2008 Labor Bar Exam Q&A
2008 Labor Bar Exam Q&A
2008 Labor Bar Exam Q&A
I -
SUGGESTED
ANSWER:
The
automatic
renewal
clause
of
Collective
Bargaining
Agreements
means
that
although
a
CBA
has
expired,
it
continues
to
have
legal
effects
as
between
the
parties
until
a
new
CBA
has
been
entered
into
(Pier
8
Arrastre
&
Stevedoring
Services,
Inc.
v.
Roldan-Confessor,
241
SCRA
294
[1995]).
This
is
so
because
the
law
makes
it
a
duty
of
the
parties
to
keep
the
status
quo
and
to
continue
in
full
effect
the
terms
and
conditions
of
the
existing
agreement
until
a
new
agreement
is
reached
by
the
parties
(Art.
253,
Labor
Code).
SUGGESTED
ANSWER:
The
workers
right
to
participate
in
policy
and
decision
making
processes
of
the
establishment
where
they
are
employed
in
so
far
as
said
processes
affect
their
rights,
benefits
and
welfare
as
embodied
in
Section
3
of
Article
XIII
of
the
Constitution
is
reiterated
in
Art.
255
of
the
Labor
Code
where
it
is
provided
that
for
the
purpose
of
implementing
such
right,
workers
and
employers
may
form
labor
management
councils
provided
that
the
representatives
of
workers
in
such
labor
management
councils
shall
be
elected
by
the
majority
of
all
the
employees
in
said
establishment.
It
is
clear
from
the
aforementioned
Article
of
the
Labor
Code
that
the
right
of
workers
to
participate
in
policy
and
decision
making
processes
as
provided
in
Article
XIII,
Section
3
of
the
Constitution
does
not
include
membership
in
the
Board
of
Directors
of
a
Corporation
but
this
could
be
the
proper
subject
of
a
Collective
Bargaining
Agreement.
ANOTHER
SUGGESTED
ANSWER:
In
Manila
Electric
Company
v.
Quisumbing
302
SCRA
173[1999],
the
Supreme
Court
recognized
the
right
of
the
union
to
participate
in
policy
formulation
and
decision-
making
process
on
matters
affecting
the
Union
members
rights,
duties
and
welfare.
However,
the
Court
held
that
such
participation
of
the
union
in
committees
of
employer
Meralco
is
not
in
the
nature
of
a
co-management
control
of
the
business
of
Meralco.
Impliedly,
therefore,
workers
participatory
right
in
policy
and
decision-making
processes
does
not
include
the
right
to
put
a
union
member
in
the
Corporations
Board
of
Directors.
- II -
SUGGESTED
ANSWER:
Disputes
or
issues
subject
to
Voluntary
Arbitration:
1. All
unresolved
grievances
arising
from
the
implementation
or
interpretation
of
the
CBA
after
exhaustion
of
the
grievance
procedure;
2. All
unresolved
grievances
arising
from
the
implementation
or
interpretation
of
company
personnel
policies;
3. All
wage
distortion
issues
arising
from
the
application
of
any
wage
orders
in
organized
establishments;
4. All
unresolved
grievances
arising
from
the
interpretation
and
implementation
of
productivity
incentive
programs
under
R.A.
6971;
5. All
other
labor
disputes
including
unfair
labor
practices
and
bargaining
deadlocks,
upon
agreement
of
the
parties.
b. Can
a
dispute
falling
within
the
exclusive
jurisdiction
of
the
Labor
Arbiter
be
submitted
to
voluntary
arbiration?
Why
or
why
not?
(3%)
SUGGESTED
ANSWER:
Yes.
A
labor
dispute
falling
within
the
exclusive
jurisdiction
of
a
Labor
Arbiter
may
be
submitted
to
voluntary
arbitration.
Any
or
all
disputes
under
the
exclusive
and
original
jurisdiction
of
the
Labor
Arbiter
under
Art.
217
of
the
Code,
maybe
submitted
for
voluntary
arbitration
by
a
Voluntary
Arbitrator
by
agreement
of
the
parties.
Art.
262.
Jurisdiction
over
labor
disputes.
The
voluntary
arbitrator
or
panel
of
voluntary
arbitrators,
upon
agreement
of
the
parties,
shall
also
hear
and
decide
all
other
labor
disputes,
including
unfair
labor
practice
and
bargaining
deadlocks.
SUGGESTED
ANSWER:
SUGGESTED
ANSWER:
A
dispute
falling
within
the
jurisdiction
of
a
voluntary
arbitrator
can
be
submitted
to
compulsory
arbitration.
This
situation
can
arise
when
the
Secretary
of
Labor
and
Employment
has
assumed
jurisdiction
over
a
labor
dispute
in
an
industry
indispensable
to
the
national
interest.
