SUGGESTED ANSWERS IN THE 2018 BAR EXAMINATIONS IN LABOR LAW | By Atty. Duano
SUGGESTED ANSWERS
IN THE 2018 BAR EXAMINATIONS
IN LABOR LAW
BY
ATTY. VOLTAIRE DUANO, LLM
Author of Principles and Cases - Labor Standards and Social Legislation and Principles and Cases in Labor
Relations
DISCLAIMER: Only as a guide. No special claim.
I
Narciso filed a complaint against Norte University for the payment of retirement benefits after
having been a part-time professional lecturer in the same school since 1974. Narciso taught
for two semesters and a summer term for the school year 1975, took a leave of absence from
1975 to 1977, and resumed teaching until 2003. Since then, his contract has been renewed at
the start of every semester and summer, until November 2005 when he was told that he could
no longer teach because he was already 75 years old. Norte University also denied Narciso’s
claim for retirement benefits stating that only full-time permanent faculty, who have served for
at least five years immediately preceding the termination of their employment, can avail
themselves of post-employment benefits. As part-time faculty member, Narciso did not acquire
permanent employment status under the Manual of Regulations for Private Schools, in relation
to the Labor Code, regardless of his length service.
(a) Is Narciso entitled to retirement benefits? (2.5%)
SUGGESTED ANSWER:
Yes, Narciso is entitled to retirement benefits. A part-time lecturer, with a fixed-term employment, who
did not attain permanent status, is entitled to retirement pay. This was ruled by the Supreme Court in
De La Salle Araneta University v. Bernardo, G. R. No. 190809, February 13, 2017 as follows: Republic
Act No. 7641 states that "any employee may be retired upon reaching the retirement age x x x;" and
"[i]n case of retirement, the employee shall be entitled to receive such retirement benefits as he may
have earned under existing laws and any collective bargaining agreement and other agreements." The
Implementing Rules provide that Republic Act No. 7641 applies to "all employees in the private sector,
regardless of their position, designation or status and irrespective of the method by which their wages
are paid, except to those specifically exempted x x x." And Secretary Quisumbing' s Labor Advisory
further clarifies that the employees covered by Republic Act No. 7641 shall "include part-time
employees, employees of service and other job contractors and domestic helpers or persons in the
personal service of another."
NOTE: The foregoing answer can be found in pages 921-924 of the book entitled Principles and Cases
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SUGGESTED ANSWERS IN THE 2018 BAR EXAMINATIONS IN LABOR LAW | By Atty. Duano
Labor Relations, Second Edition 2018, by Atty. Voltaire T. Duano. This was the first time that this
question was asked in the bar examinations.
(b) If he is entitled to retirement benefits, how should retirement pay be computed in the
absence of any contract between him and Norte University providing for such benefits?
(2.5%)
SUGGESTED ANSWER:
The retirement will be 22.5 days salary, exclusive of leave conversion benefits. According to Capitol
Wireless, Inc. v. Honorable Secretary Ma. Nieves R. Confessor, G.R. No. 117174, November
13,1996: For purposes of computing compulsory sand optional retirement benefits and to align the
current retirement plan with the minimum standards of Art. 287 of the Labor Code, as amended by
R.A. 7641, and Sec. 5 (5.2) of its implementing rules, “1/2 month salary” means 22.5 days salary,
exclusive of leave conversion benefits.
xxx xxx xxx
Unless the parties provide for broader inclusions, the term ‘one-half (1/2) month salary’ shall mean
fifteen (15) days plus one-twelfth (1/12) of the 13th month pay and the cash equivalent of not more
than five (5) days of service incentive leaves x x x x (italics supplied).
NOTE: The foregoing answer can be found in pages 924-925 of the book entitled Principles and Cases
Labor Relations, Second Edition 2018, by Atty. Voltaire T. Duano. Questions involving the same
subject matter were given during the 2011 and 2001 Bar Examinations.
II
Nayon Federation issued a charter certificate creating a rank-and-file Neuman Employees
Union. On the same day, New Neuman Employees filed a petition for certification election with
the Department of Labor and Employment (DOLE) Regional Office, attaching the appropriate
charter certificate.
a) The employer, Neuman Corporation, filed a motion to dismiss the petition for lack of legal
personality on the part of the petitioner union. Should the motion be granted? (2.5%)
SUGGESTED ANSWER:
The motion should be denied. For purposes of filing a petition for certification election, New Neuman
Employees has legal personality from the time it was issued with a charter certificate. This clear under
the Labor Code, which provides, The chapter shall acquire legal personality only for purposes of filing
a petition for certification election from the date it was issued a charter certificate. (Article 241 [234-A],
As inserted by Section 2, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became
effective on June 14, 2007)
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SUGGESTED ANSWERS IN THE 2018 BAR EXAMINATIONS IN LABOR LAW | By Atty. Duano
NOTE: The foregoing answer can be found in page 218 of the book entitled Principles and Cases
Labor Relations, Second Edition 2018, by Atty. Voltaire T. Duano. This was the first time that this
question was asked in the bar examiantions.
b) The employer likewise filed a petition for cancellation of union registration against New
Neuman Employees Union, alleging that Nayon Federation already had a chartered local rankand-file union, Neuman Employees Union, pertaining to the same bargaining unit within the
establishment. Should the petition for cancellation prosper? (2.5%)
SUGGESTED ANSWER:
Under Article 247 of the Labor Code, the following are the relevant grounds for cancellation of union
registration:
(a) Misrepresentation, false statement or fraud in connection with the adoption or ratification of the
constitution and by-laws or amendments thereto, the minutes of ratification, and the list of members
who took part in the ratification;
(b) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of
the election of officers, and the list of voters;
(c) Voluntary dissolution by the members.
Unless the employer can prove that any of the foregoing grounds are present the petition for
cancellation will not prosper.
NOTE: The foregoing answer can be found in page 223 of the book entitled Principles and Cases
Labor Relations, Second Edition 2018, by Atty. Voltaire T. Duano. This was the first time that this
question was asked in the bar examiantions.
III
Due to his employer’s dire financial situation, Nicanor was prevailed upon by his employer to
voluntarily resign. In exchange, he demanded payment of salary differentials, 13th month pay,
and financial assistance, as promised by his employer. Management promised to pay him as
soon as it is able to pay off all retrenched rank-and-file employees. Five years later, and before
management was able to pay Nicanor the amount promised to him, Nicanor died of a heart
attack. His widow, Norie, filed a money claim against the company before the National Labor
Relations Commission (NLRC), including interest on the amount of the unpaid claim. She also
claimed additional damages arguing that the supposed resignation letter was obtained from
her spouse through undue pressure and influence. The employer filed a motion to dismiss on
the ground that (A) the NLRC did not have jurisdiction over money claims, and (B) the action
has prescribed.
(a) Does the NLRC have jurisdiction to award money claims including interest on the amount
unpaid? (2.5%)
SUGGESTED ANSWER:
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Jurisdiction will depend on the amount being claimed by Nicanor’s surviving spouse. If the amount
exceeds Five Thousand Pesos (PhP5,000.00) as provided in Article 224 (a [6]) of the Labor Code then
jurisdiction belongs to the Arbitration Branch of the NLRC. However, if the amount did not exceed Five
Thousand Pesos (PhP5,000.00) and then jurisdiction belongs to the Regional Director under Article
129 of the Labor Code involving recovery of wages, simple money claims and other benefits. Either of
the said quasi-judicial body can award interest in the concept of actual and compensatory damages
in accordance. The award of interest in money claim was explained in Limlingan v. Asian Institute
Management, Inc., G.R. No. 220481, February 17, 2016, that the rate of interest in the concept of
actual and compensatory damages as well as its accrual are as follows:
1. When the obligation is breached, and it consists in the payment of a sum of money, i.e., a loan or
forbearance of money, the interest due should be that which may have been stipulated in writing.
Furthermore, the interest due shall itself earn legal interest from the time it is judicially demanded. In
the absence of stipulation, the rate of interest shall be 6% per annum to be computed from default,
i.e., from judicial or extrajudicial demand under and subject to the provisions of Article 1169 of the Civil
Code.
