Bar Examination Questionnaire for Labor Law

Set A
(1) The unions by-laws provided for burial assistance to the family of a member who dies. When Carlos, a member,
died, the union denied his wife's claim for burial assistance, compelling her to hire a lawyer to pursue the claim.
Assuming the wife wins the case, may she also claim attorney's fees?
(A) No, since the legal services rendered has no connection to CBA negotiation.
(B) Yes, since the union should have provided her the assistance of a lawyer.
(C) No, since burial assistance is not the equivalent of wages.
(D) Yes, since award of attorney's fee is not limited to cases of withholding of wages.

Under several jurisprudence, Settled is the rule that in actions for recovery of wages, or where an employe
was forced to litigate and, thus, incur expenses to protect his rights and interests, a monetary award by way
of attorneys fees is justifiable under art. 111 of the Labor Code; Sec.8, Rule VIII, Book III of it implementing
rules; and par.7 f art.2208 of the Civil Code. The award of attorneys fees is proper, and there need not be any
showing that the employer acted maliciously or in bad faith when it withheld the wages. There need only be a
showing that the lawful wages were not paid accordingly.

2) Pol requested Obet, a union officer and concurrently chairman of the company's Labor-Management Council, to
appeal to the company for a recomputation of Pols overtime pay. After 5 p.m., his usual knock-off time, Obet spent
two hours at the Personnel Office, reconciling the differing computations of Pols overtime. Are those two hours
compensable?
(A) Yes, because Obet performed work within the company premises.
(B) No, since Obets action has nothing to do with his regular work assignment.

(C) No, because the matter could have been resolved in the labor-management council of which he is the
chairman.
(D) Yes, because the time he spent on grievance meetings is considered hoursworked.

The normal hours of work under the Labor Code is 8 hours in one work day. Work day is understood to mean
one 24-hour cycle which starts from the time the employee is engaged to work and ends on the same time
the following day. For example, if the employee is engaged to work from 8:00am to 5:00pm, his work day is
the 24-hour cycle that starts from 8:00am and ends at 8:00am of the following day.
Hours worked refers to all compensable period of work. Hours work includes:
1.

All the time during which an employee is required to be on duty or to be at a prescribed workplace;
and

2.

All the time during which an employee is suffered or permitted to work.

Now, All employees required to work beyond eight hours in one workday is entitled to overtime pay. The
basis of overtime pay is found in Article 87 of the Labor Code.

(3) The Labor Code on retirement pay expands the term one-half () month salary because it means
(A) 15 days' pay plus 1/12th of the 13th month pay and 1/12th of the cash value of service incentive leave.
(B) 15 days' pay plus 1/12th of the 13th month pay and the cash equivalent of five days service incentive
leave.
(C) 15 days pay plus a full 13th month pay.
(D) 15 calendar days' pay per year of service plus allowances received during the retirement year.

SECTION 5. Retirement Benefits of RA 7641 amending Art. 287 of the Labor code

5.1 In the absence of an applicable agreement or retirement plan, an employee who retires pursuant to the
Act shall be entitled to retirement pay equivalent to at least one-half () month salary for every year of
service, a fraction of at least six (6) months being considered as one whole year.

5.2 Components of One-half () Month Salary. For the purpose of determining the minimum retirement
pay due an employee under this Rule, the term one-half month salary shall include all of the following:
(a) Fifteen (15) days salary of the employee based on his latest salary rate. As used herein, the term salary
includes all remunerations paid by an employer to his employees for services rendered during normal
working days and hours, whether such payments are fixed or ascertained on a time, task, piece of
commission basis, or other method of calculating the same, and includes the fair and reasonable value, as
determined by the Secretary of Labor and Employment, of food, lodging or other facilities customarily
furnished by the employer to his employees. The term does not include cost of living allowances, profitsharing payments and other monetary benefits which are not considered as part of or integrated into the
regular salary of the employees.

(b) The cash equivalent of not more than five (5) days of service incentive leave;
(c) One-twelfth of the 13th month pay due the employee.
(d) All other benefits that the employer and employee may agree upon that should be included in the
computation of the employees retirement pay

(4) A foreign guest in a luxury hotel complained that he lost certain valuable items in his hotel room. An investigation
by the hotel pointed to two roomboys as the most probable thieves. May the management invoke loss of confidence
as a just cause for dismissing the roomboys?
(A) No, loss of confidence as reason for dismissal does not apply to rank and file employees.
(B) No, loss of confidence applies only to confidential positions.

