FAR EASTERN UNIVERSITY

INSTITUTE OF LAW
LABOR LAW
MOCK BAR 2015
I.
Krizzy Abunda was employed by Chena College as a grade school
teacher. She was found guilty of leaking a copy of a quiz given to
Grade 5 students. As a result, the school terminated her
employment. Abunda then pleaded that she instead be
suspended and allowed to finish the school year and thereafter
she will voluntarily resign. The school acceded to her request.
After the school year, however, the respondent filed a case of
illegal dismissal against the school. She argues that the situation
she was put through amounts to constructive dismissal. More so
that under Chena College Faculty Manual, leaking and selling of
test questions is classified as a grave offense punishable by
dismissal/termination. The school gave due investigation and the
respondent was given a chance to defend herself, hence her
termination is proper. Was Abunda constructively dismissed?
SUGGESTED ANSWER:
No, Abunda was not constructively dismissed.
The Supreme Court held that academic dishonesty is the worst
offense a teacher can make because teachers caught committing
academic dishonesty lose their credibility as educators and cease
to be role models for their students. The school should not be
punished for being compassionate and granting respondents
request for a lower penalty. (CHIANG KAI SHEK COLLEGE and
CARMELITA ESPINO vs. ROSALINDA M. TORRES, G.R. No.
189456, April 2, 2014, J. Perez)
II.
Distinguish
the
arbitration.

terms

conciliation,

mediation

and

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:
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).
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. 3(q), Rep. Act
No. 9285 or the Alternative Dispute Resolution Law).
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. (2010 BAR
EXAM, Q#2)
III.
Differentiate Wage and Salary.
SUGGESTED ANSWER:
Wage is the compensation for skilled or unskilled manual labor;
considerable pay for a lower and less responsible character of
employment; not subject to execution, except for debts incurred
for food, shelter, clothing and medical attendance.
Salary is what is paid to white collar workers and denotes higher
degrees of employment; gesture of a larger and more important
service; subject to execution (i.e. may be levied or garnished).
IV.
Dingdong was working as a medical representative of Uranus
pharmaceutical company when he met and fell in love with
Maryan, a marketing strategist for Pluto Drug Company, a
competitor of Uranus. On several occasions, the management of
Uranus called Dingdongs 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. Dingdong seeks your advice on the validity of the
company policy. What would be your advice?

SUGGESTED ANSWER:
The company policy is valid. However, it does not apply to
Dingdong. As Dingdong and Maryan are not yet married, no
relationship by consanguinity or affinity exists between them. The
case of Duncan v. Glaxo Wellcome (438 SCRA 343 [2004]) does
not apply in the present case. (2010 BAR EXAM, Q#9)
V.
What are the requisites of a Valid Apprenticeship?
SUGGESTED ANSWER:
1. The qualifications of apprenticeship are met;
2. The apprenticeship earns not less than 75% of the
prescribed minimum salary;
3. Apprenticeship agreement duly executed and signed;
4. Apprenticeship program duly approved by the Secretary of
Labor; otherwise, the apprentice shall be deemed as a
regular employee;
5. Period of apprenticeship not to exceed 6 months.
VI.
Discuss the Limited Portability Rule.
SUGGESTED ANSWER:
A covered worker who transfers employment from one sector to
another (i.e. from SSS to GSIS) or is employed on both sectors,
shall have a creditable services or contributions on both Systems
credited to his service or contribution record in each of the
Systems and shall be totalized for purposes of old-age,
disability, survivorship and other benefits in either or both
Systems. (Sec. 3, RA 7699)

All the contributions paid by such member personally, and those

that were paid by his employers to both Systems shall be
considered in the processing of benefits which he can claim from
either or both Systems. (Sec. 4, RA 7699)
The portability provisions of RA 7699 allow the transfer of funds
for the account and benefit of the worker who transfers from one
system to another.
VII.
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.
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.
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

inconsequential. 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, sit-downs, attempts to damage, destroy or sabotage plant
equipment and facilities, and similar activities (Santa Rosa CocaCola Plant Employees Union, Donrico v. Sebastian, et al. v. CocaCola Bottlers Phils., Inc., 512 SCRA 437 [2007]). (2010 BAR
EXAMS, Q#16)
VIII.
Flight attendant Dumbo, 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
Dumbos height, management sent Dumbo a notice to shape up
or ship out within 60 days. At the end of the 60-day period,
Dumbo 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 Dumbo be
dismissed? Explain. (3%)
SUGGESTED ANSWER:
No, while the weight standards for cabin crew may be a valid
company policy in light of its nature as a common carrier, the
airline company is now estopped from enforcing the Manual as
ground for dismissal against Dumbo. It hired Dumbo despite his
weight of 170 pounds, in contravention of the same Manual it now
invoked.
The Labor Code gives to an airline the power to determine
appropriate minimum age and other standards for requirement or
termination in special occupations such as those of flight
attendants and the like. Weight standards for cabin crew is a
reasonable imposition by reason of flight safety [Yrasuegui v.
PAL, 569 SCRA 467 [2008]).

