PART ONE:

SUGGESTED ANSWERS IN THE 2018 BAR EXAMINATIONS IN LABOR LAW

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 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 and 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 is clear under the Labor Code, which provides that
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])
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 rank-and-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
examinations.

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:
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) 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. 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 promised 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.
the Supreme Court explained the accrual of a cause of action under Article 306 [291] in Degamo v. Avantgarde Shipping
Corp., G.R. No. 154460, November 22, 2005 and Serrano v. Court of Appeals, G.R. No. 139420, August 15, 2001 .

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 not
within 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 the 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 arbitration. Thus, the dispute should be resolved by way of mandatory
conciliation-mediation in accordance with Article 234 of the Labor Code. Then file a money claim before the Labor Arbiter
if it exceeds P5,000.00 or if it is less than P5,000.00 for each of the employees then the money claims is within the
jurisdictional authority of the Regional Director under Article 129 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.

(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%)
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 419 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 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:
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.
NOTE: The foregoing answer can be found in page 402 of the book entitled Principles and Cases Labor Relations,
Second Edition 2018, by Atty. Voltaire T. Duano. This is the first time that this type if question was asked in the Bar
Examinations.

PART TWO (QUESTION NOS. VII-X):

SUGGESTED ANSWERS IN THE 2018 BAR EXAMINATIONS IN LABOR LAW
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 profit-sharing 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.

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
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 daily- support. 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 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 self-support 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 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.

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.
NOTE: The foregoing answer can be found in pages 917-921 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 2013 Bar Examination.
PART THREE (QUESTION NOS. XI-XVII):
SUGGESTED ANSWERS IN THE 2018 BAR EXAMINATIONS IN LABOR

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 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:
(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 work-related 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 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 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.
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:
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
Code, 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:
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 CHAPTER-FEDERATION 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.

(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 CBA 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 should 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:
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.
PART FOUR (QUESTION NOS. XVIII-XX):

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:
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, 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 self-organization and collective bargaining.
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 self-organization 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.

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.

SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATIONS LABOR AND SOCIAL LEGISLATION: PART ONE

A.
What are the accepted tests to determine the existence of an employer-employee relationship? (5%)
SUGGESTED ANSWER:
The four elements of an employment relationship are: (a) the selection and engagement of the employee; (b) the payment
of wages; (c) the power of dismissal; and (d) the employer’s power to control the employee’s conduct. (Lakas sa
Industriya ng Kapatirang Haligi ng Alyansa-Pinagbuklod ng Manggagawang Promo ng Burlingame v. Burlingame
Corporation, G.R. No. 162833, June 15, 2007, 524 SCRA 690, 695, citing Sy v. Court of Appeals, 398 SCRA 301, 307-
308 (2003); Pacific Consultants International Asia, Inc. v. Schonfeld, G.R. No. 166920, February 19, 2007, 516 SCRA
209, 228)

NOTE: The foregoing answer in can be found in page 332 of the book entitled Principles and Cases Labor Standards and
Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano. The topic on employer-employee relation has been time
and again the subject matter of bar questions, more specifically during the 2016, 2014, 2012, 2011, 2010, 2008, 2002,
1996 and 1991 Bar Examinations.
B.
Applying the tests to determine the existence of an employer-employee relationship, is a jeepney driver operating under
the boundary system an employee of his jeepney operator or a mere lessee of the jeepney? Explain your answer. (3%)

SUGGESTED ANSWER:
In a number of cases decided by the Supreme Court, (National Labor Union vs. Dinglasan, 98 Phil. 649, 652 (1996);
Magboo vs. Bernardo, 7 SCRA 952, 954 (1963); Lantaco, Sr. vs. Llamas, 108 SCRA 502, 514 [1981]), it was ruled that
the relationship between jeepney owners/operators on one hand and jeepney drivers on the other under the boundary
system is that of employer-employee and not of lessor-lessee. It was explained that in the lease of chattels, the lessor
loses complete control over the chattel leased although the lessee cannot be reckless in the use thereof, otherwise he
would be responsible for the damages to the lessor. In the case of jeepney owners/operators and jeepney drivers, the
former exercise supervision and control over the latter. The management of the business is in the owner’s hands. The
owner as holder of the certificate of public convenience must see to it that the driver follows the route prescribed by the
franchising authority and the rules promulgated as regards its operation. Now, the fact that the drivers do not receive fixed
wages but get only that in excess of the so-called “boundary” they pay to the owner/operator is not sufficient to withdraw
the relationship between them from that of employer and employee.

NOTE: The foregoing answer in can be found in pages 341-342 of the book entitled Principles and Cases Labor
Standards and Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano. The topic on employer-employee relation
has been time and again the subject matter of bar questions, more specifically during the 2016, 2014, 2012, 2011, 2010,
2008, 2002, 1996 and 1991 Bar Examinations.

II.

Procopio was dismissed from employment for stealing his co-employee Raul’s watch. Procopio filed a complaint for illegal
dismissal. The Labor Arbiter ruled in Procopio’s favor on the ground that Raul’s testimony was doubtful, and, therefore,
the doubt should be resolved in favor of Procopio. On appeal, the NLRC reversed the ruling because Article 4 of the Labor
Code – which states that all doubts in the interpretation and implementation of the provisions of the Labor Code, including
the implementing rules and regulations, shall be resolved in favor of labor – applied only when the doubt involved the
“implementation and interpretation” of the Labor Code; hence, the doubt, which involved the application of the rules on
evidence, not the Labor Code, could not necessarily be resolved in favor of Procopio. Was the reversal correct? Explain
your answer. (3%)

SUGGESTED ANSWER:
In Peñaflor v. Outdoor Clothing Manufacturing, G.R. No. 177114, January 21, 2010, the Supreme Court explained the
application of Article 4 of the Labor Code regarding doubts on respondent’s evidence on the voluntariness of petitioner’s
resignation. Thus, the High Court said:
Another basic principle is that expressed in Article 4 of the Labor Code – that all doubts in the interpretation and
implementation of the Labor Code should be interpreted in favor of the workingman. This principle has been extended by
jurisprudence to cover doubts in the evidence presented by the employer and the employee. (Fujitsu Computer Products
Corporation of the Philippines v. Court of Appeals, 494 Phil. 697 [2005]) As shown above, Peñaflor has, at very least,
shown serious doubts about the merits of the company’s case, particularly in the appreciation of the clinching evidence on
which the NLRC and CA decisions were based. In such contest of evidence, the cited Article 4 compels us to rule in
Peñaflor’s favor. Thus, we find that Peñaflor was constructively dismissed given the hostile and discriminatory working
environment he found himself in, particularly evidenced by the escalating acts of unfairness against him that culminated in
the appointment of another HRD manager without any prior notice to him. Where no less than the company’s chief
corporate officer was against him, Peñaflor had no alternative but to resign from his employment. (Unicorm Safety Glass,
Inc. v. Basarte, 486 Phil. 493 [2004])

