SUGGESTED ANSWERS IN THE 2018 BAR EXAMINATIONS
IN LABOR LAW retirement, the employee shall be entitled to receive
I existing laws and any collective bargaining agreement
Narciso filed a complaint against Norte University for
the payment of retirement benefits after having been a
part-time professional lecturer in the same school since
1974. Narciso taught for two semesters and a summer
term for the school year 1975, took a leave of absence
from 1975 to 1977, and resumed teaching until 2003.
Since then, his contract has been renewed at the start
of every semester and summer, until November 2005
when he was told that he could no longer teach
because he was already 75 years old. Norte University
also denied Narciso’s claim for retirement benefits
stating that only full-time permanent faculty, who have
served for at least five years immediately preceding
the termination of their employment, can avail
themselves of post-employment benefits. As part-time
faculty member, Narciso did not acquire permanent
employment status under the Manual of Regulations for
Private Schools, in relation to the Labor Code,
regardless of his length service.
(a) