay.
terminated without just cause and without due
process. But on the basis of equity, the Supreme Court has ruled
that an employee whose employment has been
In view of the foregoing, I will order reinstatement to terminated for just cause may nevertheless, or
their former positions without loss of seniority rights humanitarian reasons, be granted financial assistance in
27
with full backwages, plus damages and attorney fees. the form of separation pay. However, the Supreme Court
similar request made later in the afternoon of same day, prerogative to change his assignment or transfer him
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
where he will be most useful. When his transfer is not a. As counsel for the corporation, what steps will
unreasonable, nor inconvenient, nor prejudicial to him, you take prior to its closure?
and it does not involve a demotion in rank or a diminution
of his salaries, benefits, and other privileges, the A: As counsel for the corporation, I shall advise the latter
employee may not refuse to obey the order of transfer. to serve a written notice of termination on the workers
(Philippine Japan Active Carbon Corp. v. NLRC, G.R. No. and the Department of Labor and Employment at least
83239, March 8, 1989). one month before the intended date thereof as provided
under Article 283 of the Labor Code.
Q: Lionel, an American citizen whose parents
migrated to the U.S. from the Philippines, was hired b. Are the employees entitled to separation pay?
by JP Morgan in New York as a call center specialist. (2006, 2012)
Hearing about the phenomenal growth of the call
center
industry
in
his
parents
native
land,
Lionel
A: No. In the case of JAKA Foods v. Pacot, (G.R. No. 151378,
sought and was granted a transfer as a call center March 28, 2005), adopting the declaration of the Supreme
manager
for
JP
Morgans
operations
in
Taguig
City.
Court in the case of Reahs
Corporation
v.
NLRC (G.R. No.
Lionels
employment
contract
did
not
specify
a
117473, April 15, 1997), states that: when the closure of
period for his stay in the Philippines. After three business or cessation of operations is due to serious
years of working in the Philippines, Lionel was business losses or financial reverses; duly proved, in
advised that he was being recalled to New York and which case, the right of affected employees to separation
being promoted to the position of director of pay is lost for obvious reasons.
international call center operations. However,
because of certain "family reasons," Lionel advised Q: Soon after the Asian meltdown began in October
the company of his preference to stay in the 1997, ABC Realty and Management Corporation
Philippines. He was dismissed by the company. undertook a downsizing program and terminated
Lionel now seeks your legal advice on: (2014) nearly a third of its regular workforce. The affected
employees questioned their termination arguing that
a. Whether he has a cause of action the action was precipitate in that ABC had not proved
that it sustained any losses. Is the claim of the
A: Lionel has a cause of action; he was illegally dismissed. employees correct? Explain your answer, (2001)
Dismissal
due
to
an
employees
refusal
of
a
promotion
is
not within the sphere of management prerogative. There A: The claim of the employees may or may not be correct.
is no law that compels an employee to accept promotion. When
the
Corporation
undertook
its
downsizing
(Dosch v. NLRC et.al., G.R. No. L-51182, July 5, 1983). program, it may have terminated its employees on either
one of the two grounds, namely, redundancy or
b. Whether he can file a case in the Philippines retrenchment.
A: Yes. Since this is a case of illegal dismissal, the Labor For redundancy, there is no requirement of losses,
Arbiters have jurisdiction over the same (Art. 217 (a) (2), whereas in retrenchment, substantial losses, actual or
Labor Code). Under the 2011 NLRC Rules of Procedure, all anticipated, is a requirement. In Atlantic Gulf and Pacific
cases which Labor Arbiters have authority to hear and Company v. NLRC, (G.R. No. 127516, May 28, 1999), the
decide, may be filed in the Regional Arbitration branch Supreme
Court
ruled:
it
is
necessary
to
distinguish
having jurisdiction over the workplace of the redundancy
from
retrenchmentRedundancy
exists
complainant or petitioner. (Rule IV, Section 1). when the services of an employee are in excess of what is
required by an enterprise. Retrenchment on the other
c. What are his chances of winning hand, is resorted to primarily to avoid or minimize
business
losses.
A: He has a big chance of winning. An employee cannot be
promoted without his consent, even if the same is merely Q: What conditions must prevail and what
a
result
of
a
transfer,
and
an
employees
refusal
to
accept
requirements if any, must an employer comply with
promotion cannot be considered as insubordination or to justify/effect a valid redundancy program? (2001)
wilful disobedience of a lawful order of the employer. In
this case, JP Morgan cannot dismiss Lionel due to the A: In the case of Asian Alcohol Corporation v. NLRC, (G.R.
latters
refusal
to
accept
the
promotion.
(Norkis Trading No. 131108 March 25, 1999), the Supreme Court stated
Co., Inc. v. Gnilo, G.R. No. 159730, February 11, 2008). that redundancy exists when the service capability of the
work is in excess of what is reasonably needed to meet
ALTERNATIVE ANSWER: the demands on the enterprise. A redundant position is
His chances of winning is NIL because the objection to the one rendered superfluous by any number of factors, such
transfer
was
grounded
solely
on
personal
family
as over hiring of workers, decreased volume of business
reasons
that
will
be
caused
to
him
because
of
the
dropping of a particular line previously manufactured by
transfer. (OSS Security v. NLRC, G.R. No. 112752, February the company or phasing out of a service activity
9, 2000); Phil. Industrial Security Agency Corp. v. Dapitan, previously undertaken by the business. Under these
G.R. No. 127421, December 8, 1999). conditions, the employer has no legal obligation to keep
in its payroll more employees than are necessary for the
Authorized Causes operation of its business.
Q: ABC Tomato Corporation, owned and managed by For the implementation of a redundancy program to be
three (3) elderly brothers and two (2) sisters, has valid, the employer must comply with the following
been in business for 40 years. Due to serious business requisites:
losses and financial reverses during the last five (5)
29
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
b. The employee shall be given ample opportunity to Nonetheless,
the
employers
failure
to
comply
with
the
defend himself, with or without the assistance of procedure prescribed by law in terminating the services
counsel; and of the employee warrants the payment of nominal
c. A written notice of termination indicating the damages of Php 30,000, in accordance with the Supreme
grounds to justify his termination. (Agabon v. NLRC, Courts
ruling
in
the
case
of
Agabon v. NLRC (G.R. No.
G.R.No. 158693, November 17, 2004). 158693, November 17, 2004).
Q: Joseph Vitriolo (JV), a cashier of Seaside Sunshine Q: Rico has a temper and, in his work as Division
Supermart (SSS), was found after an audit, to have Manager of Matatag Insurance, frequently loses his
cash shortages on his monetary accountability temper with his staff. One day, he physically assaults
covering a period of about five months in the total his staff member by slapping him. The staff member
amount of P48,000.00. SSS served upon JV the sues him for physical injuries. Matatag Insurance
written charge against him via a memorandum order decides to terminate Rico, after notice and hearing,
of preventive suspension, giving JV 24 hours to on the ground of loss of trust and confidence. Rico
submit his explanation. As soon as JV submitted his claims that he is entitled to the presumption of
written explanation within the given period, the innocence because he has not yet been convicted.
same was deemed unsatisfactory by the company and
JV was peremptorily dismissed without any hearing. Comment on Matatag's action in relation to Rico's
The day following his termination from employment. argument. (2015)
JV filed a case of illegal dismissal against SSS. During
the hearing before the Labor Arbiter SSS proved by A: Matatg Insurance does not have to await the result of
substantial evidence JV's misappropriation of the criminal case before exercising its prerogative to
company funds and various infractions detrimental dismiss. Dismissal is not affected by a criminal case.
to the business of the company. JV, however, Under the Three-fold Liability Rule, a single act may
contended that his dismissal was illegal because the result in three liabilities, two of which are criminal and
company did not comply with the requirements of administrative. To establish them, the evidence of the
due process. crime must amount to proof beyond reasonable doubt;
whereas, the evidence of the ground for dismissal is
Did SSS comply with the requirements of procedural substantial evidence only. In this regard, the company has
due process in the dismissal from employment of JV? some basis already for withholding the trust it has
Explain briefly (1999) reposed
on
its
manager.
Hence,
Ricos
conviction
need
not
precede
the
employees
dismissal.
A: In connection with the right to due process in the
termination of an employee, the Labor Code (in Article RELIEFS FOR ILLEGAL DISMISSAL
277[b]) requires that the employer furnish the worker
whose employment is sought to be terminated a written Q: What damages can an illegally dismissed employee
notice containing a statement of the causes for collect from his employer? (2001)
termination and shall afford ample opportunity to be
heard and to defend himself with the assistance of his A: An illegally dismissed employee may collect from his
representative if he so desires. SSS did not comply with employer ACTUAL and COMPENSATORY damages,
the above described requirements for due process. The MORAL damages and EXEMPLARY damages, as well as
memorandum order was for the preventive suspension attorneys
fees
as
damages.
of JV, not a notice for his termination.
Q: Eduardo Santiago, a project worker, was being
Q: Luisa was hired as a secretary by Asian assigned by his employer, Bagsak Builders, to Laoag,
Development
Bank
(ADB)
in
Manila.
Luisas
first
boss
Ilocos Norte. Santiago refused to comply with the
was a Japanese national whom she got along with. But transfer claiming that it, in effect, constituted a
after two years, the latter was replaced by an constructive dismissal because it would take him
arrogant Indian national who did not believe her away from his family and his usual work assignments
work output was in accordance with international in Metro Manila. The Labor Arbiter found that there
standards. One day, Luisa submitted a draft report was no constructive dismissal but ordered the
filled with typographical errors to her boss. The payment of separation pay due to strained relations
latter scolded her, but Luisa verbally fought back. The between Santiago and Bagsak Builders plus
Indian boss decided to terminate her services right attorney's fees equivalent to ten percent (10%) of the
then and there. Luisa filed a case for illegal dismissal value of Santiago's separation pay.
with the Labor Arbiter claiming arbitrariness and
denial of due process. If you were the Labor Arbiter, a. Is the award of attorney's fees valid? State the
how would you decide the case? (2014) reasons for your answer.
A: I will dismiss the case. ADB enjoys immunity from suit. A: Yes. What Art. 111 (b) prohibits is the demand or
(DFA v. NLRC, G.R. No. 113191, September 18, 1996). acceptance by any person in a judicial or administrative
proceedings
for
the
recovery
of
wages,
attorneys
fees
ALTERNATIVE ANSWER: which exceed 10% of the amount of wages recovered.
I will decide in favor of Luisa, by granting nominal
damages.
To
clarify,
however,
Luisas
dismissal
is
not
Since
in
this
case,
the
amount
of
attorneys
fees
is
exactly
illegal, for it has been held that failure to observe equivalent to the 10% of the separation fee recovered, the
prescribed standards of work, or to fulfill reasonable award is valid.
work assignments due to inefficiency, as in this case, may
constitute as a just cause for dismissal (Iluminada Buiser,
31
In this case, there was no showing that there was a bad Pending Appeal (Article 223, Labor Code)
faith on the part of the employer. In fact, the bad faith and
false allegations were on the part of the employee when Q: Alexander, a security guard of Jaguar Security
he refused to obey the transfer mandated by his employer Agency (JSA), could not be given any assignment
solely on the shallow basis that he will be away from his because no client would accept him. He had a face
family. only a mother could love. After six (6) months of
being on "floating" status, Alexander sued JSA for
Reinstatement constructive dismissal. The Labor Arbiter upheld
Alexanders
claim
of
constructive
dismissal
and
Q: In the illegal dismissal case filed by Sharon Cometa ordered JSA to immediately reinstate Alexander. JSA
against Up & Down Company, the labor Arbiter appealed the decision to the NLRC. Alexander sought
rendered a decision directing her immediate immediate enforcement of the reinstatement order
reinstatement and payment of full backwages. The while the appeal was pending. JSA hires you as
Company appealed to the NLRC. Following her lawyer, and seeks your advice on the following:
lawyer's advice that the reinstatement aspect of the (2009)
decision is immediately executory, Sharon went to
the HRD Office of the Company and demanded a. Because JSA has no client who would accept
immediate reinstatement. When the Company Alexander, can it still be compelled to reinstate
refused, her lawyer, Atty. Maximiano Anunciacion, him pending appeal even if it has posted an
filed a motion to cite the employer in contempt. appeal bond?
Acting on the motion, the NLRC ordered the payroll
reinstatement of Sharon Cometa. A: Yes, JSA can be compelled to reinstate Alexander,
pending appeal of the decision of the Labor Arbiter to the
a. Can the company or any of its officials be cited for NLRC, even if JSA post a bond.
contempt for refusing to reinstate Sharon
Cometa? Why? Art. 223. Appeal. xxx In any event, the decision
of the Labor Arbiter reinstating a dismissed or
A: Yes. The company or any of its officials can be cited for separated employee, insofar as the
contempt. It is noted that in his decision, the Labor reinstatement aspect is concerned shall be
Arbiter specifically directed the immediate immediately executory, even pending appeal
reinstatement of Sharon Cometa. This directive under the and the posting of a bond.
Labor Code (Article 223) is immediately executory, even
pending appeal. (Pioneer Texturizing Corporation v. NLRC, b. Can the order of reinstatement be immediately
G.R. No. 118651, October 16, 1997). enforced in the absence of a motion for the
issuance of a writ of execution?
b. May the NLRC order the payroll reinstatement of
Sharon Cometa? Why? (1999) A: Yes. In Pioneer Texturizing Corp. v. NLRC (G.R. No.