NOTE: The foregoing answer in can be found in page 30 of the book entitled Principles and Cases Labor Standards and
Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano. The topic on Article 4 regarding the application of Article
4 on doubts in the evidence was asked last 2009 Bar Examination.
III.
A.
Andrew Manning Agency (AMA) recruited Feliciano for employment by Invictus Shipping, its foreign principal. Meantime,
AMA and Invictus Shipping terminated their agency agreement. Upon his repatriation following his premature termination,
Feliciano claimed from AMA and Invictus Shipping the payment of his salaries and benefits for the unserved portion of the
contract. AMA denied liability on the ground that it no longer had any agency agreement with Invictus Shipping. Is AMA
correct? Explain your answer. (3%)

SUGGESTED ANSWER:

AMA is not correct. Section 10 of Republic Act 10022 provides that the liability of the principal/employer and the
recruitment/placement agency for any and all claims shall be joint and several. This provision shall be incorporated in the
contract for overseas employment and shall be a condition precedent for its approval. Such liabilities shall continue during
the entire period or duration of the employment contract and shall not be affected by any substitution, amendment or
modification made locally or in a foreign country of the said contract.
NOTE: The foregoing answer in can be found in page 675 of the book entitled Principles and Cases Labor Relations, First
Edition 2016, by Atty. Voltaire T. Duano.

B.
As a rule, direct hiring of migrant workers is not allowed. What are the exceptions? Explain your answer. (2.5%)

SUGGESTED ANSWER:
Direct Hires — workers directly hired by employers for overseas employment as authorized by the Secretary of Labor and
Employment and processed by the POEA, including:
1. Those hired by international organizations
2. Those hired members of the diplomatic corps.
3. Name hires or workers who are able to secure overseas employment opportunity with an employer without the
assistance or participation of any agency. [Labor Code, POEA Rules] (Section 1(i), Rule II, Omnibus Rules and
Regulations Implementing The Migrant Workers and Overseas Filipinos Act of 1995 as amended by Republic Act No.
10022)
The direct hires are exceptions to the ban on direct-hiring under Article 18 of the Labor Code.
NOTE: The foregoing answer in can be found in page 112 of the book entitled Principles and Cases Labor Standards and
Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano. The topic on direct hiring was asked last 2010 Bar
Examination.

C.
Phil, a resident alien, sought employment in the Philippines. The employer, noticing that Phil was a foreigner, demanded
that eh first secures an employment permit from the DOLE. Is the employer correct? Explain your answer. (2.5%)

SUGGESTED ANSWER:
The employer is not correct. According to Section 2, Department Order No. 97-09 Series of 2009, issued on August 26,
2009 [Revised Rules for the Issuance of Employment Permits to Foreign Nationals]one of the foreign nationals that are
exempt from securing an employment permit is a permanent permanent resident foreign nationals, probationary or
temporary visa holders. Moreover, the Labor Code speaks of non-resident aliens that are required to obtain an alien
employment permit.

NOTE: The foregoing answer can be found in pages 270 and 271 of the book entitled Principles and Cases Labor
Standards and Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano. The topic on alien employment permit has
been time and again the subject matter of bar questions, more specifically during the 2007 and 1995 Bar Examinations.

IV
The Regional Tripartite and Productivity Board (RTWPB) for Region 3 issued a wage order on November 2, 2017 fixing
the minimum wages for all industries throughout Region 3.
(a) Is the wage order subject to the approval of the National Wages and Productivity Commission before it takes effect?
(2%)

SUGGESTED ANSWER:
No. the National Wages and Productivity Commission function is to review the Wage Order issued by the Regional
Tripartite and Productivity Board (RTWPB) (See Section 4, Rule IV, NWPC GUIDELINES NO. 01 Series of 2007, dated
June 19, 2007)

NOTE: The foregoing answer can be found in page 558 of the book entitled Principles and Cases Labor Standards and
Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano.

(b) The law mandates that no petition for wage increase shall be entertained within a period of 12 months from the
effectivity of the wage order. Under what circumstances may the Kilusang Walang Takot, a federation of labor
organizations that publicly and openly assails the wage order as blatantly unjust, initiate the review of the wage increases
under the wage order without waiting for the end of the 12-month period? Explain your answer. (3%)

SUGGESTED ANSWER:
If Kilusang Walang Takot feels aggrieved by the Wage Order issued by the Board it may appeal such Order to the
National Wages and Productivity Commission by filing a verified appeal with the Board not later than ten (10) days from
the date of publication of the Order on the grounds of non-conformity with prescribed guidelines and/or procedures,
questions of law and grave abuse of discretion. (See Section 1, Rule IV, in relation to Section 2 Rule V, NWPC
GUIDELINES NO. 01 Series of 2007, dated June 19, 2007)
NOTE: The foregoing answer can be found in pages 559-560 of the book entitled Principles and Cases Labor Standards
and Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano.

V
A.
Percival was a mechanic of Pacific Airlines. He enjoyed a meal break of one hour. However, during meal breaks, he was
required to be on stand-by for emergency work. During emergencies, he was made to forego his meals or to hurry up
eating. He demanded payment of overtime for work done during his meal periods. Is Percival correct? Explain your
answer. (3%)

SUGGESTED ANSWER:
Percival is correct. While as a rule the eight hour period does not include the meal break however, in the case of Percival
he was required to forego his meals or to hurry up eating. The meal period should therefore be considered compensable
hours of work and a work beyond eight hours. Percival is therefore entitled to overtime time.
NOTE: The foregoing answer can be found in page 371 of the book entitled Principles and Cases Labor Standards and
Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano.

B.
Distinguish a learner from an apprentice. (4%)

SUGGESTED ANSWER:
As to the agreement
In Apprenticeship, the agreement entered by the parties is known as Apprenticeship Agreement. (Articles 58 [d], Labor
Code); In learnership, the agreement entered by the parties is known as Learnership Agreement (Article 75, Labor Code);
As to the period of agreement
In Apprenticeship, the agreement shall not be less than four (4) months and not more than six (6) months; (Articles 58 [c]
in relation to Article 61 and 3.10, TESDA Circular No. 16, Series of 2004); In learnership, the agreement period shall not
be more than three (3) months; (Article 75 (c), Labor Code, 3.10, TESDA Circular No. 16, Series of 2004);
As to obligations to hire
In apprenticeship, the enterprise is not obliged to hire the apprentice after the apprenticeship period; (Articles 61, Labor
Code, 3.10, TESDA Circular No. 16, Series of 2004); In learnership, the enterprise is obliged to hire the learner after the
learnership period (Article 75 (d), Labor Code, 3.10, TESDA Circular No. 16, Series of 2004);
As to pre-termination of the agreement
In apprenticeship, upon pre-termination of the agreement there is no regular employment by operation of law; (Articles 57-
72, Labor Code); In learnership, a learner allowed or suffered to work during the first two (2) months shall be deemed
regular employees if training is terminated by the employer before the end of the stipulated period through no fault of the
learners (Article 75 (d), Labor Code);
As to the person hired
In apprenticeship, the persons hired as trainees is known as apprentice; (Articles 58 [a], Labor Code, 2, TESDA Circular
No. 16, Series of 2004); In learnership, the persons hired as trainees is known as learner (Articles 73, Labor Code, 2,
TESDA Circular No. 16, Series of 2004);
As to the supplement on theoretical instructions
In apprenticeship, the training on the job is with compulsory related theoretical instructions; (Article 58 [a], Labor Code,
Section 4 [j], R.A. 7796, and 2, TESDA Circular No. 16, Series of 2004); In learnership, the practical training on the job
may or may not be supplemented by related theoretical instructions; (2, TESDA Circular No. 16, Series of 2004);
As to the reasons for hiring
In apprenticeship, the law did not provide any reasons where an apprentice may be hired (Articles 59-72, Labor Code); In
learnership, the law provides the following reasons for hiring (1) when no experienced workers are available; (2) the
employment of learners is necessary to prevent curtailment of employment opportunities; and (3) the employment does
not create unfair competition in terms of labor costs or impair or lower working standards (Article 74, Labor Code);
As to qualifications
In apprenticeship, the qualifications are (a) At least fifteen (15) years of age; (b) Possess vocational aptitude and capacity
for appropriate tests; and (c) Possess the ability to comprehend and follow oral and written instructions and no
justifications or reasons given by law for hiring; (Articles 59, Labor Code); In learnership, the law did not provide such
qualifications. However, reasons or justifications for hiring are provided by law (Articles 74, Labor Code);
As to what occupations hired
In apprenticeship, the occupations involves “highly technical industries” which means trade, business, enterprise, industry,
or other activity, which is engaged in the application of advanced technology and apprenticeable occupations must be
approved by TESDA; (Articles 60, Labor Code and 3.3, TESDA Circular No. 16, Series of 2004). In learnership, the
occupations involves are semi-skilled and other industrial occupations which are non-apprenticeable and learnable
occupations must be approved by TESDA (Articles 73, Labor Code and 3.3, TESDA Circular No. 16, Series of 2004).
NOTE: The foregoing answer can be found in pages 313-314 of the book entitled Principles and Cases Labor Standards
and Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano. The topic on the distinctions between apprentice and
learner has been the subject matter of bar questions during the 2016 and 2012 Bar Examinations.

C.
Are there differences between a househelper and a homeworker? Explain your answer?
Domestic worker or “Kasambahay” refers to any person engaged in domestic work within an employment relationship
such as, but not limited to, the following: general househelp, nursemaid or “yaya”, cook, gardener, or laundry person while
(b) “Industrial Homeworker” means a worker who is engaged in industrial homework.
NOTE: The foregoing answer can be found in pages 676 and 712 of the book entitled Principles and Cases Labor
Standards and Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano.

VI.
A.
One Pacific Airline’s policies was to hire only single applicants as flight attendants, and considered as automatically
resigned the flight attendants at the moment they got married. Is the policy valid? Explain your answer. (2.5%)

SUGGESTED ANSWER:
The policy is not valid. The policy is a violation of the Labor Code’s prohibition on stipulation against marriage under
Article 134. The requirement that a company policy must be reasonable under the circumstances to qualify as a valid
exercise of management prerogative was also at issue in the 1997 case of Philippine Telegraph and Telephone Company
v. NLRC, G.R. No. 118978, May 23, 1997. In said case, the employee was dismissed in violation of petitioner’s policy of
disqualifying from work any woman worker who contracts marriage. The Supreme held that the company policy violates
the right against discrimination afforded all women workers under Article 136 (now 134) of the Labor Code.
NOTE: The foregoing answer can be found in pages 623 and 627 of the book entitled Principles and Cases Labor
Standards and Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano. The topic on stipulation against marriage
has been time and again the subject matter of bar questions, more specifically during the 2012, 2010, 1997 and 1995 Bar
Examinations.

B.
Tarcisio was employed as operations manager and received a monthly salary of P25,000.00 through his payroll account
with DB Bank. He obtained a loan from Roberto to purchase a car. Tarcisio failed to pay Roberto when the loan fell due.
Roberto sued to collect, and moved to garnish Tarcisio’s payroll account. The latter vigorously objected and argued that
slaries were exempt from garnishment. Is Tarcisio correct? Explain your answer. (3%)

SUGGESTED ANSWER:
Tarciso is not correct. In Gaa v. Court of Appeals, G.R. No. L-44169 December 3, 1985, the Supreme Court ruled that
Article 1708 used the word "wages" and not "salary" in relation to "laborer" when it declared what are to be exempted from
attachment and execution. The monthly salary of Tarcisio is therefore subject to garnishment.
NOTE: The foregoing answer can be found in page 450 of the book entitled Principles and Cases Labor Standards and
Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano. The topic on the distinction between salary and wage
has been the subject matter of bar questions during the 1994 Bar Examination.

VII
Dr. Crisostomo entered into a retainer agreement with AB Hotel and Resort whereby he would provide medical services to
the guests and employees of AB Hoteland Resort, which, in turn, would provide the clinic premises and medical supplies.
He received a monthly retainer fee of P60,000.00, plus a 70% share in the service charges from AB Hoteland Resort’s
guests availing themselves of the clinic’s services. The clinic employed nurses and allied staff, whose salaries, SSS
contributions and other benefits he undertook to pay. AB Hotel and Resort issued directives giving instructions to him on
the replenishment of emergency kits and forbidding the clinic staff from receiving cash payments from guests. In time, the
nurses and the clinic staff claimed entitlement to rights as regular employees of AB Hotelnad Resort, but the latter refused
on the ground that Dr. Crisostomo, who was their employer, was an independent contractor. Rule, with reasons. (4%)

SUGGESTED ANSWER:
The test of independent contractorship was applied in the case of Polyfoam-RGC International Corporation v.
Concepcion, G.R. No. 172349, June 13, 2012. Thus, the High Court ruled:
The test of independent contractorship is “whether one claiming to be an independent contractor has contracted to do the
work according to his own methods and without being subject to the control of the employer, except only as to the results
of the work.” (San Miguel Corporation v. Aballa, G.R. No. 149011, June 28, 2005, 461 SCRA 392, 421) In San Miguel
Corporation v. Semillano, G.R. No. 164257, July 5, 2010, 623 SCRA 114 the Court laid down the criteria in determining
the existence of an independent and permissible contractor relationship, to wit:
“x x x [W]hether or not the contractor is carrying on an independent business; the nature and extent of the work; the skill
required; the term and duration of the relationship; the right to assign the performance of a specified piece of work; the
control and supervision of the work to another; the employer’s power with respect to the hiring, firing and payment of the
contractor’s workers; the control of the premises; the duty to supply the premises, tools, appliances, materials, and labor;
and the mode, manner and terms of payment.” (San Miguel Corporation v. Semillano, supra, at p. 124; Sasan, Sr. v.
National Labor Relations Commission 4th Division, supra at p. 691)
Applying the above-test, the nurses are employees of Dr. Crisostomo. The facts had clearly stated that Dr. Crisostomo
was the one paying the salaries of the nurses and even reported them for SSS coverage. The element of payment of
wages is present.

NOTE: The foregoing answer can be found in page 497 of the book entitled Principles and Cases Labor Standards and
Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano. The topic on the distinction between salary and wage
has been the subject matter of bar questions during the 1994 Bar Examination. The problem can also be resolved by
characterizing the relationship of Dr. Crisostomo and AB Hoteland Resort as to whether it is a legitimate contracting or
labor-only contracting. The topic on contracting/subcontracting has been time and again the subject matter of bar
questions, more specifically during the 2016, 2014, 2013, 2012, 2011, 2009, 2004, 2002, 2001, 2000, 1997 and 1994 Bar
Examinations.
SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATIONS IN LABOR AND SOCIAL LEGISLATION: PART TWO:
VIII
Marciano was hired as Chief Engineer on board the vessel M/V Australia. His contract of employment was for nine
months. After nine months, he was re-hired. He was hired a third time after another nine months. He now claims
entitlement to the benefits of a regular employee based on his performed tasks usually necessary and desirable to the
employer’s business for a continuous period of more than one year. Is Marciano’s claim tenable? Explain.

SUGGESTED ANSWER:
Marciano’s claim is not tenable. 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 page 739 of the book entitled Principles and Cases Labor Relations, First
Edition 2016, by Atty. Voltaire T. Duano. The topic on the seafarers has been time and again the subject matter of bar
questions, more specifically during the 2014 and 2002 Bar Examinations.

IX
Section 255 (245) of the Labor Code recognizes three categories of employees , namely: managerial, supervisory, and
rank-and-file.

(a) Give the characteristics of each category of employees, and state whether the employees in each category may
organized and form unions. Explain your answer. (5%)

SUGGESTED ANSWER:
Under Article 255 [245] of the Labor Code the following are provided:
Managerial employees are not eligible to join, assist or form any labor organization.
Supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file
employees but may join, assist or form separate collective bargaining units and/or legitimate labor organizations of their
own.
The rank-and-file union and the supervisors’ union operating within the same establishment may join the same federation
or national union.

(b) May confidential employees who assist managerial employees, and who act in a confidential capacity or have access
to confidential matters being handled by persons exercising managerial functions in the field of labor relations form, or
assist, or join labor unions? Explain your answer? (2.5%)

SUGGESTED ANSWER:
No. In Tunay na Pagkakaisa ng Manggagawa sa Asia Brewery v. Asia Brewery, Inc., G.R. No. 162025, August 3, 2010,
the High Court explained, who are those confidential employees covered by the prohibition to join, form and assist any
labor organization under Article 245 [now 255] of the Labor Code, as follows:
Confidential employees are defined as those who (1) assist or act in a confidential capacity, (2) to persons who formulate,
determine, and effectuate management policies in the field of labor relations. The two (2) criteria are cumulative, and both
must be met if an employee is to be considered a confidential employee that is, the confidential relationship must exist
between the employee and his supervisor, and the supervisor must handle the prescribed responsibilities relating to labor
relations. The exclusion from bargaining units of employees who, in the normal course of their duties, become aware of
management policies relating to labor relations is a principal objective sought to be accomplished by the confidential
employee rule. (San Miguel Corp. Supervisors and Exempt Employees Union v. Laguesma, G.R. No. 110399, August 15,
1997, 277 SCRA 370, 374-375, citing Westinghouse Electric Corp. v. NLRB (CA6) 398 F2d 669 (1968), Ladish Co., 178
NLRB 90 (1969) and B.F. Goodrich Co., 115 NLRB 722 [1956])
NOTE: The foregoing answer can be found in page 273 of the book entitled Principles and Cases Labor Relations, First
Edition 2016, by Atty. Voltaire T. Duano. The topic on the confidential employees covered by the prohibition has been time
and again the subject matter of bar questions, more specifically during the 2014, 2011, 2009, 2002 and 1999 Bar
Examinations.