2. When an obligation, not constituting a loan or forbearance of money, is breached, an interest on the
amount of damages awarded may be imposed at the discretion of the court at the rate of 6% per
annum. No interest, however, shall be adjudged on unliquidated claims or damages, except when or
until the demand can be established with reasonable certainty. Accordingly, where the demand is
established with reasonable certainty, the interest shall begin to run from the time the claim is made
judicially or extrajudicially (Art. 1169, Civil Code), but when such certainty cannot be so reasonably
established at the time the demand is made, the interest shall begin to run only from the date the
judgment of the court is made (at which time the quantification of damages may be deemed to have
been reasonably ascertained). The actual base for the computation of legal interest shall, in any case,
be on the amount finally adjudged.
3. When the judgment of the court awarding a sum of money becomes final and executory, the rate
of legal interest, whether the case falls under paragraph 1 or paragraph 2, above, shall be 6% per
annum from such finality until its satisfaction, this interim period being deemed to be by then an
equivalent to a forbearance of credit.
NOTE: The foregoing answer can be found in page 26 of the book entitled Principles and Cases
Labor Relations, Second Edition 2018, by Atty. Voltaire T. Duano and in pages 589-590 of the book
entitled Principles and Cases Labor Standards and Social Legislation, Second Edition 2018, by Atty.
Voltaire T. Duano. Questions involving the same subject matter were given during the 2011 and
2016 (on award of interest in money claim) Bar Examinations.
(b) Assuming that the NLRC has jurisdiction, has the action prescribed? (2.5%)
SUGGESTED ANSWER:
The action has not prescribed. This is because Nicanor’s surviving spouse’s cause of action will accrue
upon the categorical denial of the claim. In this case, there was demand for its payment, however, the
management had promsied to pay as soon as it is able to pay off all retrenched rank-and-file
employees. However, it is was only after five (5) years that the management was able to pay.
Moreover, there was no denial of the claim. Therefore, prescription did not set in. In the Degamo v.
Avantgarde Shipping Corp., G.R. No. 154460, November 22, 2005 and Serrano v. Court of Appeals,
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SUGGESTED ANSWERS IN THE 2018 BAR EXAMINATIONS IN LABOR LAW | By Atty. Duano
G.R. No. 139420, August 15, 2001, following cases, the Supreme Court explained the accrual of a
cause of action under Article 306 [291].
NOTE: The foregoing answer can be found in pages 943-946 of the book entitled Principles and Cases
Labor Relations, Second Edition 2018, by Atty. Voltaire T. Duano. Questions involving the same
subject matter was given during the 2010 Bar Examination.
(c) May Nicanor’s spouse successfully claim additional damages as a result of the alleged
undue pressure and influence? (2.5%)
SUGGESTED ANSWER:
Yes, Nicanor’s spouse can successfully claim additional damages as a result of the alleged undue
pressure and influence. This is provided under Article 224 (a [4] of the Labor Code which provides for
claims for actual, moral, exemplary and other forms of damages arising from employer-employee
relationship within the jurisdictional authority of the Arbitration Branch of the NLRC.
In the alternative, it can be argued that Nicanor’s spouse cannot successfully claim additional damages
because it is the jurisdictional authority of the Arbitration Branch of the NLRC. The employer-employee
relationship is only incidental and the cause of action arises from other sources like torts and damages.
Therefore, jurisdiction belongs to the regular courts.
NOTE: The foregoing answer can be found in pages 26, 32-38 of the book entitled Principles and
Cases Labor Relations, Second Edition 2018, by Atty. Voltaire T. Duano. Questions involving the same
subject matter were given during the 2016, 199 and 1995 Bar Examinations.
IV
Natasha Shoe Company adopted an organizational streamlining program that resulted in the
retrenchment of 550 employees in its main plant. After having been paid their separation
benefits, the retrenched workers demanded payment of retirement benefits under a CBA
between their union and management Natasha Shoe Company denied the workers’ demand.
(a) What is the most procedurally peaceful means to resolve this dispute? (2.5%)
SUGGESTED ANSWER:
Since this is a money claim involving the interpretation and implementation of the CBA, the retrenched
workers can refer the matter to the grievance machinery and if it remained unresolved within seven
(7) days from the date of its submission the same shall be automatically referred to the voluntary
arbitration prescribed in the CBA.
In the alternative it can be argued, that since this is a dispute between the retrenched workers and the
employer the same cannot be a subject matter of grievance and voluntary arbitration. This is because
only disputes between the union and the company as ruled in Tabique v. International Copra Export
Corporation, G. R. No. 183335, December 23, 2009, shall be referred to grievance machinery or
voluntary arbitrators. Thus, the dispute should be resolved by way of mandatory conciliation-mediation
in accordance with Article 234 of the Labor Code.
NOTE: The foregoing answer can be found in pages 193-195, 436, 433-442 of the book entitled
Principles and Cases Labor Relations, Second Edition 2018, by Atty. Voltaire T. Duano. Questions
involving the same subject matter were given during the 2017, 2010, 2008, 2001, 1997 and 1995 Bar
Examinations.
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SUGGESTED ANSWERS IN THE 2018 BAR EXAMINATIONS IN LABOR LAW | By Atty. Duano
(b) Can the workers claim both separation pay and retirement benefits. (2.5%)
SUGGESTED ANSWER:
Yes, the workers can claim both separation pay and retirement benefits. This was settled rule in the
case of Goodyear v. Marina Angus, G.R. No. 185499, 14 November 2014 where it was ruled that in
the absence of an express or implied prohibition against it, collection of both retirement benefits and
separation pay upon severance from employment is allowed. This is grounded on the social justice
policy that doubts should always be resolved in favor of labor rights. (Aquino v. National Labor
Relations Commission, G.R. No. 87653, February 11, 1992)
V
Nelda worked as a chambermaid in Hotel Neverland with a basic wage of PhP560.00 for an
eight-hour workday. On Good Friday, she worked for one (1) hour from 10:00 PM to 11:00 PM.
Her employer paid her only PhP480 for each 8-hour workday, and PhP70.00 for work done on
Good Friday. She sued for underpayment of wages and non-payment of holiday pay and night
shit differential for working on a Good Friday. Hotel Neverland denied the alleged
underpayment, arguing that based on long-standing unwritten tradition, food and lodging
costs were partially shouldered by the employer and partially paid for by the employee through
salary deduction. According to the employer, such valid deduction caused the payment of
Nelda’s wage to be below the prescribed minim m. The hotel also claimed that she was not
entitled to holiday pay and night shift differential pay hotel workers have to work on holidays
and may be be assigned to work at night.
(a) Does the hotel have valid legal grounds to deduct food and lodging costs from Nelda's basis
salary? (2.5%)
SUGGESTED ANSWER:
As held in Mabeza v. National Labor Relations Commission, G.R. No. 118506, April 18, 1997:
Granting that meals and lodging were provided and indeed constituted facilities, such facilities could
not be deducted without the employer complying first with certain legal requirements. Without
satisfying these requirements, the employer simply cannot deduct the value from the employee’s
wages. First, proof must be shown that such facilities are customarily furnished by the trade.
Second, the provision of deductible facilities must be voluntarily accepted in writing by the employee.
Finally, facilities must be charged at fair and reasonable value. (Labor Code, Art. 97 [f])
Applying the above, unless the hotel can comply with the legal requirements it has no valid legal
grounds to deduct food and lodging costs from Nelda's basis salary.
NOTE: The foregoing answer can be found in page 502 of the book entitled Principles and Cases
Labor Standards and Social Legislation, Second Edition 2018, by Atty. Voltaire T. Duano. Questions
involving the same subject matter were given during the 2013 and 2010 Bar Examinations.
(b) Applying labor standards law, how much should Nelda be paid for work done Good Friday?
Show the computation in your test booklet and encircle your final answer. (2.5%)
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SUGGESTED ANSWER:
It can be argued:
The rule in order to be paid regular holiday like two successive holidays provides as follows, Where
there are two (2) successive regular holidays, like Holy Thursday and Good Friday, an employee may
not be paid for both holidays if he absents himself from work on the day immediately preceding the
first holiday, unless he works on the first holiday, in which case he is entitled to his holiday pay on the
second holiday.(Section 10, Rule IV, Book III, Rules to Implement the Labor Code)
Applying the above rule, unless Nelda had complied with the rules on absences she is not entitled for
her holiday pay for work done on Good Friday.