In
the
foregoing
situation,
in
accordance
with
applicable
Supreme
Court
decisions,
the
Secretary
of
Labor
and
Employment
shall
also
assume
jurisdiction
over
subsequent
labor
cases
involving
the
same
establishment,
including
those
that
maybe
resolved
by
a
Voluntary
Arbitrator.
ANOTHER
SUGGESTED
ANSWER:
No.
A
dispute
falling
within
the
jurisdiction
of
a
Voluntary
Arbitrator
cannot
be
submitted
for
compulsory
arbitration.
Under
Art.
263(g)
of
the
Code,
only
the
following
disputes
can
be
submitted
for
compulsory
arbitration:
1. Labor
dispute
causing
or
likely
to
cause
a
strike
or
lockout
in
an
industry
indispensable
to
the
national
interest;
and
2. Strikes
and
lockouts
in
hospitals,
clinics,
and
similar
medical
institutions.
-
III
-
Savoy
Department
Store
(SDS)
adopted
a
policy
of
hiring
salesladies
on
five-
month
cycles.
At
the
end
of
a
saleslady's
five-month
term,
another
person
is
hired
as
replacement.
Salesladies
attend
to
store
customers,
were
SDS
uniforms,
report
at
specified
hours,
and
are
subject
to
SDS
workplace
rules
and
regulations.
Those
who
refuse
the
5-month
employment
contract
are
not
hired.
The
day
after
expiration
of
her
5-month
engagement,
Lina
wore
her
SDS
white
and
blue
uniform
and
reported
for
work
but
was
denied
entry
into
the
store
premises.
Agitated,
she
went
on
a
hunger
strike
and
stationed
herself
in
front
of
one
of
the
gates
of
SDS.
Soon
thereafter,
other
employees
whose
5-month
term
had
also
elapsed,
joined
Lina's
hunger
strike.
SUGGESTED
ANSWER:
I
would
rule
in
favor
of
Lina,
et
al.
In
Pure
Foods
Corporation
v.
NLRC
(283
SCRA
135(1997]),
the
scheme
of
the
employer
in
hiring
workers
on
a
uniformly
fixed
contract
basis
of
5
months
and
replacing
them
upon
the
expiration
of
their
contracts
with
other
workers
with
the
same
employment
status
was
found
to
have
been
designed
to
prevent
casual
employees
from
attaining
the
status
of
a
regular
employee.
ANOTHER
SUGGESTED
ANSWER:
The
Complaint
of
Lina
and
20
other
employees
should
be
dismissed.
Under
existing
jurisprudence,
there
is
no
dismissal
to
speak
of
when
the
term
of
fixed-period
employments
expires.
As
such,
there
is
no
violation
of
the
right
to
security
of
tenure
of
these
fixed-period
employees
even
if
they
performed
activities
usually
necessary
or
desirable
in
the
usual
trade
of
business,
because
they
knew
beforehand
that
their
contract
is
to
expire
after
five
(5)
months.
ANOTHER
SUGGESTED
ANSWER:
I
will
resolve
the
illegal
dismissal
case
in
favor
of
SDS.
In
Brent,
the
Supreme
Court
En
Banc
held
that
while
fixed
term
employment
has
already
been
repealed
by
the
various
amendments
to
the
Labor
Code,
the
Civil
Code
still
allows
fixed
term
employment.
Such
kind
of
employment
is
valid
as
long
as
it
is
established
that:
(1)
the
fixed
period
of
employment
was
knowingly
and
voluntarily
agreed
upon
by
the
parties,
without
any
force,
duress
or
improper
pressure
being
brought
to
bear
upon
the
employee
and
absent
any
other
circumstance
vitiating
his
consent;
and
(2)
the
employer
and
employee
dealt
with
each
other
on
more
or
less
equal
terms
with
no
moral
dominance
on
the
latter.
Since
admittedly,
Lina,
et
al.
agreed,
prior
to
their
engagement,
to
the
fixed
term
employment,
and
It
appearing
that
their
consent
was
not
vitiated,
and
considering
further
that
it
has
not
been
argued
that
the
parties
dealt
with
each
other
on
less
equal
terms,
it
then
follows
that
Lina,
et
als
fixed
term
employment
is
valid.
No
illegal
dismissal
can
take
place
upon
expiration
of
such
fixed
term
employment.
b. The
owner
of
SDS
considered
the
hunger
strike
staged
by
Lina,
et
al..,
an
eyesore
and
disruptive
of
SDS
business.
He
wrote
the
Secretary
of
Labor
a
letter
asking
him
to
assume
jurisdiction
over
the
dispute
and
enjoin
the
hunger
"strike".
What
answer
will
you
give
if
you
were
the
Secretary
of
Labor?
(3%)
SUGGESTED
ANSWER:
I
will
deny
the
letter-request
of
SDS
because
its
business
is
not
indispensable
to
the
national
interest.
