Bar Q & A, Labor Law

Bar Exam 2010 Suggested Answers in Labor and Social Legislation by the UP Law Center

 

PART I

TRUE OR FALSE. Explain your answer briefly.

  1. Deeds of release, waivers and quitclaims are always valid and binding. (2%)

SUGGESTED ANSWER:

FALSE. Deeds of release, waivers and quitclaims are not always valid and binding. An agreement is valid and binding only if : (a) the parties understand the terms and conditions of their settlement; b) it was entered into freely and voluntarily by them; and (c) it is contrary to law, morals, and public policy.

ALTERNATIVE ANSWER:

FALSE. Not all deeds of release, waivers and quitclaims are valid and binding. The Supreme Court, In Periquet v. NLRC (186 SCRA 724 [1990]) and affirmed In Solgus Corporation v. Court of Appeals (514 SCRA 522 [2007]), provided the following guide posts in determining the validity of such release, waivers and quitclaims:

“Not all waivers and quitclaims are invalid as against public policy. If the agreement was voluntarily entered into and represents a reasonable settlement, it is binding on the parties and may not later be disowned simply because of a change of mind. But where it is shown that the person making the waiver did so voluntarily, with full understanding of what he was doing, and the consideration for the quitclaim is credible and reasonable, the transaction must be recognized as a valid and binding undertaking.”

 

 

  1. The relations between employer and employee are purely contractual in nature. (2%)

SUGGESTED ANSWER:

FALSE. Some aspects of the relations between employer and employee are determined by certain labor standards.

ALTERNATIVE ANSWER:

FALSE. The Constitution, Labor Code, Civil Code and other social legislations are replete with provisions that define employment relationship oven without contract, with the intention of insuring that all the rights of labor are protected.

Article 1700 of the Civil Code provides that “[The relations between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good.”

In Article 106 of the Labor Code, the principal is deemed as a direct employer in labor-only contracting, despite absence of contractual relationship between the worker and the principal reduced in writing.

Equity likewise affords the aggrieved party relief in a case where an agent was given apparent authority by the employer to represent it to third persons, such as in a relationship between hospitals and doctors practicing medicine in its establishment (Nograles v. Capitol Medical Center, 511 SCRA 204 [2006]).

  1. As a general rule, direct hiring of Overseas Filipino Workers (OFWs) is not allowed. (2%)

SUGGESTED ANSWER:

TRUE. Art. 18 of the Labor Code provides that no employer may hire a Filipino worker for overseas employment except through the Boards and entities authorized by the Department of Labor and Employment (DOLE) except direct-hiring by members of the diplomatic corps, International organizations and such other employers as may be allowed by the DOLE.

Another exemption is “Name Hire, which refers to a worker who is able to secure an overseas employment opportunity with an employer without the assistance or participation of any agency.

II

  1. Distinguish the terms “conciliation,” “mediation” and “arbitration”. (3%)

SUGGESTED ANSWER:

There is a DOLE official called a “Conciliator Mediator”. He is an officer of the NCMB whose principal function is to assist in the settlement and disposition of labor – management disputes through conciliation and preventive mediation. However, he does not promulgate decisions that settle controversies about rights, which are demandable and enforceable. The latter is called arbitration and is the function of a labor arbiter or a voluntary arbitrator.

ALTERNATIVE ANSWER:

(1) CONCILIATION is the process of dispute management whereby parties in dispute are brought together for the purpose of: (1) amicably settling the case upon a fair compromise: (2) determining the real parties In interest; (3) defining and simplifying the issues in the case;(4) entering into admissions or stipulations of facts; and (5) threshing out all other preliminary matters (Section 3, Rule V, 2005 NLRC Rules of Procedure). In resolving labor disputes, this comes before arbitration, as a mandatory process, pursuant to the State policy of promoting and emphasizing conciliation as modes of settling labor disputes (Art. 211 (A)(a), Labor Code).

(2) MEDIATION Is a voluntary process of settling dispute whereby the parties elect a mediator to facilitate the communication and negotiation between the parties in dispute for the purpose of assisting them in reaching a compromise (Sec. 319), Rep. Act No. 9285 or the Alternative Dispute Resolution Law).

(3) ARBITRATION is a system of dispute settlement that may be compulsory or voluntary, whereby the parties are compelled by the government, or agree to submit their dispute before an arbiter, with the Intention to accept the resolution of said arbiter over the dispute as final and binding on them (Luzon Development Bank v. Association of Luzon Development Employees, 249 SCRA 162 [1995]).

In this jurisdiction, compulsory arbitration in labor disputes are submitted to a labor arbiter, whose powers and functions are clearly defined under Article 217(a) of the Labor Code; whereas in voluntary arbitration, the powers and functions of the voluntary arbitrator or panel of voluntary arbitrators elected to resolve the parties’ dispute involve the interpretation and implementation of the parties’ collective bargaining agreement, pursuant to Articles 260-262 of the Labor Code.

  1. Differentiate “surface bargaining from “blue-sky bargaining”. (2%)

SUGGESTED ANSWER:

(1) SURFACE BARGAINING is defined as “going through the motions of negotiating” without any legal intent to reach an agreement. The determination of whether a party has engaged in unlawful surface bargaining is a question of the intent of the party in question, which can only be inferred from the totality of the challenged party’s conduct both.at and away from the bargaining table. It involves the question of whether an employer’s conduct demonstrates in unwillingness to bargain in good faith or is merely hard bargaining (Standard Chartered Bank Employees Union (NUBE) v. Confesor, 432 SCRA 308 [2004]).

(2) BLUE-SKY BARGAINING is defined as “unrealistic and unreasonable demands in negotiations by either or both labor and management, where neither concedes anything and demands the impossible* (Standard Chartered Bank Employees Union (NUBE) v. Confesor, supra.).

III

A, single, has been an active member of the Social Security System for the past 20 months. She became pregnant out of wedlock and on her 7th month of pregnancy, she was informed that she would have to deliver the baby through caesarean Section because of some complications. Can A claim maternity benefits? If yes, how many days can she go on maternity leave? If not, why is she not entitled? (3%)

SUGGESTED ANSWER:

YES. The SSS Law does not discriminate based on the civil status of a female member-employee. As long as said female employee has paid at least three (3) monthly contributions in the twelve-month period immediately preceding the semester of her childbirth, she can avail of the maternity benefits under the law.

Since A gave birth through C-section, she is entitled to one hundred percent (100%) of her average salary credit for seventy-eight (78) days, provided she notifies her employer of her pregnancy and the probable date of her childbirth, among others (See Section 14-A, Rep. Act No. 8282).

The same maternity benefits are ensured by Sec. 22 (b)(2) of the Magna Carta of Women (Rep. Act No. 9710).

 

IV

A, a worker of ABC Company, was on leave with pay on March 31, 2010. He reported for work on April 1 and 2. Maundy Thursday and Good Friday, respectively, both regular holidays. Is A entitled to holiday pay for the two successive holidays? Explain, (3%)

SUGGESTED ANSWER:

YES. A is entitled to holiday pay equivalent to two hundred percent (200%) of his regular daily wage for the two successive holidays that he worked (Section 6/a), Rule IV, Book III of the Omnibus Rules implementing the Labor Code).

V

Company XYZ has two recognized labor unions, one for its rank-and-file employees (RFLU), and one for supervisory employees (SELU). Of late, the company instituted a restructuring program by virtue of which A, a rank-and-file employee and officer of RFLU, was promoted to a supervisory position along with four (4) other colleagues, also active union members and/or officers. Labor Union KMJ, a rival labor union seeking recognition as the rank-and-file bargaining agent, filed a petition for cancellation of the registration of RFLU on the ground that Aand her colleagues have remained to be members of RFLU, Is the petition meritorious? Explain. (3%)

SUGGESTED ANSWER:

  1. Having been promoted to supervisory positions, A and her colleagues are no longer part of the rank-and file bargaining unit. They are deemed removed from membership of RFLU (Art. 245-A, Labor Code as amended by Rep. Act No. 9481).

VI

A is a member of the labor union duly recognized as the sole bargaining representative of his company. Due to a bargaining deadlock, 245 members of the 500-strong union voted on March 13, 2010 to stage a strike. A notice of strike was submitted to the National Conciliation and Mediation Board on March 16, 2010. Seven days later or on March 23, 2010, the workers staged a strike in the course of which A had to leave and go to the hospital where his wife had just delivered a baby. The union members later intimidated and barred other employees from entering the work promises thus paralyzing the business operations of the company.