However, on the assumption that she complied with the rules Nelda should be paid as follows: P560
x 200%=P1,120.00 or since he only worked for one hour the pay should be as follows: 70 x 200% =
P140.00
NOTE: The foregoing answer can be found in page 453 of the book entitled Principles and Cases
Labor Standards and Social Legislation, Second Edition 2018, by Atty. Voltaire T. Duano. Questions
involving the same subject matter was given during the 2013 and 2010 Bar Examinations.
VI
A certification election was conducted in Nation Manufacturing Corporation, whereby 55% of
eligible voters in the bargaining unit cast their votes. The results were as follows:
Union Nana : 45 votes
Union Nada : 40 votes
Union Nara : 30 votes
No Union : 80 votes
Union Nana moved to be declared as the winner of the certification election.
a) Can Union Nana be declared as the winner? (2.5%)
SUGGESTED ANSWER:
Union Nana cannot be declared as the winner. This is because the said union did not obtain the
majority of the valid votes casts as provided under Article 268 of the Labor Code.
NOTE: The foregoing answer can be found in pages 416-417 and 419of the book entitled Principles
and Cases Labor Relations, Second Edition 2018, by Atty. Voltaire T. Duano. Questions involving the
same subject matter were given during the 2014, 2009 Bar Examinations.
b) Assume that the eligibility of 30 voters was challenged during pre-election conference. The
ballots of the 30 challenged voters were placed inside an envelope sealed by the DOLE Election
Office. Considering the said envelope remains sealed, what should be the next course of action
with respect to the said challenged votes? (2.5%)
SUGGESTED ANSWER:
The procedure in the Challenge of Votes provides as follows:
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The ballot of the voter who has been property challenged during the Pre-Election conferences, shall
be placed in an envelope which shall be sealed by the Election Officer in the presence of the voter
and the representatives of the contending unions. The election Officer shall indicate on the envelope
the voter’s name, the union challenging the voter, and the ground for the challenged. The sealed
envelope shall then be signed by the Election Officer and the representatives of the contending unions.
The Election Officer shall note all challenges in the minutes of the election proceedings and shall have
custody of all envelops containing the challenged votes. The envelopes shall be opened and the
question of eligibility shall be passed upon by the Mediator-Arbiter only if the number of segregated
votes will materially alter the results of the election. (Section 11, Rule IX, Book V, Rules to Implement
the Labor Code, as amended by Department Order No. 40-F-03, Series of 2008 and renumbered by
Department Order No. 40-I-15, Series of 2015)
Applying the said procedure, if the number of segregated votes will materially alter the results of the
election the next course of action with respect to the said challenged votes is to open the said
envelopes and the question of eligibility shall be passed upon by the Mediator-Arbiter.
VII
Nico is a medical representative engaged in the promotion of Pharmaceutical products and
medical devices for North Pharmaceuticals, Inc. He regularly visits. physicians' clinics to
inform them of the chemical composition and benefits of his employer's products. A the end
of everyday, he receives a basis wage of PhP700.00 plus a PhP150.00 "productivity
allowance." For purposes of computing Nico's 13th month pay, should the daily "productivity
allowance" be included? (2.5%)
SUGGESTED ANSWER:
For purposes of computing Nico's 13th month pay his daily "productivity allowance" cannot be
included.
In Philippine Spring Water Resources, Inc. v. Court of Appeals, G.R. No. 205278, June 11, 2014,
clarified as to when a commission forms part of basic salary to be considered in the computation of
13th month pay. The High Court said: It is well-established in jurisprudence that the determination of
whether or not a commission forms part of the basic salary depends upon the circumstances or
conditions for its payment. In Phil Duplicators, Inc. v. NLRC, G.R. No. 110068, November 11, 1993,
227 SCRA 747, the Court held that commissions earned by salesmen form part of their basic salary.
The salesmen’s commissions, comprising a pre-determined percentage of the selling price of the
goods sold by each salesman, were properly included in the term basic salary for purposes of
computing the 13th month pay. The salesmen’s commissions are not overtime payments, nor profitsharing payments nor any other fringe benefit, but a portion of the salary structure which represents
an automatic increment to the monetary value initially assigned to each unit of work rendered by a
salesman. On the other hand, in Boie-Takeda Chemicals, Inc. v. De la Serna, G.R. Nos. 92174 and
102552, December 10, 1993, 228 SCRA 329, the so-called commissions paid to or received by
medical representatives were excluded from the term basic salary because these were paid to the
medical representatives and rank-and-file employees as productivity bonuses, which were generally
tied to the productivity, or capacity for revenue production, of a corporation and such bonuses closely
resemble profit-sharing payments and had no clear direct or necessary relation to the amount of work
actually done by each individual employee.
Applying the above rule, the productivity allowance cannot be included.
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NOTE: The foregoing answer can be found in page 492 of the book entitled Principles and Cases
Labor Standards and Social Legislation, Second Edition 2018. Question involving the same subject
matter was given during the 2011 Bar Examination. An alternative answer can be given by stating that
it will depend as to whether the productivity bonus form part of the salary. In fine, whether or not the
productivity bonus forms part of the basic salary depends upon the circumstances or conditions for its
payment, which indubitably are factual in nature. If the productivity bonuses were because they were
generally tied to the productivity, or capacity for revenue production it will not form part of the salary.
However, if has a clear direct or necessary relation to the amount of work actually done by each
individual employee then it form part of the salary. This was the distinction given by the case of Reyes
v. NLRC, G.R. No. 160233, August 8, 2007 citing the cases of Phil Duplicators, Inc. v. NLRC, G.R.
No. 110068, November 11, 1993 and monetary value initially assigned to each unit of work rendered
by a salesman. On the other hand, in Boie-Takeda Chemicals, Inc. v. De la Serna, G.R. Nos. 92174
and 102552, December 10, 1993.
VIII
Nathaniel has been a salesman assigned by Newmark Enterprises (Newmark) for nearly two
years at the Manila office of Nutrition City, Inc. (Nutrition City). He was deployed pursuant to a
service agreement between Newmark and Nutrition City, the salient provisions of which were
as follows:
a) the Contractor (Newmark) agrees to perform and provide the Client (Nutrition City),
on a non-exclusive basis, such tasks or activities that are considered contractible
under existing laws, as may be needed by the Client from time to time;
b) the Contractor shall employ the necessary personnel like helpers, salesmen, and
drivers who are determined by the Contractor to be efficiently trained;
c) the Client may request replacement of the Contractor’s personnel if quality of the
desired result is not achieved;
d) the Contractors personnel will comply with the Client's policies, rules, and
regulations; and
e) the Contractor’s two service vehicles and necessary equipment will be utilized in
carrying out the provisions of this Agreement.
When Newmark fired Nathaniel, he filed an illegal dismissal case against the wealthier
company, Nutrition City, Inc., alleging that he was a regular employee of the same. Is
Nathaniel correct? (2.5%)
SUGGESTED ANSWER:
Nathaniel is correct in so far as the existence of employer-employee relationship between him and the
principal.
The rules requires that the Service Agreement between the principal and the contractor shall include
the following:
i. The specific description of the job or work being subcontracted, including its term or duration.
ii. The place of work and terms and conditions governing the contracting arrangement, to include the
agreed amount of the contracted job or work as well as the standard administrative fee of not less than
ten percent (10%) of the total contract cost; and
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iii. A provision on the issuance of the bond/s defined under Section 3(a) renewable every year. (Section
11, D.O. No. 174, Series of 2017)
On the other hand, a finding of violation of 11 shall render the principal the direct employer of the
employees of the contractor or subcontractor, pursuant to Article 109 of the Labor Code, as amended.
(Section 12, D.O. No. 174, Series of 2017)
Applying the above rules, since Newmark and Nutrition City violated the required terms to be stated
in the Service Agreement then Nutrition City is the direct employer of Nathaniel.
