LABOR LAW BAR EXAMS 2017

I
a. What are the accepted tests to determine the existence of an employer-employee relationship? (5%)

Ans: The usual test used to determine the existence of employer-employer relationship is the so-called four-fold test.

In applying this test, the following elements are generally considered:

1. Right to hire or to the selection and engagement of the employee.
2. Payment of wages, salaries, compensation or remuneration for services.
3. Power of dismissal or the power to impose disciplinary actions.
4. Power to control the employee with respect to the means and methods by which the work is to be accomplished or power to
control the employee’s conduct or performance, known as the Control test.

Note: Economic Reality Test; when an employee’s livelihood is dependent to his work.

b. Applying the tests to determine the existence of employer-employee relationship, is a jeepney driver operating under the
boundary system an employee of the jeepney operator or a mere lessee of the jeepney? Explain your answer. (3%)

Ans: 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. (Martinez v. NLRC, G.R. No. 117495, May 29, 1997).

The features which characterize, the "boundary system" – namely, the fact that the driver does not receive a fixed wage but
gets only the excess of the amount of fares collected by him over the amount he pays to the jeep- owner, and that the gasoline
consumed by the jeep is for the account of the driver – are not sufficient to withdraw, the relationship between them from that of
the employer and employee. (National Labor Union v. Dinglasan, G.R. No. L-14183, Nov. 4, 1993)

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%)

Ans: NLRC ruling is not correct, Article 4 as was held in several cases by the Supreme Court applies when the the existence
of doubts are apparent with respect to the interpretation or implementation of the Labor Code and its implementing rules, also
includes the Rules of Evidence, which must be made by two or more forum. Here, it was the Labor Arbiter's ruling alone that created
doubt in the appreciation of the evidence so that it cannot be a proper basis in applying Art 4 of the Labor Code. The reversal ruling
may be proper if the same was decided in the Appellate Court such as Court of Appeals or the Supreme Court as the case may be.

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 an agency agreement with Invictus Shipping. Is AMA correct? Explain your
answer. (3%)

Ans: AMA is not correct. the outright termination of Feliciano's overseas employment contract by reason of severance of
agency between the foreign principal and AMA was not a valid or authorized cause as defined by law or contract, and thus
constitutes illegal dismissal of the former. The agency agreement between the two was immaterial in the enforcement of Feliciano's
employment contract and beyond his control so that AMA can be held liable of his unpaid salaries and benefits for the unserved
portion of the contract.

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

Ans: Under Article 18 of PD 442; (1) Those hired by international organizations; (2) Those hired by 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 and agency. Employed through his own efforts; and (4) Employers allowed by the Sec of labor and
employment to directly hire their workers.
c. Phil, a resident alien, sought employment in the Philippines. The employer, noticing that Phil was a foreigner, demanded that
he first secures an employment permit from the DOLE. Is the employer correct? Explain your answer. (2.5%)

Ans: No, the Labor Code provides for certain exceptions to the alien employment permit requirement. Resident foreign
nationals and temporary or probationary resident visa holders employed or seeking employment in the Philippines are exempt from
such requirement.

IV.
The Regional Tripartite Wages 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%)

Ans:

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%)

Ans:

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 standby 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%)

Ans: The mealtime worked is compensable but is not subject to overtime premium. This is because mealtime breaks are
usually in the middle of the 8 hour work period. The last hour which is considered to be in excess of the 8 hour work period will be
the one subjected to overtime pay.

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

Minimum Age Requirement
Nature of Occupation
Nature of Training
Duration of Training
Nature of Industry
When to hire
Continuity of employment
Criminal Liability
LEARNERS APPRENTICES
15 years old 14 years old
Hired for semi – skilled or non – Hired for skilled or apprenticeable
apprenticeable occupations occupations
Does not undergo theoretical instructions Undergoes theoretical instructions
3 months 6 months
Can be hired even if the employer is not a Can be hired only in a highly technical
highly technical industry industries
Can be hired only when there are no available Can be hire even if there are available
experienced workers experienced workers
Become regular employees upon the Employment terminates upon expiration of
expiration of the learnership the apprenticeship
Violation of the learnership law – a criminal Violation of the Apprenticeship law – not a
offense criminal offense

c. Are there differences between a househelper and a homeworker? Explain your answer. (4%)

Ans: A househelper is synonymous to domestic servant.