However, Dumbo had already been employed for two (2) years
before the airline company imposed on him this weight
regulation, and nary an incident did the airline company raise
which rendered her amiss of his duties. (2010 BAR EXAMS,
Q#18)
IX.
Bentong worked as a roomboy in Shalala Hotel. He sued for
underpayment of wages before the NLRC, alleging that he was
paid below the minimum wage. The employer denied any
underpayment, arguing that based on long standing, unwritten
policy, the Hotel provided food and lodging to its housekeeping
employees, the costs of which were partly shouldered by it and
the balance was charged to the employees. The employees
corresponding share in the costs was thus deducted from their
wages. The employer concluded that such valid deduction
naturally resulted in the payment of wages below the prescribed
minimum. If you were the Labor Arbiter, how would you rule?
Explain.
SUGGESTED ANSWER:
I will rule in favor of Bentong. Even if food and lodging were
provided and considered as facilities by the employer, the
employer could not deduct such facilities from its workers wages
without compliance with law (Mayon Hotel & Restaurant v.
Adana, 458 SCRA 609 [2005]).
In Mabeza v. NLRC (271 SCRA 670 [1997]), the Supreme
Court held that the employer simply cannot deduct the value from
the employees wages without satisfying the following: (a) proof
that such facilities are customarily furnished by the trade; (b) the
provision of deductible facilities is voluntarily accepted in writing
by the employee; and (c) the facilities are charged at fair and
reasonable value. (2010 BAR EXAM, Q#23)

X.
Atty. Valdemort, a CPA-lawyer and Managing Partner of an
accounting firm, conducted the orientation seminar for newlyhired employees of the firm, among them, Miss Kiray. After the
seminar, Valdemort requested Kiray to stay, purportedly to
discuss some work assignment. Left alone in the training room,
Valdemort asked Kiray to go out with him for dinner and ballroom
dancing. Thereafter, he persuaded her to accompany him to the
mountain highway in Antipolo for sight-seeing. During all these,
Valdemort told Kiray that most, if not all, of the lady supervisors in
the firm are where they are now, in very productive and lucrative
posts, because of his favorable endorsement.
Did Valdemort commit acts of sexual harassment in a workrelated or employment environment? Reasons. (3%)
SUGGESTED ANSWER:
Yes, Atty. Valdemort is guilty of sexual harassment.
conclusion is predicated upon the following consideration:

This

Atty. Valdemort has authority, influence or moral ascendancy

over Miss Kiray;
While the law calls for a demand, request or requirement of a
sexual favor, it is not necessary that the demand, request or
requirement of a sexual favor be articulated in a categorical oral
or written statement. It may be discerned, with equal certitude
from the acts of the offender. (Domingo vs. Rayala, 546 SCRA
90 [2008]);
The acts of Atty. Valdemort towards Miss Kiray resound with
deafening clarity the unspoken request for a sexual favor,
regardless of whether it is accepted or not by Miss Kiray.
In sexual harassment, it is not essential that the demand, request
or requirement be made as a condition for continued employment

or promotion to a higher position. It is enough that Atty.

Valdemorts act result in creating an intimidating, hostile or
offensive environment for Miss Kiray. (2009 BAR EXAM, Q#13)
XI.
Popoy was dismissed by management for serious misconduct. He
filed suit for illegal dismissal, alleging that although there may be
just cause, he was not afforded due process by management prior
to his termination. He demands reinstatement with full
backwages.
What are the twin-requirements of due process which the
employer must observe in terminating or dismissing an
employee? Explain.
SUGGESTED ANSWER:
The twin requirements of due process are notice and hearing to
be given to the worker. There is likewise a two- notice
requirement rule, with the first notice pertaining to specific
causes or grounds for termination and a directive to submit a
written explanation within a reasonable period. The second
notice pertains to notice of termination. Pursuant to Perez v.
Philippine Telegraph and Telephone Company (G.R. No.
152048, 7 April 2009), the Court held that a hearing or
conference is not mandatory, as long as the employee is given
ample opportunity to be heard, i.e. any meaningful opportunity
(verbal or written) to answer the charges against him or her and
submit evidence in support of the defense, whether in a hearing,
conference, or some other fair, just and equitable way. (2009
BAR EXAM, Q#17)
XII.
Bea Binaenae is the secretary of the proprietor of an auto
dealership in Quezon City. She resides in Caloocan City. Her office