As to whether Nathaniel is a regular employee of Nutrition City, the rules are as follows:
Regular employees are further classified into: (1) regular employees by nature of work; and (2) regular
employees by years of service. (E. Ganzon, Inc. vs. National Labor Relations Commission, G.R. No.
123769, 22 December 1999, 321 SCRA 434, 440) The former refers to those employees who perform
a particular activity which is necessary or desirable in the usual business or trade of the employer,
regardless of their length of service; while the latter refers to those employees who have been
performing the job, regardless of the nature thereof, for at least a year. (Pangilinan vs. General Milling
Corporation, G.R. No. 149329, 12 July 2004)
Tested from the nature of his work and the activity of the principal Nathaniel could be a regular
employee while if it is tested on the length of service then Nathaniel is a regular employee as he has
been employed with the principal for a least a year. In fact he was employed for nearly two years.
NOTE: The foregoing answer can be found in page 561 of the book entitled Principles and Cases
Labor Standards and Social Legislation, Second Edition 2018, and page 676 of the book entitled
Principles and Cases Labor Relations, Second Edition 2018, by Atty. Voltaire T. Duano. Questions
involving the same subject matter were given during the 2009 (on terms of Service Agreement) and
22013 and 2008 (on regular employees) Bar Examinations. An alternative answer can be given by
characterizing the relationship of the principal with the contractor as to whether it is a job contracting
or LOC. Then as to who would be the direct employer and extent of liability can be determined or
concluded.
IX
Sgt. Nemesis was a detachment non-commissioned officer of the Armed Forces of the
Philippines in Nueva Ecija. He and some other members of his detachment sought permission
from their Company Commander for an overnight pass to Nueva Vizcaya to settle some
important matters. The Company Commander orally approved their request and allowed them
to carry their firearms as the place they were going to was classified as a “critical place.” They
arrived at the place past midnight; and as they were alighting from a tricycle, one of his
companions accidentally dropped his rifle, which fired a single shot, and in the process hit Sgt.
Nemesis fatally. The shooting was purely accidental. At the time of his death, he was still legally
married_to Nelda but had been separated de facto from her for 17 years. For the last 15 years
of his life, he was living in with Narda, with whom he has two minor children. Since Narda works
as a kasambahay, the two children lived with their grandparents, who provided their dailysupport. Sgt. Nemesis and Narda only sent money to them every year to them for their school
tuition.
Nelda and Narda, both for themselves and the latter, also on behalf of her minor children,
separately filed claims for compensation as a result of the death of Sgt. Nemesis. The Line of
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Duty Board of the AFP declared Sgt. Nemesis’ death to have been “in line of duty’, and
recommended that all benefits due to Sgt. Nemesis be given to his dependents. However, the
claims were denied by GSIS because Sgt. Nemesis was not in his workplace nor performing
his duty as a soldier of the Philippine Army when he died.
(a) Are the dependents of Sgt. Nemesis entitled to compensation as a result of his death? (2.5%)
SUGGESTED ANSWER:
The death of Sgt. Nemesis is compensable because it is work-connected. However, in so far as
entitlement of the dependents of Sgt. Nemesis for compensation as a result of his death the dependent
spouse cannot claim compensation. The law requires that the dependent spouse should be a
legitimate spouse living with the employee. (Article 173 [i], Labor Code).
In this case, the legitimate spouse Nelda is not entitled because she is not living with Sgt. Nemesis
while Narda will not qualify as dependent spouses as she is not a legitimate spouse of Sgt. Nemesis
although she is living with the latter. On the other hand, in so far as the dependent child the law
requires that the dependent child be legitimate, legitimated, legally adopted or xxx, who is unmarried,
not gainfully employed, not over 21 years of age provided he is incapacitated and incapable of selfsupport due to physical or mental defect which is congenital or acquired during minority. The two minor
children are therefore qualified as dependent children. Hence, entitled to compensation.
NOTE: The foregoing answer can be found in pages 835 and 857-860 of the book entitled Principles
and Cases Labor Standards and Social Legislation, Second Edition 2018, by Atty. Voltaire T. Duano.
Question involving the same subject matter was given during the 2005 and 1996 Bar Examinations.
(b) As between Nelda and Narda, who should be entitled to the benefits? (2.5%)
SUGGESTED ANSWER:
Nelda and Narda are not entitled to the benefits because they failed to qualify within the definition
(Article 173 [i], Labor Code) of dependent spouse.
NOTE: The foregoing answer can be found in pages 835 and 857-860 of the book entitled Principles
and Cases Labor Standards and Social Legislation, Second Edition 2018, by Atty. Voltaire T. Duano.
Question involving the same subject matter was given during the 2005 and 1996 Bar Examinations.
X
Nonato had been continuously employed and deployed as a seaman who performed services
that were necessary and desirable to the business of N-Train hipping, through its local agent,
Narita Maritime Services (Agency), in accordance with the 2010 Philippine Overseas
Employment Administration Standard Employment Contract (2010 POEA-SEC). Nonato's last
contract (for ye months) expired on November 15, 2016. Nonato was then repatriated due to
"finished contract." He immediately reported to the Agency and complained that e had been
experiencing dizziness, weakness, and difficulty in breathing. The agency referred him to Dr.
Neri, who examined, treated, and prescribed him with medications. After a few months of
treatment and consultations, Nonato was declared fit to resume work as a seaman. Nonato
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went back to the Agency to ask for re-deployment but the Agency rejected his application.
Nonato filed an illegal dismissal case against the Agency and its principal, with a claim for total
disability benefits based on the ailments that he developed on board N-Train hipping-vessels.
The claim was based on the certification of his own physician, Dr. Nunez, that he was unfit for
sea duties because of his hypertension and diabetes.
a) Was Nonato a regular employee of N-Train Shipping? (2.5%)
SUGGESTED ANSWER:
Nonato is not a regular employee of N-Train Shipping. The fact that seafarers are not regular
employees is already a settled rule.
In Petroleum Shipping Limited (formerly Esso International Shipping (Bahamas) Co., Ltd.) v. NLRC,
G.R. No. 148130, June 16,2006, the Supreme Court said that the issue on whether seafarers are
regular employees is already a settled matter. Thus, the High Court said:
It was in Ravago v. Esso Eastern Marine, Ltd., G.R. No. 158324, 14 March 2005, 453 SCRA 381
where the Honorable Supreme Court traced its ruling in a number of cases that seafarers are
contractual, not regular, employees. Thus, in Brent School, Inc. v. Zamora, G.R. No. 48494, 5
February 1990, 181 SCRA 702 the Supreme Court cited overseas employment contract as an
example of contracts where the concept of regular employment does not apply, whatever the nature
of the engagement and despite the provisions of Article 280 of the Labor Code. In Coyoca v. NLRC,
G.R. No. 113658 March 31, 1995, the Supreme Court held that the agency is liable for payment of a
seaman’s medical and disability benefits in the event that the principal fails or refuses to pay the
benefits or wages due the seaman although the seaman may not be a regular employee of the
agency.
The Supreme Court squarely passed upon the issue in Millares v. NLRC, G.R. No. 110524, July 29,
2002, where one of the issues raised was whether seafarers are regular or contractual employees
whose employment are terminated every time their contracts of employment expire. The Supreme
Court explained:
[I]t is clear that seafarers are considered contractual employees. They can not be considered as
regular employees under Article 280 of the Labor Code. Their employment is governed by the
contracts they sign everytime they are rehired and their employment is terminated when the
contract expires. Their employment is contractually fixed for a certain period of time. They fall
under the exception of Article 280 whose employment has been fixed for a specific project or
undertaking the completion or termination of which has been determined at the time of
engagement of the employee or where the work or services to be performed is seasonal in
nature and the employment is for the duration of the season. We need not depart from the
rulings of the Court in the two aforementioned cases which indeed constitute stare decisis with
respect to the employment status of seafarers.
NOTE: The foregoing answer can be found in pages 721-723 of the book entitled Principles and
Cases Labor Relations, Second Edition 2018, by Atty. Voltaire T. Duano. Questions involving the
same subject matter were given during the 2017, 2014 and 2002 Bar Examinations.