118651, October 16, 1997), the Court held that an award
A: The NLRC may NOT order the payroll reinstatement of or order of reinstatement is self-executory and does not
Sharon Cometa. The Labor Code (Article 223) provides require a writ of execution to implement and enforce it.
that in the immediate reinstatement of a dismissed To require the application for and issuance of a writ of
employee, the employee shall be admitted back to work execution as prerequisite for the execution of a
under the same terms and conditions prevailing prior to reinstatement award would certainly betray and run
the employee's dismissal or, at the option of the counter to the very object and intent of Article 223 of the
employer, merely reinstate the employee in the payroll. Labor Code on the immediate execution of a
Thus, the reinstatement of the employee in the payroll is reinstatement order.
at the option of the employer and not of the NLRC or the
Labor Arbiter who have the power only to direct c. If the order of reinstatement is being enforced,
reinstatement. what should JSA do in order to prevent
reinstatement?
Q: Discuss briefly the instances when non-
compliance by the employer with a reinstatement A: The employer cannot prevent reinstatement but may,
order of an illegally dismissed employee is allowed. however, opt for reinstatement of the employee in the
(2007) payroll of the company without requiring him to report
back to his work. (Zamboanga City Water District v. Buat,
A: Despite a reinstatement order, an employer may not G.R. No. 104389, May 27, 1994).
32
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
PLEASE NOTE: In connection with security guards, equivalent, which said employee did not receive from the
Department Order No.14 series of 2001 provides that if time he was illegally dismissed up to the time of his actual
there is lack of assignment, then the security guard is reinstatement (Article 279).
entitled to separation pay.
On the other hand, an award for unpaid wages is for an
Separation Pay in Lieu of Reinstatement employee who has actually worked but has not been paid
the wages he is entitled to receive for such work done.
Q: Lyric Theater Corp. issued a memorandum
prohibiting all ticket sellers from encashing any Computation
check from their cash collections and requiring them
instead to turn over all cash collections to the Q: An employee was ordered reinstated with
management at the end of the day. In violation of this backwages. Is he entitled to the benefits and
memorandum, Melody, a ticket seller, encashed five increases granted during the period for his lay-off?
(5) checks from her cash collection. Subsequently the Explain briefly. (2002)
checks were dishonored when deposited in the
account of Lyric Theater. For this action, Melody was A: Yes, an employee who is ordered reinstated with
placed under a 20-day suspension and directed to backwages is entitled to the benefits and increases
explain why she should not be dismissed for violation granted during the period of his lay-off. The Supreme
of the company's memorandum. In her explanation, Court has ruled: Backwages are granted for earnings a
she admitted having encashed the checks without the worker lost due to his illegal dismissal and an employer
company's permission. While the investigation was is obliged to pay an illegally dismissed employee the
pending, Melody filed a complaint against Lyric whole amount of salaries plus all other benefits and
Theater for backwages and separation pay. The bonuses and general increases to which the latter should
Labor Arbiter ordered Lyric Theater to pay Melody have been normally entitled had he not been dismissed.
P115,420.79 representing separation pay and (Sigma Personnel Services v. NLRC, G.R. No. 108284, June
backwages. The NLRC affirmed the ruling of the Labor 30, 1993).
Arbiter. Is the ruling of the NLRC correct? Explain
briefly. (2002) Q: What economic components constitute backwages
for a rank and file employee? Are these components
A: The ruling of the NLRC affirming the Labor Arbiter's equally applicable to a managerial employee? (2001)
decision ordering Lyric Theater to pay P115,420.79
representing separation pay and backwages is wrong. A: The Labor Code (Art. 279) provides that an employee
The Labor Arbiter's decision is wrong because: who is unjustly dismissed from work is entitled to
reinstatement and also to his full backwages, inclusive of
a. It is premature. There was still no termination. All allowances, and to this other benefits or their monetary
that was done by the employer (Lyric Theater) was equivalent computed from the time his compensation
to place the employee (Melody) under a 20-day was withheld from him up to his actual reinstatement. An
suspension, meanwhile directing her to explain why employee is entitled to all the above benefit regardless of
she should not be dismissed for violation of whether he is a rank-and-file employee or a managerial
company's memoranda. employee.
b. The order for Lyric Theater to pay separation pay has
no factual basis. Separation pay is to be paid to an However, backwages may also include the 13th month pay
employee who is terminated due to the installation of which is paid to rank and file employees, as well as
labor saving devices, redundancy, retrenchment to benefits arising from a CBA given only to employees in
prevent losses or the closing or cessation of the bargaining unit. Managerial employees cannot be
operation of the establishment undertaking. None of given the same since they are ineligible to join a labor
these events has taken place. Neither is separation organization. Likewise, transportation and emergency
pay here in lieu of reinstatement applicable because allowances, vacation or service incentive leaves and sick
there is just cause if Melody is terminated under the leaves must also be taken into account. (St. Louis College
circumstances. of Tuguegarao v. NLRC, et.al. G.R.No. 74214, August 31,
c. The order for Lyric Theater to pay backwages has no 1989).
factual basis either because there is just cause if she
will be terminated after investigation. In this case, Q:
A
was
hired
by
company
B
in
January
1980
there is wilful disobedience by the employee of the until A was illegally dismissed on April 30, 1990 as
lawful orders of her employer in connection with her found by a Labor Arbiter who ordered reinstatement
work. She did not just violate the lawful order of the and full backwages from April 30, 1990 until
employer. She violated it five times. Melody did not reinstatement.
The
arbiters
decision
was
give any justifiable reason for violating the promulgated on April 29, 1995. B appealed claiming,
company's memorandum prohibiting the among others, that the award for damage was
encashment of checks. (Jo Cinema Corp. v. Avellana, excessive in that it went beyond three-year rule set
G.R. No. 32837, June 28, 2001). forth
in
Mercury
Drug
v.
CIR
(56
SCRA
696).
Is
Bs
contention tenable? Why? (2001)
Backwages
A: Bs
contention
is
not
tenable.
Where
the
illegal
Q: Distinguish between an award for back wages and dismissal was effected after the effectivity on March 1,
an award for unpaid wages. (1994) 1989 of Republic Act No.6715 amending among others
Article 279, the Mercury Drug Formula should no longer
A: An award for backwages is to compensate an employee be applied. Instead, Article 279 now provides that an
who has been illegally dismissed, for the wages, employee who is unjustly dismissed from work shall be
33
allowances and other benefits or their monetary entitled to reinstatement without loss of seniority rights
PREVENTIVE SUSPENSION The transfer will not substantially alter the terms and
conditions of employment of the Supervisor. The right to
Q: Karina Santos is a famous news anchor appearing transfer
an
employee
is
part
of
the
employers
managerial
nightly in the country's most watched newscast. She function.
is surprised, after one newscast, to receive a notice of
hearing before the station's Vice-President for Furthermore, the Court ruled that an employee has no
Human Resources and calls the VP immediately to vested right to a position, and in justifiable cases
ask what was wrong. Karina is told over the phone employment may be terminated.
that one of her crew filed a complaint against her for
verbal abuse and that management is duty bound to An
employers
right to security of tenure does not give
investigate and give her a chance to air her side. him such a vested right to his position as would deprive
Karina objects and denies that she had ever verbally the company of its prerogative to change his assignment
assaulted her crew. The VP then informed her that or transfer him where he will be most useful. When his
pending the investigation she will be placed on a 30- transfer is not unreasonable, not inconvenient, nor
day preventive suspension without pay and that she prejudicial to him, and it does not involve a demotion in
will not be allowed to appear in the newscast during rank or a diminution of his salaries, benefits, and other
this time. privileges, the employee may not complain that it
amounts to a constructive dismissal.
Is the preventive suspension of Karina valid?
Discuss the reasons for your answer. (2015) MANAGEMENT PREROGATIVE
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
a. Is the policy violative of any provision of the A: I will advise Din Din to sue her boss and the
Labor Code on employment of women? supermarket for illegal dismissal. Din Din cannot be
compelled to accept the promotion. Her unsatisfactory
A: No. There was no violation of the provisions of the evaluations
as
well
as
her
boss
insistence
that
she
should
Labor Code against discrimination. Management agree to the intended transfer to Visayas are badges of an
prerogative is the right of an employer to regulate all abuse of management prerogative. In Pfizer Inc. v. Velasco
aspects of employment such as hiring, work assignments, (G.R. No. 177467, March 9, 2011), the Supreme Court held
work methods, tools and equipment to be used and the that the managerial prerogative to transfer personnel
process and procedures to be followed in performance of must be exercised without abuse of discretion, bearing in
work, etc. However, it must be noted that such right is not mind the basic elements of justice and fair play. Hence,
absolute and may be limited by special laws. Din
Dins
dismissal
is
illegal.
In the case at bar, the school had validly executed its right GRANT OF BONUS
to management prerogative. As an educational
institution, its very nature calls for the adoption of Q: What is a bonus? When is it demandable as a
measures that would enable it to enhance and develop its matter of right? Explain. (1995)
laudable objectives. In fact, the policy adopted by the
school is in consonance with the constitutional precept of A: A bonus is an amount granted and paid to an employee
incorporating ethical and moral values in schools. for his industry and loyalty which contributed to the
success
of
the
employers
business
and
made
possible
the
Furthermore, what the Labor Code prohibits is the realization of profits. A bonus becomes a matter of right
discrimination of employees on the basis of their gender. when it is included by the employer as a part of the
The questioned policy is clearly not the discrimination employees
salary,
wage
or
compensation.
(Alcantara,
prohibited under Art. 135 of the Labor Code because the 2009).
school is still hiring women as teachers, however, by
virtue of their management prerogative, they added an Q: The projected bonus for the employees of Suerte
additional qualification that their employees must have Co. was 50% of their monthly compensation.
an outstanding moral and ethical values. Unfortunately, due to the slump in the business, the
president reduced the bonus to 5% of their
b. The same school dismissed two female faculty compensation. Can the company unilaterally reduce
members on account of pregnancy out of the amount of bonus? Explain briefly. (2002)
wedlock. Did the school violate any provision of
the Labor Code on employment of women? A: Yes. A bonus as a general rule is given on account of the
(2000) employers
gratuity
or
an
act
of
his
liberality
in
which
the
recipient is under no legal right to demand such.
A: No. The Labor Code was not violated because the However, by way of exception, a bonus becomes a matter
school clearly acted within its right to dismiss the two of right when the employer had made it a part of the wage
faculty members who got pregnant out of wedlock, or salary or compensation of the employee. (Alcantara,
because tolerating such immoral conduct would be in 2009).
contradiction to the school's laudable mission. The
dismissal of employees in order to ensure its adherence In the case at bar, there is no showing that the
to the Constitutional precept is an exercise of management had constituted the bonus as a part of the
management prerogative allowed by the law. salary, wages or compensation of the employees. Thus,
the case falls under the general rule where the employees
Pursuant to such Constitutional precept, and by virtue of cannot demand the payment of a 50% bonus as a matter
its nature of as an institution that caters only to female of right.
students, it is the school's right and responsibility to hire
and maintain the employment of educators that would Q: Lito was anticipating the bonus he would receive
serve as good role models to their students not only in for 2013. Aside from the 13th month pay, the
terms of academic competency, but also in terms of the company has been awarding him and his other co-
moral standards, values and dignity of a woman. employees a two to three months bonus for the last
10 years. However, because of poor over-all sales
TRANSFER OF EMPLOYEES performance for the year, the company unilaterally
decided to pay only a one month bonus in 2013. Is
Q: Din Din is a single mother with one child. She is Litos
employer
legally
allowed
to
reduce
the
bonus?
employed as a sales executive at a prominent (2014)
supermarket. She and her child live in Quezon City
and her residence and workplace are a 15-minute A: Yes. A bonus is an act of generosity granted by an
drive apart. One day, Din Din is informed by her boss enlightened employer to spur the employee to greater
that she is being promoted to a managerial position efforts for the success of the business and realization of
but she is now being transferred to the Visayas. Din bigger profits. The granting of bonus is a management
Din does not want to uproot her family and refuses prerogative, something given in addition to what is
the offer. Her boss is so humiliated by Din Din's ordinarily received by or strictly due to the recipient.
refusal of the offer that she gives Din Din successive Thus, a bonus is not a demandable and enforceable
unsatisfactory evaluations that result in Din Din obligation, except when it is made part of the wage, salary
being removed from the supermarket. or compensation of the employees, a matter which is not
in the facts of the case. (American Wire and Cable Daily
Din Din approaches you, as counsel, for legal advice. Rated Employees Union v. American Wire and Cable Co.,
What would you advise her? (2015) Inc. and the Court of Appeals, G.R. No. 15509, April 29,
35
2005).
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
A: Yes, the claim will prosper. In a line of cases, it has been a voluntary basis. The compulsory coverage of the self-
held that an injury sustained by the employee while on employed person shall take effect upon his registration
his way to or from his place of work, and which is with the SSS. (Sec. 9-10, Social Security Act of 1997)
otherwise compensable, is deemed to have arisen out of
and in the course of his employment. (Lentejas v. Q: The Collective Bargaining Agreement of the Golden
Employees
Compensation
Commission, G.R. No. 89168, Corporation Inc. and the Golden Corporation
May 14, 1991) Workers Union provides a package of welfare
benefits far superior in comparison with those
Carol died while going to her place of work. As held in the provided for in the Social Security Act of 1997. The
case of Alano
v.