hours start at 8 a.m. and end at 5 p.m. On July 30, 2008, at 7 a.m.
while waiting for public transport at Rizal Avenue Extension as has
been her routine, she was sideswiped by a speeding taxicab
resulting in her death. The father of Bea filed a claim for
employees compensation with the Social Security System. Will
the claim prosper? Why? (
SUGGESTED ANSWER:
Yes, the claim will prosper.
In a line of cases, it has been held that an injury sustained by the
employee while on his way to or from his place of work, and which
is otherwise compensable, is deemed to have arisen out of and in
the course of his employment (Lentejas v. Employees
Compensation Commission, 197SCRA 44[1991]).
Bea died while going to her place of work. As held in the case of
Alano v. Employees Compensation Commission (158 SCRA
669(1988]), she was at the place where her job necessarily
required her to be if she was to reach her place of work on time.
There was nothing private or personal about Beas place being at
the place of the accident. She was there because her employment
required her to be there.
ANOTHER SUGGESTED ANSWER:
The claim will not prosper as a claim for employees
compensation will prosper only in the event of work- connected
disability or death and the death of Bea Binaenae will be
considered as work connected only if it was because of any
accident arising out of and in the course of employment. This
was not the case of Bea Binaenae. She was not yet working when
the accident that caused her death took place. (2008 BAR
EXAM, Q#8)
XIII.

A. Discuss the principle of codetermination?

SUGGESTED ANSWER:
The principle of codetermination is one which grants to the
workers the right to participate in policy and decision-making
processes affecting their rights and benefits. (Art. 255, Labor
Code)
ALTERNATIVE ANSWERS:
A. By the principle of codetermination, the workers have a right
to participate in the decision making process of employers
on matters affecting their rights and benefits, through
collective bargaining agreements, grievance machineries,
voluntary modes of settling disputes and conciliation
proceedings mediated by government.
B. Codetermination is a term identified with workers
participation in the determination of business policy. Under
the German model, the most common form of
codetermination, employees of some firms are allocated
control rights by law, in the form of board seats. It is based
on the conviction that democratic legitimacy cannot be
confined to government but must apply to all sectors of
society. Besides corporate control rights, the German system
deals with dual channels of representation of employees by
unions (at the industry-wide, and macroeconomic level) and
works councils (at the firm level). (2007 BAR EXAM, Q#1)
B. What, if any, is the basis under the Constitution for adopting it?
SUGGESTED ANSWER:
Art. XIII, Sec. 3 of the Constitution guarantees labor their right to
participate in decision and policy-making processes affecting their
rights, duties and welfare.
ALTERNATIVE ANSWER:

The adoption of codetermination is based on the police power of

the state and the constitutional mandate to the State to
promote, the principle of shared responsibility between the
workers and the employers. The Constitution expressly provides
that: It shall guarantee the rights of all workers to xxx collective
bargaining and negotiations, xxx. They shall be entitled to
security of tenure, humane conditions of work, and a living wage.
They shall also participate in policy and decision-making
processes affecting their rights and benefits as may be provided
by law. (Art. XIII, Sec. 3, 1987 Constitution) (2007 BAR
EXAM, Q#1)
XIV.
Discuss in full the jurisdiction over the civil and criminal aspects
of a case involving an unfair labor practice for which a charge is
pending with the Department of Labor and Employment.
SUGGESTED ANSWER:
Unfair labor practices are not only violations of the civil rights of
both labor and management but are also criminal offenses
against the State.
The civil aspect of all cases involving unfair labor practices, which
may include claims for actual, moral, exemplary and other forms
of damages, attorneys fee and other affirmative relief, shall be
under the jurisdiction of the Labor Arbiters.
However, no criminal prosecution shall be instituted without a
final judgment, finding that an unfair labor practice was
committed, having been first obtained in the administrative
proceeding. During the pendency of such administrative
proceeding, the running of the period for prescription of the
criminal offense herein penalized shall be interrupted. The final
judgment in the administrative proceeding shall not be binding in
the criminal case nor be considered as evidence of guilt but
merely as proof of compliance of the requirements set forth by
law. (Article 247, Labor Code.) (2007 BAR EXAM, Q#8)