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b) Can Nonato successfully claim disability benefits against N-Train Shipping and its agent
Narita Maritime Services? (2.5%)
SUGGESTED ANSWER:
The claim for disability benefits of Nonato against N-Train Shipping and its agent Narita Maritime
Services will not prosper for prematurity.
The Supreme Court laid down the procedures for filing disability benefits and its effect in case of
failure to comply with the procedures in Daraug v. KGJS Fleet Management Manila, G.R. No.
211211, January 14, 2015. Thus, in denying the claim for disability benefits due to prematurity the
Supreme Court ruled:
Petitioner Did Not Comply With The Procedures
In Vergara v. Hammonia Maritime Services, Inc.31 (Vergara), it was stated that the Department of
Labor and Employment (DOLE), through the POEA, has simplified the determination of liability for
work-related death, illness or injury in the case of Filipino seamen working on foreign oceangoing
vessels. Every seaman and the vessel owner (directly or represented by a local manning agency)
are required to execute the POEA Standard Employment Contract (POEA-SEC) as a condition sine
qua non prior to the deployment of the seaman for overseas work. The POEA-SEC is supplemented
by the Collective Bargaining Agreement (CBA) between the owner of the vessel and the covered
seaman. In this case, the parties entered in to a contract of employment in accordance with the
POEA-SEC and they agreed to be bound by the CBA.
Thus, in resolving petitioner’s claim for disability compensation, the Court will be guided by the
procedures laid down in the POEA-SEC and in the CBA. On this point, Section 20(B)(3) of the
POEA-SEC provides:
Upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness allowance
equivalent to his basic wage until he is declared fit to work or the degree of permanent disability has
been assessed by the company-designated physician but in no case shall this period exceed one
hundred twenty (120) days.
For this purpose, the seafarer shall submit himself to a post-employment medical examination by a
company-designated physician within three working days upon his return except when he is
physically incapacitated to so, in which case, a written notice to the agency within the same period is
deemed a compliance. Failure of the seafarer to comply with the mandatory reporting requirement
shall result in his forfeiture of the right to claim the above benefits.
If a doctor appointed by the seafarer disagrees with the assessment, a third doctor may be agreed
jointly between the Employer and the seafarer. The third doctor’s decision shall be final and binding
on both parties.
Xl
Your favorite relative, Tita Nilda, approaches you and seeks your advice n her treatment of her
kasambahay, Noray. Tita Nilda shows you a document called a “Contract of Engagement” for
your review. Under the Contract of Engagement, Noray shall be entitled to a rest day every
week, provided that she may be requested to work on a rest day if Tita Nilda should need her
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services that day. Tita Nilda also claims that this Contract of Engagement should embody the
terms and conditions of Noray’s work as the engagement of a kasambahay is a private matter
and should not be regulated by the State.
a) Is Tita Nilda correct in saying that this is a private matter and should not be regulated by the
State? (2.5%)
SUGGESTED ANSWER:
Tita Nilda is not correct in saying that engagement of a kasambahay is a private matter and should
not be regulated by the State. This is a valid subject matter of the exercise of police power to give
effect to the declared policy of the law such as the need to protect the rights of domestic workers
against abuse, harassment, violence, economic exploitation and performance of work that is
hazardous to their physical and mental health; and in protecting domestic workers and recognizing
their special needs to ensure safe and healthful working conditions, promotes gender-sensitive
measures in the formulation and implementation of policies and programs affecting the local domestic
work. (Section 2, Article I, Republic Act No. 10361)
NOTE: The foregoing answer can be found in page 759 of the book entitled Principles and Cases
Labor Standards and Social Legislation, Second Edition 2018. This is the first time that this type of
question was asked in the Bar Examination.
b) is the stipulation that she may be requested to work on a rest day legal? (2.5%)
SUGGESTED ANSWER:
The stipulation that Noray may be requested to work on a rest day is legal. The law provides that, “
Nothing in this provision shall deprive the domestic worker and the employer from agreeing to the
following:
(a) Offsetting a day of absence with a particular rest day;
(b) Waiving a particular rest day in return for an equivalent daily rate of pay;
(c) Accumulating rest days not exceeding five (5) days; or
(d) Other similar arrangements. (Section 21, Article IV, Republic Act No. 10361)
NOTE: The foregoing answer can be found in page 778 of the book entitled Principles and Cases
Labor Standards and Social Legislation, Second Edition 2018. This is the first time that this type of
question was asked in the Bar Examination.
c) Are stay-in family drivers included under the Kasambahay Law?(2.5%)
SUGGESTED ANSWER:
Stay-in family drivers are not included under the Kasambahay Law. This was very clear in the Rules
Implementing the Kasambahay Law providing as follows:
The following are not covered:
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(a) Service providers;
(b) Family drivers;
(c) Children under foster family arrangement; and
(d) Any other person who performs work occasionally or sporadically and not on an occupational
basis. (Section 2, Rule I, Implementing Rules and Regulations of Republic Act 10361)
NOTE: The foregoing answer can be found in page 761 of the book entitled Principles and Cases
Labor Standards and Social Legislation, Second Edition 2018. Questions involving the same subject
matter were given during the 2012 and 1998 Bar Examinations.
XII
Nena worked as an Executive Assistant for Nesting, CEO of Now Corporation. One day, Nesting
called Nena into his office and showed her lewd pictures of women in seductive poses which
Nena found offensive. Nena complained before the General Manager who, in turn, investigated
the matter and recommended the dismissal of Nesting to the Board of Directors. Before the
Board of Directors, Nesting argued, that-since the Anti-Sexual Harassment Law requires the
existence of “sexual favors,” he should not be dismissed from the service since he did not ask
for any-sexual favor from Nena. Is Nesting correct? (2.5%)
SUGGESTED ANSWER:
Nesting is not correct.
The law penalizing sexual harassment in our jurisdiction is RA 7877. Section 3 thereof defines workrelated sexual harassment in this wise:
Sec. 3. Work, Education or Training-related Sexual Harassment Defined.—Work, education or
training-related sexual harassment is committed by an employer, manager, supervisor, agent of the
employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority,
influence or moral ascendancy over another in a work or training or education environment, demands,
requests or otherwise requires any sexual favor from the other, regardless of whether the demand,
request or requirement for submission is accepted by the object of said Act.
(a) In a work-related or employment environment, sexual harassment is committed when: xxx (3) The
above acts would result in an intimidating, hostile, or offensive environment for the employee.
Contrary to Nesting’s claim, it is enough that his acts result in creating an intimidating, hostile or
offensive environment for the employee.
NOTE: The foregoing answer can be found in page 696 of the book entitled Principles and Cases
Labor Standards and Social Legislation, Second Edition 2018. Questions involving the same subject
matter were given during the 2011, 2009, 2006, 2005, 2004, 2003 and 2000 Bar Examinations.
XIII
Nicodemus was employed as a computer programmer by Network Corporation, a
telecommunications firm. He has been coming to work in shorts and sneakers, in violation of
the “prescribed uniform policy” based on company rules and regulations. The company human
resources manager wrote him a letter, giving him 10 days to comply with the company uniform
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policy. Nicodemus asserted that wearing shorts and sneakers made him more productive, and
cited his above-average output. When he came to work still in violation of the uniform policy,
the company sent him a letter of termination of employment. Nicodemus filed an illegal
dismissal case. The Labor Arbiter ruled in favor of Nicodemus and ordered his reinstatement
with backwages. Network Corporation, however, refused to reinstate him. The NLRC 1st
Division sustained the Labor Arbiter’s judgment. Network Corporation still refused to reinstate
Nicodemus. Eventually, the Court of Appeals reversed the decision of the NLRC and ruled that
the dismissal was valid. Despite the reversal, Nicodemus still filed a motion for execution with
respect to his accrued backwages.
(a) Were there valid legal grounds to dismiss Nicodemus from his employment? (2.5%)
SUGGESTED ANSWER:
Yes, Nicodemus can be dismissed on based on willful disobedience to the lawful order under Article
297 (a) of the Labor Code and the “prescribed uniform policy” of the company.
