I was asked to prepare questions with suggested answers for Political Law and Labor Law for the mock bar exams of all Thomasian barristers. I’m providing a copy of everything I have prepared. I hope that they’ll be helpful to other barristers.
I’m about to finish the reviewer for Constitutional Law. I’ll also post a copy here.
I’m about to finish the reviewer for Constitutional Law. I’ll also post a copy here.
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“A” was hired by company “B” in January 1980 until A was illegally dismissed on April 30, 1990 as found by a Labor Arbiter who ordered reinstatement and full backwages from April 30, 1990 until A’s reinstatement. The Arbiter’s decision was promulgated on April 29, 1995. B appealed claiming, among others, that the award for backwages was excessive in that it went beyond three-year rule set forth in Mercury Drug v. CIR (56 SCRA 696). Is B’s contention tenable? Why?
Suggested Answer:
No, the contention of “B” is not tenable.
Rep. Act. No. 6715, which was enacted in 1989, in effect set aside the three-year rule set forth in Mercury Drug v. CIR (56 SCRA 696) when it provided that the full backwages that an unjustly dismissed employee shall receive shall be computed from the time his compensation was withheld from him up to the time of his actual reinstatement.
The word “actual” was inserted in the law by Rep. Act No. 6715. Thus, in accordance with the aforesaid law, an unjustly dismissed employee shall receive his full backwages computed from the time his compensation was withheld from him up to the time of his actual reinstatement even if this period is more than three years.
Another Suggested Answer:
No, the contention of “B” is not tenable. The Supreme Court (In Ferrer v. NLRC, July 5, 1993) abandoned the Mercury Drug Rule and in 1996 Bustamante v. NLRC, 265 SCRA 61 the Supreme Court said:
[Quoting Article 279 of the Labor Code] Under the above quoted provision, it became mandatory to award backwages to illegally dismissed regular employees. The law specifically declared that the award of backwages was to be computed from the time of his reinstatement.
xxx
The clear legislative intent of the amendment in R.A. No. 6715 is to give more benefits to the workers than was previously given them under the Mercury Drug rule. In other words, the provision calling for “full backwages” to illegally dismissed employees is clear, plain and free from ambiguity, and, therefore, must be applied without attempted or strained interpretation.
Suggested Answer:
No, the contention of “B” is not tenable.
Rep. Act. No. 6715, which was enacted in 1989, in effect set aside the three-year rule set forth in Mercury Drug v. CIR (56 SCRA 696) when it provided that the full backwages that an unjustly dismissed employee shall receive shall be computed from the time his compensation was withheld from him up to the time of his actual reinstatement.
The word “actual” was inserted in the law by Rep. Act No. 6715. Thus, in accordance with the aforesaid law, an unjustly dismissed employee shall receive his full backwages computed from the time his compensation was withheld from him up to the time of his actual reinstatement even if this period is more than three years.
Another Suggested Answer:
No, the contention of “B” is not tenable. The Supreme Court (In Ferrer v. NLRC, July 5, 1993) abandoned the Mercury Drug Rule and in 1996 Bustamante v. NLRC, 265 SCRA 61 the Supreme Court said:
[Quoting Article 279 of the Labor Code] Under the above quoted provision, it became mandatory to award backwages to illegally dismissed regular employees. The law specifically declared that the award of backwages was to be computed from the time of his reinstatement.
xxx
The clear legislative intent of the amendment in R.A. No. 6715 is to give more benefits to the workers than was previously given them under the Mercury Drug rule. In other words, the provision calling for “full backwages” to illegally dismissed employees is clear, plain and free from ambiguity, and, therefore, must be applied without attempted or strained interpretation.
What requisites must a Union comply with before it can validly impose special assessments against its members for incidental expenses, attorney’s fees, representation expenses and the like?
Suggested Answer:
The Labor Code (in Art. 241(n)) provides that “no special assessments or other extraordinary fees may be levied upon the members of a labor organization unless authorized by a written resolution of a majority of all the members at a general membership meeting duly called for the purpose.”
Another Suggested Answer:
In the case of ABS-CBN Employees Supervisors Union vs. ABS-CBN Broadcasting Corp., and Union Officers, G.R. No. 106518, March 11, 1999, the Supreme Court ruled that the following are the requisites:
1. Authorization by a written resolution of the majority of all members at the general membership meeting duly called for the purpose;
2. Secretary’s record of the minutes of meeting; and
3. Individual written authorization for check-off duly signed by the employee concerned. (See also: Gabriel vs. Secretary of Labor, G.R. No. 115949, March 16, 2000).
Company “A” and Union “B” could not resolve their negotiations for a new CBA. After conciliation proceedings before the NCMB proved futile, B went on strike. Violence during the strike prompted A to file charges against striker-members of B for their illegal acts. The Secretary of Labor assumed jurisdiction, referred the strike to the NLRC and issued a return-to work order. The NLRC directed the parties to submit their respective position papers and documentary evidence. At the initial hearing before the NLRC, the parties agree to submit the case for resolution after the submission of the position papers and evidence.