Although
the
Secretary
of
Labor
has
a
wide
latitude
of
discretion
in
deciding
whether
or
not
to
assume
jurisdiction
over
a
labor
dispute
or
certify
the
same
to
the
NLRC
for
compulsory
arbitration,
SDSs
business
is
clearly
not
one
which
is
indispensable
to
the
national
interest.
Moreover,
the
grounds
relied
upon
by
SDS,
to
wit:
eyesore
and
disruptive
of
its
business,
betrays
the
weakness
of
its
case.
ANOTHER
SUGGESTED
ANSWER:
As
Secretary
of
Labor,
I
could
not
assume
jurisdiction
over
the
hunger
strike,
simply
because
there
is
no
strike
to
speak
of.
Lina
et
al.
had
already
been
terminated
when
they
staged
their
concerted
action,
hence
there
was
no
temporary
stoppage
of
work
at
SDS.
SUGGESTED
ANSWER:
No,
the
Compliance
Order
is
not
valid.
The
Regional
Director
only
exercises
both
visitorial
and
enforcement
powers
over
labor
standard
cases,
and
empowered
to
adjudicate
uncontested
money
claims
of
persons
still
employed.
The
Regional
Director
has
no
jurisdiction
to
rule
on
SDS
5-month
term
policy.
ANOTHER
SUGGESTED
ANSWER:
The
compliance
order
is
not
valid.
Without
any
of
the
salesladies
complaining,
there
could
be
no
basis
for
a
finding
that
their
employment
contract
for
a
fixed
term
was
invalid.
- IV -
Super
Comfort
Hotel
employed
a
regular
pool
of
"extra
waiters"
who
are
called
or
asked
to
report
for
duty
when
the
Hotel's
volume
of
business
is
beyond
the
capacity
of
the
regularly
employed
waiters
to
undertake.
Pedro
has
been
an
"extra
waiter"
for
more
than
10
years.
He
is
also
called
upon
to
work
on
weekends,
on
holidays
and
when
there
are
big
affairs
at
the
hotel.
What
is
Pedro's
status
as
an
employee
under
the
Labor
Code?
Why?
Explain
your
answer
fully.
(6%)
SUGGESTED
ANSWER:
Pedro
has
acquired
the
status
of
a
regular
employee.
Pedro
was
engaged
to
perform
activities
which
are
necessary
or
desirable
in
the
usual
business
or
trade
of
the
employer.
Moreover,
Pedro
has
been
extra
waiter
for
more
than
10
years.
Under
the
law,
any
employee
who
has
rendered
service
at
least
one
year
of
service,
whether
such
service
is
continuous
or
broken,
shall
be
considered
a
regular
employee
with
respect
to
the
activity
in
which
he
is
employed
and
his
employment
shall
continue
while
such
activity
exists
(Art.
280,
Labor
Code).
ANOTHER
SUGGESTED
ANSWER:
Pedro
is
a
regular,
but
seasonal
worker.
He
is
regular
because
as
waiter,
he
was
engaged
to
perform
activities
which
are
usually
necessary
or
desirable
in
the
usual
business
or
trade
of
employer
Super
Comfort
Hotel.
However,
his
security
of
tenure
is
coterminous
with
the
seasonal
need
for
which
he
was
hired
(Art.
280,
1st
par.,
Labor
Code).
- V -
The
Pizza
Corporation
(PizCorp)
and
Ready
Supply
Cooperative
(RSC)
entered
into
a
"service
agreement"
where
RSC
in
consideration
of
service
fees
to
be
paid
by
PizCorp's
will
exclusively
supply
PizCorp
with
a
group
of
RSC
motorcycle-
owning
cooperative
members
who
willhenceforth
perform
PizCorp's
pizza
delivery
service.
RSC
assumes
under
the
agreement
---
full
obligation
for
the
payment
of
the
salaries
and
other
statutory
monetary
benefits
of
its
members
deployed
to
PizCorp.
The
parties
also
stipulated
that
there
shall
be
no
employer-
employee
relationship
between
PizCorp
and
the
RSC
members.
However,
if
PizCorp
is
materially
prejudiced
by
any
act
of
the
delivery
impose
disciplinary
sanctions
on,
including
the
power
to
dismiss,
the
erring
RSC
member/s.
SUGGESTED
ANSWER:
The
contractual
stipulation
that
there
is
no
employer-employee
relationship
between
PizCorp
and
the
RSC
members
is
not
binding
on
labor
officials
because
what
determines
the
existence
or
non-existence
of
employer-employee
relationship
is
the
actual
factual
situation
between
PizCorp
and
RSC
members
and
not
what
is
stipulated
in
the
contract.
ANOTHER
SUGGESTED
ANSWER:
The
agreement
between
PizCorp
and
RSC,
that
there
is,
or
will
not
be,
an
employer-
employee
relationship
between
the
RSC
motorcycle-owning
cooperative
members
performing
delivery
services
is
not
binding
on
labor
officials
because
the
test
of
employer-employee
relationship
is
law
and
not
agreement
between
the
parties
(Insular
Life
etc.,
v.