The basis is the case of St. Luke’s v. Sanchez, G.R. No. 212054, March 11, 2015 were it was ruled:
At the same time, the employee has the corollary duty to obey all reasonable rules, orders, and
instructions of the employer; and willful or intentional disobedience thereto, as a general rule, justifies
termination of the contract of service and the dismissal of the employee. (Malabago v. NLRC, 533 Phil.
292, 300 [2006]) x x x x. Note that for an employee to be validly dismissed on this ground, the
employer’s orders, regulations, or instructions must be: (1) reasonable and lawful, (2) sufficiently
known to the employee, and (3) in connection with the duties which the employee has been engaged
to discharge.”
NOTE: The foregoing answer can be found in page 786 of the book entitled Principles and Cases
Labor Relations, Second Edition 2018. Questions involving the same subject matter were given during
the 2008, 2003 and 1995 Bar Examinations.
(b) Should Nicodemus’ motion for execution be granted? (2.5%)
SUGGESTED ANSWER:
Yes, Nicodemus’ motion for execution should be granted. He is entitled to his accrued salary.
The accrued wages/salaries (reinstatement wages/salaries) is the consequence of the reinstatement
aspect of the decision of the Labor Arbiter referred in paragraph 3, Article 229 [223] of the Labor Code.
This means that a dismissed employee whose case was favorably decided by the Labor Arbiter is
entitled to receive wages pending appeal upon reinstatement, which is immediately executory. In other
words, it refers to the wages or salaries which automatically accrued to a dismissed employee from
the notice of the Labor Arbiter’s order of reinstatement until its ultimate reversal by the higher court,
which could be the NLRC, the Court of Appeals or the Supreme Court. The entitlement to accrued
wages/salaries (reinstatement wages/salaries ) of a dismissed employee was discussed in the cases
of Roquero v. Philippine Airlines, G.R. No. 152329, 449 Phil. 437 (2003), Garcia v. Philippine Airlines,
G.R. No. 164856, January 20, 2009, 576 SCRA 479, Islriz Trading v. Capada, G.R. No. 168501,
January 31, 2011, Pfizer Inc. v. Velasco, G.R. No. 177467, March 9, 2011 and Wenphil Corporation
v. Abing, G.R. No. 207983, April 7, 2014.
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In resolving the rule on entitlement to accrued wages between the period where the Labor Arbiter’s
order of reinstatement is pending appeal and the NLRC Resolution overturning that of the Labor
Arbiter, the case of Garcia v. Philippine Airlines, Inc., G.R. No. 164856, January 20, 2009, 576 SCRA
479, is in point. The Supreme Court examined its conflicting rulings with respect to the application of
paragraph 3 of Article 223 of the Labor Code, viz:
The core of the seeming divergence is the application of paragraph 3 of Article 223 of the Labor Code
which reads:
‘In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar
as the reinstatement aspect is concerned, shall immediately be executory, pending appeal. The
employee shall either be admitted back to work under the same terms and conditions prevailing prior
to his dismissal or separation or, at the option of the employer, merely reinstated in the payroll. The
posting of a bond by the employer shall not stay the execution for reinstatement provided herein.’
The
view
as
maintained
in
a
number
of
cases
is
that:
‘x x x [E]ven if the order of reinstatement of the Labor Arbiter is reversed on appeal, it is obligatory on
the part of the employer to reinstate and pay the wages of the dismissed employee during the period
of appeal until reversal by the higher court. On the other hand, if the employee has been reinstated
during the appeal period and such reinstatement order is reversed with finality, the employee is not
required to reimburse whatever salary he received for he is entitled to such, more so if he actually
rendered services during the period.
In other words, a dismissed employee whose case was favorably decided by the Labor Arbiter is
entitled to receive wages pending appeal upon reinstatement, which is immediately executory. Unless
there is a restraining order, it is ministerial upon the Labor Arbiter to implement the order of
reinstatement and it is mandatory on the employer to comply therewith.
NOTE: The foregoing answer can be found in pages 143-145 of the book entitled Principles and
Cases Labor Relations, Second Edition 2018. Question involving the same subject matter was given
during the 2009 Bar Examination.
XIV
Nelson complained before the DOLE Regional Office about Needy Corporation's failure to pay
his wage increase amounting to PhP5,000.00 as mandated in a Wage Order issued by the
Regional Tripartite Wages and Productivity Board. Consequently, Nelson-asked the DOLE to
immediately issue an Order sustaining his money claim. To his surprise, he received a notice
from the DOLE to appear before the Regional Director for purposes of conciliating the
dispute between him and Needy Corporation. When conciliation before the Regional Director
the latter proceeded to direct both parties to submit their respective position papers in
relation to the dispute. Needy Corporation argued, that since Nelson was willing to settle for
75% of his money claim during conciliation proceedings, only a maximum of 75% of the said
money claim may be awarded to him.
(a) Was DOLE’s action to conduct mandatory conciliation in light of Nelson’s complaint valid?
(2.5%)
SUGGESTED ANSWER:
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Yes, the DOLE’s action to conduct mandatory conciliation is valid. This is mandated by Article 234 of
the Labor Code, except as provided in Title VII-A, Book V of this Code, as amended, or as may be
excepted by the Secretary of Labor and Employment, all issues arising from labor and employment
shall be subject to mandatory conciliation-mediation.
NOTE: The foregoing answer can be found in pages 193-195 of the book entitled Principles and Cases
Labor Relations, Second Edition 2018. This was the first time that a question of this nature was asked
in the Bar Examinations.
(b) Should the Regional Director sustain Needy Corporation’s argument? (2.5%)
SUGGESTED ANSWER:
The Regional Director should not sustain Needy Corporation’s argument. This is because under Article
239 of the Labor Cod, information and statements made at conciliation proceedings shall be treated
as privileged communication and shall not be used as evidence in the Commission. Conciliators and
similar officials shall not testify in any court or body regarding any matters taken up at conciliation
proceedings conducted by them. Thus, Needy Corporation cannot raise the argument that Nelson was
willing to settle for 75% of his money claim during conciliation proceedings.
NOTE: The foregoing answer can be found in pages 239 of the book entitled Principles and Cases
Labor Relations, Second Edition 2018. Question involving the same subject matter was given during
the 2007 Bar Examination.
XV
Nexturn Corporation employed Nini and Nono, whose tasks involved directing and supervising
rank-and-file employees engaged in company operations. Nini and Nono are required to ensure
that such employees obey company rules and regulations, and recommend to the company's
Human Resources Department any required disciplinary action against erring employees. In
Nexturn Corporation, there are independent unions, representing rank- and-file and
supervisory employees, respectively.
a) May Nini and Nono join a union? (2.5%)
SUGGESTED ANSWER:
Yes, Nini and Nono can join a union. This is clearly allowed under Article 255 of the Labor Code which
provides in substance that supervisory employees may join, assist or form separate collective
bargaining units and/or legitimate labor organizations of their own.
NOTE: The foregoing answer can be found in page 264 of the book entitled Principles and Cases
Labor Relations, Second Edition 2018. Question involving the same subject matter was given during
the 2017, 2010, 2004 and 1994 Bar Examinations.
b) May the two unions be affiliated with the same Union Federation? (2.5%)
SUGGESTED ANSWER:
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Yes, the two unions can be affiliated with the same Union Federation. This is clearly allowed under
Article 255 of the Labor Code which provides in substance that the rank-and-file union and the
supervisors’ union operating within the same establishment may join the same federation or national
union.
NOTE: The foregoing answer can be found in page 264 of the book entitled Principles and Cases
Labor Relations, Second Edition 2018. Question involving the same subject matter was given during
the 2017, 2010, 2004 and 1994 Bar Examinations.
XVI
Nagrab Union and Nagrab Corporation have an existing CBA which contains the following
provision: “New_employees within the coverage of the bargaining unit who may be regularly
employed shall become members of Nagrab Union. Membership in good standing with the
Nagrab Union is a requirement for continued employment with Nagrab Corporation.” Nagrab
Corporation subsequently acquired all the assets and rights of Nuber Corporation and
absorbed all of the latter’s employees. Nagrab Union immediately demanded enforcement of
the above-stated CBA provision with respect to the absorbed employees. Nagrab Corporation
refused on the ground that this should not apply fo the absorbed employees who were former
employees of another corporation whose assets and rights it had acquired.
