INSTRUCTIONS
1. This Questionnaire contains
SEVENTEEN (17) pages including these Instructions pages. Check the number of
pages and the page numbers at the upper right band corner of each page of this
Questionnaire and make sure it has the correct number of pages and their proper
numbers.
There are TEN (10) Essay Questions
numbered I to X (with subquestions), and EIGHTEEN (18) Multiple Choice
Questions (MCQs) numbered to XVIII (with subquestions), to be answered within
four (4) hours.
The essay portion contains questions
that are worth 80% of the whole examination, while the MCQ portion contains
questions worth20%.
2. Read each question very carefully
and write your answers in your Bar Examination Notebook in the same order
the questions are posed. Write your answers only on the front, not
the back, page of every sheet in your Examination Notebook. Note well the
allocated percentage points for each number, question, or sub-question. In your
answers, use the numbering system in the questionnaire.
If the sheets provided in your
Examination Notebook are not sufficient for your answers, use the back pages of
every sheet of your Examination Notebook, starting at the back page of the
first sheet and the back of the succeeding sheets thereafter.
3. Answer the Essay questions legibly,
clearly, and concisely. Start each number on a separate page. An answer to
a sub-question under the same number may be written continuously on the same
page and the immediately succeeding pages until completed.
Your answer should demonstrate your
ability to analyze the facts presented by the question, to select the material
from the immaterial facts, and to discern the points upon which the question
turns. It should show your knowledge and understanding of the pertinent principles
and theories of law involved and their qualifications and limitations. It
should demonstrate your ability to apply the law to the given facts, and to
reason logically in a lawyer-like manner to a sound conclusion from the given
premises.
A mere "Yes" or
"No" answer without any corresponding explanation or discussion will
not be given any credit. Thus, always briefly but fully explain your answers
although the question does not expressly ask for an explanation. At the
same time, remember that a complete explanation does not require that you
volunteer information or discuss legal doctrines that are not necessary or
pertinent to the solution to the problem. You do not need to re-write or repeat
the question in your Examination Notebook.
4. MCQs are to be answered by
writing in your Examination Notebook the capital letter (A, B, C, D, or E)
corresponding to your chosen answer. The MCQ answers should begin in the
page following the last page of your essay answers.
There is only one correct answer to
every MCQ; choose the BEST answer from among the offered choices. Note that some MCQs may need careful analysis both of the
questions and the choices offered.
5. Make sure you do not write your
name or any extraneous note/s or distinctive marking/s on your Examination
Notebook that can serve as identifying mark/s (such as names that are not in
the given questions, prayers, or private notes to the Examiner).
Writing, leaving or making any
distinguishing or identifying mark in the Examination Notebook is considered
cheating and can disqualify you for the Bar examinations.
You can use the questionnaire for
notes you may wish/need to write during the examination.
HAND
INYOUR NOTEBOOK WITH THISQUESTIONNAIRE
J.
ARTURO D. BRION
Chairman
2013 Bar Examinations
Chairman
2013 Bar Examinations
ESSAY
QUESTIONS
I.
Jose and Erica, former sweethearts,
both worked as sales representatives for Magna, a multinational firm engaged in
the manufacture and sale of pharmaceutical products. Although the couple had
already broken off their relationship, Jose continued to have special feelings
for Erica.
One afternoon, Jose chanced upon
Erica riding in the car of Paolo, a co-employee and Erica's ardent suitor; the
two were on their way back to the office from a sales call on Silver Drug, a
major drug retailer. In a fit of extreme jealousy, Jose rammed Paolo's car,
causing severe injuries to Paolo and Erica. Jose's flare up also caused heavy
damage to the two company-owned cars they were driving.
(A) As
lawyer for Magna, advise the company on whether just and valid grounds exist to
dismiss Jose. (4%)
(B)
Assuming this time that Magna dismissed Jose from employment for cause and you
are the lawyer of Jose, how would you argue the position that Jose's dismissal
was illegal? (4%)
II.
Gamma Company pays its regular
employees P350.00 a day, and houses them in a dormitory inside its factory
compound in Manila. Gamma Company also provides them with three full meals a
day.
In the course of a routine
inspection, a Department of Labor and Employment (DOLE) Inspector noted that
the workers' pay is below the prescribed minimum wage of P426.00 plus P30.00
allowance, and thus required Gamma Company to pay wage differentials.