XV.
Discuss the legal requirements of a valid strike.
SUGGESTED ANSWER:
The legal requirements of a valid strike are as follows:
1. No labor union may strike on grounds involving inter-union
and intra-union disputes.
2. In cases of bargaining deadlocks, the duly certified or
recognized bargaining agent may file a notice of strike with
the Department of Labor and Employment at least 30 days
before the intended date thereof. In cases of unfair labor
practice, the period of notice shall be 15 days and in the
absence of a duly certified or recognized bargaining agent,
the notice of strike may be filed by any legitimate labor
organization in behalf of its members. However, in case of
dismissal from employment of union officers duly elected in
accordance with the union constitution and by-laws, which
may constitute union busting where the existence of the
union is threatened, the 15-day cooling-off period shall not
apply and the union may take action immediately.
3. A decision to declare a strike must be approved by a
majority of the total union membership in the bargaining unit
concerned, obtained by secret ballot in meetings or
referenda called for that purpose.
4. In every case, the union shall furnish the Department of
Labor and Employment the voting at least seven days before
the intended strike subject to the cooling-off period herein
provided.
5. No labor organization shall declare a strike without first
having bargained collectively; without first having filed the
notice required or without the necessary strike vote first
having been obtained and reported to the Department of
Labor and Employment.
6. No strike shall be declared after assumption of jurisdiction by
the President or the Secretary or after certification or
submission of the dispute to compulsory or voluntary

arbitration or during the pendency of cases involving the

same grounds for the strike.
7. In a strike no person engaged in picketing should commit
any act of violence, coercion or intimidation or obstruct the
free ingress to or egress from the employers premises for
lawful purposes, or obstruct public thoroughfares.
ALTERNATIVE ANSWERS:
A. Notice of strike filed by the bargaining agent (if collective
bargaining deadlock) or a registered union in the affected
bargaining unit (if unfair labor practice); Notice of strike filed
with the NCMB; Notice of strike filed at least 24 hours prior
to taking a strike vote by secret balloting, informing said
office of the decision to conduct a strike vote, and the date,
place, and time thereof; Strike vote where majority of union
members approve the strike; Strike vote report should be
submitted to the NCMB at least 7 days before the intended
date of strike; Except in cases of union busting, the coolingoff period prescribed (15 days, unfair labor practice; 30 days,
collective bargaining deadlock) should be fully observed;7day waiting period or strike bans after submission of the
strike vote report to NCMB should be fully observed; Not on
grounds of ULP in violation of no-strike clause in CBA; Not
visited with widespread violence; Not in defiance of the
Secretarys assumption of jurisdiction order; Not prohibited
by law (such as unions in the banking industry).
B. A valid strike requires compliance of both substantial and
procedural grounds. Substantially, a valid strike has to be
grounded on either unfair labor practice or deadlock in
collective bargaining. Procedurally, the same must comply
with the requirements of: (1) notice of strike to filed at least
15 days before the intended ULP grounded strike or at least
30 days prior to the deadlock in bargaining grounded strike;
(2) Must comply with the strike vote requirement, meaning,
a majority of the union membership in the bargaining unit
must have voted for the staging of the strike, and notice
hereon shall be furnished NCMB at least 24 hours before the

strike vote is taken; and (3) the strike vote results must be
furnished to the NCMB at least 7 days before the intended
strike. The dismissal of a duly elected officer excuses,
however, the union from the 15/30 days cooling off
requirement in Art. 263 (c) of the Labor Code. (2007 BAR
EXAM, Q#9)
XVI.
When is there a wage distortion?
SUGGESTED ANSWER:
There is wage distortion where an increase in prescribed wage
rates results in the elimination or severe contraction of intentional
quantitative differences in wage or salary rates between and
among employee groups in an establishment as to effectively
obliterate the distinctions embodied in such wage structure based
on skills, length of service, or other logical bases of differentiation.
ALTERNATIVE ANSWER:
Wage distortion arises when (4) essential elements are present:
1. An existing hierarchy of positions with corresponding salary
rates;
2. A significant change or increase in the salary rate of a lower
pay class without a corresponding increase in the salary of a
higher one;
3. The elimination of the distinction between two groups or
classes; and
4. The distortion exists in the same region of the country
(Prubankers Association v. Prudential Bank and Trust Co., 302
SCRA 74 [1999]). (2006 BAR EXAM, Q#6)
XVII.
When does a "run-off election occur?