X.
A.
The labor sector has been loudly agitating for the end of labor-only contracting, as distinguished from job contracting.
Explain these two kinds of labor contracting, give the effect of a finding that one is a labor-only contractor. Explain your
answers. (4%)

SUGGESTED ANSWER:
The Supreme Court in Polyfoam-RGC International Corporation vs. Concepcion, G.R. No. 172349, June 13, 2012 citing
Sasan, Sr. v. National Labor Relations Commission 4th Division, G.R. No. 176240, October 17, 2008, 569 SCRA 670
distinguished permissible job contracting or subcontracting from “labor-only” contracting, to wit:
“Permissible job contracting or subcontracting refers to an arrangement whereby a principal agrees to put out or farm out
to a contractor or subcontractor the performance or completion of a specific job, work or service within a definite or
predetermined period, regardless of whether such job, work or service is to be performed or completed within or outside
the premises of the principal. A person is considered engaged in legitimate job contracting or subcontracting if the
following conditions concur:
(a) The contractor or subcontractor carries on a distinct and independent business and undertakes to perform the job,
work or service on its own account and under its own responsibility according to its own manner and method, and free
from the control and direction of the principal in all matters connected with the performance of the work except as to the
results thereof;
(b) The contractor or subcontractor has substantial capital or investment; and
(c) The agreement between the principal and contractor or subcontractor assures the contractual employees entitlement
to all labor and occupational safety and health standards, free exercise of the right to self-organization, security of tenure,
and social and welfare benefits.
In contrast, labor-only contracting, a prohibited act, is an arrangement where the contractor or subcontractor merely
recruits, supplies or places workers to perform a job, work or service for a principal. In labor-only contracting, the following
elements are present:
(a) The contractor or subcontractor does not have substantial capital or investment to actually perform the job, work or
service under its own account and responsibility; and
(b) The employees recruited, supplied or placed by such contractor or subcontractor are performing activities which are
directly related to the main business of the principal.” (Sasan, Sr. v. National Labor Relations Commission 4th Division,
supra, at pp. 689-690. [Citations omitted])
In PCI Automation Center, Inc. v. NLRC, G.R. No. 115920, January 29, 1996, the effect of a finding that one is a labor-
only contractor was ruled as follows:
In legitimate job contracting, no employer-employee relationship exists between the employees of the job contractor and
the principal employer. Even then, the principal employer becomes jointly and severally liable with the job contractor for
the payment of the employees’ wages whenever the contractor fails to pay the same. In such case, the law creates an
employer-employee relationship between the principal employer and the job contractor’s employees for a limited purpose,
that is, to ensure that the employees are paid their wages. Other than the payment of wages, the principal employer is not
responsible for any claim made by the employees. (Philippine Bank of Communications vs. NLRC, 146 SCRA 347 [1986])
On the other hand, in labor-only contracting, an employer-employee relationship is created by law between the principal
employer and the employees of the labor-only contractor. In this case, the labor-only contractor is considered merely an
agent of the principal employer. The principal employer is responsible to the employees of the labor-only contractor as if
such employees had been directly employed by the principal employer. The principal employer therefore becomes
solidarily liable with the labor-only contractor for all the rightful claims of the employees. (Philippine Bank of
Communications vs. NLRC, 146 SCRA 347 [1986])
Thus, in legitimate job contracting, the principal employer is considered only an indirect employer, (Article 107, Labor
Code, as amended) while in labor-only contracting, the principal employer is considered the direct employer of the
employees. (last paragraph of Article 106, Labor Code, as amended)
In short, the legitimate job contractor provides services while the labor-only contractor provides only manpower. The
legitimate job contractor undertakes to perform a specific job for the principal employer while the labor-only contractor
merely provides the personnel to work for the principal employer.

NOTE: The foregoing answer can be found in pages 507508 of the book entitled Principles and Cases Labor Relations,
First Edition 2016, by Atty. Voltaire T. Duano. The topic on job-contracting and labor-only contracting has been time and
again the subject matter of bar questions, more specifically during the 2014, 2013, 2012, 2011, 2009, 2004, 2002, 2001,
2000, 1997 and 1994 Bar Examinations.

B.
What are the grounds for validly terminating the services of an employee based on a just cause? (5%)
SUGGESTED ANSWER:
An employer may terminate an employment for any of the following causes:
(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in
connection with his work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;
(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of
his family or his duly authorized representatives; and
(e) Other causes analogous to the foregoing. (Art. 297 [282], Labor Code)
NOTE: The foregoing answer can be found in pages 899-890 of the book entitled Principles and Cases Labor Relations,
First Edition 2016, by Atty. Voltaire T. Duano. The topic on the just cause for termination has been time and again the
subject matter of bar questions, more specifically during the 2015, 2014, 2013, 2012, 2011, 2009, 2008, 2006, 2003,
2001, 1995, 1996, 1995, 1999 Bar Examinations.

C.
Give the procedure to be observed for validly terminating the services of an employee based on a just cause? (4%)
SUGGESTED ANSWER:
As defined in Article 297 of the Labor Code, as amended, the requirement of two written notices served on the employee
shall observe the following:
(a) The first written notice should contain:
1. The specific causes or grounds for termination as provided for under Article 297 of the Labor Code, as amended, and
company policies, if any;
2. Detailed narration of the facts and circumstances that will serve as basis for the charge against the employee. A
general description of the charge will not suffice; and
3. A directive that the employee is given opportunity to submit a written explanation within a reasonable period.
“Reasonable period” should be construed as a period of at least five (5) calendar days from receipt of the notice to give
the employee an opportunity to study the accusation, consult or be represented by a lawyer or union officer, gather data
and evidence, and decide on the defenses against the complaint. (Unilever v. Rivera, G.R. No. 201701, June 3, 2013;
Section 12, DOLE Department Order 18-A)
(b) After serving the first notice, the employer should afford the employee ample opportunity to be heard and to defend
himself/herself with the assistance of his/her representative if he/she so desires, as provided in Article 299 (b) of the Labor
Code, as amended.
“Ample opportunity to be heard” means any meaningful opportunity (verbal or written) given to the employee to answer
the charges against him/her and submit evidence in support of his/her defense, whether in a hearing, conference or some
other fair, just and reasonable way. A formal hearing or conference becomes mandatory only when requested by the
employee in writing or substantial evidentiary disputes exist or a company rule or practice requires it, or when similar
circumstances justify it. (Perez v. PT&T, G.R. No. 152048, April 7, 2009, Section 12, DOLE Department Order 18-A)
(c) After determining that termination of employment is justified, the employer shall serve the employee a written notice of
termination indicating that: (1) all circumstances involving the charge against the employee have been considered; and (2)
the grounds have been established to justify the severance of their employment.
The foregoing notices shall be served personally to the employee or to the employee’s last known address. (Section 5,
5.1, Rule I-A, D.O. No. 147-15, Series of 2015)
NOTE: The foregoing answer can be found in pages 899-890 of the book entitled Principles and Cases Labor Relations,
First Edition 2016, by Atty. Voltaire T. Duano. The topic on the procedural due process has been time and again the
subject matter of bar questions, more specifically during the 2012, 2009, 2006, 1999 and 1998 Bar Examinations.