(C) Yes, loss of confidence is broad enough to cover all dishonest acts of employee.
(D) Yes, loss of confidence applies to employees who are charged with the care and custody of the
employer's property.

ART. 282. TERMINATION BY EMPLOYER. An employer may terminate an employment for any of the
following causes:
(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or
representative in connection with his work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized
representative;
(d) Commission of a crime or offense by the employee against the person of his employer or any immediate
member of his family or his duly authorized representative; and
(e) Other causes analogous to the foregoing.
Article 282(c) of the Labor Code prescribes two separate and distinct grounds for termination of
employment, namely: (1) fraud or (2) willful breach by the employee of the trust reposed in him by his
employer or duly authorized representative.
Settled is the rule that under Article 282(c), the breach of trust must be willful. Ordinary breach will not
suffice. A breach is willful if it is done intentionally and knowingly without any justifiable excuse, as
distinguished from an act done carelessly, thoughtlessly or inadvertently.
As firmly entrenched in our jurisprudence, loss of trust and confidence as a just cause for termination of
employment is premised on the fact that an employee concerned holds a position where greater trust is
placed by management and from whom greater fidelity to duty is correspondingly expected. The betrayal of
this trust is the essence of the offense for which an employee is penalized.

(5) Tower Placement Agency supplies manpower to Lucas Candy Factory to do work usually necessary for work
done at its factory. After working there for more than two years under the factory managers supervision, the workers
demanded that Lucas extend to them the same employment benefits that their directly hired workers enjoyed. Is their
demand valid?
(A) Yes, since it was Lucas that actually hired and supervised them to work at its factory.
(B) No, since the agency workers are not employees of the client factory.
(C) Yes, since they have been working at the factory in excess of two years.
(D) No, since it was the placement agency that got them their jobs.

In an ordinary employer-employee relationship, there are only two parties involved - the employer and the
employee. This relationship is established through a four-fold test, under which the employer:
a. Directly exercises control and supervision over the employee not only as to the results of the work but
also as to the means employed to attain this result;
b. Has the power to select and hire the employee;
c. Has the obligation to pay the employees his or her wages and other benefits.
The power of control is the most important factor in determining the existence of an employer-employee
relationship. The employer need not actually exercise this power. It is enough that the employer retains the
right to exercise this power. It is enough that the employer retains the right to exercise it as it may deem
necessary or appropriate.
In subcontracting, there are three parties involved:
a. The principal who decides to farm out a job or service to a subcontractor;
b. The subcontractor which has the capacity to independently undertake the performance of the job or
service; and
c. The employees engaged by the subcontractor to accomplish the job or service.
In subcontracting, the four-fold test of employer-employee relationship should be satisfied by the
subcontractor in relation to the employees it engages to accomplish the subcontracted job or service. In
such cases, the subcontractor is also referred to as independent contractor.

If the four-fold test is satisfied not by the subcontractor but by the principal, the principal then becomes the
employer of the employees engaged to accomplish the job or service. What exists is not subcontracting but
a direct employer-employee relationship between the principal and the employees.

(6) Both apprenticeship and learnership are government programs to provide practical on-the-job training to new
workers. How do they differ with respect to period of training?.
(A) In highly technical industries, apprenticeship can exceed 6 months; learnership can exceed one year.
(B) Apprenticeship cannot exceed 6 months; learnership can.
(C) Apprenticeship shall not exceed six months; while learnership shall not exceed three months.
(D) The law lets the employer and the apprentice agree on the apprenticeship period; but the law fixes
learnership period at six months in non-technical industries.

Express provision of the Labor code:

Art. 61. Contents of apprenticeship agreements. Apprenticeship agreements, including the wage rates of
apprentices, shall conform to the rules issued by the Secretary of Labor and Employment. The period of
apprenticeship shall not exceed six months. Xxx

Art. 75. Learnership agreement. Any employer desiring to employ learners shall enter into a learnership
agreement with them, which agreement shall include:
(1) xxx
(2) The duration of the learnership period, which shall not exceed three (3) months;

(7) Venus Department Store decided to contract out the security services that its 10 direct-hired full-time security
guards provided. The company paid the men separation pay. With this move, the Store was able to cut costs and
secure efficient outside professional security services. But the terminated security guards complained of illegal
dismissal, claiming that regular jobs such as theirs could not be contracted out. Will their complaint prosper?
(A) No. the management has the right to contract out jobs to secure efficient and economical operations.
(B) Yes. They should be reinstated or absorbed by the security agency as its employees.
(C) No. They are estopped from demanding reinstatement after receiving their separation pay.
(D) Yes. The company cannot contract out regular jobs such as they had.