SUGGESTED ANSWER:
A run-off or second election occurs when an election which
provides for three (3) or more choices results in no choice
receiving a majority of the valid votes cast, and no objections or
challenges have been presented which, if sustained, can
materially change the results; the election officer shall motu
proprio conduct a run-off election within (10) calendar days from
the close of the election proceedings between the labor unions
receiving the (2) highest number of votes; provided that, the total
number of votes for all contending unions is at least fifty per cent
(50%) of the number of votes cast (Rule X, Dept. Order 40-03).
(2006 BAR EXAM, Q#13)
XVIII.
Cesar had been an employee of Sunshines Burger Company for
the last ten (10) years. His wife of six (6) years died last year.
They had four (4) children. He then fell in love with Sandra, his coemployee and they got married.
In October this year. Cesar's new wife is expected to give birth to
her first child. He has accordingly filed his application for paternity
leave, conformably with the provisions of the Paternity Leave Law
which took effect in 1996. The HRD manager of the assurance
firm denied his application, on the ground that Cesar had already
used up his entitlement under that law. Cesar argued that he has
a new wife who will be giving birth for the first time, therefore, his
entitlement to paternity leave benefits would begin to run anew.
1. Whose contention is correct, Cesar or the HRD manager?
SUGGESTED ANSWER:
The contention of Cesar is correct. The law provides that every
married male is entitled to a paternity leave of seven (7) days for
the first four (4) deliveries of the legitimate spouse with whom he

is cohabiting (Section 2, RA6187). Sandra is Cesar's legitimate

spouse with whom he is cohabiting. The fact that Sandra is his
second wife and that Cesar had 4 children with his first wife is
beside the point. The important fact is that this is the first child of
Sandra with Cesar. The law did not distinguish and we should
therefore not distinguish.
The paternity leave was intended to enable the husband to
effectively lend support to his wife in her period of recovery
and/or in the nursing of the newly born child (Sec. 3, RA 8187).
To deny Cesar this benefit would be to defeat the rationale for the
law.
ALTERNATIVE ANSWER:
The HRD manager is correct. Since it is conceded that Cesar
earlier availed of four (4) paternity leaves when his first wife gave
birth to their four (4) children, he clearly "already used up his
entitlement under the law". His new wife's giving birth for the first
time would not, matter as the benefit given by. Section 2 of R.A.
8187 is an exhaustible benefit granted to a father "for the first
four (4) deliveries of the legitimate spouse with whom he is
cohabiting".
2. Is Sandra entitled to maternity leave benefits?
SUGGESTED ANSWER:
Yes, if Sandra, as a female employee, has paid at least three (3)
monthly contributions in the twelve-month period immediately
preceding the semester of her childbirth (Sec, 14-A, R.A. 1161, as
amended); otherwise; she is not entitled to the benefit. (2005
BAR EXAM, Q#5)
XIX.
1. What is the No Strike No Lock-out Clause? Discuss.

SUGGESTED ANSWER:
No Strike No Lockout Clause is a provision in a collective
bargaining agreement in which the union promises that during the
life of the CBA, the employees will not engage in strikes; and the
employer will not declare a lock-out. A union often agrees to such
clause in exchange for a grievance arbitration provision.
Although the Labor Code grants employees the right to strike, not
all strikes are protected. If a collective bargaining agreement
contains no strike no lock-out clause, a strike during the life of the
contract would not be protected. The strikers could be terminated.
2. When does the No Strike No Lock-out Clause applicable?
The No Strike No Lock-out Clause in the CBA applies only to
Economic Strikes; it does not apply to ULP strikes. Hence, if the
strike is founded on an unfair labor practice of the employer, a
strike declared by the union cannot be considered a violation of
no-strike clause. (Master iron Labor Union vs. NLRC, 219
SCRA 47)
XX.
Inter-Garments Co. manufactures garments for export and
requires its employees to render overtime work ranging from two
to three hours a day to meet its clients' deadlines. Since 2009, it
has been paying its employees on overtime an additional 35% of
their hourly rate for work rendered in excess of their regular eight
working hours.
Due to the slowdown of its export business in 2012, InterGarments had to reduce its overtime work; at the same time, it
adjusted the overtime rates so that those who worked overtime
were only paid an additional 25%instead of the previous 35%. To