XI
A.
The modes of determining the exclusive bargaining agent of the employees in a business are: (a) voluntary recognition;
(b) certification election; and (c) consent election. Explain how they differ from one another. (4%)

SUGGESTED ANSWER:
Voluntary Recognition refers to the process by which a legitimate labor union is recognized by the employer as the
exclusive bargaining representative or agent in a bargaining unit, reported with the Regional Office in accordance with
Rule VII, Section 2 of these Rules. Certification Election” or Consent Election refers to the process of determining through
secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit for purposes of
collective bargaining or negotiation. A certification election is ordered by the Department, while a consent election is
voluntarily agreed upon by the parties, with or without the intervention by the Department. (Rule I, Section 1, Book V,
Rules to Implement the Labor Code)
NOTE: The foregoing answer can be found in pages 21 and 22 of the book entitled Principles and Cases Labor Relations,
First Edition 2016, by Atty. Voltaire T. Duano. The topic on the representation issue has been time and again the subject
matter of bar questions, more specifically during the 2006, 2004, and 2000 Bar Examinations.

B.
Marcel was the Vice President for Finance and Administration and a member of the Board of Directors of Mercedes
Corporation. He brought a complaint for illegal suspension and illegal dismissal against Mercedes Corporation, which
moved to dismiss the complaint on the ground that the complaint pertained to the jurisdiction of the RTC due to the
controversy being intracorporate based on his positions in the corporation. Marcel countered that he had only been
removed as Vice President for Finance and Administration, not as a member of the Board of Directors. He also argued
that his position was not listed as among the corporate offices in Mercedes Corporation’s by-law. Is the argument of
Marcel correct? Explain your answer. (2.5%)

SUGGESTED ANSWER:
Marcel’s contention is correct. It is settled in Matling Industrial and Commercial Corporation v. Coros, G.R. No. 157802, 13
October 2010, cited in Marc II Marketing Inc. v. Joson, G.R. No. 171993, December 12, 2011, where it held, thus:
Conformably with Section 25, a position must be expressly mentioned in the [b]y-[l]aws in order to be considered as a
corporate office. Thus, the creation of an office pursuant to or under a [b]y-[l]aw enabling provision is not enough to make
a position a corporate office. [In] Guerrea v. Lezama [citation omitted] the first ruling on the matter, held that the only
officers of a corporation were those given that character either by the Corporation Code or by the [b]y-[l]aws; the rest of
the corporate officers could be considered only as employees or subordinate officials.
xxx
It is relevant to state in this connection that the SEC, the primary agency administering the Corporation Code, adopted a
similar interpretation of Section 25 of the Corporation Code in its Opinion dated November 25, 1993 [citation omitted], to
wit:
Thus, pursuant to the above provision (Section 25 of the Corporation Code), whoever are the corporate officers
enumerated in the by-laws are the exclusive Officers of the corporation and the Board has no power to create other
Offices without amending first the corporate [b]y-laws. However, the Board may create appointive positions other than the
positions of corporate Officers, but the persons occupying such positions are not considered as corporate officers within
the meaning of Section 25 of the Corporation Code and are not empowered to exercise the functions of the corporate
Officers, except those functions lawfully delegated to them. Their functions and duties are to be determined by the Board
of Directors/Trustees. (Matling Industrial and Commercial Corporation v. Coros, supra at 26-27) [Emphasis supplied.]
With the given circumstances and in conformity with Matling Industrial and Commercial Corporation v. Coros, Marcel was
not a corporate officer of Mercedes Corporation because his position as Vice President for Finance and Administration
was not specifically mentioned in the roster of corporate officers in its corporate by-laws.
NOTE: The foregoing answer can be found in page 46 of the book entitled Principles and Cases Labor Relations, First
Edition 2016, by Atty. Voltaire T. Duano. The topic on the on whether an position is a corporate officer has been time and
again the subject matter of bar questions, more specifically during the 2015, 2014, 2011 and 1996 Bar Examinations.

C.
State the jurisdiction of the Voluntary Arbitrator, or Panel of Voluntary Arbitrators in labor disputes? (4%)

SUGGESTED ANSWER:
The voluntary arbitrator or panel of voluntary arbitrators shall have exclusive and original jurisdiction to hear and decide all
unresolved grievances arising from:
1. The implementation or interpretation of the collective bargaining agreements; (Article 274 [261], Labor Code, Section 4,
Rule XIX, Book V, Omnibus Rules Implementing the Labor Code)
2. The interpretation or enforcement of company personnel policies which remain unresolved after exhaustion of the
grievance procedure; (Article 274 [261], Labor Code, Section 4, Rule XIX, Book V, Omnibus Rules Implementing the
Labor Code)
3. Wage distortion issues arising from the application of any wage orders in organized establishments; (par. 4, Article 124,
Labor Code, Section 4, Rule XIX, Book V, Omnibus Rules Implementing the Labor Code)
4. The interpretation and implementation of the productivity incentive programs under RA 6971.
5. Upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and
bargaining deadlocks. (Article 275. [262], Labor Code, Section 4, Rule XIX, Book V, Omnibus Rules Implementing the
Labor Code)
6. Violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated
as unfair labor practice and shall be resolved as grievances under the Collective Bargaining Agreement; (Article 274.
[261], Labor Code)
NOTE: The foregoing answer can be found in page 442 of the book entitled Principles and Cases Labor Relations, First
Edition 2016, by Atty. Voltaire T. Duano. The topic on jurisdiction of the voluntary arbitrators or panel of voluntary
arbitrators has been time and again the subject matter of bar questions, more specifically during the 2008, 2001, 1997
and 1995 Bar Examinations.