Gamma Company denies any liability,
explaining that after the market value of the company-provided board and lodging
are added to the employees' P350 cash daily wage, the employees' effective
daily rate would be way above the minimum pay required by law. The company
counsel further points out that the employees are aware that their food and
lodging form part of their salary, and have long accepted the arrangement.
Is the company's position legally
correct?(8%)
III.
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, Inter-Garments 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?
(8%)
IV.
Bobby, who was assigned as company
branch accountant in Tarlac where his family also lives, was dismissed by Theta
Company after anomalies in the company's accounts were discovered in the branch
Bobby filed a complaint and was ordered reinstated with full backwages after
the Labor Arbiter found that he had been denied due process because no investigation
actually took place.
Theta Company appealed to the
National Labor Relations Commission (NLRC) and at the same time wrote Bobby,
advising him to report to the main company office in Makati where he would be
reinstated pending appeal Bobby refused to comply with his new assignment
because Makati is very far from Tarlac and he cannot bring his family to live
with him due to the higher cost of living in Makati.
(A) Is
Bobby's reinstatement pending appeal legally correct? (4%)
(B) Advise
Bobby on the best course of action to take under the circumstances. (4%)
V.
Cris filed a complaint for illegal
dismissal against Baker Company. The Labor Arbiter dismissed the complaint but
awarded Cris financial assistance. Only the company appealed from the Labor
Arbiter's ruling. It confined its appeal solely to the question of whether
financial assistance could be awarded. The NLRC, instead of ruling solely on
the appealed issue, fully reversed the Labor Arbiter's decision; it found Baker
Company liable for illegal dismissal and ordered the payment of separation pay
and full backwages.
Through a petition for certiorari
under Rule 65 of the Rules of Court, Baker Company challenged the validity of
the NLRC ruling. It argued that the NLRC acted with grave abuse of discretion
when it ruled on the illegal dismissal issue, when the only issue brought on
appeal was the legal propriety of the financial assistance award.
Cris countered that under Article
218(c) of the Labor Code, the NLRC has the authority to "correct, amend,
or waive any error, defect or irregularity whether in substance or in
form" in the exercise of its appellate jurisdiction.
Decide the case. (8%)
VI.
Because of the stress in caring for
her four (4) growing children, Tammy suffered a miscarriage late in her
pregnancy and had to undergo an operation. In the course of the operation, her
obstetrician further discovered a suspicious-looking mass that required the
subsequent removal of her uterus (hysterectomy). After surgery, her physician
advised Tammy to be on full bed rest for six (6) weeks. Meanwhile, the biopsy
of the sample tissue taken from the mass in Tammy's uterus showed a beginning
malignancy that required an immediate series of chemotherapy once a week for
four (4) weeks.
(A) What
benefits can Tammy claim under existing social legislation? (4%)
(B) What
can Roger-Tammy's 2nd husband and the father of her two (2) younger children
-claim as benefits under the circumstances? (4%)
VII.
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? (8%)
VIII.
After thirty (30) years of service,
Beta Company compulsorily retired Albert at age 65 pursuant to the company's
Retirement Plan. Albert was duly paid his full retirement benefits of one (1)
month pay for every year of service under the Plan. Thereafter, out of
compassion, the company allowed Albert to continue working and paid him his old
monthly salary rate, but without the allowances that he used to enjoy.
After five (5) years under this
arrangement, the company finally severed all employment relations with Albert;
he was declared fully retired in a fitting ceremony but the company did not
give him any further retirement benefits. Albert thought this treatment unfair
as he had rendered full service at his usual hours in the past five (5) years.
Thus, he filed a complaint for the allowances that were not paid to him, and
for retirement benefits for his additional five (5) working years, based either
on the company's Retirement Plan or the Retirement Pay Law, whichever is
applicable.
(A) After
Albert's retirement at age 65, should he be considered a regular employee
entitled to all his previous salaries and benefits when the company allowed him
to continue working? (4%)
(B) Is he
entitled to additional retirement benefits for the additional service he
rendered after age 65? (4%)
IX.
Pablo 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. Pablo 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.
(A) Would
the NTC management commit unfair labor practice if it desists from checking off
Pablo's union dues for lack of individual authorization from Pablo? (4%)
(B) Can
the union charge Pablo 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? (4%)
X.