replace the workers' overtime rate loss, the company granted a

one-time 5% across-the-board wage increase.
Vigilant Union, the rank-and-file bargaining agent, charged the
company with Unfair Labor Practice on the ground that (1) no
consultations had been made on who would render overtime
work; and (2) the unilateral overtime pay rate reduction is a
violation of Article 100 (entitled Prohibition Against Elimination or
Diminution of Benefits) of the Labor Code.
Is the union position meritorious?
SUGGESTED ANSWER:
The allegation of ULP by the Union is not meritorious. The
selection as to who would render overtime work is a management
prerogative. However, the charge of the Union on the diminution
of benefits (violation of Article 100 of the Labor Code) appears to
be meritorious. Since three (3) years have already elapsed, the
overtime rate of 35% has ripened in to practice and policy, and
cannot anymore be removed. (Sevilla Trading v. Semana, 428
SCRA 239; 2004). This is deliberate, consistent and practiced
over a long period of time. (2013 BAR EXAM, Q#3)
XXI.
Philippine Electric Company is engaged in electric power
generation and distribution. It is a unionized company with
Kilusang Makatao as the union representing its rank-and-file
employees. During the negotiations for their expired collective
bargaining agreement (CBA), the parties duly served their
proposals and counter-proposals on one another. The parties,
however, failed to discuss the merits of their proposals and
counter-proposals in any formal negotiation meeting because

their talks already bogged down on the negotiation ground rules,

i.e., on the question of how they would conduct their negotiations,
particularly on whether to consider retirement as a negotiable
issue.
Because of the continued impasse, the union went on strike. The
Secretary of Labor and Employment immediately assumed
jurisdiction over the dispute to avert widespread electric power
interruption in the country. After extensive discussions and the
filing of position papers (before the National Conciliation and
Mediation Board and before the Secretary himself) on the validity
of the union's strike and on the wage and other economic issues
(including the retirement issue), the DOLE Secretary ruled on the
validity of the strike and on the disputed CBA issues, and ordered
the parties to execute a CBA based on his rulings.
Did the Secretary of Labor exceed his jurisdiction when he
proceeded to rule on the parties' CBA positions even though the
parties did not fully negotiate on their own?
SUGGESTED ANSWER:
No. The power of the Secretary of Labor under Article 263(g) is
plenary. He can rule on all issues, questions or controversies
arising from the labor dispute, including the legality of the strike,
event those over which the Labor Arbiter has exclusive
jurisdiction. (Bagong Pagkakaisa ng mga Manggagawa sa
Triumph International v. Secreatary, GR. Nos. 167401 and
167407, July 5, 2010). (2013 BAR EXAM, Q#7)
XXII.
Badong works as a driver at the National Tire Company (NTC). He
is a member of the Malayang Samahan ng Manggagawa sa NTC,

the exclusive rank-and-file collective bargaining representative in

the company. The union has a CBA with NTC which contains a
union security and a check-off clause. The union security clause
contains a maintenance of membership provision that requires all
members of the bargaining unit to maintain their membership in
good standing with the union during the term of the CBA under
pain of dismissal. The check-off clause on the other hand
authorizes the company to deduct from union members' salaries
defined amounts of union dues and other fees. Badong refused to
issue an authorization to the company for the check-off of his
dues, maintaining that he will personally remit his dues to the
union.
1. Would the NTC management commit unfair labor practice if
it desists from checking off Badong's union dues for lack of
individual authorization from Badong?
SUGGESTED ANSWER:
No. Under RA 9481, violation of the Collective Bargaining
Agreement, to be an unfair labor practice, must be gross in
character. It must be a flagrant and malicious refusal to comply
with the economic provisions of the CBA.
ALTERNATIVE ANSWER:
No. Check-offs in truth impose an extra burden on the employer in
the form of additional administrative and bookkeeping costs. It is
a burden assumed by management at the instance of the union
and for its benefit, in order to facilitate the collection of dues
necessary for the latters life and sustenance. But the obligation
to pay union dues and agency fees obviously devolves not upon
the employer, but the individual employee. It is a personal
obligation not demandable from the employer upon default or
refusal of the employee to consent to a check-off. The only
obligation of the employer under a check-off is to effect the