Employees
Compensation
Commission welfare plan of the company is funded solely by the
(G.R. No. L-48594, March 16, 1988) she was at the place employer with no contributions from the employees.
where job necessarily required her to be if she was to Admittedly, it is the best welfare plan in the
reach her place of work on time. There was nothing Philippines. The company and the union jointly filed
private or personal about Carol being at the place of the a petition with the Social Security System for
accident. She was there because her employment exemption from coverage. Will the petition for
required her to be there. exemption from coverage prosper? Reason. (2000)
Q: Big Foot Company of Paete, Laguna, has been in the A: No, because coverage under the SSS is compulsory
business of manufacturing wooden sandals for where employer-employee relations exist. However, if
export since 5 November 1980. On 5 January 1994 it the private plan is superior to that of the SSS, the plan
employed an additional labor complement of thirty may be integrated with the SSS plan. Still, it is integration
workers, two supervisors and two department and not exemption from SSS law. (Sec. 9(a), Social Security
managers. On 5 February 1994 it hired five Act of 1997).
carpenters to fix the roof and walls of its factory
which were destroyed by typhoon "Huaning." Who Note: Coverage is compulsory upon all employees over
among the aforementioned persons are compulsorily sixty years of age and their employers. (Sec. 9(a), Social
covered by the Social Security Law and when should Security Act of 1997).
they be considered effectively covered? Discuss fully.
(1995) Q: The owners of FALCON Factory, a company
engaged in the assembling of automotive
A: Assuming that all of them were not yet over sixty years components, decided to have their building
of age, the additional labor complement of thirty workers, renovated. Fifty (50) persons, composed of
two supervisors and two department managers were engineers, architects and other construction
compulsorily covered by the Social Security Law on 5 workers, were hired by the company for this purpose.
January 1994, when they were employed (Sec. 9(a), Social The work was estimated to be completed in three (3)
Security Act of 1997). According to said law, workers are years. The employees contended that since the work
covered on the day of their employment (Sec. 10, Social would be completed after more than one (1) year,
Security Act of 1997). But the five carpenters whom the they should be subject to compulsory coverage under
company hired to fix the roof and walls of its factory were the Social Security Law. Do you agree with their
not under the compulsory coverage of the Social Security contention? Explain your answer fully. (2002)
Law because said carpenters are casual employees. The
Social Security Law provides that employment purely A: No. The Social Security Act of 1997 provides that
casual and not for the purpose of occupation or the employment of purely casual, those which are not for the
business of the employer are not under its compulsory purpose of occupation or business of the employer, are
coverage (Sec. 8(j), Social Security Act of 1997). exempted from compulsory coverage (Sec. 8(j), Social
Security Act of 1997). The 50 persons that were engaged
Q: Marvin Patrimonio is a caddy rendering caddying by the company to renovate their factory are only casual
services for the members and guests of the Barili Golf employees because their work is not in connection with
& Country Club. As such caddy, he is subject to Barili the purpose of the company which is assembling
golfs rules and regulations governing Caddies automotive components. As such, they are merely casual
regarding conduct, dress, language, etc. However, he employees who are not under the compulsory coverage
does not have to observe any working hours, he is of the SSS.
free to leave anytime he pleases; and he can stay
away for as long as he likes. Nonetheless, if he is Exclusions from Coverage
found remiss in the observance of club rules, he can
be disciplined by being barred from the premises of Q: Pablo was a farm-hand in a plantation owned by
Barili Golf. Is Marvin within the compulsory coverage ABC & Co., working approximately 6 days a week for
of the Social Security System? Why? (1999) a good 15 years. Upon Pablo's death, his widow filed
a claim for burial grant and pension benefits with the
A: Yes. Although Marvin is not an employee of the golf Social Security System (SSS). The claim was denied on
club there being no employer-employee, since he is not the ground that Pablo had not been a registered
under the orders of the club as regards employment, he member-employee.
is still within the compulsory coverage of the SSS being a
self-employed person. Social Security Act of 1997 Pablo's widow filed a petition before the SSS asking
provides that self-employed persons are within the that ABC & Co. be directed to pay the premium
compulsory coverage of the law. (Sec. 9-A, Social Security contributions of Pablo and that his name be reported
Act of 1997). for SSS coverage. ABC & Co. countered that Pablo was
hired to plow, harrow and burrow, using his own
Note: Self-employed persons whose income is not carabao and other implements and following his own
37
Q: Samson Security Agency [SAMSON) undertook to a. That the employee must be at the place where his
provide 24 hours security service to Jarillo Realty work requires him to be;
(JARILLO) in the latter's construction operations. The b. That the employee must have been performing his
contract between SAMSON and JARILLO expressly official functions; and
stipulated that Samson's security guards are its c. That the injury is sustained elsewhere, the employee
employees and not that of JARILLO. SAMSON must have been executing an order for the employer.
undertook to hold JARILLO free from any liability
whatsoever resulting from injuries which its It
is
not
difficult
to
understand
then
why
Zhops
claim
was
(SAMSON's) guards may suffer or be exposed to suffer denied by the GSIS (Tancinco v. GSIS, G.R. No. 132916,
as guards of JARILLO's construction operations. To November 16, 2001). In the present case, Odeck was resting
facilitate payment. JARILLO undertook to pay directly at his house when the incident happened; thus, he was not
38
to the guards the agreed wages, which are at a place where his work requires him to be. Although at
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
the time of his death Odeck was performing a police immediately brought to a clinic for emergency
function, it cannot be said that his death treatment but was pronounced dead on arrival. The
occurredelsewhere other than the place where he was death certificate showed that he died of cardiac
supposed to be because he was executing an order for his arrest due to accidental electrocution. Pepay
employer. Palaypay (Pitoy Mondero's common-law wife for
more than twenty years) and a Pitoy Mordero Jr. (his
Q: Luis, a PNP officer, was off duty and resting at home only son) filed a claim for death benefits with the
when he heard a scuffle outside his house. He saw two Government Service Insurance System (GSIS), which
of his neighbors fighting and he rushed out to pacify was denied on the ground that Pitoy Mordero's death
them. One of the neighbors shot Luis by mistake, did not arise out of and in the course of employment
which resulted in Luis's death. Marian, Luis's widow, and therefore not compensable because the accident
filed a claim with the GSIS seeking death benefits. The occurred in his house and not in the school premises.
GSIS denied the claim on the ground that the death of
Luis was not service-related as he was off duty when Is Pepay Palaypay entitled to file a claim for death
the incident happened. Is the GSIS correct? (2015) benefits with the GSIS? Why? (1999)
A: No. The GSIS is not correct. Luis, a policeman, just like A: The beneficiaries of a member of the GSIS are entitled
a soldier, is covered by the 24-Hour Duty Rule. He is to the benefits arising from the death of said member.
deemed on round-the clock-duty unless on official leave, Death benefits are called survivorship benefits under the
in which case his death outside performance of official GSIS Law. Pepay Palaypay is not entitled to receive
peace-keeping mission will bar death claim. In this case, survivorship benefits since she is not a beneficiary being
Luis was not on official leave and he died in the a common-law wife and not a legal dependent spouse.
performance of a peace-keeping mission. Therefore, his (Sec. 2(g), GSIS Act of 1997).
death is compensable.
FOLLOW-UP QUESTION:
Benefits
Is the cause of death of Pitoy Mordero (cardiac arrest
Q: Atty. CLM, a dedicated and efficient public official, due to accidental electrocution in his house)
was the top executive of a government owned and compensable? Why?
controlled corporation (GOCC). While inspecting an
ongoing project in a remote village in Mindanao, she A: Yes. To be compensable under the GSIS Law, the death
suffered a stroke and since then had been confined to need not be work connected.
a wheelchair. At the time she stopped working
because of her illness in line of duty, Atty. CLM was Note: As long as the decedent-member was a) in service;
only sixty years old but she had been an active b) rendered 3 years of service and at least paid 36 monthly
member of the GSIS for thirty years without any contributions within the five-year period immediately
break in her service record. What benefits could she preceding his death; or c) paid a total of at least 180
claim from the GSIS? Cite at least five benefits. (2004) monthly contributions prior to his death.
with a live wire and was electrocuted. He was System (GSIS). What would you advice? (2014)
A: Yes. Under R.A. 7699, otherwise known as the A: There is no substantial difference of the right of self-
Portiability Law, one may combine his years of service in organization between workers in the private sector and
the private sector represented by his contributions to the those in the public sector. In the public sector, Executive
Social Security System (SSS) with his government service Order No. 180, the purpose of self-organization is stated
and contributions to the GSIS. The contributions shall be as "for the furtherance and protection of their interest."
totalized for the purposes of old-age, disability, In the private sector, Art. 243 of the Labor Code states
survivorship and other benefits in case the covered "for the purpose of collective bargaining", and "for the
member does not qualify for such benefits in either or purpose of enhancing and defending their interests and
both Systems without totalization. for their mutual aid and protection." Furthermore, no
less than the Constitution itself guarantees that ALL
EMPLOYEES
COMPENSATION workers have the right to self-organization. (Sec. 3, Article
COVERAGE AND WHEN COMPENSABLE 13, 1987 Constitution).
Q: Victor was hired by a local manning agency as a Q: Do workers have a right not to join a labor
seafarer cook on board a luxury vessel for an eight- organization?
month cruise. While on board, Victor complained of
chronic coughing, intermittent fever, and joint pains. A: Yes. The constitutional right to self-organization has
He was advised by the ship's doctor to take complete two aspects, the right to join or form labor organizations
bed rest but was not given any other medication. His and the right not to join said organization (Victoriano v.
condition persisted but the degree varied from day to Elizalde Rope Workers
Union,
G.R.
No.
L-25246, September
day. At the end of the cruise, Victor went home to 12, 1974). Moreover, if they are members of a religious
Iloilo and there had himself examined. The group whose doctrine forbids union membership, their
examination revealed that he had tuberculosis. right not to be compelled to become union members has
(2015) been upheld. However, if the worker is not a "religious
objector" and there is a union security clause, he may be
a. Victor sued for medical reimbursement, damages required to join the union if he belongs to the bargaining
and attorney's fees, claiming that tuberculosis unit. (Reyes v. Trajano, G.R. No. 84433, June 2, 1992).
was a compensable illness. Do you agree with
Victor? Why or why not? Q: Do the following workers have the right to self-
organization? Reasons/basis:
A: TB is listed under Sec. 32-A of the POEA-SEC as a work- a. Employees of non-stock, non-profit
related disease. It was also either contracted or organizations?
aggravated
during
the
effectivity
of
Victors
contract.
b. Alien employees? (2000)
Having shown its manifestations on board, Victor should
have been medically repatriated for further examination A:
and treatment in the Philippines. This obligation was a. Even employees of non-stock non-profit
entirely omitted in bad faith by the company when it organizations have the right to self-organization.
waited for his contract to expire on him before signing This is explicitly provided for in Art. 243 of the Labor
him off. On this basis, Victor is entitled to medical Code. A possible exception, however, are employee-
reimbursement, damages and attorneys
fees. members of non-stock, non-profit cooperatives.
b. ALIEN EMPLOYEES with valid work permits may
b. Due to his prolonged illness, Victor was unable to exercise the right to self-organization on the basis of
work for more than 120 days. Will this entitle him parity or reciprocity, that is, if Filipino workers in the
to claim total permanent disability benefits? aliens' country are given the same right. (Art. 269,
Labor Code).
A: No.
Victors
TB
is
work-related and it developed on
board, thereby satisfying the twin requisites of Q: Mang Bally, owner of a shoe repair shop with only
compensability. However, despite his knowledge of his nine (9) workers in his establishment, received
medical condition, he failed to report to his manning proposals for collective bargaining from the Bally
agent within three days from his arrival as required by Shoe Union. Mang Bally refused to bargain with the
Sec. 20-B (3) of the POEA-SEC. Since he already felt the workers for several reasons. First, his shoe business
manifestations of TB before his sign-off, he should have is just a service establishment. Second, his workers
submitted to post-employment medical examination are paid on a piecework basis (i.e., per shoe repaired)
(Jebsen Maritime Inc. v. Enrique Undag, G.R. No. 191491, and not on a time basis. Third, he has less than ten
December 14, 2011). The effect of his omission is (10) employees in the establishment. Which reason
forfeiture by him of disability benefits (Coastal Safeway or reasons is/are tenable? Explain briefly. (2002)
Marine Services, Inc. v. Elmer t. Esguerra, G.R. No. 185352,
August 10, 2011). In effect, the 120-day rule has no A: None. First, Mang Bally's shoe business is a
application at all. commercial enterprise, albeit a service establishment.
