2007 bar questions and suggested answers (LABOR LAW AND SOCIAL LEGISLATION)

Wednesday, April 15, 2009 Posted by Coffeeholic Writes Labels: Bar Examination

Labor and Social Legislation -I(5 Points) a. What is the principle of codetermination? The principle of co-determination refers to the right of workers to participate in policy and decision-making processes directly affecting their rights and benefits, without intruding into matters of management prerogatives. (PAL v. NLRC, G.R. No. 85985, August 13, 1993). b. What, if any, is the basis under the Constitution for adopting it? Article XII (On Social Justice and Human Rights), Sec. 3, par. 2 provides, among others, that workers shall also participate in policy and decisionmaking processes affecting their rights and benefits as may be provided by law. - II (5 Points) a. Discuss the statutory restrictions on the employment of minors? Under Article 139 of the Labor Code, as amended, it is prohibited to employ minors in hazardous, or deleterious and immoral undertakings. It also prescribes that no child below 15 shall be employed unless he works directly under his parents or guardians and his work does not interfere with his schooling; those between 15 and 18 shall comply with appropriate DOLE regulations. b. May a house help be assigned to non-household work? Alternative Answer: No. Under Article 145 of the Labor Code, no househelper shall be assigned to

work in a commercial, industrial or agricultural enterprise at a wage salary ratelower than that provided for agricultural or non-agricultural workers as described herein. Alternative Answer: Yes, provided that he/she receives a salary not lower than that provided for non-agricultural workers. - III (5 Points) a. Discuss the types of illegal recruitment under the Labor Code. Types of illegal recruitment under the Labor Code are: 1. Recruitment by a non-licensee. 2. Simple illegal recruitment is committed by a licensee against one or two persons only. (People v. Sadiosa, G.R. No. 107084, May 15, 1988). 3. Large scale or qualified recruitment which is committed against three or more persons, individually or as a group. 4. Illegal recruitment is qualified as economic sabotage when done by a syndicate or where it is committed in large scale. b. In initiating actions against alleged illegal recruiters, may the Secretary of Labor and Employment issue search and arrest warrants? No, the Secretary of DOLE, not being a judge, cannot issue a search or arrest warrants. Under Article III, Section 2 of the 1987 Constitution, it is only judges, and no other, who may issue warrants of arrest and search. (Salazar v. Achacoso, G.R. No. 81510, March 14, 1990). - IV (5 Points)

Explain a. The Globe Doctrine. The Globe Doctrine refers to the method of determining the will or desire of the employee which is an important factor in determining the appropriate bargaining unit. The best way to determine such preference is through referendum or plebiscite. (Globe Machine & Stamping Company, 3 NLRB 294 [1937]). b. The Community of Interest Rule. Alternative Answer: The Community of Interest Rule states that the employees within an appropriate bargaining unit must have commonality of collective bargaining interests as well as substantial mutual interests in terms of employment and working conditions as evidenced by the type of work they perform. (San Miguel Corporation v. Laguesma, G.R. No. 100485, September 21, 1984). Alternative Answer: Under the Community of Interest Rule, groups having substantial similarity of work and duties or similarity of working conditions shall constitute the appropriate bargaining unit. (Rothenberg, Labor Relations, pages 490-491.) -V(5 Points) May non-lawyers appear before the NLRC or Labor Arbiter? May they charge attorney's fee for such appearance provided it is charged against union funds and in an amount freely agreed upon by the parties? Discuss fully. Yes, non-lawyers may appear before the Commission or any Labor Arbiter only: 1. If they represent themselves; or

2. If they represent their own legitimate labor organization or members thereof; or 3. If they are duly accredited by a Legal Aid Office which is DOJ or IBPrecognized. Non-lawyers may not charge attorneys fees though charged against the union funds and agreed upon. Attorneys fees presuppose the existence of an attorney-client relationship. (PAFLU v. BISCOM, G.R. No. L-23959, November 29, 1971). - VI (5 Points) Procedurally, how do you stay a decision, award or order of the Labor Arbiter? Discuss fully. Alternative Answer: By filing for injunction within ten (10) calendar days from the receipt of the decision on the grounds of grave abuse, intrinsic fraud, on pure questions of law and/or serious, erroneous factual findings causing grave or irreparable damage, and such other grounds under Article 223 of the Labor Code, as amended. Alternative Answer: Except for the reinstatement aspect, it is stayed by filing an appeal within ten (10) calendar days from the receipt, subject to the posting of an appeal bond if there is a monetary award. - VII (5 Points) a. May the NLRC or the courts take jurisdictional cognizance overcompromise agreements/settlements involving labor matters? Alternative Answer: Article 227 provides that any compromise agreement involving labor matters

entered into by the parties with the assistance of the DOLE shall be final and binding upon the parties, except in cases of non-compliance or, if based on fraud, when misrepresentation or coercion is present. Alternative Answer: Yes, provided the compromise settlement was executed with the assistance of the BLR or the regional office of the DOLE as required by Article 227 of the Labor Code. The execution of a compromise settlement is only valid with the assistance of the BLR or the regional office of the DOLE. (Mindoro Lumber and Hardware v. Bacay, et.al. G.R. No. 158753, June 8, 2005). b. How sacrosanct are statements/data made at conciliation proceedings in the Department of Labor and Employment? What is the philosophy behind your answer? Under Article 223, statements made at conciliation proceedings are privileged communications that can neither be used as evidence nor can conciliators testify on any matters taken up in the proceedings. The philosophy is to ascertain the truth about the controversy which the parties may be afraid to divulge if the revelations can be utilized against them later on. - VIII (5 Points) 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. Jurisdiction over unfair labor practices which are also criminal offenses initially lies with the Labor Arbiters. No criminal prosecutions can be instituted without final judgment that an unfair labor practice has in fact been committed. The administrative findings are neither binding in the criminal case nor available as evidence of guilt, but merely prove procedural compliance.

In a labor dispute involving national interest, the Secretary of Labor under Article 263 (g) may take cognizance of the civil or administrative aspect of the labor case, depriving the Labor Arbiter from taking cognizance of the unfair labor practice case. After the finality of judgment finding ULP, the criminal aspect can be instituted before the prosecutor. - IX (5 Points) Discuss the legal requirements of a valid strike. It must comply with the purpose and means test which means that both the purpose and the means to carry out the strike must be legal. The purpose must be based solely on bargaining deadlock (economic) and/or unfair labor practice (political). The means to carry out the strike should also be legal where there should be no illegal acts committed in the course of the strike. -X(5 Points) Discuss briefly the instances when non-compliance by the employer with a reinstatement order of an illegally dismissed employee is allowed. When reinstatement is no longer feasible due to strained employeremployee relationship, bona fide closure of business, valid abolition of position, health and/or age reasons, separation pay in lieu of reinstatement may be allowed. - XI (5 Points) a. A rule, when As a rule, optional retirement is due at retirement at the age of 65, with at least 5 may be provided for in the CBA or is retirement due? the age of 60 and compulsory years of service (R.A. 7641) or as company retirement program.

b. When is retirement due for underground miners? Optional retirement is due for underground miners upon reaching the age of

50 years or more and compulsory retirement at age of 60 provided he has serve at least 5 years as such. (R.A. 8558). - XII (5 Points) a. How do you execute a labor judgment which, on appeal, had become final and executory? Discuss fully. By filing a motion for execution and serving a writ of execution to be served by the sheriff or such law enforcement agency as may be deputized by the DOLE or NLRC. It may also be issued motu propio by the Labor Arbiter. (Articles 223 and 224, Labor Code). b. Cite two instances when an order of execution may be appealed. 1. When execution becomes impossible or unjust, it may be modified or altered on appeal to harmonize the same with justice and the facts (Torres v. NLRC, G.R. No. 107014, April 12, 2000) 2. Supervening events may warrant modification in the execution of the judgment as when reinstatement is no longer possible because position was abolished as a cost-cutting measure due to losses. (Abalos v. Philex Mining Corp., G.R. No. 140374, November 27, 2002) 3. Where the writ is found defective, exceeds or varies the award and/or is irregularly issues. (DBP v. Union Bank, G.R. No. 155838, January 13, 2004; Metrobank v. CA, G.R. No. 110147, April 17, 2001) 4. Where there is wrongful computation of the award. - XIII (5 Points) May a decision of the Labor Arbiter which has become final and executory be novated through a compromise agreement of the parties? Compromise agreement is encouraged and authorized by law. Hence, they