Lawful dismissal of an employee may be based on Just and Authorized causes. Authorized causes are of two
types - business reasons and disease. The business reasons are installation of labor-saving devices,
redundancy, retrenchment and closure or cessation of operation (Art. 283, Labor Code). The installation of
labor-saving devices contemplates that the purpose of such installation must be valid, such as to save on
cost, enhance efficiency and other justifiable economic reasons.

(8) Although both are training programs, apprenticeship is different from learnership in that
(A) a learner may be paid 25% less than the legal minimum wage while an apprentice is entitled to the
minimum wage.
(B) apprenticeship has to be covered by a written agreement; no such formality is needed in learnership.
(C) in learnership, the employer undertakes to make the learner a regular employee; in apprenticeship, no
such undertaking.
(D) a learner is deemed a regular employee if terminated without his fault within one month of training; an
apprentice attains employment status after six months of apprenticeship.

Both are entitled to 75% of the statutory minimum wage.

Both are covered by a written agreement called the learnership agreement and apprenticeship agreement
With respect to the option to employ, in learnership, the enterprise is obliged to hire the learner after the
lapse of the learnership period; while in apprenticeship, the enterprise is given only an option to hire the
apprentice as an employee.

(9) A golf and country club outsourced the jobs in its food and beverage department and offered the affected
employees an early retirement package of 1 months pay for each year of service. The employees who accepted
the package executed quitclaims. Thereafter, employees of a service contractor performed their jobs. Subsequently,
the management contracted with other job contractors to provide other services like the maintenance of physical
facilities, golf operations, and administrative and support services. Some of the separated employees who signed
quitclaims later filed complaints for illegal dismissal. Were they validly dismissed?
(A) Yes. The jobs were given to job contractors, not to labor-only contractors, and the dismissed employees
received higher separation pay than the law required.
(B) No. The outsourcing and the employment termination were invalid since the management failed to show
that it suffered severe financial losses.
(C) No. Since the outsourcing of jobs in several departments entailed the separation of many employees,
the club needed the Secretary of Labors approval of its actions.
(D) No. Since the outsourced jobs were held by old-time regular employees, it was illegal for the club to
terminate them and give the jobs to others.

labor-only contracting shall render the principal jointly and severally liable with the contractor to the latters
employees, in the same manner and extent that the principal is liable to employees directly hired by him/her,
as provided in Article 106 of the Labor Code, as amended. Now regardless of the presence of the quitclaim,

the employer remains liable. On the other hand, a legitimate job contracting is not solidarily liable and thus,
the existence of the quitclaim would release the enterprise from any liability towards the employees.

(10) Sampaguita Company wants to embark on a retrenchment program in view of declining sales. It identified five
employees that it needed to separate. The human resource manager seems to recall that she has to give the five
employees and the DOLE a 30-day notice but she feels that she can give a shorter notice. What will you advise her?
(A) Instead of giving a 30-day notice, she can just give a 30-day advanced salary and make the separation
effective immediately.
(B) So long as she gave DOLE a 30-day prior notice, she can give the employees a shorter notice.
(C) The 30-day advance notice to the employee and the DOLE cannot be shortened even with a 30-day
advance salary.
(D) She can give a shorter notice if the retrenchment is due to severe and substantial losses.

The Supreme Court said that as a regular employee, respondent was entitled to all rights, benefits and
privileges provided under our labor laws. One of her fundamental rights is that she may not be dismissed
without due process of law. It has already been held in Philippine National Bank vs. Cabansag, that nothing
in the law gives an employer the option to substitute the required prior notice and opportunity to be heard
with the mere payment of 30 days salary.

(11) Under the Labor Code, its provisions on working conditions, including the eight-hour work day rule, do not apply
to domestic helpers. Does it follow from this that a domestic helper's workday is not limited by law?
(A) No, since a domestic helper cannot be required to work more than ten hours a day.
(B) Yes, since a domestic helper's hours of work depend on the need of the household he or she works for.
(C) No, because a domestic helper is legally entitled to overtime pay after ten hours of work.

(D) Yes, a domestic helper may be required to work twelve hours a day or beyond.
Under art, 1695 of the civil code, it specifically provides that househelpers shall not be required to work for
more than 10 hrs a day.
Under the kasambahay law or RA 10361,
SEC. 20. Daily Rest Period. The domestic worker shall be entitled to an aggregate daily rest period of eight
(8) hours per day.
SEC. 21. Weekly Rest Period. The domestic worker shall be entitled to at least twenty-four (24) consecutive
hours of rest in a week.
Since RA 10361 is a special law, s he most recent piece of legislation, it should prevail over the general
provision of the civil code.