deductions and remit the collections to the union. (Holy Cross of

Davao College vs. Joaquin, GR No. 110007; 1996)
2. Can the union charge Badong with disloyalty for refusing to
allow the check off of his union dues and, on this basis, ask
the company to dismiss him from employment?
SUGGESTED ANSWER:
No. The check-off clause in the CBA will not suffice. The law
prohibits interference with the disposition of ones salary. The law
requires individual written authorization to deduct union dues
from Badongs salaries. For as long as he pays union dues,
Badong cannot be terminated from employment under the union
security clause. As a matter of fact, filing a complaint against the
union before the Department of Labor for forcible deduction from
salaries does not constitute acts of disloyalty against the union.
(Tolentino v. Angeles, 52 O.G. 4262) (2013 BAR EXAM,
Q#9)
XXIII.
Don Juan Miguel, a widower, lived alone in a house with a large
garden. One day, he noticed that the plants in his garden needed
trimming. He remembered that Sergio, a 17-year old out-of-school
youth, had contacted him in church the other day looking for
work. He contacted Sergio who immediately attended to Don Juan
Miguels garden and finished the job in three days.
1. Is there an employer-employee relationship between Don
Juan Miguel and Sergio?
SUGGESTED ANSWER:
Yes. All the elements of employer-employee relationship are
present, viz:
1. Selection and engagement of the employees

2. Power of dismissal
3. Payment of wages and
4. The power to control the employees conduct
There was also no showing that Sergio has his own tools, or
equipment so as to qualify him as an independent contractor.
ALTERNATIVE ANSWER:
None. Lando is an independent contractor for Don Luis does not
exercise control over Landos means and method in tending to the
formers garden.
2. Does Don Luis need to register Sergiio with the Social
Security System (SSS)?
SUGGESTED ANSWER:
Yes. Coverage in the SSS shall be compulsory upon all employees
not over sixty years of age.
ALTERNATIVE ANSWER:
No. Sergio is not an employee of Don Juan Miguel. What the
parties have is a contract for a piece of work which, while allowed
by Article 1713 of the Civil Code, does not make Sergio an
employee under the Labor Code and Social Security Act. ( 2014
BAR EXAM, Q#8)
XXIV.
Distinguish between Contract Bar Rule and Deadlock Bar Rule.
SUGGESTED ANSWER:
Under the Contract Bar Rule, a certification election cannot be
held if there is in force and in effect a collective bargaining
agreement that has been duly registered with the DOLE except
during the freedom period of such CBA which is the 60-day period
to the expiry date of said CBA. (Art. 231, 253-A and 256)

Under the Deadlock Bar Rule, a certification election cannot be

held if a bargaining deadlock to which an incumbent or certified
bargaining agent is a party had been submitted to conciliation or
mediation or had become the subject of a valid strike or lockout.
(Sec. 3, Rule XI, Book V of the Implementing Rules and
Regulations of the Labor Code) (1999 BAR EXAM)
XXV.
Celia was employed by Chenelyn State University (CSU) to cook
for the members of a religious order who teach and live inside the
campus. While performing her assigned task, Celia accidentally
burned herself. Because of the extent of her injuries, she went on
medical leave. Meanwhile, CSU engaged a replacement cook.
Celia filed a complaint for illegal dismissal, but her employer CSU
contended that Celia was not a regular employee but a domestic
househelp. Decide.
SUGGESTED ANSWER:
The employers argument that Celia was not a regular employee
has no merit. The definition of domestic servant or househelper
contemplates one who is employed in the employers home to
minister exclusively to the personal comfort and enjoyment of the
employers family. The Supreme Court already held that the mere
fact that the househelper is working in relation or in connection
with its business warrants the conclusion that such househelper
or domestic servant is and should be considered as a regular
employee. (Apex Mining Co. Inc vs. NLRC, GR No. 94951,
April 22, 1991). Here, Celia was hired not to minister to the
personal comfort and enjoyment of her employers family but to
attend to other employees who teach and live inside the campus.
ALTERNATIVE ANSWER:
The complaint for illegal dismissal should be dismissed. There was
no showing that in hiring the replacement cook, CSU severed its
employer-employee relationship with Celia. In illegal dismissal

cases, an employee must first establish, by substantial evidence,

the fact of dismissal before shifting to the employer the burden of
proving the validity of such dismissal. (Grand Asian Shipping
Lines, Inc, Eduardo P. Francisco and Willian How vs.
Wlifred Galvez, et al. GR No. 178184, January 29, 2014).
Here, Celias dismissal was not clearly established. (2014 BAR
EXAM, Q#1)
XXVI.
Starbecks Supervisory Employees Union filed a petition for the
holding of a certification election among the supervisory
employees of Starbecks Company. The company moved to
dismiss the petition on the ground that Union members were not
performing managerial functions and were not merely supervisory
employees. The company also alleged that a certified bargaining
unit existed among its rank and file employees which barred the
filing of the petition.
Does the company have the standing to file the motion to
dismiss? Explain.
SUGGESTED ANSWER:
No, the company has no standing to file the motion to dismiss as
the employer has no right to interfere in a purely union matter or
concern. (Philippine Fruits and Vegetables Industries, Inc.
vs. Torres, 211 SCRA 95, 1992)
The Court would wish to stress once more the rule which it has
consistently pronounced in many earlier cases that a certification
election is the sole concern of the workers and the employer is
regarded as nothing more than a bystander with no right to
interfere at all in the election. (1996 BAR EXAM)
XXVII.