(a) Was Nagrab Corporation correct in refusing to enforce the CBA 4 provision with respect
to the absorbed employees? (2.5%)
SUGGESTED ANSWER:
Nagrab Corporation was not correct in refusing to enforce the CBA provision with respect to the
absorbed employees. This is because it cannot invoke its merger with another corporation as a valid
ground to exempt its absorbed employees from the coverage of a union shop clause contained in its
existing Collective Bargaining Agreement (CBA) with its own certified labor union.
In BANK OF THE PHILIPPINE ISLANDS V. BPI EMPLOYEES UNION-DAVAO CHAPTERFEDERATION OF UNIONS IN BPI UNIBANK, G.R. No. 164301, August 10, 2010, the High Court
resolved the question in this manner: At the outset, we should call to mind the spirit and the letter of
the Labor Code provisions on union security clauses, specifically Article 248 (e), which states, x x x
Nothing in this Code or in any other law shall stop the parties from requiring membership in a
recognized collective bargaining agent as a condition for employment, except those employees who
are already members of another union at the time of the signing of the collective bargaining agreement.
This case which involves the application of a collective bargaining agreement with a union shop clause
should be resolved principally from the standpoint of the clear provisions of our labor laws, and the
express terms of the CBA in question, and not by inference from the general consequence of the
merger of corporations under the Corporation Code, which obviously does not deal with and, therefore,
is silent on the terms and conditions of employment in corporations or juridical entities.
NOTE: The foregoing answer can be found in page 305-308 of the book entitled Principles and
Cases Labor Relations, Second Edition 2018. Question involving the same subject matter was given
during the 2011 Bar Examination.
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(b) May a newly-regularized employee of Nagrab Corporation (who is not-part of the absorbed
employees) refuse to join Nagrab Union? How would you advise the human resources
manager of Nagrab Corporation to proceed? (2.5%)
SUGGESTED ANSWER:
The newly-regularized employee of Nagrab Corporation (who is not-part of the absorbed employees)
cannot refuse to join Nagrab Union in view of the union security clause provision of the CBA. While
the right to join includes the right not to join, however, the exception is the UNION SECURITY CLAUSE
where it imposes upon employees the obligation to acquire or retain union membership as a condition
affecting employment. Thus, I will advise the human resources manager of Nagrab Corporation to
comply with the provision of the CAB stating that : “New_employees within the coverage of the
bargaining unit who may be regularly employed shall become members of Nagrab Union.
NOTE: The foregoing answer can be found in page 299, 303-308 of the book entitled Principles and
Cases Labor Relations, Second Edition 2018. Questions involving the same subject matter were given
during the 2005, 2011 and 1997 Bar Examinations.
XVII
Upon compliance with the legal requirements on the conduct of a strike, Navarra Union staged
a strike against Newfound Corporation on account of a collective bargaining deadlock. During
the strike, some members of Navarra Union broke the windows and punctured the tires of the
company-owned buses. he Secretary of Labor and Employment assumed jurisdiction over the
dispute.
(a) Should all striking employees be admitted back to work upon the assumption of jurisdiction
by the Secretary of Labor and Employment? Will these include striking employees who
damaged company properties? (2.5%)
SUGGESTED ANSWER:
All striking employees be admitted back to work and including striking employees who damaged
company properties. The effect of assumption of jurisdiction of the Secretary of Labor is clear under
Article 278 (g) which provides in substance that such assumption shall have the effect of automatically
enjoining the intended or impending strike or lockout as specified in the assumption or certification
order. If one has already taken place at the time of assumption or certification, all striking or locked
out employees shall immediately return-to-work and the employer shall immediately resume
operations and readmit all workers under the same terms and conditions prevailing before the strike
or lockout.
NOTE: The foregoing answer can be found in page 478 of the book entitled Principles and Cases
Labor Relations, Second Edition 2018. Questions involving the same subject matter were given during
the 2003 and 1997 Bar Examinations.
(b) May the company, readmit strikers only by restoring them to the payroll? 5%)
SUGGESTED ANSWER:
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The company may not readmit strikers by restoring them to the payroll. The phrase “under the same
terms and conditions” found in Article 278 (g) [263 (g)] of the Labor Code was interpreted by the
Supreme Court in the case of the University of Immaculate Concepcion, Inc. v. Secretary of Labor,
G.R. No. 151379, January 14, 2005 as follows:
With respect to the Secretary’s Order allowing payroll reinstatement instead of actual reinstatement
for the individual respondents herein, an amendment to the previous Orders issued by her office, the
same is usually not allowed. Article 263(g) of the Labor Code aforementioned states that all workers
must immediately return to work and all employers must readmit all of them under the same terms and
conditions prevailing before the strike or lockout. The phrase “under the same terms and conditions”
makes it clear that the norm is actual reinstatement. This is consistent with the idea that any work
stoppage or slowdown in that particular industry can be detrimental to the national interest.
Clearly, reinstatement should be actual and not payroll reinstatement.
NOTE: The foregoing answer can be found in page 496 of the book entitled Principles and Cases
Labor Relations, Second Edition 2018. This is the first time that a question of this nature was asked
in the Bar Examinations.
XVIII
Nestor and Nadine have been living in for the last 10 years without the benefit of marriage.
Their union has produced four children. Nadine was three months pregnant with her 5th child
when Nestor left her for another woman. When Nadine was eight months pregnant with her 5th
child, she applied for maternity leave benefits. Her employer refused on the ground that this
was already her 5" pregnancy and that she was only living in with the father of her child, who
is now in a relationship with another woman. When Nadine gave birth, Nestor applied for
paternity leave benefits. His employer also denied the application on the same grounds that
Nadine’s employer denied her application.
(a) Can Nadine’s employer legally deny her claim for maternity benefits? (2.5%)
SUGGESTED ANSWER:
Yes, Nadine’s employer can legally deny her claim for maternity benefits. This is because the maternity
benefits shall be paid only for the first four (4) deliveries or miscarriages. (See Section 14-A, RA 8282)
In this case, the said pregnancy was the 5th child of Nadine. Thus, she already exhausted the
limitations for entitlement to maternity benefits under the law.
NOTE: The foregoing answer can be found in page 474 of the book entitled Principles and Cases
Labor Standards and Social Legislation, Second Edition 2018, by Atty. Voltaire T. Duano. Questions
involving this subject matter were given during the 2015, 2012, 2010, 2005 and 2000 Bar
Examinations.
(b) Can Nestor’s employer legally deny his claim for paternity benefits? (2.5%)
SUGGESTED ANSWER:
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Nestor’s employer can legally deny his claim for paternity benefits for his failure to comply with the
conditions for entitlement to paternity benefits.
Under the law, a married male employee shall be entitled to paternity benefits provided that:
a. he is an employee at the time of delivery of his child;
b. he is cohabiting with his spouse at the time she gives birth or suffers a miscarriage.
c. he has applied for paternity leave in accordance with Section 4 hereof; and
d. his wife has given birth or suffered a miscarriage. (Section 3, Revised Implementing Rules and
Regulations of Republic Act No. 8187 for the Private Sector)
In this case, Nadine is not Nestor’s lawful wife to whom he is cohabiting.
NOTE: The foregoing answer can be found in pages 470-471 of the book entitled Principles and Cases
Labor Standards and Social Legislation, Second Edition 2018, by Atty. Voltaire T. Duano. Questions
involving this subject matter were given during the 2013, 2012, 2011, 2005 and 2002 Bar
Examinations.
XIX
Northeast Airlines sent notices to transfer without diminution in salary or rank, to 50 ground
crew personnel who were front-liners at Northeast Airlines counters at the Ninoy Aquino
International Airport (NAIA). The 50 employees were informed that they would be distributed
to various airports in Mindanao to anticipate robust passenger volume growth in the area.