may be made even when the judgment is final and executory. (Jesalva v. Bautista, 105 Phil 348, 24 March 1959) The validity of the agreement is determined by the compliance with the requisites and principles of contract, and not by the time it was entered into. As provided by the law on contract, a valid compromise must have the following elements: (1) the consent of the parties to the compromise; (2) an object certain that is the subject matter of the compromise, and (3) the cause of the obligation that is established. (Magbanua v. Uy, G.R. No. 161003, May 05, 2005) - XIV (5 Points) AB, single and living-in with CD (a married man), is pregnant with her fifth child. She applied for maternity leave but her employer refused the application because she is not married. Who is right? Decide. While the maternity leave is rightfully denied, the employers reason is misplaced. The SSS law does not require marriage for entitlement. However, since AB is already pregnant with her fifth child, she can no longer claim for maternity leave benefits. - XV (5 Points) Some officers and rank-and-file members of the union staged an illegal strike. Their employer wants all the strikers dismissed. As the lawyer, what will you advise the employer? Discuss fully. There is no wholesale dismissal of strikers even if the strike was declared illegal. Under Article 264 of the Labor Code, mere participation of a worker in an illegal strike shall not constitute sufficient ground for termination. Union officers, however, who knowingly engaged in an illegal strike are deemed to have lost their employment status. For a worker or union member to suffer loss of employment, he must have knowingly participated in the commission of illegal act during the strike. (CCBPI Postmix Workers Union v. NLRC, G.R. No. 114521, November 27, 1998; International

Container Terminal Services, Inc., v. NLRC, G.R. NO. 115452, December 21, 1996). - XVI (5 Points) A carpenter is employed by a private university in Manila. Is the carpenter a regular or a casual employee? Discuss fully. Alternative Answer The carpenter is a casual employee. Under the reasonable casual connection rule, the carpenters work is not usually necessary and desirable in the usual trade or business of the employer university. Alternative Answer If the employment of the carpenter is occasional or sporadic and brief in nature, his employment us casual, because the work he is performing is not in the usual course of the schools trade or business. However, if the carpenter has rendered services for at least one year, whether continuous or broken, he becomes a regular employee by operation of law, with respect to the activity for which he is employed. His employment shall continue while such activity exists. (Article 280, Labor Code; See also Philippine Geothermal, Inc., v. NLRC, G.R. Nos. 82643-67, August 30, 1990; Kimberly Independent Labor Union, etc. v. Drilon, G.R. Nos. 77629 and 78791, May 9, 1990). - XVII (5 Points) P.D. 1508 requires the submission of disputes before the Barangay Lupong Tagapamayapa prior to the filing of cases with the courts or other government bodies. May this decree be used to defeat a labor case filed directly with the Labor Arbiter? Discuss fully. Labor disputes are the exception to P.D. 1508 (Montoya v. Escayo, G.R. 82211-12, March 21, 1989). Under Article 226, motions to dismiss before the Labor Arbiter are only allowed on grounds to dismiss before the Labor

Arbiter are only allowed on grounds of lack of jurisdiction, improper venue and bar by prior judgment or prescription is not a valid ground to defeat the labor case. - XVIII (5 Points) Inday was employed by mining company X to perform laundry service at its staffhouse. While attending to her assigned task, she slipped and hit her back on a stone. Unable to continue with her work, she was permitted to go on leave for medication, but thereafter she was not allowed to return to work. She filed a complaint for illegal dismissal but her employer X contended that Inday was not a regular employee but a mere househelp. Decide. Inday is a regular employee because she performs work that is usually necessary and desirable in the business of the mining company. Services rendered in a staff house of a company within the premises of a company cannot be considered as household work. (Apex Mining Company, Inc., v. NLRC., G.R. No. 94951, April 22, 1991). - XIX (5 Points) Cite five grounds for disciplinary action by the Philippine Overseas Employment Administration (POEA) against overseas workers. Pre-Employment Stage: 1. Using false information or documents for job application; 2. Unjustified refusal to depart for overseas assignment. Employment Stage: 1. Commission of a criminal offense punishable by Philippine or host country laws; 2. Unjustifiable breach of POEA contract; 3. Embezzlement of company funds; 4. Embezzlement of money or property of fellow workers entrusted for

delivery to relatives in the Philippines; 5. Violation of the religions or sacred practices of host country; 6. Drunkenness and disorder; 7. Desertion or abandonment of work; 8. Immoral activities, including prostitution; 9. Illegal gambling; 10. Drug addiction; 11. Creating trouble at the worksite or in the vessel; 12. Initiating or joining a strike or work stoppage where the host country prohibits the same; 13. Mutiny - XX (5 Points) AB, a non-resident American, seeks entry to the country to work as VicePresident of a local telecommunications company. You are with the Department of Labor and Employment (DOLE). What permit, if any, can the DOLE issue so that AB can assume as Vice-President in the telecommunications company? Discuss fully. AB must secure an employment permit and employment registration certificate from the DOLE, who shall issue it after determining that there is no other person in the Philippines who is competent, able or willing to do work for which the alien is hired. NOTHING FOLLOWS.