In anticipation of the expiration of CBA between Shell and Union

Ganda, the parties started negotiations for new CBA. The union
requested a 20% annual across-the-board basic salary increase
for the next three years. After a series of negotiation, Shell
proposed the declaration of deadlock and recommended that the
help of third party be sought. On that same day, the union filed a
Notice of Strike which the Sec. of Labor denied because the CBA
provision ground rule states that mutual consent of the parties is
required before a declaration of bargaining deadlock. Is the Sec.
of Labor correct in ruling that a declaration of deadlock is needed
before a union can commence a strike?
SUGGESTED ANSWER:
No, the reliance on the ground rule is wrong. A mutual declaration
would neither add to nor subtract from the reality of deadlock
existing between the parties. Thus, the absence of parties mutual
declaration of deadlock does not mean that there is no deadlock.
At most, it would have been simply a recognition of the prevailing
status quo of the parties. A mere formality which cannot defeat
the need to grant the Notice of Strike. (Tabangao Shell
Refinery Employees Association vs Pilipinas Shell
Corporation, G.R. No. 170007, April 7, 2014) (Actual case
penned by 2015 Bar Chairman)
XXVIII.
Antonio Antuquin, a security guard, was caught sleeping on the
job while on duty at the Yosi Cigarette Factory. As a result, he was
dismissed from employment by the Wagan Security Agency, an
independent contractor. At the time of his dismissal, Antonio had
been serving as a watchman in the factory for many years, often
at stretches of up to 12 hours, even on Sundays and holidays,
without overtime, nighttime and rest day benefits, He thereafter
filed a complaint for illegal dismissal and non-payment of benefits
against Yosi Cigarette Factory, which he claimed was his actual
and direct employer. As the Labor Arbiter assigned to hear the
case, how would you correctly resolve the following: (a) Antonio's
charge of illegal dismissal; and (b) Antonio's claim for overtime
and other benefits.
SUGGESTED ANSWER:

(a) This is a case involving permissible job contracting. Antonio's

charge of illegal dismissal against Yosi Cigarette Factory will not
prosper. Wagan Security Agency, an independent contractor, is
Antonio's direct employer. Yosi is only Antonio's indirect employer
(Art. 109, Labor Code). By force of law, there is in reality no
employer-employee relationship between Yosi and Antonio.
(b) Antonio's claim for overtime and other benefits should be paid
by Yosi Cigarette Factory. The Labor Code provides that in the
event that the contractor or subcontractor fails to pay the wages
of his employees, the employer shall be jointly and severally
liable to the extent of the work performed under the contract in
the same manner and extent that he is liable to employees
directly employed by his contractor or subcontractor for any
violation of any provision of the Labor Code.
XXIX.
Among the 400 regular rank-and-file workers of MNO Company, a
certification election was ordered conducted by the Med-Arbiter of
the Region. The contending parties obtained the following votes:
1. Union A
- 70
2. Union B
- 71
3. Union C
- 42
4. Union D
- 33
5. No union
- 180
6. Spoiled votes - 4
There were no objections or challenges raised by any party on the
results of the election.
May the management or lawyer of MNO Company legally ask for
the absolute termination of the certification election proceedings
because 180 of the workers a clear plurality of the voters
have chosen not to be represented by any union?
SUGGESTED ANSWER:
No, because 216 workers want to be represented by a union as
bargaining agent. Only 180 workers opted for No Union. Hence, a
clear majority is in favor of being represented by a union.
XXX.
There are instances when a certification election is mandatory.
What is the rationale for such a legal mandate?

SUGGESTED ANSWER:
According to the Labor Code, in any establishment where there is
no certified bargaining agent, a certification election shall
automatically be conducted by the Med-Arbiter upon the filing of
a petition by a legitimate labor organization. In the abovedescribed situation, a certification election is made mandatory
because if there is no certified bargaining agent as determined by
a certification election, there could be no collective bargaining in
the said unorganized establishment.