NLRC,
287
SCRA
476[1998).
SUGGESTED
ANSWER:
Using
the
control
test,
the
employer
of
the
RSC
members
is
PizCorp.
According
to
the
facts,
the
RSC
members
are
supposed
to
make
their
deliveries
in
accordance
with
PizCorp
directives
and
orders.
In
addition,
the
PizCorp
can
directly
impose
disciplinary
sanction,
including
the
power
to
dismiss
the
RSC
members.
SUGGESTED
ANSWER:
Even
if
the
RSC
has
a
paid
up
capitalization
of
P1,000,000.00
it
is
not
engaged
in
labor-
only
contracting,
or
permissible
job
contracting.
It
is
engaged
simply
in
recruiting.
RSC
merely
provides
PizCorp
the
formers
motorcycle-owning
members
to
deliver
the
product
of
PizCorp
in
accordance
with
PizCorps
directives
and
orders.
ALTERNATIVE
SUGGESTED
ANSWER:
RSC
is
engaged
in
labor-only
contracting.
It
is
not
enough
to
show
substantial
capitalization
or
investment
in
the
form
of
tools,
equipment,
machinery
and
work
premises.
In
addition,
the
following
factors
have
to
be
considered:
(a)
whether
the
contractor
is
carrying
on
an
independent
business;
(b)
the
nature
and
extent
of
the
work;
(c)
the
skill
required;
(d)
the
term
and
duration
of
the
relationship;
(e)
the
right
to
assign
the
performance
of
specified
pieces
of
work;
(f)
the
control
and
supervision
of
the
workers;
(g)
the
power
of
employer
with
respect
to
the
hiring,
firing
and
payment
of
workers
of
the
contractor;
(h)
the
control
and
supervision
of
the
workers;
(g)
the
power
of
employer
with
respect
to
the
hiring,
firing
and
payment
of
workers
of
the
contractor;
(h)
the
control
of
the
premises;
(j)
the
mode,
manner
and
terms
of
payment
(Alexander
Vinoya
v.
NLRC,
Regent
Food
Corporation
and/or
Ricky
See,
324
SCRA
469[2000];
Osiasl.
Corporal,
Sr.,
et
al.
v.
NLRC,
Lao
Enteng
Company,
Inc.
and/or
Trinidad
IMO
Ong,
341
SCRA
658[2000]).
- VI -
On
the
day
that
the
Union
could
validly
declare
a
strike,
the
Secretary
of
Labor
issued
an
order
assuming
jurisdiction
over
the
dispute
and
enjoining
the
strike,
or
if
one
has
commenced,
ordering
the
striking
workers
to
immediately
return
to
work.
The
return-to-work
order
required
the
employees
to
return
to
work
within
twenty-four
hours
and
was
served
at
8
a.m.
of
the
day
the
strike
was
to
start.
The
order
at
the
same
time
directed
the
Company
to
accept
all
employees
under
the
same
terms
and
conditions
of
employment
prior
to
the
work
stoppage.
The
Union
members
did
not
return
to
work
on
the
day
the
Secretary's
assumption
order
was
served
nor
on
the
next
day;
instead,
they
held
a
continuing
protest
rally
against
the
company's
alleged
unfair
labor
practices.
Because
of
the
accompanying
picket,
some
of
the
employees
who
wanted
to
return
to
work
failed
to
do
so.
On
the
3rd
day,
the
workers
reported
for
work,
claiming
that
they
do
so
in
compliance
with
the
Secretary's
return-to-work
order
that
binds
them
as
well
as
the
Company.
The
Company,
however,
refused
to
admit
them
back
sionce
they
had
violated
the
Secretary's
return-to-work
order
and
are
now
considered
to
have
lost
their
employment
status.
The
Union
officers
and
members
filed
a
complaint
for
illegal
dismissal
arguing
that
there
was
no
strike
but
a
protest
rally
which
is
a
valid
exercise
of
the
workers
constitutional
right
to
peaceable
assembly
and
freemdom
of
expression.
Hence,
there
was
no
basis
for
the
termination
of
their
employment.
You
are
the
Labor
Arbiter
to
whom
the
case
was
raffled.
Decide,
ruling
on
the
following
issues:
SUGGESTED
ANSWER:
Yes,
there
was
a
strike
because
of
the
concerted
stoppage
of
work
by
the
union
members.
ANOTHER
SUGGESTED
ANSWER:
Yes,
there
was
a
strike.
No
matter
how
they
call
it,
the
continuing
protest
rally
against
the
companys
alleged
unfair
labor
practices
constitutes
a
temporary
stoppage
of
work
by
he
concerted
action
of
employees
as
a
result
of
an
industrial
or
labor
dispute
-
a
case
of
strike
as
defined
in
Art.
212(o)
of
the
Labor
Code.
Recently,
in
Santa
Rosa
Coca-Cola
Plant
Employees
Union,
et
al.
vs.