A was dismissed from employment as a consequence of the strike.

  1. Was the strike legal? Explain. (3%)

SUGGESTED ANSWER:

  1. The strike was not legal due to the union’s failure to satisfy the required majority vote of union membership (251 votes), approving the conduct of a strike (See Art. 26301, Labor Code; Section 11, Rule XXII, Dept. Order No. 40-03

Also, the strike was illegal due to the non-observance of the 30-day cooling off period by the union (Art. 263/c), Labor Code).

  1. Was A’s dismissal valid? Why or why not? (3%)

SUGGESTED ANSWER:

  1. Article 264 of the Labor Code distinguishes the effects of illegal strikes between ordinary workers and union officers who participate therein. A, as an ordinary striking worker, may not be declared to have lost his employment status by mere participation in an illegal strike, unless there is proof that he knowingly participated in the commission of illegal acts during the strike(Arellano University Employees and Workers Union v. CA. 502 SCRA 219 [2006]). This is an aspect of the State’s constitutional and statutory mandate to protect the rights of employees to self-organization (Club Filipino, Inc. v. Bautista, 592 SCRA 471 [2009]).

 

VII

A was an able seaman contracted by ABC Recruitment Agency for its foreign principal, Seaworthy Shipping Company (SSC). His employment contract provided that he would serve on board the Almeda IT for eight (8) months with a monthly salary of US $450. In connection with his employment, he signed an undertaking to observe the drug and alcohol policy which bans possession or use of all alcoholic beverages, prohibited substances and unprescribed drugs on board the ship. The undertaking provided that: (1) disciplinary action including dismissal would be taken against anyone in possession of the prohibited substances or who is impaired by the use of any of these substances, and (2) to enforce the policy, random test sampling would be done on all those on board the ship.

On his third month of service while the Almieda I was docked at a foreign port, a random drug test was conducted oli all members of the crew and A tested positive for marijuana. He was given a copy of the drug test result. In compliance with the company’s directive, he submitted his written explanation which the company did not find satisfactory. A month later, he was repatriated to the Philippines.

Upon arrival in the Philippines, A filed with the National Labor Relations Commission (NLRC) a complaint against the agency and the principal for illegal dismissal with a claim for salaries for the unexpired portion of his contract.

  1. Was A’s dismissal valid? Explain. (3%)

SUGGESTED ANSWER:

NO, A’s dismissal was not valid. A was not found to be *in possession of the prohibited substance” nor was he Him paired by the use” thereof. Being tested positive for marijuana” is not a ground for “disciplinary action” under the “undertaking” he signed.

ALTERNATIVE ANSWER:

YES, A’s dismissal was valid. He was tested positive for marijuana. This is in violation of the drug and alcohol policy, which bans possession, or use of all alcoholic beverages, prohibited substances and un-prescribed drugs on board the ship.

  1. Is his claim for salaries for the unexpired portion of his contract tenable? Explain. (3%)

SUGGESTED ANSWER:

YES, Section 10 of Rep. Act No. 8042 (as amended by Rep. Act No. 10022) provides that in case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, or any unauthorized deductions from the inigrant worker’s salary, the worker shall be entitled to the full reimbursement of his placement fee with interest at twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) years for every year of the unexpired term, whichever is less (cf. Serrano v. Gallant Maritime, 582 SCRA 254 [2009]).

ALTERNATIVE ANSWER:

  1. Under Rep. Act No. 8042, money claim can be made only if there is dismissal without just or authorized cause.

VIII

ABC company and U labor union have been negotiating for a new Collective Bargaining Agreement (CBA) but failed to agree on certain economic provisions of the existing agreement. In the meantime, the existing CBA expired. The company thereafter refused to pay the employees their midyear bonus, saying that the CBA which provided for the grant of midyear bonus to all company employees had already expired. Are the employees entitled to be paid their midyear bonus? Explain your answer. (3%)

SUGGESTED ANSWER:

YES, under Article 253 of the Labor Code, the parties Are duty-bound to maintain the status quo and to continue in full force and effect the terms and conditions of the existing CBA until a new agreement is reached by the parties.

Likewise, Art. 253-A provides for an automatic renewal clause of a CBA. Although a CBA has expired, it continues to have legal effects as between the parties until a new CBA has been entered into.

The same is also supported by the principle of holdover, which states that despite the lapse of the formal effectivity of the CBA, the law stills considers the same as continuing in force and effect until a new CBA shall have been validly executed (MERALCO v. Hon. Sec. of Labor, 337 SCRA 90 [2000] citing National Congress of Unions in the Sugar Industry of the Philippines v. Ferrer-Calleja, 205 SCRA 478 [1992]).

The terms and conditions of the existing CBA remain under the principle of CBA continuity.

IX

A was working as a medical representative of RX pharmaceutical company when he met and fell in love with B, a marketing strategist for Delta Drug Company, a competitor of RX. On several occasions, the management of RX called A’s attention to the stipulation in his employment contract that requires him to disclose any relationship by consanguinity or affinity with co-employees or employees of competing companies in light of a possible conflict of interest A seeks your advice on the validity of the company policy. What would be your advice? (3%)

 

SUGGESTED ANSWER:

The company policy is valid. However, it does not apply to A. As A and Bare not yet married, no relationship by consanguinity or affinity exists between them. The case of Duncan v. Glaxo Welcome(438 SCRA 343 [2004]] does not apply in the present case.

X

A, an employee of XYZ Cooperative, owns 500 shares in the cooperative. He has been asked to join the XYZ Cooperative Employees Association. He seeks your advice on whether he can join the association. What advice will you give him? (3%)

SUGGESTED ANSWER:

A cannot join XYZ Cooperative Employees Association, because owning shares in XYZ Cooperative makes him a co-owner thereof.

An employee-member of a cooperative cannot join a union and bargain collectively with his cooperative for an Howner cannot bargain with himself and his co-owners (Cooperative Rural Bank of Davao City, Inc. v. Calleja, 165 SCRA 725, 732 [1988]; San Jose City – Electric Service Cooperative, Inc. v. Ministry of Labor, 173 SCRA 697,701703 [1989]).

XI

Because of continuing financial constraints, XYZ, Inc. gave its employees the option to voluntarily resign from the company. A was one of those who availed of the option. On October 5, 2007, he was paid separation benefits equivalent to seven (7) months pay for his six (6) years and seven (7) months of service with the company and he executed a waiver and quitclaim.

A week later, A filed against XYZ, Inc. a complaint for illegal dismissal. While he admitted that he was not forced to sign the quitclaim, he contended that he agreed to tender his voluntary resignation on the belief that XYZ, Inc. was closing down its business. XYZ, Inc., however continued its business under a different company name, he claimed.

Rule on whether the quitclaim executed by A (Gabrielj is valid or not. Explain. (3%)

SUGGESTED ANSWER:

The quitclaim executed by A is valid and binding.

Generally, deeds of release, waiver or quitclaims cannot bar employees from demanding benefits to which they are legally entitled or from contesting the legality of their dismissal, since quitclaims are looked upon with disfavor and are frowned upon as contrary to public policy. However, where the person making the waiver has done so voluntarily, with a full understanding thereof, and the consideration for the quitclaim is credible and reasonable, the transaction must be recognized as being a valid and binding undertaking (Francisco Soriano, Jr. NLRC, et al., 530 SCRA 526 [2007]).

A elected to voluntarily resign, and accepted a credible and reasonable separation benefits package. In exchange, A executed a waiver and quitclaim.

A’s resignation could not have possibly been vitiated by any fraud or misrepresentation on the part of XYZ, Inc. The company offered its voluntary resignation package because of continuing financial constraints, and not preliminary to closure of business. A’s belief is not the kind of proof required that will show he was defrauded, his consent vitiated, and therefore the termination of his employment illegal.

ALTERNATIVE ANSWER:

The quitclaim is invalid. The signing of the quitclaim was based on a wrong premise, and the employer was deceitful by not divulging full information. The subsequent re-opening of the business under another name is an indication of bad faith and fraud..

XII

On December 12, 2008, A signed a contract to be part of the crew of ABC Cruises, Inc. through its Philippine marining agency XYZ. Under the standard employment contract of the Philippine Overseas Employment Administration (POEA), his employment was to commence upon his actual departure from the port in the point of hire, Manila, from where he would take a flight to the USA to join the cruise ship “MS Carnegie.” However, more than three months after A secured his exit clearance from the POEA for his supposed departure on January 15, 2009, XYZ still had not deployed him for no valid reason.