For ten (10) separate but
consecutive yearly contracts, Cesar has been deployed as an able-bodied seaman
by Meritt Shipping, through its local agent, Ace Maritime Services (agency), in
accordance with the 2000Philippine Overseas Employment Administration Standard
Employment Contract (2000 POEA-SEC). Cesar's employment was also covered by a
CBA between the union, AMOSl.JP, and Meritt Shipping. Both the 2000 POEA-SEC
and the CBA commonly provide the same mode and procedures for claiming
disability benefits. Cesar's last contract (for nine months) expired on July
15, 2013.
Cesar disembarked from the vessel
M/V Seven Seas on July 16, 2013as a seaman on "finished contract". He
immediately reported to the agency and complained that he had been experiencing
spells of dizziness, nausea, general weakness, and difficulty in breathing. The
agency referred him to Dr. Sales, a cardio-pulmonary specialist, who examined
and treated him; advised him to take a complete rest for a while; gave him
medications; and declared him fit to resume work as a seaman.
After a month, Cesar went back to
the agency to ask for re-deployment. The agency rejected his application. Cesar
responded by demanding total disability benefits based on the ailments that he
developed and suffered while on board Meritt Shipping vessels. The claim was
based on the certification of his physician (internist Dr. Reyes) that he could
no longer undertake sea duties because of the hypertension and diabetes that
afflicted him while serving on Meritt Shipping vessels in the last 10 years.
Rejected once again, Cesar filed a complaint for illegal dismissal and the
payment of total permanent disability benefits against the agency and its
principal.
Assume that you are the Labor
Arbiter deciding the case. Identify the facts and issues you would consider
material in resolving the illegal dismissal and disability complaint. Explain
your choices and their materiality, and resolve the case. (8%)
MULTIPLE
CHOICE QUESTIONS
I. The parties to a labor dispute
can validly submit to voluntary arbitration _________. (1%)
(A) any
disputed issue they may agree to voluntarily arbitrate
(B) only
matters that do not fall within the exclusive jurisdiction of the Labor Arbiter
(C) any
disputed issue but only after conciliation at the National Conciliation and
Mediation Board fails
(D) any
disputed issue provided that the Labor Arbiter has not assumed jurisdiction
over the case on compulsory arbitration
(E) only
matters relating to the interpretation or implementation of a collective
bargaining agreement
II. When there is no recognized
collective bargaining agent, can a legitimate labor organization validly
declare a strike against the employer? (1%)
(A) Yes,
because the right to strike is guaranteed by the Constitution and cannot be
denied to any group of employees.
(B) No,
because only an exclusive bargaining agent may declare a strike against the
employer.
(C) Yes,
because the right to strike is a basic human right that the country's international
agreements and the International Labor Organization recognize.
(D) Yes,
but only in case of unfair labor practice.
(E) No, in
the absence of a recognized bargaining agent, the workers' recourse is to file
a case before the Department of Labor and Employment.
III.Mr. Del Carmen, unsure if his foray
into business (messengerial service catering purely to law firms) would succeed
but intending to go long-term if he hurdles the first year, opted to open his
operations with one-year contracts with two law firms although he also accepts
messengerial service requests from other firms as their orders come. He started
with one permanent secretary and six (6) messengers on a one-year, fixed-term,
contract.
Is the arrangement legal from the
perspective of labor standards? (1%)
(A) No,
because the arrangement will circumvent worker's right to security of tenure.
(B) No. If
allowed, the arrangement will serve as starting point in weakening the security
of tenure guarantee.
(C) Yes,
if the messengers are hired through a contractor.
(D) Yes,
because the business is temporary and the contracted undertaking is specific
and time-bound.
(E) No,
because the fixed term provided is invalid.
IV. Chito was illegally dismissed by
DEF Corp. effective at the close of business hours of December 29, 2009.
IV(1). He
can file a complaint for illegal dismissal without any legal bar within
_________. (1%)
(A) three
(3) years
(B) four
(4) years
(C) five
(5) years
(D) six
(6) years
(E) ten
(10) years
IV(2). If
he has money claims against DEF Corp., he can make the claim without any legal
bar within _________. (1%)
(A) three
(3) years
(B) four
(4) years
(C) five
(5) years
(D) six
(6) years
(E) ten
(10) years
V. After vainly struggling to stay
financially afloat for a year, LMN Corp. finally gave up and closed down its
operations after its major creditors filed a petition for LMN's insolvency and
liquidation.