Northeast Union representing rank-and-file employees, filed unfair labor practice and illegal
dismissal cases before the NLRC, citing, among others, the inconvenience of the 50 concerned
employees and union discrimination, as 8 of the 50 concerned round crew personnel were
union officers. Also, the Union argued that Northeast Airlines could easily hire additional
employees from Mindanao to boost ground operations in the Mindanao airports.
a) Will the transfer of the 50 ground crew personnel amount to Illegal dismissal (5%)
SUGGESTED ANSWER:
The transfer of the 50 ground crew personnel does not amount to Illegal dismissal. This is because
their transfer is a valid exercise of management prerogatives.
In Gemina, Jr. v. Bankwise, Inc. (Thrift Bank) G.R. No. 175365, October 23, 2013, it was held: The
employer’s right to conduct the affairs of its business, according to its own discretion and judgment, is
well-recognized. An employer has a free reign and enjoys wide latitude of discretion to regulate all
aspects of employment and the only criterion to guide the exercise of its management prerogative is
that the policies, rules and regulations on work-related activities of the employees must always be fair
and reasonable. (The Coca-Cola Export Corporation v. Gacayan, G.R. No. 149433, December 15,
2010, 638 SCRA 377, 398-399)
According to Endico v. Quantum Foods Distribution Center, G.R. 161615, January 30,2009,
“Managerial prerogatives, however, are subject to limitations provided by law, collective bargaining
agreements, and general principles of fair play and justice. The test for determining the validity of the
transfer of employees was explained in the case of Blue Dairy Corporation v. NLRC, G.R. No. 129843,
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14 September 1999, 314 SCRA 401, 408-409 the Supreme Court explained the test for determining
the validity of the transfer of employees, as follows:
But, like other rights, there are limits thereto. The managerial prerogative to transfer personnel must
be exercised without grave abuse of discretion, bearing in mind the basic elements of justice and fair
play. Having the right should not be confused with the manner in which that right is exercised. Thus,
it cannot be used as a subterfuge by the employer to rid himself of an undesirable worker. In particular,
the employer must be able to show that the transfer is not unreasonable, inconvenient or prejudicial
to the employee; nor does it involve a demotion in rank or a diminution of his salaries, privileges and
other benefits.
As their employer, Northeast Airlines has the right to regulate, according to its discretion and best
judgment, work assignments, work methods, work supervision, and work regulations, including the
hiring, firing and discipline of its employees. The Supreme Court upholds these management
prerogatives so long as they are exercised in good faith for the advancement of the employer’s interest
and not for the purpose of defeating or circumventing the rights of the employees under special laws
and valid agreements. (Challenge Socks Corporation v. Court of Appeals, G.R. No. 165268, November
8, 2005, 474 SCRA 356, 362-363)
In this case it does not show that Northeast Airlines implemented the transfer for the purpose of
defeating or circumventing the rights of the said 50 ground crew personnel.
NOTE: The foregoing answer can be found in pages 31-32 of the book entitled Principles and Cases
Labor Standards and Social Legislation, Second Edition 2018, by Atty. Voltaire T. Duano, and in pages
789-790of the book entitled Principles and Cases Labor Relations, Second Edition 2018, by Atty.
Voltaire T. Duano. Questions involving management prerogatives were given during the 2000, 2001
and 1994 Bar Examinations.
b) Will the unfair labor practice case prosper? (2.5%)
SUGGESTED ANSWER:
The unfair labor practice case will not prosper. This is because the act did not constitute an act of
interfering, restraining or coercing the said employees in the exercise of their right to self-organization
under Article 259 [a] of the Labor Code.
In T & T Shoplifters Corporation/Gin Queen Corporation v. T&T Shoplifters Corporation/Gin Queen
Corporation Workers Union, G.R. No. 191714, February 26, 2014 citing the case of Insular Life
Assurance Co., Ltd. Employees Association – NATU v. Insular Life Assurance Co., Ltd., (147 Phil. 194
[1971]) the Supreme Court had occasion to lay down the test of whether an employer has interfered
with and coerced employees in the exercise of their right to self-organization, that is, whether the
employer has engaged in conduct which, it may reasonably be said, tends to interfere with the free
exercise of employees’ rights; and that it is not necessary that there be direct evidence that any
employee was in fact intimidated or coerced by statements of threats of the employer if there is a
reasonable inference that anti-union conduct of the employer does have an adverse effect on selforganization and collective bargaining.
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SUGGESTED ANSWERS IN THE 2018 BAR EXAMINATIONS IN LABOR LAW | By Atty. Duano
In the given facts, it does not show that the act of Northern Airlines in sending notices of transfer
relates to the commission of acts that transgress their right to organize or it was made to interfere,
restrain or coerce them with the exercise of their right to self-organization.
NOTE: The foregoing answer can be found in page 282-284 of the book entitled Principles and Cases
Labor Relations, Second Edition 2018.
XX
In Northern Lights Corporation, union members Nad, Ned and Nod sought permission from the
company to distribute flyers with respect to a weekend union activity. The company HR
manager granted the request through a text message sent to another union member, Norlyn.
While Nad, Ned, and Nod re distributing the flyers at the company assembly plant, a Company
supervisor barged in and demanded that they cease from distributing the flyers, stating that
the assembly line employees were trying to beat a production deadline and were thoroughly
distracted. Norlyn tried to show the HR manager's text message authorizing flyer distribution
during work hours, but the supervisor brushed it aside. As a result, Nad, Ned, and Nod were
suspended for violating company rules on trespass and highly-limited union activities during
work hours. The Union filed an unfair labor practice (ULP) case before the NLRC for union
discrimination.
a) Will the ULP case filed by the Union prosper? (2.5%)
SUGGESTED ANSWER:
The ULP case filed by the Union will not prosper. This is because the act did not constitute an act of
interfering, restraining or coercing the said employees in the exercise of their right to self-organization
under Article 259 [a] of the Labor Code.
In T & T Shoplifters Corporation/Gin Queen Corporation v. T&T Shoplifters Corporation/Gin Queen
Corporation Workers Union, G.R. No. 191714, February 26, 2014 citing the case of Insular Life
Assurance Co., Ltd. Employees Association – NATU v. Insular Life Assurance Co., Ltd., (147 Phil. 194
[1971]) the Supreme Court had occasion to lay down the test of whether an employer has interfered
with and coerced employees in the exercise of their right to self-organization, that is, whether the
employer has engaged in conduct which, it may reasonably be said, tends to interfere with the free
exercise of employees’ rights; and that it is not necessary that there be direct evidence that any
employee was in fact intimidated or coerced by statements of threats of the employer if there is a
reasonable inference that anti-union conduct of the employer does have an adverse effect on selforganization and collective bargaining.
In the given facts, it does not show that the act of the company supervisor in barging in and demanding
for Nad, Ned, and Nod to cease from distributing the flyers relates to the commission of acts that
transgress their right to organize or it was made to interfere, restrain or coerce them with the exercise
of their right to self-organization.
NOTE: The foregoing answer can be found in page 282-284 of the book entitled Principles and Cases
Labor Relations, Second Edition 2018. . Questions involving the same subject matter were given
during the 2004 Bar Examinations.
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SUGGESTED ANSWERS IN THE 2018 BAR EXAMINATIONS IN LABOR LAW | By Atty. Duano
b) Assume the NLRC ruled in favor of the Union. The Labor Arbiter's judgment included, among others,
an award for moral and exemplary damages at PhP50,000.00 each for Nad, Ned, and Nod. Northern
Lights Corporation argued that any award of damages should be given to the Union and not individually
to its members. Is Northern Lights Corporation correct? (2.5%)
SUGGESTED ANSWER:
Northern Lights Corporation is not correct. The rights that were violated belongs to the union members,
Nad, Ned, and Nod, and not the union itself. Further, the said union members were the real party in
interest in the said case for ULP filed by the union against the corporation and not the union itself. The
union is a juridical person and as a rule it cannot not suffer moral damages.
REFERENCES:
https://web.facebook.com/voltsphil.atty/posts/325753704820995
https://web.facebook.com/voltsphil.atty/posts/325905061472526
https://web.facebook.com/voltsphil.atty/posts/326382088091490
https://web.facebook.com/voltsphil.atty/posts/326569668072732
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