Is A entitled to relief? Explain. (3%)

ALTERNATIVE ANSWER:

YES. Even if no departure took place, the contract of employment has already been perfected which creates certain rights and obligations, the breach of which may give rise to a cause of action against the erring party:

(1) A can file a complaint for Recruitment Violation for XYZ’s failure to deploy him within the prescribed period without any valid reason, a ground for the imposition of administrative sanctions against XYZ under Section 2, Rule I, Part V of the 2003 POEA Rules on Employment of Seafarers.

(2) At the same time. A can file a case for illegal recruitment under Section 6(L) of Rep. Act No. 8042 (cf. Section 11 Rule I, Part V of the 2003 POEA Rules on Employment of Seafarers).

(3) A may likewise file a complaint for breach of contract, and claim damages there for before the NLRC, despite absence of employer employee relationship. Section 10 of Rep. Act No. 8042 conferred jurisdiction on the Labor Arbiter not only on claims arising out of EER, but also by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages. (Santiago vs. CF Sharp Crew Management, 527 SCRA 165 [2007]).

XIII

A is employed by XYZ Company where XYZ Employees Union (XYZ-EU) is the recognized exclusive bargaining agent. Although A is a member of rival union XYR-MU, he receives the benefits under the CBA that XYZ-EU had negotiated with the company.

XYZ-EU assessed A a fee equivalent to the dues and other fees paid by its members but A insists that he has no obligation to pay said dues and fees because he is not a member of XYZ-EU and he has not issued an authorization to allow the collection. Explain whether his claim is meritorious. (3%)

SUGGESTED ANSWER:

  1. The fee exacted from A takes the form of an AGENCY FEE. This is sanctioned by Article 248 (e) of the Labor Code.

The collection of agency fees in an amount equivalent to union dues and fees from employees who are not union members is recognized under Article 248(e) of the Labor Code. The union may collect such fees even without any written authorization from the non-union member employees, if said employees accept the benefits resulting from the CBA. The legal basis of agency fees is quasicontractual (Del Pilar Academy v. Del Pilar Academy Empluyeres Urzton, 553 SCRA 590 [2008]).

PART II

XIV

After working from 10 a.m. to 5 p.m. on a Thursday as one of 5,000 employees in a beer factory, A hurried home to catch the early evening news and have dinner with his family. At around 10p.m. of the same day, the plant manager called and ordered A to fill in for C who missed the second shift.

  1. May A validly refuse the plant manager’s directive? Explain. (2%)

SUGGESTED ANSWER:

YES. A may validly refuse to fill in for C. A may not be compelled to perform overtime work considering that the plant manager’s directive is not for an emergency overtime work, as contemplated under Article 89 of the Labor Code.

  1. Assuming that A was made to work from 11 p.m. on Thursday until 2 a.m. on Friday, may the company argue that, since he was two hours late in coming to work of Thursday morning, he should only be paid for work rendered from 1 a.m. to 2 a.m.? Explain. (3%)

SUGGESTED ANSWER:

  1. Undertime is not off-set by overtime (Art. 88, Labor Code)

XV

Samahang Manggagawa ng Terracota, a union of supervisory employees at Terracota Inc., recently admitted A member of the company’s managerial xiafr, A, Into the union ranks.

 

 

  1. Should A be a member of the supervisory union? Explain.

SUGGESTED ANSWER:

YES, as long as A is not a confidential employee who has access to confidential matters on labor relations (San Miguel Corporation Supervisors and Exempt Employees Union v. Laguesma, 277 SCRA 370,374-375 [1997]]

If A performs supervisory functions, such as overseeing employees’ performance and with power of recommendation, then A is a rightful member of the supervisory union. Otherwise, he may not, because Samahang Manggagawa ng Terracota cannot represent A, A being not part of SMT’s bargaining unit.

B Assuming that A is ineligible to join the union, should the registration of Samahang Manggagawang Terracota be cancelled? Explain. (3%)

SUGGESTED ANSWER:

  1. Rep. Act No. 9481 introduced a new provision, Art. 245-A, which provides that mixed membership is not a ground for cancellation of a union’s registration, but said employees wrongfully joined are deemed removed from said union.