XII
A.
Juanito initiated a case for illegal dismissal against Mandarin Company. The Labor Arbiter decided in his favor, and
ordered his immediate reinstatement with full backwages and without loss of seniority and other benefits. Mandarin
Company did not like to allow him back in its premises to prevent him from influencing his co-workers to move against the
interest of the company; hence, it directed his payroll reinstatement and paid his full backwages and other benefits even
as it appealed to the NLRC.
A few months later, the NLRC reversed the ruling of the Labor Arbiter and declared that Juanito’s dismissal was valid. The
reversal ultimately became final.
May Mandarin Company recover the backwages and other benefits paid to Juanito pursuant to the decision of the Labor
Arbiter in view of the reversal by the NLRC? Rule, with reasons. (2.5%)

SUGGESTED ANSWER:
Mandarin Company cannot recover the backwages and other benefits paid to Juanito pursuant to the decision of the
Labor Arbiter despite the reversal by the NLRC. The refund doctrine has already been reversed in Garcia v. Philippine
Airlines, Inc., G. R. No. 164856, July 20, 2009, where the Supreme Court then stressed that as opposed to the
abovementioned Genuino v. National Labor Relations Commission, G.R. Nos. 142732-33 & 142753-54, December 4,
2007, 539 SCRA 342 the social justice principles of labor law outweigh or render inapplicable the civil law doctrine of
unjust enrichment.
NOTE: The foregoing answer can be found in pages 636-638 of the book entitled Principles and Cases Labor Relations,
First Edition 2016, by Atty. Voltaire T. Duano. The topic on refund doctrine was asked for the first time for this year’s bar
examinations.
B.
Gene is a married regular employee of Matibay Corporation. The employee and Matibay Corporation had an existing CBA
that provided for funeral or bereavement aid of P15,000.00 in case of the death of a legal dependent of a regular
employee. His widowed mother, who had been living with him and his family for many years, died; hence, he claimed the
funeral aid. Matibay Corporation denied the claim on the basis that she had not been his legal dependents as the term
legal dependent was defined by the Social Security Law.

(a) Who may be the legal dependents of Gene under the Social Security Law? (2.5%)

SUGGESTED ANSWER:
Section 8 (e) of the Social Security Law provides that the dependents shall be the following:
(1) The legal spouse entitled by law to receive support from the member;
(2) The legitimate, legitimated or legally adopted, and illegitimate child who is unmarried, not gainfully employed, and has
not reached twenty-one (21) years of age, or if over twenty-one (21) years of age, he is congenitally or while still a minor
has been permanently incapacitated and incapable of self-support, physically or mentally; and
(3) The parent who is receiving regular support from the member.
NOTE: The foregoing answer can be found in page 862 of the book entitled Principles and Cases Labor Standards and
Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano. The topic on dependents has been time and again the
subject matter of bar questions, more specifically during the 2014 and 2002 Bar Examinations.

(b) Is Gene entitled to the funeral aid for the death of his widowed mother? Explain your answer. (2%)

SUGGESTED ANSWER:
Gene is entitled to the funeral aid for the death of his widowed mother under CBA. This is because the said CBA clearly
provided for funeral or bereavement aid of P15,000.00 in case of the death of a legal dependent of a regular employee.
But in so far as the SSS law is concerned, the only way that Gene can recover is that if he will qualify as the primary
beneficiary of his widowed mother provided he has the restrictions on the definition of dependent children.
NOTE: The foregoing answer can be found in pages 862-864 of the book entitled Principles and Cases Labor Standards
and Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano in so far as the definition of beneficiary in relation to
dependents are concerned.

C.

Rosa was granted vacation leave by her employer to spend three weeks in Africa with her family. Prior to her departure,
the General Manager of the company requested her to visit the plant of the company in Zimbabwe in order to derive best
manufacturing practices useful to the company. She accepted the request because the errand would be important to the
company and Zimbabwe was anyway in her itinerary. It appears that she contracted a serious disease during the trip.
Upon her return, she filed a claim for compensation, insisting that she had contracted the disease while serving the
interest of her employer.
Under the Labor Code, the sickness or death of an employee, to be compensable, must have resulted from an illness
either definitely, accepted as an occupational disease by the Employee’s Compensation Commission, or caused by
employment subject to proof that the risk of contracting the same is increased by working conditions.
Is the serious disease Rosa contracted during her trip to Africa compensable? Explain your answer. (2.5%)

SUGGESTED ANSWER:
In Government Service Insurance System vs. Besitan, G.R. No. 178901, November 23, 2011, explained the concept of
increased theory as follows:
Corollarily, for the sickness or resulting disability or death to be compensable, the claimant must prove either (1) that the
employee’s sickness was the result of an occupational disease listed under Annex “A” of the Amended Rules on
Employees’ Compensation, or (2) that the risk of contracting the disease was increased by his working conditions.
Certainty is not required only probability
Under the increased risk theory, there must be a reasonable proof that the employee’s working condition increased his
risk of contracting the disease, or that there is a connection between his work and the cause of the disease. (Castor-
Garupa v. Employees’ Compensation Commission, G.R. No. 158268, April 12, 2006, 487 SCRA 171, 180) Only a
reasonable proof of work-connection, not direct causal relation, however, is required to establish compensability of a non-
occupational disease. (Government Service Insurance System v. Cordero, G.R. Nos. 171378 & 171388, March 17, 2009,
581 SCRA 633, 640) Probability, and not certainty, is the yardstick in compensation proceedings; thus, any doubt should
be interpreted in favor of the employees for whom social legislations, like PD No. 626, were enacted. (Government
Service Insurance System v. Corrales, G.R. No. 166261, June 27, 2008, 556 SCRA 230, 243-244)
Applying the above ruling, Rosa must present a reasonable proof that her working condition increased his risk of
contracting the disease, or that there is a connection between his work and the cause of the disease otherwise the same
is not compensable.

NOTE: The foregoing answer can be found in page 766 of the book entitled Principles and Cases Labor Standards and
Social Legislation, First Edition 2015, by Atty. Voltaire T. Duano. The topic on compensation proceedings has been time
and again the subject matter of bar questions, more specifically during the 2012, 2005 and 1996 Bar Examinations.

XIII
A.

Given that the liability for an illegal strike is individual, not collective, state when the participating union officers and
members may be terminated from employment because of the illegal strike. Explain your answer. (4%)
SUGGESTED ANSWER:
The following are the effects of participation in an illegal strike and commission of illegal acts during strike:
1. Any union officer who knowingly participates in an illegal strike; and
2. Any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared
to have lost his employment status; (Third paragraph, Article 279 (a) [264 (a)], Labor Code)
NOTE: The foregoing answer can be found in page 520 of the book entitled Principles and Cases Labor Relations, First
Edition 2016, by Atty. Voltaire T. Duano. The topic on the effects of participation in illegal strike has been time and again
the subject matter of bar questions, more specifically during the 2015, 2014, 2012, 2010, 2008, 2007, 2006, 1997, 1995
and 1994 Bar Examinations.