Subsequently, the NLRC issued an arbitral award resolving the disputed provisions of the CBA and ordered the dismissal of certain strikers for having knowingly committed illegal acts during the strike. The dismissed employees elevated their dismissal to the Court of Appeals claiming that they were deprived of their right to due process and that the affidavits submitted by A were self-serving and of no probative value. Should the appeal prosper? State the reason(s) for your answer clearly.
Suggested Answer:
The appeal should not prosper.
The Supreme Court, in many cases, has ruled that decisions made by NLRC may be based on position papers. In the question, it is stated that the parties agreed to submit the case for resolution after the submission of position papers and evidence. Given this fact, the striker-members of B cannot now complain that they were denied due process. They are in estoppel. After voluntarily submitting a case and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court. A party cannot adopt a posture of double dealing. (Marquez vs. Secretary of Labor, 16 March 1989).
Another Suggested Answer:
No, the appeal will not prosper. In CMP Federal Security Agency vs. NLRC, G.R. No. 125298, February 11, 1999, the Supreme Court ruled:
“The standards of due process that must be met in administrative tribunals allows a certain degree of latitude as long as fairness is not ignored. Hence, it is not legally objectionable for being violative of due process, for the labor arbiter to resolve a case based solely on the position papers, affidavits or documentary evidence submitted by the parties. The affidavits of witnesses in such case may take place of direct testimony.
What conditions must prevail and what requirement, if any, must an employer comply with to justify or effect a valid retrenchment program?
Suggested Answer:
In the case of Asian Alcohol Corp. vs. NLRC, G.R> No. 131108, March 25, 1999, the Supreme Court stated that the requirements for a valid retrenchment must be proved by clear and convincing evidence: (1) that the retrenchment is reasonably necessary and likely to prevent business losses which, if already incurred, are not merely de minimis, but substantial, serious, actual and real or if only expected, are reasonably imminent as perceived objectively and in good faith by the employer; (2) that the employer served written notice both to the employees and to the Department of Labor and Employment at least one month prior to the intended date of retrenchment; (3) that the employer pays the retrenched employees separation pay equivalent to one month pay or at least one month pay every year of service, whichever is higher; (4) that the employer exercises its prerogative to retrench employees in good faith for the advancement of its interest and not to defeat or circumvent the employees ‘right’ to security of tenure; and (5) that the employer used fair and reasonable criteria in ascertaining who would be dismissed and who would be retained among the employees, such as statues (i.e., whether they are temporary, casual, regular or managerial employees), efficiency, seniority, physical fitness, age, and financial hardship for certain workers.
What qualifying circumstances will convert “illegal recruitment” to “economic sabotage,” thus subjecting its perpetrator or perpetrators to a penalty of life imprisonment and a fine of at least P500, 000.00?
Suggested Answer:
The Labor Code (in Art. 241(n)) provides that “no special assessments or other extraordinary fees may be levied upon the members of a labor organization unless authorized by a written resolution of a majority of all the members at a general membership meeting duly called for the purpose.”
Another Suggested Answer:
In the case of ABS-CBN Employees Supervisors Union vs. ABS-CBN Broadcasting Corp., and Union Officers, G.R. No. 106518, March 11, 1999, the Supreme Court ruled that the following are the requisites:
1. Authorization by a written resolution of the majority of all members at the general membership meeting duly called for the purpose;
2. Secretary’s record of the minutes of meeting; and
3. Individual written authorization for check-off duly signed by the employee concerned. (See also: Gabriel vs. Secretary of Labor, G.R. No. 115949, March 16, 2000).
Company “A” and Union “B” could not resolve their negotiations for a new CBA. After conciliation proceedings before the NCMB proved futile, B went on strike. Violence during the strike prompted A to file charges against striker-members of B for their illegal acts. The Secretary of Labor assumed jurisdiction, referred the strike to the NLRC and issued a return-to work order. The NLRC directed the parties to submit their respective position papers and documentary evidence. At the initial hearing before the NLRC, the parties agree to submit the case for resolution after the submission of the position papers and evidence.
Subsequently, the NLRC issued an arbitral award resolving the disputed provisions of the CBA and ordered the dismissal of certain strikers for having knowingly committed illegal acts during the strike. The dismissed employees elevated their dismissal to the Court of Appeals claiming that they were deprived of their right to due process and that the affidavits submitted by A were self-serving and of no probative value. Should the appeal prosper? State the reason(s) for your answer clearly.
Suggested Answer:
The appeal should not prosper.
The Supreme Court, in many cases, has ruled that decisions made by NLRC may be based on position papers. In the question, it is stated that the parties agreed to submit the case for resolution after the submission of position papers and evidence. Given this fact, the striker-members of B cannot now complain that they were denied due process. They are in estoppel. After voluntarily submitting a case and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court. A party cannot adopt a posture of double dealing. (Marquez vs. Secretary of Labor, 16 March 1989).
Another Suggested Answer:
No, the appeal will not prosper. In CMP Federal Security Agency vs. NLRC, G.R. No. 125298, February 11, 1999, the Supreme Court ruled:
“The standards of due process that must be met in administrative tribunals allows a certain degree of latitude as long as fairness is not ignored. Hence, it is not legally objectionable for being violative of due process, for the labor arbiter to resolve a case based solely on the position papers, affidavits or documentary evidence submitted by the parties. The affidavits of witnesses in such case may take place of direct testimony.
What conditions must prevail and what requirement, if any, must an employer comply with to justify or effect a valid retrenchment program?
Suggested Answer:
In the case of Asian Alcohol Corp. vs. NLRC, G.R> No. 131108, March 25, 1999, the Supreme Court stated that the requirements for a valid retrenchment must be proved by clear and convincing evidence: (1) that the retrenchment is reasonably necessary and likely to prevent business losses which, if already incurred, are not merely de minimis, but substantial, serious, actual and real or if only expected, are reasonably imminent as perceived objectively and in good faith by the employer; (2) that the employer served written notice both to the employees and to the Department of Labor and Employment at least one month prior to the intended date of retrenchment; (3) that the employer pays the retrenched employees separation pay equivalent to one month pay or at least one month pay every year of service, whichever is higher; (4) that the employer exercises its prerogative to retrench employees in good faith for the advancement of its interest and not to defeat or circumvent the employees ‘right’ to security of tenure; and (5) that the employer used fair and reasonable criteria in ascertaining who would be dismissed and who would be retained among the employees, such as statues (i.e., whether they are temporary, casual, regular or managerial employees), efficiency, seniority, physical fitness, age, and financial hardship for certain workers.
What qualifying circumstances will convert “illegal recruitment” to “economic sabotage,” thus subjecting its perpetrator or perpetrators to a penalty of life imprisonment and a fine of at least P500, 000.00?
SUGGESTED ANSWER:
Article 38 (b) of the Labor Code, as amended by RA 8042 (Migrant Workers Act) provides that illegal recruitment shall be considered an offense involving economic sabotage if any of the following circumstances exists:
When illegal recruitment is committed by a syndicate. A syndicate exists when three or more persons conspire or confederate with one another in carrying out any unlawful or illegal transaction, enterprise or scheme;
When illegal recruitment is committed in a large scale, as when it is committed against three or more persons individually or as a group.
Is the commission of an unfair labor practice by an employer subject to criminal prosecution?
SUGGESTED ANSWER:
Yes, the second paragraph of Art. 247 of the Labor Code expressly so provides. The last paragraph of Art. 247 provides that no criminal prosecution for unfair labor practice maybe made without a prior final judgment in an unfair labor practice administrative case filed before the labor arbiter of the NLRC pursuant to Art. 217 (a) of the Labor Code and even with such final judgment in an administrative case, still, the final judgment would no longer be binding in the criminal case. Neither would such judgment be considered as evidence in the criminal case. At best, it would only serve as proof of compliance of the required prior exhaustion of the administrative complaint.
How are the “portability” provisions of Republic Act No. 7699 beneficial or advantageous to SSS and GSIS members in terms of their creditable employment services in the private sector or the government, as the case may be, for purposes of death, disability or retirement? Please explain your answers briefly.
SUGGESTED ANSWER:
The portability provisions of Republic Act 7699 allow the transfer of funds for the account and benefit of the worker who transfers from one system to another.
This is advantageous to the SSS and GSIS members for purposes of death, disability or retirement benefits. In the event the employees transfer from the private sector to the public sector, or vice versa, their creditable employment services and contributions are carried over and transferred from one system to the other.
Mariano Martillo was a mason employed by the ABC Construction Company. Every time that ABC had a project, it would enter into an employment contract with Martillo for a fixed period that coincided with the need for his services, usually for a duration of three to six months.
Since the last project involved the construction of a 40-storey building, Martillo was contracted for 14 months. During this period, ABC granted wage increases to its regular employees, composed mostly of engineers and rank-and-file construction workers as a result of the just concluded CBA negotiations. Feeling aggrieved and discriminated against, Martillo and other similarly-situated project workers demanded that the increases be extended to them, inasmuch as they should now be considered regular employees and members of the bargaining unit.
Since the last project involved the construction of a 40-storey building, Martillo was contracted for 14 months. During this period, ABC granted wage increases to its regular employees, composed mostly of engineers and rank-and-file construction workers as a result of the just concluded CBA negotiations. Feeling aggrieved and discriminated against, Martillo and other similarly-situated project workers demanded that the increases be extended to them, inasmuch as they should now be considered regular employees and members of the bargaining unit.
If you were ABC’s legal counsel, how would you respond to this demand?
SUGGESTED ANSWER:
As legal counsel for ABC, I would argue that the employment of Martillo was fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of his engagement. Rendering 14 months of work does not make him a regular employee, when to begin with, he was employed for a specific project, i.e., which is the construction of a particular 40 storey building. The rule on more than 1 year of service making the employment regular applies only to casual employees, hence, Mariano does not belong to the bargaining unit of regular employees.