XVI

On the first day of collective bargaining negotiations between rank-and-file Union A and B Bus Company, the former proposed a P45/day increase. The company insisted that ground rules for negotiations should first be established, to which the union agreed. After agreeing on ground rules on the second day, the union representatives reiterated their proposal for a wage increase. When company representatives suggested a discussion of political provisions in the Collective Bargaining Agreement as stipulated in the ground rules, union members went on mass leave the next day to participate in a whole-day prayer rally in front of the company building.

  1. The company filed a petition for assumption of jurisdiction with the Secretary of Labor and Employment. The Union opposed the petition, arguing that it did not intend to stage a strike. Should the petition be granted? Explain. (2%)

SUGGESTED ANSWER:

YES.

There was a strike. What the union engaged in was actually a “work stoppage in the guise of a protest rally.

Article 212(o) of the Labor Code defines strike as a temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. The fact that the conventional term “strike was not used by the striking employees to describe their common course of action is in consequential. What is controlling is the substance of the situation, and not its appearance. The term strike” encompasses not only concerted work stoppages, but also slowdowns, mass leaves, ait-downs, attempts to damage, destroy or sabotage plant equipment and facilities, and similar activities (Santa Rosa CocaCola Plant Employees Union, Donricou. Sebastian, et al. v. Coca-Cola Bottlers Phils., Inc., 512 SCRA 437 [2007]).

  1. The Union contended that assuming that the mass leave will be considered as a strike, the same was valid because of the refusal of the company to discuss the economic provisions of the CBA. Rule on the contention, (2%)

SUGGESTED ANSWER:

The Union’s contention is wrong. A strike may be declared only in cease of deadlock in collective bargaining negotiations and unfair Labor practice (Article 263(c, Labor Code); Section 1, Rule V, NCMB Manual of Procedures).

The proposal of the company to discuss political provisions pursuant to the ground rules agreed upon does not automatically mean that the company refuses to discuss the economic provisions of the CBA, or that the company was engaged in “surface bargaining” in violation of its duty to bargain, absent any showing that such tend to show that the company did not want to reach an agreement with the Union. In fact, there is no deadlock to speak of in this case.

The duty to bargain does not compel either party to agree to a proposal or require the making of a concession, The parties’ failure to agree which to discuss first on the bargaining table did not amount to ULP for violation of the duty to bargain.

Besides, the mass leave conducted by the union members failed to comply with the procedural requirements for a valid strike under the Rules, without which, the strike conducted taints of illegality.

  1. Union member AA, a pastor who headed the prayer rally, was served a notice of termination by management after it filed the petition for assumption of jurisdiction. May the company validly terminate AA? Explain. (2%)

SUGGESTED ANSWER

  1. The company cannot terminate AA because the Labor Code provides mere participation of a worker in a strike shall not constitute sufficient ground for termination of his employment.

XVI

A was hired in a sugar plantation performing such tasks as weeding, cutting and loading canes. planting cane points, fertilizing and cleaning the drainage. Because his daily presence in the field was not required, A also worked as a houseboy at the house of the plantation owner. For the next planting season, the owner decided riot to hire A as a plantation worker but as a houseboy instead. Furious, A filed a case for illegal dismissal against the plantation owner. Decide with reason. (3%)

SUGGESTED ANSWER

A is a regular seasonal employee. Therefore, he cannot be dismissed without just or valid cause.

The primary standard for determining regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual trade or business of the employer (Pier 8 Arrastre & Steredoring Services, Inc., et al. v. Jeff B. Boclot, 534 SCRA 431 [2007]). Considering that A, as plantation worker, performs work that is necessary and desirable to the usual business of the plantation owner, he is therefore a regular seasonal employee and is entitled to reinstatement upon onset of the next season unless he was hired for the duration of only one season (Hacienda Bino v. Cuenca, 456 SCRA 300 [2005]].

Converting Ato a mere houseboy at the house of the plantation owner amounts to an act of severing his employment relations as its plantation worker (Angeles D. Fernandez, 513 SCRA 378 [2007]).

ALTERNATIVE ANSWER

It is management prerogative to determine what kind of worker is needed by the plantation. Of course, if the prerogative is exercised and results in redundancy, there must be payment of separation pay under Article 283 of the Labor Code.