B.
A sympathetic strike is stoppage of work to make common cause with other strikers in another establishment or business.
Is the sympathetic strike valid? Explain your answer. (1%)

SUGGESTED ANSWER:
The illegal stoppage of work by way of sympathetic strike has been settled in the case of Biflex Phils. Labor Union
(NAFLU) v. Filflex Industrial and Manufacturing Cororation, G.R. No. 155679, 19 December 2006, where it was ruled that
stoppage of work due to welga ng bayan is in the nature of a general strike, an extended sympathy strike. It affects
numerous employers including those who do not have a dispute with their employees regarding their terms and conditions
of [Link] who have no labor dispute with their employer but who, on a day they are scheduled to work,
refuse to work and instead join a welga ng bayan commit an illegal work stoppage. Even if petitioners joining the welga ng
bayan were considered merely as an exercise of their freedom of expression, freedom of assembly or freedom to petition
the government for redress of grievances, the exercise of such rights is not absolute. For the protection of other significant
state interests such as the right of enterprises to reasonable returns on investments, and to expansion and growth
enshrined in the 1987 Constitution must also be considered, otherwise, oppression or self-destruction of capital in order to
promote the interests of labor would be sanctioned. And it would give imprimatur to workers joining demonstrations/rallies
even before affording the employer an opportunity to make the necessary arrangements to counteract the implications of
the work stoppage on the business, and ignore the novel principle of shared responsibility between workers and
employers aimed at fostering industrial peace. There being no showing that petitioners notified respondents of their
intention, or that they were allowed by respondents, to join the welga ng bayan on October 24, 1990, their work stoppage
is beyond legal protection.
NOTE: The foregoing answer can be found in page 506 of the book entitled Principles and Cases Labor Relations, First
Edition 2016, by Atty. Voltaire T. Duano. The topic on sympathetic strike has been the subject matter of bar questions
during the 2004 Bar Examinations.
C.
Due to business recession, Ballistic Company retrenched a part of its workforce. Opposing the retrenchment, some of the
affected employees staged a strike. Eventually, the retrenchment was found to be justified, and the strike was declared
illegal; hence, the leaders of the strike, including the retrenched employees, were declared to have lost their employment
status.
Are the striking retrenched employees still entitled to separation pay under Sec. 298 (283) of the Labor Code despite the
illegality of their strike? Explain your answer. (2%)

SUGGESTED ANSWER:
The strikers including the union officers should be paid their separation pay by virtue of retrenchment notwithstanding the
illegal strike was declared illegal. The issue on entitlement to separation pay due to authorized cause and the ground for
termination due to knowingly participating in illegal strike are distinct and different.

XIV
Pursuant to his power under Sec. 278(g) (263(g)) of the Labor Code, the Secretary of Labor assumed jurisdiction over the
3-day old strike in Armor Steel Plates, Inc., one of the country’s bigger manufacturers of steel plates, and ordered all the
striking employees to return to work. The striking employees ignored the order to return to work.

(a) What conditions may justify the Secretary of Labor to assume jurisdiction? (2.5%)

SUGGESTED ANSWER:
Pursuant to Article 263 (g) [now 278 (g)], when a labor dispute causes or is likely to cause a strike or lockout in an
industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the
dispute and decide it or certify the same to the National Labor Relations Commission (NLRC) for compulsory arbitration.
(Section 1, Operational Guidelines of Department Order No. 40-G-03, Series of 2010, dated February 24, 2011)
For a valid exercise of the assumption of jurisdiction authority, any of the following conditions must be present:
a. Both parties have requested the Secretary of Labor and Employment to assume jurisdiction over the labor dispute; or
b. After a conference called by the Office of the Secretary of Labor and Employment on the propriety of the issuance of
the Assumption or Certification Order, motu proprio or upon a request or petition by either party to the labor dispute. In the
said conference. the parties shall also be encouraged to amicably settle the dispute. (Section 2, Operational Guidelines of
Department Order No. 40-G-03, Series of 2010, dated February 24, 2011)
NOTE: The foregoing answer can be found in pages 468-487 of the book entitled Principles and Cases Labor Relations,
First Edition 2016, by Atty. Voltaire T. Duano. The topic on the assumption of jurisdiction has been time and again the
subject matter of bar questions, more specifically during the 2012, 2004 and 1996 Bar Examinations.

(b) What are the consequences of the assumption of jurisdiction by the Secretary of Labor, and of the disobedience to the
return to work? Explain your answer. (2.5%)

The consequences of assumption of jurisdiction are as follows:

a. If a strike or lockout has not taken place, the parties are enjoined to conduct any untoward action that may lead to a
strike or lockout.
b. if a strike or lockout has already taken place, all striking and locked out workers shall, within twenty-four (24) hours from
receipt of an Assumption or Certification Order, 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.
c. At any point in time, the parties are not prevented from submitting the dispute to Voluntary Arbitration with the Secretary
of Labor and Employment or his/her duly authorized representative as Voluntary Arbitrator or Panel of Voluntary
Arbitrators. (Section 3, Operational Guidelines of Department Order No. 40-G-03, Series of 2010, dated February 24,
2011)

While the consequence of disobedience to the return to work has been ruled in the case of Manila Hotel Employees
Association v. Manila Hotel Corporation, G.R. No. 154591, March 5, 2007. In holding that defiance of the assumption
order or a return-to work order by a striking employee, whether a union officer or a member, is an illegal act and,
therefore, a valid ground for loss of employment status. The High Court explained:
The law explicitly prohibits such acts.
ART. 263. STRIKES, PICKETING, AND LOCKOUTS
x x x x (omitted)
ART. 264. PROHIBITED ACTIVITIES
(a) x x x x
(omitted)

More to the point, the Court has consistently ruled in a long line of cases spanning several decades that once the SOLE
assumes jurisdiction over a labor dispute, such jurisdiction should not be interfered with by the application of the coercive
processes of a strike or lockout. Defiance of the assumption order or a return-to work order by a striking employee,
whether a union officer or a member, is an illegal act and, therefore, a valid ground for loss of employment status. (Grand
Boulevard Hotel v. Genuine Labor Organization of Workers in Hotel, Restaurant and Allied Industries (GLOWHRAIN),
G.R. No. 153664, 18 July 2003, 406 SCRA 688, 710; Telefunken Semiconductors Employees Union-FFW v. Court of
Appeals, G.R. Nos. 143013-14, 18 December 2000, 348 SCRA 565, 582; Federation of Free Workers v. Inciong, G.R. No.
49983, 20 April 1982, 208 SCRA 157, 165)
NOTE: The foregoing answer can be found in page 501 of the book entitled Principles and Cases Labor Relations, First
Edition 2016, by Atty. Voltaire T. Duano. The topic on the assumption of jurisdiction has been time and again the subject
matter of bar questions, more specifically during the 2012, 2004 and 1996 Bar Examinations.