Second, the mere fact that the workers are paid on a
LABOR RELATIONS LAW piece-rate basis does not negate their status as regular
employees. Payment by piece is just a method of
RIGHT TO SELF-ORGANIZATION compensation and does not define the essence of the
relation. (Lambo v. NLRC, G.R. No. 111042, October 26,
Who may Unionize for the Purpose of Collective Bargaining 1999). Third, the employees' right to self organization is
not delimited by their number. The right to self-
Q: How does the government
employees
right
to
self- organization covers all persons employed in commercial,
organization differ from that of the employees in the industrial and agricultural enterprises and in religious,
40
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
charitable, medical, or educational institutions whether Cashiers and Comptrollers. Farmers Bank
operating for profit or not. (Art. 243, Labor Code). questioned this list arguing that Department
Managers, Branch Managers, Cashiers and
Q: At what particular point does a labor organization Comptrollers inherently possess the powers
acquire a legal personality? enumerated in Art. 212, par. (m), of the Labor Code,
i.e., the power and prerogative to lay down and
a. On the date the agreement to organize the union execute management policies and/or to hire,
is signed by the majority of all its members; or transfer, suspend, lay-off, recall, discharge, assign or
b. On the date the application for registration is discipline employees.
duly filed with the Department of Labor; or
c. On the date appearing on the Certificate of a. Is the contention of Farmers Bank correct?
Registration; or Discuss fully.
d. On the date the Certificate of Registration is b. Is there any statutory basis for the petition of the
actually issued; or union? Explain. (1995)
e. None of the above. Choose the correct answer.
(2003) A:
a. The contention of the Farmers Bank is not correct, if,
A: on examination of the actual powers exercised by the
d.) On the date the Certificate of Registration is actually Department Managers, Bank Managers, Cashiers and
issued. Any applicant labor organization, association or Comptrollers, they are not vested with powers or
group of unions or workers shall acquire legal prerogatives to lay down and execute management
personality and shall be entitled to the rights and policies or to hire, transfer, suspend, lay-off, recall,
privileges granted by law to legitimate labor discharge, assign or discipline employees. If their
organizations upon issuance of the certificate of powers are to carry out their duties and
registration. (Art. 234, Labor Code). responsibilities in accordance with the policies
promulgated by the Board of Directors of the Bank,
Q: "Puwersa", a labor federation after having won in or by external authorities, like the Central Bank, then,
a certification election held in the company premises, they are not managerial but may be supervisory
sent a letter to respondent company reminding it of personnel. It
is
the
nature
of
an
employees
functions
its obligation to recognize the local union. and not the nomenclature or title given to his job
Respondent company replied that though it is willing, which determines whether he has a managerial
the rank-and-file employees had already lost interest status (Azucena, 2013).
in joining the local union as they had dissolved it. b. There is statutory basis for the petition of the
"Puwersa" argued that since it won in a certification supervisors' union. Under the Labor Code,
election, it can validly perform its function as a supervisors have the right to form and join unions,
bargaining agent and represent the rank-and-file but only unions of supervisory employees.
employees despite the union's dissolution. Is the
argument of "Puwersa" tenable? Decide with Q: Solar Plexus Bar and Night Club allowed by
reasons. (2008) tolerance fifty (50) Guest Relations Officers (GRO) to
work without compensation in its establishment
A: A new provision, Article 239-A is inserted into the under the direct supervision of its Manager from 8:00
Labor Code by RA 9481, as follows: p.m. to 4:00 a.m. everyday, including Sundays and
holidays. The GROs, however, are free to ply their
Art. 239-A. Voluntary Cancellation of trade elsewhere at anytime but once they enter the
Registration. The registration of a legitimate premises of the night club, they are required to stay
labor organization may be cancelled by the up to closing time. The GROs earned their keep
organization itself. Provided that at least two- exclusively from commissions for food and drinks,
thirds of its general membership votes, in a and tips from generous customers. In time, the GROs
meeting duly called for that purpose to dissolve formed the Solar Ugnayan ng mga Kababaihang
the organization. Provided, further, that an Inaapi (SUKI); a labor union duly registered with
application to cancel registration is thereafter DOLE. Subsequently, SUKI filed a petition for
submitted by the board of the organization, certification election in order to be recognized as the
attested
to
by
the
president
thereof. exclusive bargaining agent of its members. Solar
Plexus opposed the petition for certification election
If indeed the local union was dissolved in accordance on the singular ground of absence of employer-
with the above provision of the law, the argument of employee relationship between the GROs on one
Puwersa
is
not
tenable.
This
is because
Puwersa
only
hand and the night club on the other hand. May the
had the status of an agent, while the local union remained GROs form SUKI as a labor organization for purposes
the basic unit of the association. (Liberty Cotton Mills of collective bargaining? Explain briefly. (1999)
Workers Union v. Liberty Cotton Mills, Inc., G.R. No. L-
33987, September 4, 1975.; cited in Filipino Pipe and A: Yes. Despite the work conditions agreed upon by the
Foundry Corp. v. NLRC, G.R. No. 115180, November 16, owner
of
Solar
Plexus
and
the
GROs,
Art.
138
of
the
Labor
1999). Code mandates that women who work in certain
workplaces such as night clubs, beer houses, cocktail
Q: A supervisor's union filed a petition for lounges, massage clinics or bars, who are under the
certification election to determine the exclusive effective control or supervision of an employer shall be
bargaining representative of the supervisory considered as employees of such establishments, for
employees of Farmers Bank. Included in the list of purposes of labor and social legislation.
41
Q: Philhealth is a government-owned and controlled A: Employees who are members of a cooperative cannot
corporation employing thousands of Filipinos. form a union because, as members, they are owners and
Because of the desire of the employees of Philhealth owners cannot bargain with themselves. However,
to obtain better terms and conditions of employment employees who are not members of the cooperative can
from the government, they formed the Philhealth form a union. (San Jose Electric Service Cooperative v.
Employees Association (PEA) and demanded Ministry of Labor, G.R. No. 77231, May 31, 1989)
Philhealth to enter into negotiations with PEA
regarding terms and conditions of employment Note: Irrespective of the degree of their participation in
which are not fixed by law. the actual management of the cooperative, all members
thereof cannot form, assist or join a labor organization for
a. Are the employees of Philhealth allowed to self- the purpose of collective bargaining. (Benguet Electric
organize and form PEA and thereafter demand Cooperative, Inc. v. Ferrer-Calleja, G.R. No. 79025,
Philhealth to enter into negotiations with PEA for December 29, 1989).
better terms and conditions of employment?
Q: A, B, C and D (treasurer, accountant, elementary
A: Yes. Employees of Philhealth are allowed to self- department Principal, and secretary of the Director,
organize under Section 8, Article III and Section 3, Article respectively), regular employees of a private
XIII of the Constitution which recognize the rights of all educational institution, were administratively
workers to self-organization. They cannot demand, charged for their participation in a picket held in
however, for better terms and conditions of employment front of the campus after office hours. Several faculty
for the same are fixed by law (Art. 244, Labor Code), members, non-academic staff and students joined the
besides, their salaries are standardized by Congress. (Art. peaceful prayer rally organized by disgruntled
276, Labor Code). employees to protest certain alleged abuses of the
incumbent School Director. Subsequently, the rank-
b. In case of unresolved grievances, can PEA resort and-file employees succeeded in forming the first and
to strikes, walkouts, and other temporary work only union of the School. During the investigation, the
stoppages to pressure the government to accede administration discovered that two (2) days prior to
to their demands? (2014) the rally, A, B, C and D attended the meeting of the
Schools
employees
association
which
planned
the
A: No. Although the right to organize implies the right to protest activity. Two well-known organizers/leaders
strike, law may withhold said right. E.O. 180 is that law of a national labor federation were also present. A, B,
which withholds from government employees the right C and D were dismissed by the School on the ground
to strike. Hence, they cannot resort to strikes and similar of violating the Labor Code which prohibits
concerted activities to compel concessions from the managerial
employees
to
join,
assist
or
form
any
government. labor
organization.
Is
the
contention
of
the
School
tenable? Is the dismissal of A, B, C and D valid?
Who Cannot Form, Join or Assist Labor Organizations Explain. (2004)
Q: Malou is the Executive Secretary of the Senior Vice- A: The dismissal of A, B, C and D on the ground that they
president of a bank while Ana is the Legal Secretary violated the Labor Code provision which states that
of the bank's lawyer. They and other executive managerial employees "are not eligible to join, assist or
secretaries would like to join the union of rank and form any labor organization" is not valid. The Labor Code
file employees of the bank. Are they eligible to join does not provide for any sanction for the aforesaid acts.
the union? Why? Explain briefly. (2002) These acts could not be considered as just cause for the
termination of employment, either.
A: No. They are confidential employees who, by the
nature of their functions, assist and act in confidential ALTERNATIVE ANSWER:
capacity to or have access to confidential matters of A: The dismissal of the managerial employees is invalid.
person who exercise managerial functions in the field of The dismissal of the management employees because of
labor relations. As such the ineligibility of managerial union activities, no matter how erroneous or tenuous
employees to form or join labor unions equally applies to may be the basis of the exercise, is a violation of the
them. (Philips Industrial Development v. NLRC, G.R. No. constitutional and statutory guaranteed rights of self-
88957, June 25, 1992). organization, and an act of unfair labor practice. (Sec. 3,
Art. XIII, Constitution; Art. 243, Labor Code. See also Art.
Note: Confidential employees are those who (1) assist or 248 (a), Labor Code).
act in a confidential capacity, (2) to persons who
formulate, determine, and effectuate management Q: On what ground or grounds may a union member
policies in the field of labor relations. The two criteria are be expelled from the organization? (2002)
cumulative, and both must be met if an employee is to be
considered a confidential employee that is, the A: Union members may be expelled from the labor
confidential relationship must exist between the organization only on valid grounds provided for in the
employee and his supervisor, and the supervisor must Union Constitution, By-Laws, or conditions for union
handle the prescribed responsibilities relating to labor membership. Example of valid reasons for expulsion: a)
42
relations. (Tunay na Pagkakaisa ng Manggagawa sa Asia Refusal to pay union dues and special assessments; b)
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
Note: Direct certification originally allowed under Art. b. If you were the Med-Arbiter, how would you
257 of the Labor Code has been discontinued as a method resolve the petition?
of selecting the exclusive bargaining agent of the workers.
This amendment affirms the superiority of the A: As the MED-ARBITER, I will order the holding of the
certification election over the direct certification which is certification election. The fact that there is already a
no longer available now under the change in said certified collective bargaining representative of the rank
provision. (Central Negros Electric Cooperative, Inc. v. and file employees of the Company is not a bar to the
Secretary of Labor, G.R. No. 94045, September 13, 1991). holding of a certification election for the determination of
the collective bargaining representative of the
Q: UNIDAD, a labor organization claiming to supervisory employees. But I will exclude those
represent the majority of the rank and file workers of employees found to be managerial from participating in
BAGSAK Toyo Manufacturing Corp. (BMTC), filed a the certification election.
petition for certification election during the freedom
period obtaining in said corporation. Despite the c. What is the proper remedy of an employer to
opposition thereto by SIGAW Federation on the ensure that the employees are qualified to hold a
ground that UNIDAD was not possessed with all the certification election? (1996)
attributes of a duly registered union, the Med-Arbiter
issued an Order calling for a certification election on A: The employer has no remedy. The petition for
July 25, 2001. This Order was promulgated and certification election was initiated by the Union; hence,
served on the parties on July 12, 2001. On July 14, the employer is a total stranger or a bystander in the
2001, UNIDAD submitted and served the required election process (Philippine Fruits and Vegetable
documents for its registration as an independent Industries, Inc. v. Torres, G.R. No. 92391, July 3, 1992). To
union, which documents were approved by the DOLE allow an employer to assert a remedy is an act of
on July 15, 2001. During the elections, UNIDAD won interference in a matter which is purely a concern of the
over SIGAW. SIGAW questioned UNIDAD's victory on Union.
the ground that UNIDAD was not a duly registered
union when it filed the petition for a certification Note: The Labor Code expressly provides the role of the
election. Shall SIGAWs case prosper or not? Why? employer as a mere bystander in cases of certification
(2001). election. Whether the petition for certification election is
filed by an employer or a legitimate labor organization,
A: No, SIGAW's case will not prosper. The application of the employer shall not be considered a party thereto with
technicalities of procedural requirements in certification a concomitant right to oppose the petition. The
election disputes will serve no lawful objective or employers
participation
is limited to: 1) being notified or
purpose. It is a statutory policy that no obstacles should informed of petitions or such nature and 2) submitting
be placed on the holding of a certification election the list of employees during the pre-election conference
(Samahang ng Manggagawa sa Pacific Plastic vs. should the Med-Arbiter act favorably on the petition (Art.
Laguesma, G.R. No. 111245, January 31, 1997) and that the 258-A, Labor Code).
law is indisputably partial to the holding of a certification
election (Western Agusan vs. Trajano, G.R. No. 75724, May Q: There are instances when a certification election is
6, 1991). At any rate, UNIDAD completed all the mandatory. What is the rationale for such a legal
requirements for union registration on July 14, 2001, and mandate? (2003)
legitimate union status was accorded on July 15, 2000, or
at least ten (10) days before the scheduled date for A: According to the Labor Code, in any establishment
holding the Certification Election. where there is no certified bargaining agent, a
certification election shall automatically be conducted by
Q: PT & T Supervisory Employees Union filed a the Med-Arbiter upon the filing of a petition by a
petition for the holding of a certification election legitimate labor organization. In the above-described
among the supervisory employees of the PT & T situation, a certification election is made mandatory
Company. The company moved to dismiss the because if there is no certified bargaining agent as
petition on the ground that Union members were determined by a certification election, there could be no
performing managerial functions and were not collective bargaining in the said unorganized
merely supervisory employees. The company also establishment. (Art. 257, Labor Code).
alleged that a certified bargaining unit existed among
its rank and file employees which barred the filing of Q: In what instance may a petition for certification
the petition. election be filed outside the freedom period of a
44
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
Q: Are probationary employees entitled to vote in a d. Suppose the election is declared invalid, which of
certification election? Why? (1999) the contending unions should represent the
rank-and-file employees?