XVIII

Flight attendant A, five feet and six inches tall, weighing 170 pounds ended up weighing 220 pounds in two years Pursuant to the long standing Cabin and Crew Administration Manual of the employer airline that set a 147-pound limit for A’s height, management sent A a notice to “shape up or ship out” within 60 days. At the end of the 60-day period, A reduced her weight to 205 pounds. The company finally served her a Notice of Administration Charge for violation of company standards on weight requirements. Should A be dismissed? Explain. (3%)

SUGGESTED ANSWER

  1. While the weight standards for cabin crew may be a valid company policy in light of its nature as a common cartier, the airline company is now estopped from enforcing the Manualas cround for dismissal against A. It hired A despite her weight of 170 pounds, in contravention of the same Manual it now Invoked.

The Labor Code gives to in airline the power to determine appropriate minimum age and other standards for requirement or termination in special occupations such as those of light attendants and the like. Weight standards for cabin crew is a reasonable imposition by reason of flight safety (Yrasuegut v. PAL, 569 SCRA 467 [2008]). However, A had already been employed for two (2) years before the airline company imposed on her this weight regulation, and nary an incident did the airline company raise which rendered her amiss of her duties.

XIX

Several employees and members of Union A were terminated by Western Phone Co. on the ground of redundancy. After complying with the necessary requirements, the Union staged a strike and picketed the premises of the company. The management then filed a petition for the Secretary of Labor and Employment to assume jurisdiction over the dispute. Without the benefit of a hearing, the Secretary issued an Order to assume jurisdiction and for the parties to revert to the status quo ante litem

  1. Was the order to assume jurisdiction legal? Explain, (2%)

 

 

SUGGESTED ANSWER

YES. The Secretary of Labor and Employment has plenary power to assume jurisdiction under Article 263() of the Labor Code. When in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in un industry indispensable to the national Interest, the Secretary of Labor may assume jurisdiction over the dispute and decide it or certify it to the NLRC for compulsory Arbitration (Art. 263/g), Labor Code). This extraordinary authority glven to the Secretary of Labor is aimed at arriving at a peaceful and speedy solution to labor disputes, without jeopardizing national interests (Steel Corporation . SCP Employees Unton, 551 SCRA 594 [2008]). Such assumption shall have the effect of automatically enjoining an impending strike or lockout, or in order directing immediate return to work and resume operations, if a strike already took place, and for the employer to re-admit all employees under the same terms and conditions prevailing before the strike or lockout (Art. 263/9), Labor Code; Sec. 15, Rule XXII, Dept. Order No. 40-G-03).

  1. Under the same set of facts the Secretary instead issued an Order directing all striking workers to return to work within 24 hours, except those who were terminated due to redundancy. Was the Order legal? Explain. (3%)

SUGGESTED ANSWER

  1. The Secretary of Labor’s order will be inconsistent with the established policy of the State of enjolning the parties from performlng acts that undermine the onderlying principles embodied in Article 26318) of the Labor Code.

In this case, excepting the employees terminated due to redundancy from those who are required to return

 

to-work, which was the very labor dispute that sparked the union to strike, the Secretary of Labor comes short of his duty under Article 26318) to maintain status quo or the terms and conditions prevailing before the strike. In fact, the Secretary could be accused of disposing of the parties’ labor dispute without the benefit of a hearing, in clear derogation of due process of law.

XX

A, a driver for a bus company, sued his employer for non-payment of commutable service incentive leave credits upon his resignation after five years of employment. The bus company argued that A was not entitled to service incentive leave since he was considered a field personnel and was paid on commission basis and that, in any event, his claim had prescribed. If you were the Labor Arbiter, how would you rule? Explain. (6%)

SUGGESTED ANSWER:

I will grant the prayer of A.

Payment on commission basis alone does not prove that A is a field personnel. There must be proof that A is left to perform his work unsupervised by his employer. Otherwise, he is not a field personnel, thus entitled to commutable service incentive leave (SIL) credits (Auto Bus u. Bautista, 458 SCRA 578 [2005]).

His action has not yet prescribed. In Auto Bus u. Bautista (supra), the Supreme Court recognized that SIL is such a unique labor standard benefit, because it is commutable. An employee may claim his accrued SIL throughout the years of his service with the company upon his resignation, retirement, or termination. Therefore, when A resigned after five years, his right of action to claim ALL of his SIL benefits accrued at the time when the employer refused to pay him his rightful SIL benefits. (Art. 291, Labor Code).