How is a project worker different from a casual or contractual worker? Briefly explain your answers.
SUGGESTED ANSWER:
A project worker is employed for a specific project or undertaking the completion or termination of which is determined at the time of his engagement. His work need not be incidental to the business of the employer. His work may exceed one year without necessarily making him
regular employee.
A casual employee is engaged to perform a job, work, or service which is incidental to the business of the employer; moreover, the definite period of his employment is made known to him at the time of his engagement. His continued employment after the lapse of one year makes him a regular employee. Under the Social Security Law, employment that is purely casual and not for the purpose of occupation or business of the employer is not under the coverage of the aforesaid law.
A project worker on the other hand, is a specific term used to designate workers in the construction industry hired to perform a specific undertaking for a fixed period which is co- terminus with a project or phase thereof determined at the time of the engagement of the employee, and it is mandatory that a termination report be submitted to the nearest public employment office upon the completion of the construction project. There is no such requirement for an ordinary contractual worker. (Aurora Land vs. NLRC 266 SCRA 48)
Can an overseas worker refuse to remit his earnings to his dependents and deposit the same in the country where he works to gain more interests? Explain.
Suggested Answer:
No, such refusal to remit his earnings to his dependents is not allowed under the law which considers mandatory for all Filipino workers abroad to remit a portion of their foreign exchange earnings to their families, dependents, and/or beneficiaries in the country in accordance with rules and regulations prescribed by the Secretary of Labor. (Article 22 of the Labor Code)
The reason for this mandatory requirement is to protect the welfare of families, dependents and beneficiaries and to ensure that the foreign exchange earnings of these workers are remitted through authorized financial institutions of the Philippine government in line with the country’s economic development program. Non-compliance with the laws and regulations on remittance of foreign exchange earnings and recourse to the use of unauthorized and unofficial financing institutions had led to the detriment of the country’s balance of payments and economic development program. Consequently, it is imperative that the mandatory remittance requirement be fully complied with by all concerned through the institution of appropriate remittance facilities and the imposition of effective sanctions. (“Whereas” clauses, Executive Order No. 857; Section 2, Rule XIII, Book I, Rules to Implement the Labor Code; Section 1, Executive Order No. 857; Section 2, Rule III, Rules and Regulations Implementing Executive Order No. 857).
Wonder Travel and Tours Agency (WTTA) is a well known travel agency and an authorized sales agent of the Philippine Air Lines. Since majority of its passengers are overseas workers, WITA applied for a license for recruitment and placement activities. It stated in its application that its purpose is not for profit but to help Filipinos find employment abroad. Should the application be approved?
Suggested Answer:
The application should not be approved for the simple reason that the law categorically declares that travel agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment, whether for profit or not. (Article 26 of the Labor Code). It is, therefore, of no consequence that its purpose is not for profit but to help Filipinos find employment abroad.
(Note: It must be stressed that the POEA Rules disqualify not only travel agencies and sales agencies of airline companies but also the following, to wit:
a. Officers or members of the Board of any corporation or members in a partnership engaged in the business of a travel agency; and
b. Corporations and partnerships, when any of its officers, members of the board or partners, is also an officer, member of the board or partner of a corporation or partnership engaged in the business of a travel agency. (Section 2, Rule I, Part II, POEA Rules and Regulations Governing the Recruitment and Employment of Land-Based Overseas Workers [February 4, 2002]; Section 2, Rule I, Part II, POEA Rules and Regulations Governing the Recruitment and Employment of Seafarers [May 23, 2003]).
What property right is conferred upon an employee once there is an employer-employee relationship? Discuss briefly.
Suggested Answer:
Once an employer-employee relationship is established, such employment is treated, under our constitutional framework, as a property right. When a person has no property, his job may possibly be his only possession or means of livelihood and those of his dependents. When a person loses his job, his dependents suffer as well. The worker should, therefore, be protected and insulated against any arbitrary deprivation of his job. (Philips Semiconductors [Phils.], Inc. vs. Fadriquela, G. R. No. 141717, April 14, 2004; Philippine Geothermal, Inc. vs. NLRC, 189 SCRA 211 [1990]).
What is the concept of liberal approach in interpreting the Labor Code and its Implementing Rules and Regulations in favor of labor?
Suggested Answer:
This concept of liberal approach is enshrined both in the Labor Code and the Civil Code. More specifically, the Labor Code declares that all doubts in the implementation and interpretation of the provisions of the Code, including its implementing rules and regulations, shall be resolved in favor of labor. The Civil Code likewise pronounces that “in case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer.” (See Article 4, Labor Code; Article 1702, Civil Code).
This concept, however, should not apply where the pertinent provisions of the Labor Code leave no room for doubt either in their interpretation or application. (Bonifacio vs. Government Service Insurance System, 146 SCRA 276).
What is the purpose of labor legislation?
Suggested Answer:
Labor legislation refers to laws, statutes, rules, regulations and jurisprudence which set employment standards and govern the relations between capital and labor. Its purpose is to breathe life into the protection-to-labor clause of the Constitution (Section 3, Article XIII, 1987 Constitution) by affording protection to labor, promoting full employment, ensuring equal work opportunities regardless of sex, race or creed, regulating the relations between workers and employers and assuring that the rights of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work are amply protected. (Article 3, Labor Code).
A case against an employer company was filed charging it with having violated the prohibition against offsetting undertime for overtime work on another day. The complainants were able to show that, pursuant to the Collective Bargaining Agreement (CBA), employees of the union had been required to work “overtime” on Saturday but were paid only at regular rates of pay on the thesis that they were not required to complete, and they did not in fact complete, the eight-hour work period daily from Monday through the employees were not entitled to overtime compensation, i.e., with the premium rates of pay. Decide the controversy.
Suggested Answer:
The employer is correct. While Art. 88 of the Labor Code clearly provides that undertime work on any other particular day shall not be offset by overtime work on any other day, this rule is inapplicable in this case pertaining to Saturday work which in reality does not constitute overtime work as Saturday is still a working day under the law and there is no CBA stipulation against it.
Another Suggested Answer:
Art. 88 of the Labor Code provides that undertime work on any particular day shall not be offset by overtime work on any other day. The CBA being the law between the parties and the Union having shown that the employees rendered overtime work on Saturday, the contention of the employer is not tenable. The employer cannot be use the undertime of Monday through Friday to offset the overtime on Saturday. Hence, the employees are entitled to overtime compensation, i.e., premium rates of pay on Saturday.
The Labor Code treats differently in various aspects the employment of (i) managerial employees, (ii) supervisory employes, and (iii) rank-and-file employees. State the basic distinguishing features of each type of employment.
Suggested Answer:
Under Book Three of the Labor Code, a managerial employee refers to one whose primary duty consists of the management of the establishment in which he is employed or of a department or subdivision thereof, and to other officers or members of the managerial staff. A supervisor and a rank-and-file employee can be considered a s members of the managerial staff, and therefore, a managerial employee if their primary duty consists of work directly related to management policies; if they customarily and regularly exercise discretion and independent judgment; regularly and directly assist a proprietor or a managerial employee whose primary duty consists of the management of the establishment in which they are employed or a subdivision thereof; or execute under general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or execute under general supervision special assignments and tasks; and who do not devote more than 20 percent of their hours worked in a work-week to activities which are not directly and closely related to the performance of the work described above. All others are rank and file employees under said Book (Art. 82, Labor Code, Sec. 2 ©, Rule I, Bk. III, Omnibus Rules Implementing the Labor Code).
Under Book Five of the Labor Code, “managerial employee” is one who is vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. A supervisory employee is one who, in the interest of the employer, effectively recommends such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. All employees not failing within any of the above definitions are considered rank-and-file employees for the purposes of this Book (Art. 212 (M), Labor Code).
Magdalo, a labor union in Oakwood, a furniture manufacturing firm, after failing in its negotiations with Oakwood, filed with the Department of Labor and Employment (DOLE) a notice of strike. The DOLE summoned Magdalo and Oakwood for conciliation hearings to resolve the deadlock. Unable to agree despite efforts of the DOLE, Magdalo called a strike participated in by its officers and union members including Cesar Trinio, a rank-and-file employee, who led the “walk out”. Oakwood filed a petition to declare illegal the strike which Magdalo staged without observing the seven-day ban under the Labor Code. Oakwood claimed that Cesar Trinio, could be dismissed as, in fact, they were so dismissed by Oakwood. Decide the case.
Suggested Answer:
When Oakwood dismissed all the officers and members of the union who participated in the strike which was declared illegal because it was staged without observing the seven-day ban under the Labor Code, Oakwood illegally dismissed the union members, including Cesar Trinio. The Labor Code provides that a union officer who knowingly participates in an illegal strike loses his employment status. Thus, the union officers were legally dismissed. But for a union member to acts during the strike, like acts of violence, coercion or intimidation or obstruction of inress to or egress from the employer’s premises for lawful purposes or obstruction of public thoroughfares. The union mebers, including Cesar Trinio, did not cmmit any of these acts. Thus, it would be illegal to dismiss them.
In a labor dispute, the Secretary of Labor issued and “Assumption Order”. Give the legal implications of such an order.
Suggested Answer:
Under Art. 263(g) of the Labor Code, such assumption shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption order. If one had already taken place at the time of assumption, all striking or lockout employees shall immediately return to work and the employer shall immediately resume operations and re-admit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same. The mere issuance of an assumption order by the Secretary of Labor automatically carries with it a return-to-work order, even if the directive to return to work is not expressly stated in the assumption order. Those who violate the foregoing shall be subject to disciplinary action or even criminal prosecution.
Pablo was a farm-hand, in a plantation owned by ABC & Co., working approximately 6 days a week for a good 15 years. Upon Pablo’s death, his widow filed a claim for burial grant and pension benefits with the Social Security System (SSS). The claim was denied on the ground that Pablo had not been a registered member-employee. Pablo’s widow filed a petition before the SSS asking that ABC & Co. be directed to pay the premium contributions of Pablo and that his name be reported for SSS coverage. ABC & Co. countered that Pablo was hired to plow, harrow and burrow, using his own carabao and other implements and following his own schedule of work hours, without any supervision from the company. If proven, would this factual setting advanced by ABC & Co. be a valid defense against the petition?
Suggested Answer:
ABC & CO. has a valid defense. Pablo should be an employee of ABC & Co. to be under the compulsory coverage of the SSS. To be an employee, Pablo should be under control of ABC & Co. as regards his employment. But the facts show that he was not under the control of ABC & Co. as regards his employment. Among others, he had his own schedule of work hours, without any supervision from the company. Thus he is an independent contractor and not an employee. An independent contractor is not under the compulsory coverage of the SSS. He maybe covered as a self-employed person. But then as such, ABC & Co. has no legal obligation to report Pablo for coverage under the SSS because ABC & Co. is not Pablo’s employer.
Another Suggested Answer:
It is not a valid defense, for Pablo could be considered an employee of ABC & Co. The elements of hiring, payment of wages, power to dismiss and power to control are presumed from the fact that Pablo is working 6 days a week, for 15 years now. Pablo’s use of his plow, harrow, burrow, carabao and other implements and his having his own schedule of work hours without any supervision from the company do not erase the element of control on the part of ABC & CO. because under the “control test”, it is enough that the employer’s right to control exists. It is not necessary that the same be exercised by the employer, it is enough that such right to control exists. (Religious of the Virgin Mary v. NLRC, 316 SCRA 614, 629 [1999]).
May social justice as a guiding principle in labor law be so used by the courts in sympathy with the working man if it collides with the equal protection clause of the Constitution? Explain.
Suggested Answer:
Yes. The State is bound under the Constitution to afford full protection to Labor; and when conflicting interests collide and they are to be weighed on the scales of social justice, the law should accord more sympathy and compassion to the less privileged working man. (Fuentes v. NLRC, 266 SCRA 24 [1997]). However, it should be borne in mind that social justice ceases to be an effective instrument for the “equalization of the social and economic forces” by the State when it is used to shield wrongdoing. (Corazon Jamer v. NLRC, 278 SCRA 632 [1997]).
Another Suggested Answer:
No, social justice as a guiding principle in law may not be used by the courts if it collides with the equal protection clause of the Constitution. Social justice is not a magic wand applicable in all circumstances. Not all labor cases will be automatically decided in favor of the worker. Management has also rights which are entitled to recognition and protection; justice must be dispensed according to facts and law; and social justice is not designed to destroy or oppress the employer.
Another Suggested Answer:
Social justice as a guiding principle in Labor Law can be implemented side by side with the equal protection clause of the Constitution.
In the implementation of the principle of social justice, the Constitution commands that the State shall afford protection to labor. Thus Labor Law may be pro-labor in the sense that labor is given certain benefits not given to management. But this is not necessarily violative of the equal protection clause of the Constitution because the said clause allows reasonable classification.
Suggested Answer:
No, such refusal to remit his earnings to his dependents is not allowed under the law which considers mandatory for all Filipino workers abroad to remit a portion of their foreign exchange earnings to their families, dependents, and/or beneficiaries in the country in accordance with rules and regulations prescribed by the Secretary of Labor. (Article 22 of the Labor Code)
The reason for this mandatory requirement is to protect the welfare of families, dependents and beneficiaries and to ensure that the foreign exchange earnings of these workers are remitted through authorized financial institutions of the Philippine government in line with the country’s economic development program. Non-compliance with the laws and regulations on remittance of foreign exchange earnings and recourse to the use of unauthorized and unofficial financing institutions had led to the detriment of the country’s balance of payments and economic development program. Consequently, it is imperative that the mandatory remittance requirement be fully complied with by all concerned through the institution of appropriate remittance facilities and the imposition of effective sanctions. (“Whereas” clauses, Executive Order No. 857; Section 2, Rule XIII, Book I, Rules to Implement the Labor Code; Section 1, Executive Order No. 857; Section 2, Rule III, Rules and Regulations Implementing Executive Order No. 857).
Wonder Travel and Tours Agency (WTTA) is a well known travel agency and an authorized sales agent of the Philippine Air Lines. Since majority of its passengers are overseas workers, WITA applied for a license for recruitment and placement activities. It stated in its application that its purpose is not for profit but to help Filipinos find employment abroad. Should the application be approved?
Suggested Answer:
The application should not be approved for the simple reason that the law categorically declares that travel agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment, whether for profit or not. (Article 26 of the Labor Code). It is, therefore, of no consequence that its purpose is not for profit but to help Filipinos find employment abroad.
(Note: It must be stressed that the POEA Rules disqualify not only travel agencies and sales agencies of airline companies but also the following, to wit:
a. Officers or members of the Board of any corporation or members in a partnership engaged in the business of a travel agency; and
b. Corporations and partnerships, when any of its officers, members of the board or partners, is also an officer, member of the board or partner of a corporation or partnership engaged in the business of a travel agency. (Section 2, Rule I, Part II, POEA Rules and Regulations Governing the Recruitment and Employment of Land-Based Overseas Workers [February 4, 2002]; Section 2, Rule I, Part II, POEA Rules and Regulations Governing the Recruitment and Employment of Seafarers [May 23, 2003]).
What property right is conferred upon an employee once there is an employer-employee relationship? Discuss briefly.
Suggested Answer:
Once an employer-employee relationship is established, such employment is treated, under our constitutional framework, as a property right. When a person has no property, his job may possibly be his only possession or means of livelihood and those of his dependents. When a person loses his job, his dependents suffer as well. The worker should, therefore, be protected and insulated against any arbitrary deprivation of his job. (Philips Semiconductors [Phils.], Inc. vs. Fadriquela, G. R. No. 141717, April 14, 2004; Philippine Geothermal, Inc. vs. NLRC, 189 SCRA 211 [1990]).
What is the concept of liberal approach in interpreting the Labor Code and its Implementing Rules and Regulations in favor of labor?
Suggested Answer:
This concept of liberal approach is enshrined both in the Labor Code and the Civil Code. More specifically, the Labor Code declares that all doubts in the implementation and interpretation of the provisions of the Code, including its implementing rules and regulations, shall be resolved in favor of labor. The Civil Code likewise pronounces that “in case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer.” (See Article 4, Labor Code; Article 1702, Civil Code).
This concept, however, should not apply where the pertinent provisions of the Labor Code leave no room for doubt either in their interpretation or application. (Bonifacio vs. Government Service Insurance System, 146 SCRA 276).
What is the purpose of labor legislation?
Suggested Answer:
Labor legislation refers to laws, statutes, rules, regulations and jurisprudence which set employment standards and govern the relations between capital and labor. Its purpose is to breathe life into the protection-to-labor clause of the Constitution (Section 3, Article XIII, 1987 Constitution) by affording protection to labor, promoting full employment, ensuring equal work opportunities regardless of sex, race or creed, regulating the relations between workers and employers and assuring that the rights of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work are amply protected. (Article 3, Labor Code).
A case against an employer company was filed charging it with having violated the prohibition against offsetting undertime for overtime work on another day. The complainants were able to show that, pursuant to the Collective Bargaining Agreement (CBA), employees of the union had been required to work “overtime” on Saturday but were paid only at regular rates of pay on the thesis that they were not required to complete, and they did not in fact complete, the eight-hour work period daily from Monday through the employees were not entitled to overtime compensation, i.e., with the premium rates of pay. Decide the controversy.
Suggested Answer:
The employer is correct. While Art. 88 of the Labor Code clearly provides that undertime work on any other particular day shall not be offset by overtime work on any other day, this rule is inapplicable in this case pertaining to Saturday work which in reality does not constitute overtime work as Saturday is still a working day under the law and there is no CBA stipulation against it.
Another Suggested Answer:
Art. 88 of the Labor Code provides that undertime work on any particular day shall not be offset by overtime work on any other day. The CBA being the law between the parties and the Union having shown that the employees rendered overtime work on Saturday, the contention of the employer is not tenable. The employer cannot be use the undertime of Monday through Friday to offset the overtime on Saturday. Hence, the employees are entitled to overtime compensation, i.e., premium rates of pay on Saturday.
The Labor Code treats differently in various aspects the employment of (i) managerial employees, (ii) supervisory employes, and (iii) rank-and-file employees. State the basic distinguishing features of each type of employment.
Suggested Answer:
Under Book Three of the Labor Code, a managerial employee refers to one whose primary duty consists of the management of the establishment in which he is employed or of a department or subdivision thereof, and to other officers or members of the managerial staff. A supervisor and a rank-and-file employee can be considered a s members of the managerial staff, and therefore, a managerial employee if their primary duty consists of work directly related to management policies; if they customarily and regularly exercise discretion and independent judgment; regularly and directly assist a proprietor or a managerial employee whose primary duty consists of the management of the establishment in which they are employed or a subdivision thereof; or execute under general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or execute under general supervision special assignments and tasks; and who do not devote more than 20 percent of their hours worked in a work-week to activities which are not directly and closely related to the performance of the work described above. All others are rank and file employees under said Book (Art. 82, Labor Code, Sec. 2 ©, Rule I, Bk. III, Omnibus Rules Implementing the Labor Code).
Under Book Five of the Labor Code, “managerial employee” is one who is vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. A supervisory employee is one who, in the interest of the employer, effectively recommends such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. All employees not failing within any of the above definitions are considered rank-and-file employees for the purposes of this Book (Art. 212 (M), Labor Code).
Magdalo, a labor union in Oakwood, a furniture manufacturing firm, after failing in its negotiations with Oakwood, filed with the Department of Labor and Employment (DOLE) a notice of strike. The DOLE summoned Magdalo and Oakwood for conciliation hearings to resolve the deadlock. Unable to agree despite efforts of the DOLE, Magdalo called a strike participated in by its officers and union members including Cesar Trinio, a rank-and-file employee, who led the “walk out”. Oakwood filed a petition to declare illegal the strike which Magdalo staged without observing the seven-day ban under the Labor Code. Oakwood claimed that Cesar Trinio, could be dismissed as, in fact, they were so dismissed by Oakwood. Decide the case.
Suggested Answer:
When Oakwood dismissed all the officers and members of the union who participated in the strike which was declared illegal because it was staged without observing the seven-day ban under the Labor Code, Oakwood illegally dismissed the union members, including Cesar Trinio. The Labor Code provides that a union officer who knowingly participates in an illegal strike loses his employment status. Thus, the union officers were legally dismissed. But for a union member to acts during the strike, like acts of violence, coercion or intimidation or obstruction of inress to or egress from the employer’s premises for lawful purposes or obstruction of public thoroughfares. The union mebers, including Cesar Trinio, did not cmmit any of these acts. Thus, it would be illegal to dismiss them.
In a labor dispute, the Secretary of Labor issued and “Assumption Order”. Give the legal implications of such an order.
Suggested Answer:
Under Art. 263(g) of the Labor Code, such assumption shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption order. If one had already taken place at the time of assumption, all striking or lockout employees shall immediately return to work and the employer shall immediately resume operations and re-admit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same. The mere issuance of an assumption order by the Secretary of Labor automatically carries with it a return-to-work order, even if the directive to return to work is not expressly stated in the assumption order. Those who violate the foregoing shall be subject to disciplinary action or even criminal prosecution.
Pablo was a farm-hand, in a plantation owned by ABC & Co., working approximately 6 days a week for a good 15 years. Upon Pablo’s death, his widow filed a claim for burial grant and pension benefits with the Social Security System (SSS). The claim was denied on the ground that Pablo had not been a registered member-employee. Pablo’s widow filed a petition before the SSS asking that ABC & Co. be directed to pay the premium contributions of Pablo and that his name be reported for SSS coverage. ABC & Co. countered that Pablo was hired to plow, harrow and burrow, using his own carabao and other implements and following his own schedule of work hours, without any supervision from the company. If proven, would this factual setting advanced by ABC & Co. be a valid defense against the petition?
Suggested Answer:
ABC & CO. has a valid defense. Pablo should be an employee of ABC & Co. to be under the compulsory coverage of the SSS. To be an employee, Pablo should be under control of ABC & Co. as regards his employment. But the facts show that he was not under the control of ABC & Co. as regards his employment. Among others, he had his own schedule of work hours, without any supervision from the company. Thus he is an independent contractor and not an employee. An independent contractor is not under the compulsory coverage of the SSS. He maybe covered as a self-employed person. But then as such, ABC & Co. has no legal obligation to report Pablo for coverage under the SSS because ABC & Co. is not Pablo’s employer.
Another Suggested Answer:
It is not a valid defense, for Pablo could be considered an employee of ABC & Co. The elements of hiring, payment of wages, power to dismiss and power to control are presumed from the fact that Pablo is working 6 days a week, for 15 years now. Pablo’s use of his plow, harrow, burrow, carabao and other implements and his having his own schedule of work hours without any supervision from the company do not erase the element of control on the part of ABC & CO. because under the “control test”, it is enough that the employer’s right to control exists. It is not necessary that the same be exercised by the employer, it is enough that such right to control exists. (Religious of the Virgin Mary v. NLRC, 316 SCRA 614, 629 [1999]).
May social justice as a guiding principle in labor law be so used by the courts in sympathy with the working man if it collides with the equal protection clause of the Constitution? Explain.
Suggested Answer:
Yes. The State is bound under the Constitution to afford full protection to Labor; and when conflicting interests collide and they are to be weighed on the scales of social justice, the law should accord more sympathy and compassion to the less privileged working man. (Fuentes v. NLRC, 266 SCRA 24 [1997]). However, it should be borne in mind that social justice ceases to be an effective instrument for the “equalization of the social and economic forces” by the State when it is used to shield wrongdoing. (Corazon Jamer v. NLRC, 278 SCRA 632 [1997]).
Another Suggested Answer:
No, social justice as a guiding principle in law may not be used by the courts if it collides with the equal protection clause of the Constitution. Social justice is not a magic wand applicable in all circumstances. Not all labor cases will be automatically decided in favor of the worker. Management has also rights which are entitled to recognition and protection; justice must be dispensed according to facts and law; and social justice is not designed to destroy or oppress the employer.
Another Suggested Answer:
Social justice as a guiding principle in Labor Law can be implemented side by side with the equal protection clause of the Constitution.
In the implementation of the principle of social justice, the Constitution commands that the State shall afford protection to labor. Thus Labor Law may be pro-labor in the sense that labor is given certain benefits not given to management. But this is not necessarily violative of the equal protection clause of the Constitution because the said clause allows reasonable classification.
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