A: In a certification election, all rank-and-file employees
in the appropriate bargaining unit are entitled to vote. A: None of them should represent the rank-and-file
This principle is clearly stated in Article 255 of the Labor employees. (Article 255, now Article 256 of the Labor
Code which states that the "labor organization Code).
designated or selected by the majority of the employees
in such unit shall be the exclusive representative of the e. Suppose that in the election, the unions obtained
employees in such unit for the purpose of collective the following votes: A-250; B-150; C-50; 40 voted
bargaining." Collective bargaining covers all aspects of no
union;
and
10
were
segregated
votes.
Should
the employment relation and the resultant CBA Union A be certified as the bargaining
negotiated by the certified union binds all employees in representative?
the bargaining unit. Hence, all rank-and-file employees,
probationary or permanent, have a substantial interest in A: Yes. The Labor Code provides that the Labor Union
the selection of the bargaining representative. The Code receiving majority of the valid votes cast shall be certified
makes no distinction as to their employment status as as the exclusive bargaining agent of all the workers in the
basis for eligibility to vote in the petition for certification unit (Article 256, now Article 266, of the Labor Code). Here,
election. The law refers to "all" the employees in the the number of valid votes cast is 490. Thus the winning
bargaining unit. All they need to be eligible to vote is to union should receive at least 246 votes; Union A received
belong to the "bargaining unit". (Airtime Specialists, Inc. v. 250 votes.
Ferrer-Calleja, G.R. No. 80612-16, December 29, 1989).
Q: Samahang East Gate Enterprises (SEGE) is a labor
Q: Liwayway Glass had 600 rank-and-file employees. organization composed of the rank-and-file
Three rival unions A, B, and C participated in the employees of East Gate Enterprises (EGE), the leading
certification elections ordered by the Med-Arbiter. manufacturer of all types of gloves and aprons.
500 employees voted. The unions obtained the
following votes: A 200; B 150; C 50; 90 employees EGE was later requested by SEGE to bargain
voted
no
union;
and
10
were
segregated
votes.
Out
collectively for better terms and conditions of
of the segregated votes, four (4) were cast by employment of all the rank-and-file employees of
probationary employees and six (6) were cast by EGE. Consequently, EGE filed a petition for
dismissed employees whose respective cases are still certification election before the Bureau of Labor
on appeal. (2014) Relations (BLR).
a. Should the votes of the probationary and During the proceedings, EGE insisted that it should
dismissed employees be counted in the total participate in the certification process. EGE reasoned
votes cast for the purpose of determining the that since it was the one who filed the petition and
winning labor union? considering that the employees concerned were its
own rank-and-file employees, it should be allowed to
A: Yes. Rule IX, Section 5 of DOLE Department Order 40- take an active part in the certification process.
03
provides
that
all
employees
who
are
members
of
the
appropriate bargaining unit sought to be represented by Is the contention of EGE proper? Explain. (2014)
the petitioner at the time of the issuance of the order
granting the conduct of a certification election shall be A: No. Under Article 258-A of the Labor Code, an
eligible to vote. An employee who has been dismissed employer is a mere bystander in certification elections,
from work but has contested the legality of the dismissal whether the certification for election is filed by said
in a forum of appropriate jurisdiction at the time of the employer or a legitimate labor organization. The
issuance of the order for the conduct of certification employer shall not be considered as a party thereto with
election shall be considered a qualified voter, unless a concomitant right to oppose the petition for
his/her dismissal was declared valid in a final judgment certification election.
at
the
time
of
the
conduct
of
the
certification
election.
Affiliation and Disaffiliation of the Local Union from the
b. Was there a valid election? Mother Union
A: Yes. To have a valid election, at least a majority of all Q: In the Collective Bargaining Agreement (CBA)
45
eligible voters in the unit must have cast their votes between Royal Films and its rank-and-file Union
A: MFF can be held liable to pay the backwages of the A: The assessment for negotiation fees is not valid. The
dismissed employees. Royal can be held jointly and Labor Code prohibits negotiation fees and other similar
severally liable for backwages if it acted with undue haste charges of any kind arising from any collective bargaining
in dismissing the employees (Manila Cordage Co. v. CIR, negotiations to be imposed on any individual member of
G.R. No. L-27079, August 31, 1977). In addition, Royal can the contracting union. (Art. 222(b), Labor Code)
be ordered to reinstate the dismissed employees.
Note: Special
assessments
may
be
allowed
like
attorneys
Union Dues and Special Assessments fees and negotiation fees provided that there be strict
compliance with the requisites of a valid special
Requirements for Validity assessment. (Art. 241 (n) and (o), Labor Code).
Q: The union deducted P20.00 from Rogelio's wages Q: What requisites must a Union comply with before
for January. Upon inquiry he learned that it was for it can validly impose special assessments against its
death aid benefits and that the deduction was made members for incidental expenses, attorney's fees,
pursuant to a board resolution of the directors of the representation expenses and the like? (2001)
union. Can Rogelio object to the deduction? Explain
briefly. (2002) A: In order that the special assessment may be upheld as
valid, the following requisites must be compiled with: (1)
A: Yes. In order that the special assessment (death aid Authorization by a written resolution of the majority of
benefit) may be upheld as valid, the following requisites all the members at the general membership meeting duly
must be compiled with: (1) Authorization by a written called for the purpose; (2) Secretary's record of the
resolution of the majority of all the members at the meeting; and (3) Individual written authorization for the
general membership meeting duly called for the purpose; check-off duly signed by the employee concerned. (ABS-
(2) Secretary's record of the meeting; and (3) Individual CBN Supervisors Employees Union Members v. ABS-CBN
written authorization for the check-off duly signed by the Broadcasting Corp, and Union Officers, G.R. No. 106518,
employee concerned. (ABS-CBN Supervisors Employees March 11, 1999 ) (Art. 241(n) and (o), Labor Code).
46
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
Q: What is an appropriate bargaining unit for b. Can the Secretary of Labor decide the labor
purposes of collective bargaining? (1999) dispute by awarding the JEU CBA Proposals as the
Collective Bargaining Agreement of the parties?
A: An APPROPRIATE BARGAINING UNIT is a group of Explain briefly. (1999)
employees of a given employer comprised of all or less
than all of the entire body of employees, which the A: Yes, the Secretary of Labor can decide the labor dispute
collective interest of all the employees, consistent with by awarding the JEU CBA proposals as the Collective
the interest of the employer, indicated to be the best Bargaining Agreement between the parties because
suited to serve reciprocal rights and duties of the parties when the Secretary of Labor (under Art. 263 [g]) assumes
under the collective bargaining provisions of the law. (See jurisdiction over a labor dispute causing or likely to cause
University of the Philippines v. Ferrer-Calleja, G.R. No. a strike or lockout in an industry indispensable to the
96189, July 14, 1992). national interest, the Secretary of Labor exercises the
power of compulsory arbitration over the labor dispute,
Collective Bargaining Agreement (CBA) meaning, that as an exception to the general rule, the
Secretary of Labor now has the power to set or fix wages,
Mandatory Provisions of CBA rates of pay, hours of work or terms and conditions of
employment by determining what should be the CBA of
Q: Jenson & Jenson (J & J) is a domestic corporation the parties. (See Divine Word University v. Secretary of
engaged in the manufacturing of consumer products. Labor, G.R. No. 91915, September 11, 1992)
Its rank-and-file workers organized the Jenson
Employees Union (JEU), a duly registered local union ALTERNATIVE ANSWER:
affiliated with PAFLU, a national union. After having What is involved in the case is a corporation engaged in
been certified as the exclusive bargaining agent of the the manufacturing of consumer products. If the consumer
appropriate bargaining unit, JEU-PAFLU submitted products that are being manufactured are not such that a
its proposals for a Collective Bargaining Agreement strike against the company cannot be considered a strike
with the company. in an industry indispensable for the national interest,
then the assumption of jurisdiction by the Secretary of
In the meantime, a power struggle occurred within Labor is not proper. Therefore, he cannot legally exercise
the national union PAFLU between its National the powers of compulsory arbitration in the labor
President, Manny Pakyao, and its National Secretary dispute.
General, Gabriel Miro. The representation issue
within PAFLU is pending resolution before the Office Grievance Procedure
of the Secretary of Labor.
Voluntary Arbitration
By reason of this intra-union dispute within PAFLU, J
& J obstinately and consistently refused to offer any Q: XYZ Company and Mr. AB, a terminated employee
counterproposal and to bargain collectively with JEU- who also happens to be the President of XYZ
PAFLU until the representation issue within PAFLU Employees Union, agree in writing to submit Mr. AB's
shall have been resolved with finality. JEU-PAFLU illegal dismissal case to voluntary arbitration. Is this
47
filed a Notice of Strike. The Secretary of Labor agreement a valid one? (2015)
Q: XYZ Company and XYZ Employees Union (XYZEU) For Economic Provisions
reach a deadlock in their negotiation for a new
collective bargaining agreement (CBA). XYZEU files a Q: Company "A" and Union "B" negotiated the last two
notice of strike; XYZ Company proposes to XYZEU years of their five-year CBA on April 1, 1990 to expire
that the deadlock be submitted instead to voluntary on March 31, 1992. Considering the amicable
arbitration. If you are counsel for XYZEU, what advice relations between the parties, neither one moved for
would you give the union as to the: the extension or termination of the agreement.
1. propriety of the request of XYZ Company, and
2. the relative advantages/disadvantages between Sometime in 1995, some disgruntled employees filed
voluntary arbitration and compulsory a complaint demanding that they be paid the annual
arbitration? (2015) salary increases and other related annual increases
specified in the CBA of April 1990, citing the
A: provision in Art. 253 of the Labor Code which
1. As counsel, I will advise the union to accede to the requires the parties to "xxx keep the status quo and
request of the company. Besides being the to continue in full force and effect the terms and
constitutionally preferred mode of dispute conditions of the existing agreement during the 60
settlement, voluntary arbitration is less adversarial day period and/or until a new agreement is reached
and more expeditious. by the parties". A, however, maintained that the
annual salary increases and related benefits
2. The advantages of voluntary arbitration are: specifically provided for in the CBA were, pursuant to
contract and law, effective only for the term specified
a. The
parties
dispute
is
heard
and
resolved
by
a
therein, namely, until March 31, 1992 only. Who is
person whom both parties have chosen as their correct? State the reason(s) for your answer. (2001)
judge; hence likely to be impartial.
b. If both parties are willing to submit their dispute, A: The disgruntled employees are correct in their claim
the decision is final and binding on them in that the expired CBA remains in full force and effect until
general by reason of their submission a new CBA is signed in accordance with Article 253 of the
agreement; and Labor Code. The SC ruled in New Pacific Timber and
c. In the event of a challenge, the decision is Supply Co, Inc. vs. NLRC (GR No. 124224, March 17, 2000):
elevated to the CA and then to the SC, i.e., less one
layer of appeal because the NLRC is out of the "Article 253 of the Labor Code explicitly provided that
way. until a new Collective Bargaining Agreement has been
executed by and between the parties, they are duly bound
The disadvantages of voluntary arbitration are: to keep the status quo and to continue in full force and
effect the terms and conditions of the existing agreement.
a. In case of appeal by the employer to the CA, the The law does not provide for any exception or
monetary award will not be secured with an qualification as to which of the economic provisions of
appeal bond which Rule 43 of the Rules of Court the existing agreement are to retain force and effect,
does not require; and therefore, it must be understood as encompassing all the
b. In case of enforcement of judgment, the terms and conditions in the said agreement."
Voluntary Arbitrator has no sheriff to enforce it.
Freedom Period
The advantages of compulsory arbitration are:
Q: What is the "automatic renewal clause" in a
a. Subject to pre-litigation mediation, a case can be collective bargaining agreement? (1999, 2008)
initiated through the filing of a verified
complaint by a union member, unlike in A: The "AUTOMATIC RENEWAL CLAUSE" in a CBA refers
voluntary arbitration where the Voluntary to that provision of the Labor Code (Article 253) which
Arbitrator acquires jurisdiction primarily states that "It shall be the duty of both parties (to a CBA)
through a submission agreement. In a case to keep the status quo and to continue in full force and
where the company is unwilling, the EBR (and effect the terms and conditions of the existing agreement
only the EBR) may serve a notice to arbitrate; during the 60-day (freedom) period and/or until a new
hence, a union member may be left out in the agreement is reached by the parties."
process if the EBR does not serve that notice;
b. A monetary award is secured with the Union Security
employers
appeal
bond;
and
c. There is a system of restitution in compulsory Union Security Clauses; Closed Shop, Union Shop,
arbitration. Maintenance of membership shop, etc.
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
Organization in Laguna (AWOL) headed by Cesar Union of the Philippines v. San Miguel Brewery, Inc., G.R.
Montanyo, won over Pangkat ng mga Manggagawa sa No. L-18170, August 31,1963).