(12) Under the Labor Code on Working Conditions and Rest Periods, a person hired by a high company official but
paid for by the company to clean and maintain his staff house is regarded as
(A) a person rendering personal service to another.
(B) a regular company employee.
(C) a family member.
(D) domestic helper.

Under the kasambahay law, the employer shall not assign the kasambahay to work, whether in full or parttime, in a commercial, industrial or agricultural enterprise at a wage rate lower than that provided for
agricultural or non-agricultural workers. If so assigned, the kasambahay will no longer be treated as such
but as a regular employee of the establishment.

(13) The union filed a notice of strike due to a bargaining deadlock. But, because the Secretary of Labor assumed
jurisdiction over the dispute, the strike was averted. Meanwhile, the employer observed that the union engaged in a

work slowdown. Contending that the slowdown was in fact an illegal strike, the employer dismissed all the union
officers. The union president complained of illegal dismissal because the employer should first prove his part in the
slowdown. Is the union president correct?
(A) Yes, since the employer gave him no notice of its finding that there was a slowdown.
(B) Yes. The employer must prove the union presidents part in slowdown.
(C) No. When a strike is illegal, the management has the right to dismiss the union president.
(D) No. As the union president, it may be assumed that he led the slowdown.

SLOWDOWN STRIKE one staged without the workers quitting their work but merely slackening or by
reducing their normal work output.
In the Coca-Cola Bottlers Philippines Inc. Post Mix Workers Union case, the Court held:
An examination of the evidence on record fails to disclose any active participation in or the commission of
illegal acts of the cited employees during the illegal strike. Such being the case, they incur no liability for the
said strike. They cannot even be held responsible for an illegal strike solely on the basis of union
membership. And since there is absolutely no showing, much less clear proof, that said employees actually
participated in the commission of illegal acts during the said strike involved in this petition, there is no
adequate basis for us to hold that these employees should be deemed to be among those who have lost
their employment status, in consequence of a declaration of illegality of the strike.

(14) The existing collective bargaining unit in Company X includes some fifty secretaries and clerks who routinely
record and monitor reports required by their department heads. Believing that these secretaries and clerks should not
be union members because of the confidential nature of their work, the management discontinued deducting union
dues from their salaries. Is the managements action legal?
(A) No, only managers are prohibited from joining unions; the law does not bar confidential employees
from joining unions.

(B) No, confidential employees are those who assist persons who formulate, determine, or enforce
management policies in the field of labor relations.
(C) Yes, secretaries and clerks of company executives are extensions of the management and, therefore,
should not join the union.
(D) No, confidential employees are those who handle executive records and payroll or serve as executive
secretaries of top-level managers.

confidential employees are those who (1) assist or act in a confidential capacity, (2) to persons who
formulate, determine, and effectuate management policies in the field of labor relations. 5 The two criteria are
cumulative, and both must be met if an employee is to be considered a confidential employee that is, the
confidential relationship must exist between the employee and his supervisor, and the supervisor must
handle the prescribed responsibilities relating to labor relations.

(15) Jose Lovina had been member of the board of directors and Executive Vice President of San Jose Corporation
for 12 years. In 2008, the San Jose stockholders did not elect him to the board of directors nor did the board
reappoint him as Executive Vice President. He filed an illegal dismissal complaint with a Labor Arbiter. Contending
that the Labor Arbiter had no jurisdiction over the case since Lovina was not an employee, the company filed a
motion to dismiss. Should the motion be granted?
(A) No, the Labor Arbiter has jurisdiction over all termination disputes.
(B) Yes, it is the NLRC that has jurisdiction over disputes involving corporate officers.
(C) No, a motion to dismiss is a prohibited pleading under the NLRC Rules of Procedure.
(D) Yes, jurisdiction lies with the regular courts since the complainant was a corporate officer.

Under the Matling doctrine,

In the case of the regular employee, the LA has jurisdiction; otherwise, the RTC exercises the legal authority
to adjudicate.
Before the regular courts can take cognizance of a case, the controversy must pertain to any of the following
relationships:
a) between the corporation, partnership or association and the public;
b) between the corporation, partnership or association and its stockholders, partners, members or officers;
c) between the corporation, partnership or association and the State as far as its franchise, permit or license
to operate is concerned; and
d) among the stockholders, partners or associates themselves.