ALTERNATIVE ANSWER

The money claim as cause of action has prescribed because the claim was filed after five (5) years from date of negotiation. Art. 291 of the Labor Code provides that all money claims arising from employeremployee relations occurring during the effectivity of the Code shall be filled within three (3) years from that time the cause of action has accrued, otherwise, they shall be forever barred.

XXI

A was approached for possible overseas deployment to Dubai by X, an interviewer of job applicants for Alpha Personnel Services, Inc., an overseas recruitment agency. X required A to submit certain documents (passport, NBI clearance, medical certificate) and to pay P25,000 as processing fee. Upon payment of the said amount to the agency cashier, A was advised to wait for his visa. After five months, A visited the office of Alpha Personnel Services, Inc. during which X told him that he could no longer be deployed for employment abroad. A was informed by the Philippine Overseas Employment Administration (POEA) that while Alpha Personnel Services, Inc. was a licensed agency, X was not regiatered as its employce, contrary to POEA Rules and Regulations. Under POEA Rules and Regulations, the obligation to register personnel with the POEA belongs to the officers of a recruitment agency.

  1. May X be held criminally lable for illegal recruitment? Explain. (2%)

SUGGESTED ANSWER:

  1. X performed his work with the knowledge that he works for a licensed recruitment agency. He is in no position to know that the officers of said recruitment agency failed to register him as its personnel (People v. Chowdury, 325 SCRA 572 [2000]. The fault not being

attributable to him, he may be considered to have apparent authority to represent Alpha in recruitment for overseas employment.

  1. May the officers having control, management or direction of Alpha Personnel Services, Inc. be held criminally liable for illegal recruitment? Explain. (3%)

SUGGESTED ANSWER:

Yes. Alpha, being a licensed recruitment agency, still has obligations to A for processing his papers for overseas employment. Under Section 6[m] of Rep. Act No. 8042, failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker’s fault, amounts to illegal recruitment.

XXII

A was recruited to work abroad by Speedy Recruitment Agency as a technician for a Saudi Arabian construction firm, with a monthly salary of $650.00. When she got to the construction site, the employer compelled her to sign another contract that referred her to another employer for a salary of $350.00. She worked for the second employer and was paid $350.00 until her two-year contract expired. Upon her return to the Philippines, she filed a case against the agency and the two employers. May the agency validly raise the defense that it was not privy to the transfer of A to the second employer? Explain. (3%)

SUGGESTED ANSWER:

  1. Speedy’s obligation to A is joint and several with the principal employer (Sec. 10, Rep. Act No. 8042).

The liability of the principal/employer and the recruitment/placement agency for any and all claims for


 

Memorandum, management explained that too much texting and phone-calling by employees disrupted company operations. Two employees-members of Union X were terminated from employment due to violation of the Triemorandum-policy. The union countered with a prohibitory injunction case (with prayer for the issuance of a temporary restraining order) filed with the Regional Trial Court, challenging the validity and constitutionality of the cell phone bani. The company filed a motion to dismiss, arguing that the case should be referred to the grievance machinery pursuant to an existing Collective Bargaining Agreement with Union X, and eventually to Voluntary Arbitration. Is the company correct? Explain. (3%)

SUGGESTED ANSWER:

YES.

Termination cases arising in or resulting from the interpretation and implementation of collective bargaining agreements, and interpretation and enforcement of company personnel policies which were initially processed at the various steps of the plant-level Grievance Procedures under the parties collective bargaining areements, fall within the original and exclusive jurisdiction of the voluntary arbitrator purgiant to Article 217 (c) and Article 261 of the Labor Code.

ALTERNATIVE ANSWER

NO, The Regional Trial Court has jurisdiction to hear and decide the prohibitory injunction case filed by Union X against Company C to enjoin the latter from Implementing the memorandum-policy against use of cell phones in the factory. What is at isaue is Union X’S challenge against the validity and constitutionality of the cell phone ban being implemented by Company C. The Issue, therefore, does not involve the interpretation of the memorandum-policy, but its intrinsie validity (Haliguefla v. PAL, 602 SCRA 297 [2009]).

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