Coca-Cola
Bottlers
Phils.,
Inc.
(512
SCRA
437
[2007]},
the
Supreme
Court
clarified
that
a
strike
comes
in
varied
forms,
from
slowdowns,
mass
leaves,
sit
downs
to
other
similar
activities.
A
protest
rally
which
results
in
temporary
stoppage
of
work
by
the
concerted
action
of
employees,
as
a
result
of
a
labor
or
industrial
dispute,
is
clearly
a
case
of
strike.
SUGGESTED
ANSWER:
No.
After
the
issuance
of
a
return
to
work
order
based
on
the
assumption
powers
of
the
Secretary
of
Labor
under
Art.
263(g)
of
the
Labor
Code,
the
strike
was
already
taken
outside
of
the
employees
constitutionally
protected
right
to
engage
in
peaceful
concerted
activities
for
redress
of
their
grievances.
ANOTHER
SUGGESTED
ANSWER:
The
employees
were
not
simply
exercising
their
constitutional
right
to
petition
for
redress
of
their
grievances.
Specifically,
they
were
focusing
on
alleged
unfair
labor
practice
which
made
the
continuing
protest
rally
a
strike.
c. What are the consequences, if any, of the acts of the employees? (3%)
SUGGESTED
ANSWER:
The
consequences
of
defiance
of
the
Return
to
Work
Order
is
loss
of
employment
of
all
those
who
participated
in
the
illegal
activity.
The
workers
continued
their
strike
activity
after
the
issuance
of
the
RTW.
The
Supreme
Court
in
Philcom
Employees
Union
v.
Philippine
Global
Communication
(495
SCA
214[2006]),
ruled:
A
strike
undertaken
despite
the
Secretary
is
issuance
of
an
assumption
or
certification
order
becomes
a
prohibited
activity,
and
thus
illegal,
under
Article
264(a)
of
the
Labor
Code.
The
union
officers
who
knowingly
participate
in
that
illegal
strike
are
deemed
to
have
lost
their
employment
status
the
union
members,
including
union
officers,
who
commit
specific
illegal
acts
or
who
knowingly
defy
a
return
to
work
order
arc
also
deemed
to
have
lost
their
employment
status.
-
VII
-
If you were Tito's employer, would you grant his request? Why? (6%)
SUGGESTED
ANSWER:
No.
As
Titos
employer,
I
am
bound
by
law
to
remit
to
SSS
Titos
monthly
contribution.
The
SSS
law
covers
any
person
natural,
juridical,
domestic
or
foreign,
carrying
in
the
Philippines
trade,
business,
industry,
undertaking
or
activity
and
uses
the
services
of
another
under
his
order
as
regards
employment
(Sec.
89[c]).
The
compulsory
coverage
of
employers
and
employees
under
the
SSS
law
is
actually
a
legal
imposition
on
the
employers
and
employees,
designed
to
provide
social
security
to
workingmen.
Membership
in
SSS
is
in
compliance
with
a
lawful
exercise
of
the
police
power
of
the
State,
and
may
not
be
Waived
by
agreement
of
any
party
(Phil.
Blooming
Mills,
Co.,
Inc.
v.
SSS,
17
SCRA
1077(1966]).
-
VIII
-
Carol
de
la
Cruz
is
the
secretary
of
the
proprietor
of
an
auto
dealership
in
quezon
City.
She
resides
in
Caloocan
City.
Her
office
hours
start
at
8
a.m.
and
end
at
5
p.m.
On
July
30,
2008,
at
7
a.m.
while
waiting
for
public
transport
at
Rizal
Avenue
Extension
as
has
been
her
routine,
she
was
sideswiped
by
a
speeding
taxicab
resulting
in
her
death.
The
father
of
Carol
filed
a
claim
for
employee's
compensation
with
the
Social
Security
System.
Will
the
claim
prosper?
Why?
(6%)
SUGGESTED
ANSWER:
Yes,
the
claim
will
prosper.
In
a
line
of
cases,
it
has
been
held
that
an
injury
sustained
by
the
employee
while
on
his
way
to
or
from
his
place
of
work,
and
which
is
otherwise
compensable,
is
deemed
to
have
arisen
out
of
and
in
the
course
of
his
employment
(Lentejas
v.
Employees
Compensation
Commission,
197SCRA
44[1991]).
Carol
died
while
going
to
her
place
of
work.
As
held
in
the
case
of
Alano
v.
Employees
Compensation
Commission
(158
SCRA
669(1988]),
she
was
at
the
place
where
her
job
necessarily
required
her
to
be
if
she
was
to
reach
her
place
of
work
on
time.
There
was
nothing
private
or
personal
about
Carols
place
being
at
the
place
of
the
accident.
She
was
there
because
her
employment
required
her
to
be
there.
