DAY 1 (PM) Labor Law

Question 1

I. The parties to a labor dispute can validly submit to voluntary arbitration _________.

(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.

Question 2

II. When there is no recognized collective bargaining agent, can a legitimate labor organization validly declare a strike against the employer?

(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.

Question 3

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?

(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.

Question 4

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 _________.

(A) three (3) years.

(B) four (4) years.

(C) five (5) years.

(D) six (6) years.

(E) ten (10) years.

Question 5

IV. Chito was illegally dismissed by DEF Corp. effective at the close of business hours of December 29, 2009.

IV(2). If he has money claims against DEF Corp., he can make the claim without any legal bar within _________.

(A) three (3) years.

(B) four (4) years.

(C) five (5) years.

(D) six (6) years.

(E) ten (10) years.

Answer 5

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.

(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

Question 6

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.

(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

Question 7

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?

(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.

Question 8

VII. The minimum wage prescribed by law for persons with disability is __________.

(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.

Question 9

VIII. What is the financial incentive, if any, granted by law to SPQ Garments whose cutters and sewers in its garments-for-export operations are 80% staffed by deaf and deaf-mute workers?

(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)

Question 10

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 __________.

(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.

Question 11

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?

(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.

Question 12

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?

(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 expressly provided 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.

Question 13

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?

(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.

Question 14

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?

(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.

Question 15

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?

(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.

Question 16

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?

(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.

Question 17

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?

(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.

Question 18

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(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?

(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.

Question 19

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.

(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.

Question 20

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?

(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.