1. Any person, male or female;

2. Who renders services in and about the Employers home and;
3. Perform services which are usually necessary or Desirable for the maintenance and enjoyment thereof, and
4. Ministers exclusively to the personal comfort and enjoyment of Employers family

While, a homeworker are those who perform in or about his own home any processing or fabrication of goods
or materials, in whole or in part, which have been furnished directly or indirectly, by an Er and sold thereafter to the
latter.
 VI.
a. One of 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%)

Ans: No, void as against public policy. Said policy violates the equal protection clause of the Constitution.

b. Tarcisio was employed as operations manager and received a monthly salary of P25,000 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 salaries were exempt
from garnishment. Is Tarcisio correct? Explain your answer. (3%)

Ans: No, the regular court may issue an order for garnishment the salary of an employee in payment of his overdued debt,
in accord with the principle on unjust enrichment. In the Case of Gaa v. CA, the Supreme Court explained that “salary” does not fall
within the exemption; hence it could be the subject of garnishment or attachment.

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 Hotel and Resort, which, in turn, would provide the
clinic premises and medical supplies. He received a monthly retainer fee of P60,000, plus 70% share in the service charges from
AB Hotel and 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 the guests. In time,
the nurses and the clinic staff claimed entitlement to rights as regular employees of AB Hotel and Resort, but the latter refused on
the ground that Dr. Crisostomo, who was their employer, was an independent contractor. Rule with reasons. (4%)

Ans:

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 for a third time after another nine months. He now claims entitlement to the benefits
of a regular employee based on his having 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 your answer. (3%)

Ans: No. Seafarers are not considered regular employees. "There are certain forms of employment which also require the
performance of usual and desirable functions and which exceed one year but do not necessarily attain regular employment status
under Article 280. Overseas workers including seafarers fall under this type of employment (Millares v. NLRC)."

IX.
Section 255 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 organize and
form unions. Explain your answer. (5%)

Ans:
1. Managerial Employees ‐ One who is vested with the powers or prerogatives to lay down and execute
management policies and/or to hire, transfer, suspend, lay‐off, recall, discharge, assign or discipline Employees. May not
organize and form unions.
2. Supervisory Employees ‐ those who in the interest of the Employer, effectively recommend such managerial
actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent
judgment. May not Organize and Form Unions
3. Rank‐and‐File Employees ‐ all Employees not falling within any of the above definitions. (Art. 212[m]). May
organize and for unions

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%)

Ans: No
 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, and give the effect of a finding that one is a labor-only contractor. Explain your answers.
(4%)

Ans: There is “job contracting” where:

1. The contractor carries on an independent business and undertakes the contract work on his own
account under his own responsibility according to his own manner and method, free from the control and
direction of his employer or principal in all matters connected with the performance of the work except as to the
results thereof; and
2. The contractor has substantial capital (5 million) or investment in the form of tools, equipment,
machineries, work premises, and other materials which are necessary in the conduct of his business.

A person is deemed to be engaged in “labor‐only” contracting where:

1. The person supplying workers to an employer does not have substantial capital or investment in the for
of tools, equipment, machineries, work premises, among others; and
2. The workers recruited and placed by such person are performing activities which are directly related to
the principal business of such employer. (Baguio v. NLRC, G.R. No. 79004‐08, Oct. 4, 1991)

A finding that a contractor is a “labor‐only” contractor is equivalent to declaring that there is an

employer‐employee relationship between the principal and the employees of the “labor‐only” contractor. (Assoc.
Anglo‐American Tobacco Corp. v. Clave, G.R. No. 50915, Aug. 30, 1990)

b. What are the grounds for validly terminating the services of an employee based on a just cause? (5%)

Ans:
1. Serious misconduct or willful disobedience by the employee (Ee) of the lawful orders of his employer (Er) or
representative in connection with his work.
2. Gross and habitual neglect by the Ee of his duties
3. Fraud or willful breach by the Ee of the trust reposed in him by his Er or duly organized representative
4. Commission of a crime or offense by the Ee against the person of his Er or any immediate member of his family
or his duly authorized representative.
5. Other causes analogous to the foregoing

Note: The burden of proving that the termination was for a valid or authorized cause shall rest on the Er.

c. Give the procedure to be observed for validly terminating the services of an employee based on a just cause. (4%)

Ans: Twin – Notice Rule

a. A notice charging the employee of the particular acts or omissions that may cause his dismissal.
b. The Subsequent notice which informs the employee of the employer’s decision.

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%)

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-laws. Is the argument of Marcel correct? Explain your answer. (2.5%)

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

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%)

B.
Gene is a married regular employee of Matibay Corporation. The employees and Matibay Corporation had an existing CBA that
provided for funeral and bereavement aid of P15,000 in case of the death of a legal dependent of a regular employee. His
widowed other, 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 dependent 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%)

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

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 a client of the company in Zimbabwe in order to derive the
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 Employees’ 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%)

XIII.

A.
Given that the liability of 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%)

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%)

C.
Due to business recession, Ballistic Company retrenched 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%)

XIV.
Pursuant to his power under Sec. 278(9) (263(g)) of the Labor Code, the Secretary of Labor assumed jurisdiction over the 3-day old
strike Armor Steel Plates Inc., one of the country's bigger manufacture 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%)

(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%)