In this situation, LMN's employees
are entitled to _________ as separation pay. (1%)
(A)
one-half month pay for every year of service
(B) one
month pay for every year of service
(C)
one-half month pay
(D) one
month pay
(E) no
separation pay at all
VI. At age 65 and after 20 years of
sewing work at home on a piece rate basis for PQR Garments, a
manufacturer-exporter to Hongkong, Aling Nena decided it was time to retire and
to just take it easy.
Is she entitled to retirement pay
from PQR? (1%)
(A) Yes,
but only to one month pay.
(B) No,
because she was not a regular employee.
(C) Yes,
at the same rate as regular employees.
(D) No,
because retirement pay is deemed included in her contracted per piece pay.
(E) No,
because homeworkers are not entitled to retirement pay.
VII. The minimum wage prescribed by
law for persons with disability is __________. (1%)
(A) 50% of
the applicable minimum wage
(B) 75% of
the applicable minimum wage
(C) 100%
of the applicable minimum wage
(D) the
wage that the parties agree upon, depending on the capability of the disabled.
(E) the
wage that the parties agree upon, depending on the capability of the disabled,
but not less than 50% of the applicable minimum wage
VIII. What is the financial
incentive, if any, granted by law to SPQ Garments whose cutters and sewers in
its garments-for-export operations are80% staffed by deaf and deaf-mute
workers? (1%)
(A)
Additional deduction from its gross income equivalent to 25% of amount paid as
salaries to persons with disability.
(B)
Additional deduction from its gross income equivalent to 50% of the direct
costs of the construction of facilities for the use of persons with disability.
(C)
Additional deduction from its net taxable income equivalent to 5% of its total
payroll
(D)
Exemption from real property tax for one (1) year of the property where
facilities for persons with disability have been constructed.
(E) The
annual deduction under (A), plus a one-time deduction under (B).
IX. Mr. Ortanez has been in the
building construction business for several years. He asks you, as his new labor
counsel, for the rules he must observe in considering regular employment in the
construction industry.
You clarify that an employee,
project or non-project, will acquire regular status if __________. (1%)
(A) he has
been continuously employed for more than one year
(B) his
contract of employment has been repeatedly renewed, from project to project,
for several years
(C) he
performs work necessary and desirable to the business, without a fixed period
and without reference to any specific project or undertaking
(D) he has
lived up to the company's regularization standards
(E) All of
the above.
X. Samahang Tunay, a union of
rank-and-file employees lost in a certification election at Solam Company and
has become a minority union. The majority union now has a signed CBA with the
company and the agreement contains a maintenance of membership clause.
What can Samahang Tunay still do
within the company as a union considering that it still has members who
continue to profess continued loyalty to it? (1%)
(A) It can
still represent these members in grievance committee meetings.
(B) It can
collect agency fees from its members within the bargaining unit.
(C) It can
still demand meetings with the company on company time.
(D) As a
legitimate labor organization, it can continue to represent its members on
non-CBA-related matters.
(E) None
of the above.
(F) All of
the above.
XI. The members of the
administrative staff of Zeta, a construction company, enjoy ten (10) days of
vacation leave with pay and ten (10) days of sick leave with pay, annually. The
workers' union, Bukluran, demands that Zeta grant its workers service incentive
leave of five (5) days in compliance with the Labor Code.
Is the union demand meritorious?
(1%)
(A) Yes,
because non-compliance with the law will result in the diminution of employee
benefits.
(B) Yes,
because service incentive leave is a benefit expresslyprovided under and
required by the Labor Code.
(C) No,
because Zeta already complies with the law.
(D) No,
because service incentive leave is a Labor Code benefit that does not apply in
the construction industry.
(E) Yes,
because Labor Code benefits are separate from those voluntarily granted by the
company.
XII. Upon the expiration of the
first three (3) years of their CBA, the union and the company commenced
negotiations. The union demanded that the company continue to honor their
30-day union leave benefit under the CBA. The company refused on the ground
that the CBA had already expired, and the union had already consumed their
union leave under the CBA.
Who is correct? (1%)
(A) The
company is correct because the CBA has expired; hence it is no longer bound to
provide union leave.
(B) The
company is correct because the union has already consumed the allotted union
leave under the expired CBA.