Laguna (PML), headed by Eddie Gracia. Hence, AWOL
was certified as the exclusive bargaining agent of the b. Should the company comply with the union's
rank-and-file employees of the Laguna demand of terminating the members of the
Transportation Company (LTC). religious sect? (2005)
Shortly, thereafter, a Collective Bargaining A: No. The right to join includes the right not to join by
Agreement was concluded by LTC and AWOL which reason of religious beliefs. Members of said religious sect
provided for a closed shop. Consequently, AWOL, cannot be compelled or coerced to join the labor union
demanded that Eddie Gracia and all the PML even when the union has a closed shop agreement with
members be required to become members of AWOL the employer; that in spite of any closed shop agreement,
as a condition for their continued employment members of said religious sect cannot be refused
otherwise, they shall be dismissed pursuant to the employment or be dismissed from their jobs on the sole
closed shop provision of the CBA. The union security ground that they are not members of the collective
clause of the CBA also provided for the dismissal of bargaining union. (Victoriano v. Elizalde Rope Workers'
employees who have not maintained their Union, G.R. No. L-25246, September 12,1974).
membership in the union. For one reason or another,
Francis Magallona, a member of AWOL, was expelled Q: Reconcile the compulsory nature of the closed
from the union membership for acts inimical to the shop provision in a Collective Bargaining Agreement
interest of the union. Upon receipt of the notice that with the constitutional guarantee of freedom of
Francis Magallona failed to maintain his membership association. Discuss fully. (1995)
in good standing with AWOL, LTC summarily
dismissed him from employment. A: Among the policies of the State in the field of labor
relations is to promote trade unionism and to foster the
a. Can Eddie Gracia and all the PML members be organization of a strong and united labor movement.
required to become members of the AWOL UNION SECURITY CLAUSES, like a closed shop
pursuant to the closed shop provision of the CBA? agreement, is one way of implementing the
Why? aforementioned labor relations policy. Implementing to
some extent the concept of freedom of association, an
A: Eddie Gracia and all the PML members cannot be employee who is already a member of a union could not
required to become members of AWOL pursuant to the be compelled to become a member of a bargaining union,
closed shop provision of the CBA. According to the Labor even if there is a closed shop agreement.
Code (Article 248(e)), a closed shop provision cannot be
applied to those employees who are already members of Explain the impact of the union security clause to the
another union at the time of the signing of the CBA. employees
right
to
security
of tenure. (2009)
b. Is the termination from employment of Francis A: A valid union security clause when enforced or
Magallona by LTC lawful? Why? (1999) implemented for cause, after according the worker his
substantive and procedural due process rights (Alabang
A: Pursuant to the closed shop provision of the CBA Country Club, Inc. v. NLRC, G.R. No. 170287, February 14,
entered into by AWOL with LTC, membership in AWOL 2008) does not violate the
employees
right
to
security
of
has become a condition of employment in LTC. As long as tenure. Art. 248(e) of the Labor Code allows union
the expulsion of Francis Magallona from AWOL was done security clauses and a failure to comply with the same as
in accordance with applicable provisions of law and with a valid ground to terminate employment. Union security
the Constitution and By-laws of the AWOL, then it was clauses are designed to strengthen unions and valid law
lawful for LTC to terminate Magallona. policy.
Q: A group of employees in XYZ Factory belonging to Unfair Labor Practice in Collective Bargaining
a religious sect, in conformity with the teachings and
dictates of their religion, refused to join the labor Refusal to Bargain
union in the factory. The labor union was able to
negotiate a substantial wage increase in its collective Q: The Kilusang Kabisig, a newly-formed labor union
bargaining agreement with management. A provision claiming to represent a majority of the workers in the
therein stated that the wage increase would be paid Microchip Corporation, proceeded to present a list of
to the members of the union only in view of a "closed demands to the management for purposes of
shop" union security clause in the new agreement. collective bargaining. The Microchips Corporation, a
The members of the sect protested and demanded multinational corporation engaged in the production
that the wage increase be extended to them. The of computer chips for export, declined to talk with the
officers of the union countered by demanding their union leaders, alleging that they had not as yet
termination from the company pursuant to the presented any proof of majority status.
"closed shop" provision in the just-concluded CBA.
The Kilusang Kabisig then chained Microchip
a. Is the CBA provision valid? Corporation with unfair labor practice, and declared
a "wildcat" strike wherein means of ingress and
A: No, the CBA provision is not valid. The benefits of a CBA egress were blocked and remote and isolated acts of
are extendible to all employees regardless of their destruction and violence were committed.
membership in the union because to withhold the same
from non-union members would be to discriminate
49
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
A: LFEUs
claim
that
Libra
Films
committed
ULP
based
on
association would press for their demands. Most of
its violation of the CBA is not correct. For violation of a its members have worked in the mill for 10 to 15
CBA to constitute ULP, the violation must be violation of years with no improvement in working conditions
its economic provisions. Moreover, said violation must be and
monetary
benefits.
The
leaders
of
the
workers
gross and flagrant. Based on the allegation of the union, association approached you and asked: what legal
what was violated was the maintenance of membership steps could they take to protect their security of
clause which was a political or representational tenure? What advice could you give them? (2004)
provision; hence no ULP was committed. (BPI Employees
Union-Davao City v. BPI, 702 SCRA 42). A: Every man has a natural right to the fruits of his labors.
One who has been employed and has to put into
b. Distinguish between a "closed shop" clause and employment time and effort must be protected.
a "maintenance of membership" clause. (Alcantara, 2009).
A: In
a
closed
shop
clause,
all
employees
are
required
to
I
would
advice
them
to
register
the
workers
association
be members of the union at the time of hiring. They too to DOLE and then sue the owner-manager for unfair labor
must remain members of good standing during the practice.
period of employment as a condition of continued
employment. Maintenance of membership clause, on the Registration is the condition sine qua non for the
other hand, requires all employees who are union acquisition of its legal personality. Its acquisition of legal
members at the time of execution of the CBA to maintain personality is important for it is the doorway for it to
their membership of good standing, as a condition of avail of the privileges granted by law to legitimate labor
continued employment. organizations (Phil. Association of Free Labor Unions
(PAFLU) et al., v. The Secretary of Labor et al., GR No. L-
c. Distinguish between "union dues" and "agency 22228, February 27, 1969). In connection, one of the
fees." rights and privileges granted by law to legitimate labor
organizations is the capacity to sue in its registered name
A: Union dues are union funds paid by union members, (Art. 242 [e]) Therefore, once the registration process of
normally through check-off by the employer on the basis the
workers
association
has
been
completed,
it
may
now
of an individual written authorization duly signed by the sue the owner-manager for unfair labor practice and
employees pursuant to Art. 241 (o) of the Labor Code. protect
not
only
the
right
of
the
workers
to
security of
Agency fee, on the other hand, is a reasonable fee tenure but also other rights.
equivalent to the dues and other fees paid by members of
the recognized collective bargaining agent. Art. 248 (e) of Q: Is the commission of an unfair labor practice by an
the Labor Code mandates that only non-union members employer subject to criminal prosecution? Please
who accept the benefits under the CBA may be assessed explain your answer briefly. (2005)
agency fees. Their check-off authorization is not required.
A: Yes. Art. 247 states that unfair labor practices are not
ULP of Employers only violations of civil rights of both labor and
management but are also criminal offenses against the
Q: Company "A" contracts out its clerical and State which shall be subject to prosecution and
janitorial services. In the negotiations of its CBA, the punishment as herein provided. Consequently, in order
union insisted that, henceforth, the company may no to strengthen the provisions under the Labor Code, BP 70
longer engage in contracting out these types of was a special law enacted which further grounded the
services, which services the union claims to be change in concept that considered unfair labor practices
necessary in the company's business, without prior as criminal offenses.
consultation. Is the union's stand valid or not? For
what reason(s)? (2001) Under the explanatory note of the said special law, the
reason behind the change in concept was propelled by
A: No,
the
unions
stand
is
not
valid.
The
act
of
the
the observation that the mere administrative nature of
employer to contract out services is an exercise of their unfair labor practices has brought more harm than good.
management prerogative, a right that is recognized by Emboldened
by
the
laws
liberality,
nay,
inadequacy,
law. It is not an act of unfair labor practice for Art. 248 (c) irresponsible, sometimes vindictive employers, many of
clearly states that in order for the act of contracting out them aliens, ride high brazenly committing such unfair
of services by the employer to constitute unfair labor labor practices. Legitimate unions and labor
practice, it must interfere with, restrain or coerce organizations, most especially the weak and newly
employees in the exercise of their right to self- organized, easily get busted with impunity, harassed or
organization. In the case at bar, there being no resulting discriminated against, and terms and conditions of
restriction to the right to self-organization of the union, employment retrogressing to sub-standard level instead
their claim of unfair labor practice cannot stand. of improving all on account of the lack of effective
deterrents to and penal sanctions against pernicious
Q: Around 100 workers of a mill in a coconut practice. Add to this depressing spectacle the sight of
plantation organized themselves for the purpose of many labor leaders and active members getting arrested,
promoting their common interest and welfare. The detained or languishing in jails for violations of the ban
workers
association
prepared
a
petition
for
on strikes, picketing or unlawful assembly, or for having
increasing the daily pay of its members in compliance brought the law into their own hands, while you grope in
with minimum wage rates for their sector in the frustration looking for a single instance where an
region, and for granting benefits to which they are unscrupulous employer has suffered the same fate for
entitled under the law. However, the workers having illegally locked out his establishment resulting in
became restless and anxious after the owner- countless workers losing jobs and their only means of
51
A: Labor laws are designed to afford full protection to Hence the corporation continues to be the employer and
labor, and one of the avenues to which it upholds its continues to be liable for the payment of their just claims.
constitutional mandate is through Art. 248 which Absent a just or authorized cause, the corporation or its
provided the instances that constitute unfair labor new majority shareholders are not entitled to lawfully
practices. One specific provision in point is Art. 248 (c) dismiss corporate employees.
which prohibits employers to contract out services in
relation to tasks performed by union members, which b. What is the "successor employer" doctrine?
would interfere or restrain the employees right to self
organization. A: The successor-employer
doctrine
refers
to
a
sale
or
transfer in ownership of an entity that has been done in
However, Art. 248 (c) only applies if there was bad faith or to defeat the rights of labor. In such a case, it
interference or restraint to the employees' right to self- is as if there have been no changes in employer-employee
organization; and in the case at bar, there has been no relationship between the seller and its employees. The
clear indication of any violation. In fact, the action of the buyer
becomes
a
successor-employer
and
is
obliged
to
employer was a valid exercise of management absorb the displaced employees.
prerogative, because the law recognizes that for reasons
of economy and efficiency, an employer may validly ULP of Labor Organizations
exercise measures to keep his business in existence
provided that there will be no violation of any of the Q: A labor union lawyer opined that a labor
rights of employees protected by the laws. organization is a private and voluntary organization;
hence, a union can deny membership to any and all
Q: Blank Garments, Inc. (BLANK), a clothing applicants. Is the opinion of counsel in accord with
manufacturer, employs more than 200 employees in law? (1998)
its manufacturing business. Because of its high
overhead, BLANK decided to sell its manufacturing A: NO, the opinion of counsel is not in accord with law.
business to Bleach Garments, Inc. (BLEACH) lock, The Labor Code provides that a labor organization has
stock and barrel which included goodwill, the right to prescribe its own rules for the acquisition or
equipment, and personnel. After taking on BLANK's retention of membership, but it is an unfair labor practice
business, BLEACH reduces the workforce by not act for a labor organization to restrain or coerce
hiring half the workers specifically the ones with employees in the exercise of their right to self-
seniority. BLANK and BLEACH are still discerned to organization. Thus, a labor organization cannot
be sister companies with identical incorporators. discriminate against any employee by denying such
The laid-off employees sue both BLANK and BLEACH employee membership in the labor organization on any
for unlawful termination. (2015) ground other than the usual terms and conditions under
which membership or continuation of union membership
a. How would you decide this case? is made available to other members. (Article 249 (a) and
(b), Labor Code).
A: In transfer of ownership, the buyer corporation, as a
general rule, is not duty-bound to absorb the employees Note: However, although the rule is that union has the
of the selling corporation. The buyer corporation right to determine its membership and to prescribe
becomes liable to the displaced employees only if the conditions, it must be qualified in cases of union security
change of ownership is done in bad faith or is used to clause wherein a labor union holding monopoly in the
defeat the rights of labor. In such a case, the successor- supply of labor, either in a given locality, or as regards a
employer is duty-bound to absorb the displaced particular employer by reason of a closed-shop or similar
employees (Peafrancia Tours and Travel Transport, Inc., agreements. (Salunga v. CIR, G.R. No. L-22456, September
v. Sarmiento, G.R. No. 178397, Oct. 20, 2010). 27, 1967).