ANOTHER
SUGGESTED
ANSWER:
The
claim
will
not
prosper
as
a
claim
for
employees
compensation
will
prosper
only
in
the
event
of
work-
connected
disability
or
death
and
the
death
of
Carol
dela
Cruz
will
be
considered
as
work
connected
only
if
it
was
because
of
any
accident
arising
out
of
and
in
the
course
of
employment.
This
was
not
the
case
of
Carol
dela
Cruz.
She
was
not
yet
working
when
the
accident
that
caused
her
death
took
place.
- IX -
Assume
that
in
Problem
5,
Mario,
an
RSC
member
disgusted
with
the
non-
payment
of
his
night
shift
differential
and
overtime
pay,
filed
a
complaint
with
the
DOLE
Regional
Office
against
RSC
and
PizCorp.
After
inspection,
it
was
found
that
indeed
Mario
was
not
getting
his
correct
differential
and
overtime
pay
and
that
he
was
declared
an
SSS
member
(so
that
no
premiums
for
SSS
membership
were
ever
remitted).
On
this
basis,
the
Regional
Director
issued
a
compliance
order
holding
PizCorp
and
RSC
solidarily
liable
for
the
payment
of
the
correct
differential
and
overtime
pay
and
ordering
PizCorp
to
report
Mario
for
membership
with
SSS
and
remit
overdue
SSS
premiums.
Who
has
the
obligation
to
report
the
RSC
members
for
membership
with
the
SSS,
with
the
concomitant
obligation
to
remit
SSS
premiums?
Why?
(6%)
SUGGESTED
ANSWER:
Ordinarily,
if
RSC
is
engaged
in
permissible
job
contracting,
it
would
be
RSC
who
would
be
the
employer
and,
therefore,
would
have
the
obligation
to
report
its
employees
to
the
SSS
and
remit
its
premiums.
However,
since
RSC
is
a
labor-only
contractor
and,
therefore,
considered
a
mere
agent
of
PizCorp.
PizCorp,
as
the
real
employer,
has
the
legal
obligation
to
report
the
RSC
members
as
its
employees
for
membership
with
the
SSS
and
remit
its
premium.
- X -
Pepe
Santos
was
an
international
flight
steward
of
Flysafe
Airlines.
Under
FSA's
Cabin
Crew
Administration
Manual,
Santos
must
maintain,
given
his
height
and
body
frame,
a
weight
of
150
to
170
pounds.
After
5
years
as
a
flight
steward,
Santos
began
struggling
with
his
weight;
he
weighed
200
lbs.,
30
pounds
over
the
prescribed
maximum
weight.
The
Airline
gave
him
a
one-year
period
to
attain
the
prescribed
weight,
and
enrolled
him
in
several
wieght
reduction
programs.
He
consistently
failed
to
meet
his
target.
He
was
given
a
6-month
grace
period,
after
which
he
still
failed
to
meet
the
weight
limit.
FSC
thus
sent
him
a
Notice
of
Administrative
Charge
for
violation
of
company
standards
on
weight
requirements.
He
stated
in
his
answer
that,
for
medical
reasons,
he
cannot
have
a
rapid
weight
loss.
A
clarificatory
hearing
was
held
where
Santos
fully
explained
his
predicament.
The
explanation
did
not
satisfy
FSA
and
so
it
decided
to
terminate
Santos's
service
for
violation
of
company
standards.
Santos
filed
a
complaint
for
illegal
dismissal,
arguing
that
the
company's
weight
requirement
policy
is
unreasonable
and
that
his
case
is
not
a
disciplinary
but
a
medical
issue
(as
one
gets
older,
the
natural
tendency
is
to
grow
heavier).
FSA
defended
its
policy
as
a
valid
exercise
of
management
prerogative
and
from
the
point
of
view
of
passenger
safety
and
extraordinarydiligence
required
by
law
of
common
carriers;
it
also
posited
that
Santos
failure
to
achieve
his
ideal
weight
constituted
gross
and
habitual
neglect
of
duty,
as
well
as
willful
disobedience
to
lawful
employer
orders.
The
Labor
Arbiter
found
the
dismissal
illegal
for
there
was
neither
gross
and
habitual
neglect
of
duty
nor
willful
disobedience.
Is the Labor Arbiter correct? Why or why not? Explain fully. (6%)
SUGGESTED
ANSWER:
The
Labor
Arbiter
is
correct.
There
is
no
gross
and
habitual
neglect
because
it
appears
that
Pepe
was
trying
to
meet
the
weight
limit,
but
just
could
not
do
so.
His
acts
or
omissions
were
not
willfully
or
intentionally
done
with
conscious
indifference
to
the
consequences
of
such
acts
or
omissions.
There
was
no
willful
disobedience
because
Pepes
actions
or
omissions
were
not
motivated
by
a
wrongful
or
perverse
attitude.
Besides,
the
rigid
requirement
of
meeting
the
170-pound
maximum
weight
limit
is
not
reasonable,
considering
a
person
who
could
just
be
a
few
pounds
over
shall
already
be
terminated.