(C) The
union is correct because it is still the bargaining representative for the next
two (2) years.
(D) The union
is correct because union leaves are part of the economic terms that continue to
govern until new terms are agreed upon.
(E) They
are both wrong.
XIII. Hector, a topnotch Human
Resource Specialist who had worked in multinational firms both in the Philippines
and overseas, was recruited by ABC Corp., because of his impressive
credentials. In the course of Hector's employment, the company management
frequently did not follow his recommendations and he felt offended by this
constant rebuff.
Thus, he toyed with the idea of
resigning and of asking for the same separation pay that ABC earlier granted to
two (2) department heads when they left the company.
To obtain a legal opinion regarding
his options, Hector sent an email to ABC's retained counsel, requesting for
advice on whether the grant by the company of separation pay to his resigned
colleagues has already ripened into a company practice, and whether he can
similarly avail of this benefit if he resigns from his job.
As the company's retained legal
counsel, how will you respond to Hector? (1%)
(A) I
would advise him to write management directly and inquire about the benefits he
can expect if he resigns.
(B) I
would advise him that the previous grant of separation pay to his colleagues
cannot be considered a company practice because several other employees had
resigned and were not given separation pay.
(C) I
would advise him to ask for separation pay, not on account of company practice,
but on the basis of discrimination as he is similarly situated as the two
resigned department heads who were paid their separation pay.
(D) I
would not give him any legal advice because he is not my client.
(E) I
would maintain that his question involves a policy matter beyond the competence
of a legal counsel to give.
XIV. Aleta Quiros was a faculty
member at BM Institute, a private educational institution. She was hired on a
year-to-year basis under the probationary employment period provision of the
Manual of Regulations for Private Schools. The terms and conditions of her
engagement were defined under her renewable yearly contract.
For reasons of its own, BM Institute
no longer wanted to continue with Aleta's teaching services. Thus, after the
contract for her second year expired, BM Institute advised Aleta that her
contract would no longer be renewed. This advice prompted Aleta to file a
complaint for illegal dismissal against BM Institute.
Will the complaint prosper? (1%)
(A) Yes,
because no just or authorized cause existed for the termination of her
probationary employment.
(B) Yes,
because under the Labor Code, Aleta became a regular employee after 6 months
and she may now only be dismissed for cause.
(C) No,
because there was no dismissal to speak of. Her employment was automatically
terminated upon the expiration of her year-to-year fixed term employment.
(D) No,
because BM Institute may dismiss its faculty members at will in the exercise of
its academic freedom.
(E) No,
because Aleta was still on probationary employment.
XV. Robert, an employee of ABC
Company, is married to Wanda. One day, Wanda visited the company office with
her three (3) emaciated minor children, and narrated to the Manager that Robert
had been squandering his earnings on his mistress, leaving only a paltry sum
for the support of their children. Wanda tearfully pleaded with the Manager to
let her have one half of Robert's pay every payday to ensure that her children
would at least have food on the table. To support her plea, Wanda presented a
Kasulatan signed by Robert giving her one half of his salary, on the condition
that she would not complain if he stayed with his mistress on weekends.
If you were the Manager, would you
release one half of Robert's salary to Wanda? (1%)
(A) No,
because an employer is prohibited from interfering with the freedom of its
employees to dispose of heir wages.
(B) Yes,
because of Robert's signed authorization to give Wanda one half of his salary.
(C) No,
because there is no written authorization for ABC Company to release Robert's
salary to Wanda.
(D) Yes,
because it is Robert's duty to financially support his minor children.
(E) No,
because Robert's Kasulatan is based on an illegal consideration and is of
doubtful legal validity.
XVI. Ricardo operated a successful
Makati seafood restaurant patronized by a large clientele base for its superb
cuisine and impeccable service. Ricardo charged its clients a 10% service
charge and distributed 85% of the collection equally among its rank-and-file
employees, 10% among managerial employees, and 5% as reserve for losses and
break ages. Because of the huge volume of sales, the employees received
sizeable shares in the collected service charges.
As part of his business development
efforts, Ricardo opened a branch in Cebu where he maintained the same practice
in the collection and distribution of service charges. The Cebu branch,
however, did not attract the forecasted clientele; hence, the Cebu employees
received lesser service charge benefits than those enjoyed by the Makati-based
employees. As a result, the Cebu branch employees demanded equalization of
benefits and filed a case with the NLRC for discrimination when Ricardo refused
their demand.
XVI(l) Will the case prosper? (1%)
(A) Yes,
because the employees are not receiving equal treatment in the distribution of
service charge benefits.
(B) Yes,
because the law provides that the 85% employees' share in the service charge
collection should be equally divided among all the employees, in this case,
among the Cebu and Makati employees alike.
(C) No,
because the employees in Makati are not similarly situated as the Cebu
employees with respect to cost of living and conditions of work.
(D) No,
because the service charge benefit attaches to the outlet where service charges
are earned and should be distributed exclusively among the employees providing
service in the outlet.
(E) No,
because the market and the clientele the two branches are serving, are
different.
XVI(2). In order to improve the Cebu
service and sales, Ricardo decided to assign some of its Makati-based employees
to Cebu to train Cebu employees and expose them to the Makati standard of
service. A chef and three waiters were assigned to Cebu for the task. While in
Cebu, the assigned personnel shared in the Cebu service charge collection and
thus received service charge benefits lesser than what they were receiving in
Makati.
If you were the lawyer for the
assigned personnel, what would you advice them to do? (1%)
(A) I
would advise them to file a complaint for unlawful diminution of service charge
benefits and for payment of differentials.
(B) I
would advise them to file a complaint for illegal transfer because work in Cebu
is highly prejudicial to them in terms of convenience and service charge
benefits.
(C) I
would advise them to file a complaint for discrimination in the grant of service
charge benefits.
(D) I
would advise them to accept their Cebu training assignment as an exercise of
the company's management prerogative.
(E) I
would advise them to demand the continuation of their Makati-based benefits and
to file a complaint under (B)above if the demand is not heeded.
XVII. Constant Builders, an
independent contractor, was charged with illegal dismissal and non-payment of
wages and benefits of ten dismissed employees. The complainants impleaded as
co-respondent Able Company, Constant Builder's principal in the construction of
Able's office building. The complaint demanded that Constant and Able be held
solidarily liable for the payment of their backwages, separation pay, and all
their unpaid wages and benefits.
If the Labor Arbiter rules in favor
of the complainants, choose the statement that best describes the extent of the
liabilities of Constant and Able. (1%)
(A)
Constant and Able should be held solidarily liable for the unpaid wages and
benefits, as well as backwages and separation pay, based on Article 109 of the
Labor Code which provides that "every employer or indirect employer shall
be held responsible with his contractor or subcontractor for any violation of
any provision of this Code."
(B)
Constant and Able should be held solidarily liable for the unpaid wages and
benefits, and should order Constant, as the workers' direct employer, to be
solely liable for the backwages and separation pay.
(C)
Constant and Able should be held solidarily liable for the unpaid wages and
benefits and the backwages since these pertain to labor standard benefits for
which the employer and contractor are liable under the law, while Constant
alone – as the actual employer - should be ordered to pay the separation pay.
(D)
Constant and Able should be held solidarily liable for the unpaid wages and
benefits, and Constant should be held liable for their backwages and separation
pay unless Able is shown to have participated with malice or bad faith in the
workers' dismissal, in which case both should be held solidarily liable.
(E) The
above statements are all inaccurate.
XVIII. The Pinagbuklod union filed a
Petition for Certification Election, alleging that it was a legitimate labor
organization of the rank-and-file employees of Delta Company. On Delta's motion,
the Med Arbiter dismissed the Petition, based on the finding that Pinagbuklod
was not a legitimate labor union and had no legal personality to file a
Petition for Certification Election because its membership was a mixture of
rank-and-file and supervisory employees.
Is the dismissal of the Petition for
Certification Election by the Med-Arbiter proper? (1%)
(A) Yes,
because Article 245 of the Labor Code prohibits supervisory employees from
joining the union of he rank and file employees and provides that a union
representing both rank and file and supervisory employees as members is not a
legitimate labor organization.
(B) No,
because the grounds for the dismissal of a petition for certification election
do not include mixed membership in one umon.
(C) No,
because a final order of cancellation of union registration is required before
a petition for certification election may be dismissed on the ground of lack of
legal personality of the umon.
(D) No,
because Delta Company did not have the legal personality to participate in the
certification election proceedings and to file a motion to dismiss based on the
legitimacy status of the petitioning union.
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Online Source: The Lawphil Project - Arellano Law Foundation