Since the facts of the case do not show any bad RIGHT TO PEACEFUL CONCERTED ACTIVITES
fa544554ith
in
BLANKs
sale
to
BLEACH,
BLEACH,
consequently, is not obliged to absorb the displaced Q: What is the rationale for the State regulation of
employees of BLANK. strike activity and what are the interests involved
that the State must balance and reconcile? Cite two
The case at hand involves sales of assets as differentiated (2) examples on how the law regulates the use of the
52
from sales of stocks. The ruling in SME Bank v. De Guzman strike as a form of concerted activity. (2000)
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
A: The first rationale is the constitutional provision that Q: If due to the prolonged strike, ROSE Corporation
the right to strike is to be exercised "in accordance with hired replacements, can it refuse to admit the
law". Another rationale is the Civil Code provision that replaced strikers? (2006)
the relations between employer and employee are
imbued with public interest and are subject to the A: No. While present law recognizes the right of the
provisions of special law. A third rationale is the police employer to continue his business in the course of an
power of the state. The interests to be balanced are the economic strike, it assures the right of the strikers to
rights of the workers, as primary socio-economic force, to return to their former positions at the expense of the
protection of the law, to security of tenure, to concerted replacements. Art. 264(a) of the Labor Code provides that
activities, etc. These should be balanced with the right of mere participation of a worker in a lawful strike shall not
the employer to reasonable return on investment and to constitute sufficient ground for termination of his
expansion and growth. General welfare or the general employment, even if a replacement had been hired by the
peace and progress of society should also be considered. employer during such lawful strike. (PT&T v. NLRC, G.R.
This is why assumption of jurisdiction and certification to No. 109281, December 7, 1995; Diwa ng Pagkakaisa v.
NLRC are allowed in "national interest" cases. (Art. 263, Filtex International Corporation, G.R. Nos. L-23960 & L-
Labor Code; Raw at Buklod ng Manggagawa v. NLRC, G.R. 23961, February 26, 1968).
No. 91980, June 27, 1991; Lapanday Workers Union v.
NLRC, G.R. Nos. 95494-97, September 7,1995) Forms of Concerted Activities
EXAMPLES: (1) procedural requirements should be Q: Distinguish clearly but briefly between: Sympathy
observed, namely, filing of notice of strike, observance of strike and general strike. (2004)
cooling-off period, taking of strike note, and report of the
strike vote; (2) use of violence, intimidation or coercion A: In both a sympathy strike and in a general strike, there
and blockade of ingress-egress are not allowed. (Art 263 is a stoppage of work by the concerted action of
(b)(c)(f)(g), Labor Code). employees. In both kinds of strike, the strike is not the
result of a labor or industrial dispute.
Q:
Because
of
alleged
unfair
labor
practices
by
the
management of GFI System, a government owned and As the name implies, workers go on a SYMPATHY STRIKE
controlled financial corporation, its employees to show their sympathy for certain workers who are on
walked out from their jobs and refused to return to strike. On the other hand, in a GENERAL STRIKE, workers
work until the management would grant their union in the country or in a region, province, or city or
official recognition and start negotiations with them. municipality go on a strike to publicly protest a certain
The leaders of the walk-out were dismissed, and the policy or action taken by the government. Thus, for
other participants were suspended for sixty days. In instance, a general strike may be declared by workers to
arguing their case before the Civil Service publicly protest the stand of President Arroyo that she is
Commission, they cited the principle of social justice against an increase of the minimum wage at this time.
for workers and the right to self-organization and
collective action, including the right to strike. They Q: Eaglestar Company required a 24-hour operation
claimed that the Constitution shielded them from any and embodied this requirement in the employment
penalty because their walk-out was a concerted contracts of its employees. The employees agreed to
action pursuant to their rights guaranteed by the work on Sundays and Holidays if their work schedule
basic law. Is the position taken by the walk-out required them to do so for which they would be paid
leaders and participants legally correct? Reason additional compensation as provided by law. Last
briefly. (2004) March 2000, the union filed a notice of strike. Upon
Eaglestar's petition, the Secretary of Labor certified
A: No. It is a settled rule that employees in the public the labor dispute to the NLRC for compulsory
sector may not engage in strikes. While the Constitution arbitration. On April 20, 2000 (Maundy Thursday),
recognizes the right of government employees to while conciliation meetings were pending, the union
organize, they are prohibited from staging strikes, officers and members who were supposed to be on
demonstrations, mass leaves, walk-outs and other forms duty did not report for work. Neither did they report
of mass action to the stoppage and detriment of public for work on April 21 (Good Friday) and on April 22
services. (Bangalisan v. CA, G.R. No. 124678 July 31, 1997). (Black Saturday), disrupting the factory's operations
and causing it huge losses. The union denied it had
The right to strike is not constitutional; it is statutory gone on a strike because the days when its officers
because the Constitution provides that the right should and members were absent from work were legal
be "in accordance with law". And there is as yet no law holidays. Is the contention of the union correct?
giving government employees the right to strike. Explain briefly. (2000)
Note: Assuming that what we have is a chartered A: The contention of the union is NOT correct. In the case,
government-owned and controlled corporation, they it is clear that the employees agreed to work on Sundays
cannot, under EO 180 and related jurisprudence, stage and Holidays if their work schedule required them to do
such walk-out which is basically a case of strike. Even if so for which they would be paid additional compensation
GFI was organized under the corporation law, still no as provided by law. The above-mentioned agreement that
such walk-out is allowed without the employees' the employees voluntarily entered into is valid. It is not
complying with the requirements of a valid strike, among contrary to law. It is provided in the agreement that if
which is that said strike or walkout should be validly they will work Sundays or Holidays they will be paid
grounded on a (a) deadlock in collective bargaining, or additional compensation as provided by law. Neither is
(b) unfair labor practice, either of which is not present the agreement contrary to morals, good customs, public
here. order or public policy. Thus, when the workers did not
53
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
contend that they did not commit any illegal acts during Sukothai that while AILU may not exhaust the 15-day
the strike. (Art, 264, Labor Code). cooling-off period in case of dismissal from employment
of its officers who were duly elected in accordance with
The procedural requirements of a valid strike the Union constitution and by-laws and the dismissal
include: constitutes
union
busting
and
a
threat
to
AILUs
a. A claim of either unfair labor practice or existence, still, Art. 263 (f) requires that a strike vote be
deadlock in collective bargaining undertaken through a secret ballot and approved by a
b. Notice of strike filed at least 15 days before a ULP- majority of the total union membership in the bargaining
grounded strike or at least 30 days prior to the unit.
Devoid
of
a
notice
of
strike
and
a
strike
vote,
AILUs
deadlock in a bargaining grounded strike strike is therefore illegal.
c. Majority of the union membership must have
voted to stage the strike with notice thereon b. Was the Secretary of Labor correct in declining to
furnished to the National Conciliation and assume jurisdiction over the dispute?
Mediation Board (NCMB) at least 24 hours before
the strike vote is taken A: The refusal of the Secretary to assume jurisdiction is
d. Strike vote results must be furnished to the NCMB valid. Par.(g) of Art. 263 (old) of the Labor Code leave it
at least seven (7) days before the intended strike. to his sound discretion to determine if national interest is
(2014) involved. Assumption power is full and complete. It is
also plenary and discretionary (Philtranco Service
A: b. notice of strike filed at least 15 days before a ULP- Enterprises, Inc. v. Philtranco Workers Union-AGLO, G.R.
grounded strike or at least 30 days prior to the deadlock No. 180962, February 26, 2014). Thus, if in his opinion
in a bargaining grounded strike. (Article 263 (c), Labor national interest is not involved, then the company
Code). cannot insist that he assume jurisdiction.
Practice. Secondly, the Supreme Court already held in company committed an illegal lockout in refusing to
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
A: Illegal Strike
1. The Supreme Court has already ruled that
educational institutions are considered as an Liability of Union Officers
industry indispensable to the national interest,
considering the grave adverse effects that their Q: Magdalo, a labor union in Oakwood, a furniture
closure entails on their students and teachers. manufacturing firm, after failing in its negotiations
with Oakwood filed with the Department of Labor
2. The striking workers must immediately comply with and Employment (DOLE) a notice of strike. The DOLE
a Return to Work Order even pending their motion summoned Magdalo and Oakwood for conciliation
for reconsideration. Compliance is a duty imposed by hearings to resolve the deadlock. Unable to agree
law, and a Return to Work Order is immediately despite efforts of the DOLE, Magdalo called a strike
executory in character. The nature of a Return to participated in by its officers and union members
Work Order was characterized by the Supreme Court including Cesar Trinio, a rank-and-file employee,
in Sarmiento v. Tuico, (G.R. No. 72571-73, June 27, who led the "walk out." Oakwood filed a petition to
1988) as: declare illegal the strike which Magdalo staged
without observing the seven-day ban under the
It is also important to emphasize that the return to Labor Code. Oakwood claimed that the strike being
work order not so much confers a right as it imposes illegal, all those who participated therein, including
a duty. It must be discharged as a duty even against Cesar Trinio, could be dismissed as, in fact, they were
the workers' will. Returning to work in this situation so dismissed by Oakwood. Decide the case. (2003)
is not a matter of option or voluntariness but of
obligation. A: When Oakwood dismissed all the officers and
members of the union who participated in the strike
In Baguio Colleges Foundation v. NLRC, (G.R. No. which was declared illegal because it was staged without
98043, May 26, 1993) the Court ruled that observing the seven-day ban under the Labor Code,
assumption and certification orders are executory in Oakwood illegally dismissed the union members,
character and are to be strictly complied with by the including Cesar Trinio. The Labor Code provides that a
parties even during the pendency of any petition union officer who knowingly participates in an illegal
questioning their validity. strike loses his employment status. Thus, the union
officers were legally dismissed. But for a union member
3. The continuing strike is illegal because it is in to lose his employment status, he should have committed
defiance of a return to work order of the Secretary of illegal acts during the strike, like acts of violence, coercion
Labor and Employment, hence, termination of or intimidation or obstruction of ingress to or egress from
employment of all those who participated whether the employer's premises for lawful purposes or
officer or member, is legal. In Sta.
Scholasticas
obstruction of public thoroughfares. The union members,
College v. Torres, (G.R. No. 100158, June 29, 1992), including Cesar Trino, did not commit any of these acts.
the Court ruled: Any worker or union officer who Thus, it would be illegal to dismiss them.
knowingly participates in a strikedefying a return to
work order may consequently, be declared to have Q: A division manager of a company taunted a union
lost his employment status in accordance with Art. officer two days after the union submitted to the
246 of the Labor Code. Department of Labor and Employment (DOLE) the
result of the strike vote. The division manager said:
Q: In a labor dispute, the Secretary of Labor issued an
"Assumption Order". Give the legal implications of The union threat of an unfair labor practice strike is
such an order. (2003) phony or a bluff. Not even ten percent (10%) of your
members will join the strike." To prove union
A: Under Art. 263(g) of the Labor Code, such assumption member support for the strike, the union officer
shall have the effect of automatically enjoining the immediately instructed its members to cease
intended or impending strike or lockout as specified in working and walk out. Two hours after the walkout,
the assumption order. If one had already taken place at the workers voluntarily returned to work.
the time of assumption, all striking or lockout employees
shall immediately return to work and the employer shall a. Was the walkout a strike? And if so, was it a valid
immediately resume operations and re-admit all workers activity?
under the same terms and conditions prevailing before b. Can the union officer who led the short walkout,
the strike or lockout. but who likewise voluntarily led the workers
back to work, be disciplined by the employer?
The Secretary of Labor and Employment may seek the (2000)
assistance of law enforcement agencies to ensure
compliance with this provision as well as with such A:
orders as he may issue to enforce the same. a. Yes, it was a strike because there was a work
stoppage by concerted action and there is an existing
The mere issuance of an assumption order by the labor dispute. It was not a valid activity because the
Secretary of Labor automatically carries with it a return- requisites for a valid strike were not observed, (Art.
to-work order, even if the directive to return to work is 212, (o), (l) Labor Code).
not expressly stated in the assumption order. Those who b. Yes, the employer may discipline the union officer.
violate the foregoing shall be subject to disciplinary An illegal strike is a cause for the union officer to be
action or even criminal prosecution. Under Art. 264 of the declared to have lost his employment status. [Art 263
Labor Code, no strike or lockout shall be declared after (c), (d),(e), (f); Art 264 (a), Labor Code].
the assumption of jurisdiction by the Secretary.
57
A: No, when the company admits all the strikers, it is A: Yes. Mella Corporation can be obligated to reinstate
deemed to have waived the issue and condoned the the returning workers to their previous positions.
strikers who committed illegal acts. (Citizen's Labor Workers who go on strike do not lose their employment
Union v. Standard Vacuum Oil Co., G.R. No. L-7478, May 6, status except when, while on strike, they knowingly
1955; TASLI-ALU v. CA, G.R. No. 145428, July 7, 2004). participated in the commission of illegal acts. The Labor
Code expressly provides: Mere participation of a worker
Q: As a result of a bargaining deadlock between Lazo in a lawful strike should not constitute sufficient ground
Corporation and Lazo Employees Union, the latter for termination of his employment, even if a replacement
staged a strike. During the strike, several employees had been hired by the employer during such lawful strike.
committed illegal acts. Eventually, its members
informed the company of their intention to return to PROCEDURE AND JURISDICTION
work. (2006, 2014)
LABOR ARBITER
a. Can Lazo Corporation refuse to admit the
strikers? Jurisdiction
A: No. The commission of illegal acts during a strike does Q: Company A and Union B had a 3-year CBA that
not automatically bring about the loss of employment expired on June 12, 1990. Negotiations proved futile
status. Due process must be observed by the employer so the unresolved issues were referred to an Arbiter
before any dismissal can be made. (Stamford Marketing who rendered a decision on March 15, 1992
Corp. v. Julian, G.R. No. 145496, February 24, 2004). retroactive to December 14, 1990. Is the Arbiter's
decision providing for retroactivity tenable or not?
b. Assuming the company admits the strikers, can it Why? (2001)
later on dismiss those employees who committed
illegal acts? A: The referral of the unresolved issues of the collective
bargaining negotiations to an Arbiter is not within the
A: No. The employer may be considered as having waived jurisdiction of the Arbiter. But assuming that the
its right to dismiss employees who committed illegal acts unresolved issues in the collective bargaining
during the strike. (Reformist Union of R.B. Liner v. NLRC, negotiations were properly referred to the Arbiter
G.R. No. 120482, January 27, 1997). pursuant to the provision of the Labor Code (Art. 262)
that states that a Voluntary Arbitrator may hear and
c. If due to the prolonged strike, Lazo Corporation decide any labor dispute, including bargaining deadlocks,
hired replacements, can it refuse to admit the the Arbiter's decision providing for retroactivity is
replaced strikers? tenable. Exercising his compulsory arbitration power, the
Arbiter could decide the issue of retroactivity in any way
A: No. Sec. 3 Art. XIII of the Constitution guarantees which is not contrary to law, morals, good customs, public
workers the right to strike in accordance with law. With order or public policy. But in the case Manila Electric Co
Art.
212
(o)
defining
strike
as
any
temporary stoppage vs. Secretary of Labor Leonardo Quisumbing (G.R. No.
of work as a result of an industrial or labor dispute, it is 127598, February 22, 2000), the Supreme Court said that
the prerogative of strikers to cut short or prolong a strike. an arbitral award shall retroact to the first day after the
By striking, the employees have not abandoned their six-month period following the expiration of the last day
employment. Rather, they have only ceased temporarily of the CBA that was being re-negotiated.
from rendering work. The striking employees have not
lost their right to go back to their positions, because the Q: Mario comes from a family of coffee bean growers.
declaration of a strike is not a renunciation of their Deciding to incorporate his fledgling coffee venture,
employment, much less their employer-employee he invites his best friend, Carlo, to join him. Carlo is
relationship. hesitant because he does not have money to invest
but Mario suggests a scheme where Carlo can be the
ALTERNATIVE ANSWER: Chief Marketing Agent of the company, earning a
No. As a general rule, replacements take their salary and commissions. Carlo agrees and the
employment as conditional, i.e., subject to the rights of venture is formed. After one year, the business is so
strikers to return to work. successful that they were able to declare dividends.
Mario is so happy with Carlo's work that he assigns
However, since this is an economic strike, the strikers are 100 shares of stock to Carlo as part of the latter's
entitled to reinstatement only in case Lazo Corporation bonus.
has not yet hired permanent replacements. (Consolidated
Labor Association v. Marsman & Co., G.R. No. L-17038, July Much later on, it is discovered that Carlo had engaged
31, 1964). in unethical conduct which caused embarrassment to
the company. Mario is forced to terminate Carlo but
Liability of Employer he does so without giving Carlo the opportunity to
explain.
Q: A strike was staged in Mella Corporation because
of a deadlock in CBA negotiations over certain Carlo filed a case against Mario and the company for
58
economic provisions. During the strike, Mella illegal dismissal. Mario objected on the ground that
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
the Labor Arbiter had no jurisdiction over the case as workers for overseas deployment
it would properly be considered as an intra- including claims for actual, moral,
corporate controversy cognizable by the RTC. exemplary and other forms of damage.
Further, Mario claimed that because Carlo's
dismissal was a corporate act, he cannot be held 2. Exclusive Appellate Jurisdiction
personally liable. a. All cases decided by the Labor Arbiters (Sec.
217(b), Labor Code)
a. As the Labor Arbiter assigned to this case, how b. Cases decided by the Regional Offices of DOLE in
would you resolve the jurisdiction question. the exercise of its adjudicatory function. (Art.
(2015) 129, Labor Code).
A: The
Labor
Arbiter
has
jurisdiction
over
Carlos
illegal
Q: Company "A", within the reglementary period,
dismissal complaint as he was
hired
by
Mario
on
a
salary
appealed the decision of a Labor Arbiter directing the
and
commission
basis.
In
Grepalife v. Judico (G.R. No. reinstatement of an employee and awarding
73887, December 21, 1989) it was held that a worker who backwages. However, A's cash bond was filed beyond
is paid on a salary plus commission basis is an employee. the ten day period. Should the NLRC entertain the
While
regular
courts
have
jurisdiction
over
Marios
appeal? Why? (2001).
corporate act of severing ties with Carlo, the Labor
Arbiter, pursuant to Art. 217 A-(2) of the Labor Code, has A: No, the NLRC should not entertain the appeal, as the
jurisdiction
over
Carlos
illegal
dismissal
complaint.
same was not perfected for failure to file a bond. The
latest rules of NLRC provide that a mere notice of appeal
ALTERNATIVE ANSWER: without complying with the other requisites provided for
Carlo is party to a joint-venture. Hence, he is not related by law, like the bond, shall not stop the running of the
to Mario as an employee. As a business organization, the period
for
perfecting
an
appeal.
Since
Company
As
bond
affairs of that joint-venture are not governed by Labor was not filed on time, the appeal was not deemed
Law, except in relation to its employees. Any issue arising perfected and as such NLRC has no jurisdiction to
from that affair, therefore, must be brought to the RTC. entertain the appeal. (Sec. 4(b), Rule 6, 2011 NLRC Rules
Thus, the NLRC has no jurisdiction because the matter did Of Procedure).
not arise from employer-employee relationship and the
issue between the disputants is not resolvable solely Q: Company "A" and Union "B" could not resolve their
through the application of Labor Law. negotiations for a new CBA. After conciliation
proceedings before the NCMB proved futile, B went
b. What is the rule on personal liability of corporate on strike. Violence during the strike prompted A to
officers for a corporate act declared to be file charges against striker-members of B for their
unlawful? (2015) illegal acts. The Secretary of Labor assumed
jurisdiction, referred the strike to the NLRC and
A: Corporate officers are not, as a general rule, personally issued a return-to-work order. The NLRC directed the
liable for the corporate acts they performed in behalf of parties to submit their respective position papers
the corporation they represent. They are, however, and documentary evidence. At the Initial hearing
personally liable for their corporate acts if they acted before the NLRC, the parties agreed to submit the
with malice or bad faith (Girly Ico v. Systems Technology case for resolution after the submission of the
Institute, Inc., G.R. No. 185100, July 9, 2014). position papers and evidence. Subsequently, the
NLRC issued an arbitral award resolving the disputed
NATIONAL LABOR RELATIONS COMMISSION (NLRC) provisions of the CBA and ordered the dismissal of
certain strikers for having knowingly committed
Jurisdiction Illegal acts during the strike. The dismissed
employees elevated their dismissal to the Court of
Q: What is the jurisdiction of the National Labor Appeals claiming that they were deprived of their
Relations Commission? (1995) right to due process and that the affidavits submitted
by A were self-serving and of no probative value.
A: Should the appeal prosper? State the reason(s) for
1. Exclusive Original Jurisdiction your answer clearly. (2001).
a. Certified labor disputes causing or likely to cause
a strike or lockout in an industry indispensable A: The appeal should not prosper. The Supreme Court, in
to national interest, certified to it by the many cases, has ruled that decisions made by the NLRC
Secretary of Labor or the President for may be based on position papers. In the question, it is
compulsory arbitration stated that the parties agreed to submit the case for
b. Injunction in ordinary labor disputes to enjoin or resolution after the submission of position papers and
restrain any actual or threatened commission of evidence. Given this fact, the striker-members of B cannot
any or all prohibited or unlawful acts or to now complain that they were denied due process. They
require the performance of a particular act in any are in estoppel. After voluntarily submitting a case and
labor dispute which, if not restrained or encountering an adverse decision on the merits, it is too
performed forthwith may cause grave or late for the loser to question the jurisdiction or power of
irreparable damage to any party the court. A party cannot adopt a posture of double
c. Injunction in strikes or lockouts under Art. 264 dealing. (Marquez vs. Secretary of Labor, G.R. No. 80685,
of the Labor Code March 16, 1989).
d. Contempt cases
e. Claims arising out of an employer- Note: In the determination of whether or not the
employee relationship or by virtue of quantum of proof was satisfied by a party contending for
59
any law or contract involving Filipino a particular proposition, the procedure by which issues
Commission does not include original jurisdiction to act amended. On the other hand, the NLRC reviews decisions
*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.
QUAMTO FOR LABOR LAW (1991-2015)
rendered by the LA; decisions or orders rendered by the Department of Labor and Employment (DOLE). What
RD under Art. 129 of the Labor Code; and conducts permit, if any, can the DOLE issue so that AB can
compulsory arbitration in certified cases. assume as Vice-President in the telecommunications
company? Discuss fully. (1995, 2007)
As to the power to issue a labor injunction, the NLRC can
issue an injunctive writ. On the other hand, the Labor A: Art.
40
of
the
Labor
Code
states
that
Any alien seeking
Arbiter cannot issue an injunctive writ. admission to the Philippines for employment purposes
and any domestic or foreign employer who desires to
BUREAU OF LABOR RELATIONS MED-ARBITERS engage an alien for employment in the Philippines shall
obtain an employment permit from the Department of
Jurisdiction (original and appellate) Labor. The employment permit may be issued to a non-
resident alien or to the applicant employer after a
Q: Some disgruntled members of Bantay Labor Union determination of the non-availability of a person in the
filed with the Regional Office of the DOLE a written Philippines who is competent, able and willing at the time
complaint against their union officers for of application to perform the services for which the alien
mismanagement of union funds. The Regional is desired.
Thus,
AB
should
be
issued
the
above-
Director did not rule in the complainants' favor. Not mentioned employment permit so that AB can assume as
satisfied, the complainants elevated the Regional Vice President of the Telecommunication Company.
Director's decision to the NLRC. The union officers
moved to dismiss on the ground of lack of DOLE SECRETARY
Jurisdiction. Are the union officers correct? Why?
(2001). Visitorial and Enforcement Powers
A: Yes. NLRC has no jurisdiction over the appealed ruling Q: Under what conditions may the Secretary of Labor
since the appellate authority over decisions of the or his duly authorized representative inquire into
Regional director involving examination of union the financial activities or legitimate labor
accounts is expressly conferred upon the Bureau of Labor organizations? (2001).
Relations of DOLE by the Rule of Procedure on Mediation
Arbitration. (Barles vs. Bitonio, G.R. No. 120270, June 16, A: The Labor Code authorizes the Secretary of Labor and
1999). Employment or his duly authorized representative to
inquire into the financial activities of any labor
NATIONAL CONCILIATION AND MEDIATION BOARD organization on the basis of a complaint under oath,
supported by 20% of the membership in order to
DOLE REGIONAL DIRECTORS determine compliance or noncompliance with the law
and to aid in the prosecution of any violation thereof. (Art.
Jurisdiction 274, Labor Code).
Q: Lina and 20 other sales ladies filed a complaint for Power to Suspend/Effects of Termination
illegal dismissal, contending that they are SDS
regular employees as they performed activities Assumption of Jurisdiction
usually necessary or desirable in the usual business
or trade of SDS and thus, their constitutional right to Q: Lina and 20 other sales ladies filed a complaint for
security of tenure was violated when they were illegal dismissal, contending that they are SDS
dismissed without valid, just or authorized cause. regular employees as they performed activities
SDS, in defense, argued that Lina, et al. agreed - prior usually necessary or desirable in the usual business
to engagement - to a fixed period employment and or trade of SDS and thus, their constitutional right to
thus waived their right to full-term tenure. (2008) security of tenure was violated when they were
dismissed without valid, just or authorized cause.
a. Assume that no fixed-term worker complained, SDS, in defense, argued that Lina, et al. Agreed - prior
yet in a routine inspection a labor inspector of to engagement - to a fixed period employment and
the Regional Office of the Labor Code's security thus waived their right to a full-term tenure. (2008)
of tenure provisions and recommended to the
Regional Director the issuance a compliance a. The owner of SDS considered the hunger strike
order. The Regional Director adopted the staged by Lina, et al., an eyesore and disruptive of
recommendation and issued a compliance SDS business. He wrote the Secretary of Labor a
order. Is the compliance order valid? Explain letter asking him to assume jurisdiction over the
your answer. (2008) dispute and enjoin the hunger "strike". What
answer will you give if you were the Secretary of
A: No, the Compliance Order is not valid. The Regional Labor? (2008)
Director only exercises both visitorial and enforcement
powers over labor standard cases, and empowered to A: I will deny the letter-request of SDS because its
adjudicate uncontested money claims of persons still business is not indispensable to the national interest.
employed. Although the Secretary of Labor has a wide latitude of
discretion in deciding whether or not to assume
The
Regional
Director
has
no
jurisdiction
to
rule
on
SDSs
jurisdiction over a labor dispute or certify the same to the
5-month term policy. NLRC
for
compulsory
arbitration,
SDSs
business
is
clearly not one which is indispensable to national
Q: AB, a non-resident American, seeks entry to the interest. Moreover, the grounds relied upon by SDS, to
country to work as Vice-President of a local wit:
eyesore
and
disruptive
of
its
business,
betrays
the
61