At
worst,
Pepe
could
be
suspended
or
reprimanded
for
his
inability
to
reach
the
weight
limit.
Dismissal
would
be
too
harsh
a
penalty
to
impose.
ANOTHER
SUGGESTED
ANSWER:
The
Labor
Arbiter
is
not
correct
in
finding
the
dismissal
of
Santos
illegal.
Pepe
Santos,
right
at
the
commencement
of
his
employment
at
FSA
as
flight
steward,
knew
that
he
must
maintain,
given
his
height
and
body
frame,
a
weight
of
130
to
170
pounds.
The
FSA,
through
its
Cabin
Crew
Administrative
Manual,
told
Santos,
that
given
his
height
and
body
frame,
he
must
maintain
his
weight
between
130
and
170
pounds.
This
pre
-requisite
is
an
exercise
of
management
prerogative.
When
Santos
became
a
flight
steward
at
FSA,
he
accepted
his
employment
with
this
prerequisite
which
is
not
violative
of
any
law
but
is
instead
positively
based
on
passenger
safety
and
extraordinary
diligence
required
by
law
of
common
carrier.
Thus,
the
termination
of
Santos
was
for
a
valid
reason:
He
was
no
longer
complying
with
a
pre-requisite
which
was
in
his
contract
of
employment
from
the
very
beginning.
- XI -
Complaints
had
worked
five
(5)
years
as
waitresses
in
a
cocktail
lounge
owned
by
the
respondent.
They
did
not
receive
any
salary
directly
from
the
respondent
but
shared
in
all
service
charges
collected
for
food
and
drinks
to
the
extent
of
75%.
With
respondent's
prior
permission,
they
could
sit
with
and
entertain
guest
inside
the
establishment
and
appropriate
for
themselves
the
tips
given
by
guests.
After
five
(5)
years,
the
complaints
individual
shares
in
the
collected
service
charges
dipped
to
below
minimum
wage
level
as
a
consequence
of
the
lounge's
marked
business
decline.
Thereupon,
complaints
asked
respondent
to
increase
their
share
in
the
collected
service
charges
to
85%
or
the
minimun
wage
level,
whichever
is
higher.
SUGGESTED
ANSWER:
The
waitresses
were
employees
of
the
owner
of
the
cocktail
lounge.
Article
138
of
the
Labor
Code
provides:
Any
woman
who
is
permitted
or
suffered
to
work,
with
or
without
compensation,
in
any
night
club,
cocktail
lounge,
massage
clinic,
bar
or
similar
establishment,
under
the
effective
control
or
supervision
of
the
employer
for
a
substantial
period
of
time
as
determined
by
the
Secretary
of
Labor,
shall
be
considered
as
an
employee
of
such
establishment
for
purposes
of
labor
and
social
legislation.
Thus,
the
said
waitresses
are
employees
with
the
right
to
security
of
tenure
and
cannot
be
dismissed
just
because
they
filed
complaint
against
the
owner
of
the
cocktail
lounge.
And
as
such
waitresses,
who
are
considered
employees
of
the
cocktail
lounge,
they
are
at
the
very
least
entitled
to
receive
the
applicable
minimum
wage.
ANOTHER
SUGGESTED
ANSWER:
Complainants
are
not
employees
of
the
cocktail
lounge,
hence,
they
are
not
entitled
to
coverage
of
the
Labor
Code.
There
is
no
finding
that
they
are
under
the
effective
control
or
supervision
of
the
employer
for
a
substantial
period
time
as
determined
by
the
Secretary
of
Labor.
The
Labor
Code
reads:
Art.
138.
Classification
of
certain
workers.
Any
worker
who
is
permitted
to
work,
with
or
without
compensation,
in
any
night
clubs,
cocktail
lounge,
massage
clinic,
bar
or
similar
establishment,
under
the
effective
control
or
supervision
of
the
employer
for
a
substantial
period
of
time
as
determined
by
the
Secretary
of
Labor,
shall
be
considered
an
employee,
of
such
establishment
for
purposes
of
labor
and
social
legislation.
- XII -
SUGGESTED
ANSWER:
Compulsory
overtime
work
may
be
required
when
the
completion
or
continuation
of
work
started
before
the
8th
hour
is
necessary
to
prevent
serious
obstruction
or
prejudice
to
the
business
or
operations
of
the
employer
(Art.
89,
Par.
E,
Labor
Code;
Section
10,
Rule
I,
Book
III,
Implementing
Rules).
On
the
other
hand,
dismissal
for
willful
disobedience
of
the
employers
lawful
orders,
requires
that:
(a)
the
assailed
conduct
must
have
been
willful
or
intentional,
characterized
by
a
wrongful
and
perverse
attitude;
and
(b)
the
order
violated
must
have
been
reasonable,
lawful,
made
known
to
the
employee
and
must
pertain
to
his
duties
(Dimabayao
v.
NLRC,
G.R.
No.
122178,
February
25,
1999;
Alcantara,
Jr.
v.
CA,
G.R.
No.
143397,
August
06,
2002).
Although
the
order
to
render
overtime
is
valid.
Arlando
should
not
be
dismissed
because
he
was
motivated
by
his
honest
belief
that
the
order
unreasonably
prevented
him
from
sending
off
his
wife
who
was
leaving
for
overseas.
While
the
circumstances
do
not
justify
his
violation
of
the
order
to
render
overtime,
they
do
not
justify
Arnaldos
dismissal
either
(Alcantara,
Jr.
v.
CA,
G.R.
No.
143397,
August
06,
2002).
-
XIII
-
The
rank-and-file
union
staged
a
strike
in
the
company
premises
which
caused
the
disruption
of
business
operations.
The
supervisors
union
of
the
same
company
filed
a
money
claim
for
unpaid
salaries
for
the
duration
of
the
strike,
arguing
that
the
supervisors'
failure
to
report
for
work
was
not
attributable
to
them.
The
company
contended
that
it
was
equally
faultless,
for
the
strike
was
not
the
direct
consequence
of
any
lockout
or
unfair
labor
practice.
May
the
company
be
held
liable
for
the
salaries
of
the
supervisor?
Decide
(6%)
SUGGESTED
ANSWER:
No.
I
will
apply
the
No
Work
No
Pay
principle.
The
supervisors
are
not
entitled
to
their
money
claim
for
unpaid
salaries,
as
they
should
not
be
compensated
for
services
skipped
during
the
strike
of
the
rank-and-file
union.
The
age-old
rule
governing
the
relation
between
labor
and
capital,
or
management
and
employee
of
a
fair
days
wage
for
a
fair
days
labor
remains
as
the
basic
factor
in
determining
employees
wages
(Aklan
Electric
Cooperative,
Inc.
v.
NLRC,
323
SCRA
258[2000]).
- XIV -
SUGGESTED
ANSWER:
A
new
provision,
Article
239-A
is
inserted
into
the
Labor
Code
by
RA
9481,
as
follows:
ART.
239-A.
Voluntary
Cancellation
of
Registration.
-
The
registration
of
a
legitimate
labor
organization
may
be
cancelled
by
the
organization
itself:
Provided,
That
at
least
two-thirds
of
its
general
membership
votes,
in
a
meeting
duly
called
for
that
purpose
to
dissolve
the
organization:
Provided,
further,
That
an
application
to
cancel
registration
is
thereafter
submitted
by
the
board
of
the
organization,
attested
to
by
the
president
thereof.
If
indeed
the
local
union
was
dissolved
in
accordance
with
the
above
provision
of
law,
the
argument
of
Puwersa
is
not
tenable.
This
is
so
because
Puwersa
only
had
the
status
of
an
agent,
while
the
local
union
remained
the
basic
unit
of
the
association
[Liberty
Cotton
Mills
Workers
Union
v.
Liberty
Cotton
Mills,
Inc.,
66
SCRA
52[1975J;
cited
in
Filipino
Pipe
and
Foundry
Corp.
v.
NLRC,
318
SCRA
68[1999]).
ANOTHER
SUGGESTED
ANSWER:
No.
Local
unions
do
not
owe
their
creation
and
existence
to
the
national
federation
to
which
they
are
affiliated,
but
to
the
will
of
their
members.
The
act
of
voluntary
dissolution
already
constitutes
a
ground
for
cancellation
for
union
registration
under
Article
239
as
amended
by
Republic
Act
No.
9481.
Hence,
the
collective
bargaining
agents
legal
personality
has
been
extinguished,
with
Puwersa
reduced
to
being
an
agent
without
a
principal.
ALTERNATIVE
SUGGESTED
ANSWER:
Yes,
Puwersa
is
right.
Article
256
of
the
Labor
Code
mandates
that
the
Labor
union
receiving
the
majority
of
the
valid
votes
cast
shall
be
certified
as
the
exclusive
bargaining
agent
of
all
the
workers
in
the
unit.
On
the
assumption
that
it
has
been
so
certified,
Puwersa
is
then
correct
in
its
argument
that
since
it
won
in
the
certification
election,
it
can
validly
perform
its
functions
as
a
bargaining
agent
and
represent
the
rank-
and-file
employees
despite
the
(local)
unions
dissolution.
The
refusal
of
the
company
to
bargain
with
Puwersa
is
violative
of
its
duty
to
bargain
collectively
under
Arts.
251
and
252
of
the
Code,
thereby
subjecting
it
to
the
penalty
of
considering
Puwersas
proposed
CBA
as
the
parties
effective
CBA.
Such
was
the
ruling
of
the
Supreme
Court
in
Divine
Word
University
of
Tacloban
vs.
Secretary
of
Labor
and
Employment
(213
SCRA
759
[1992]).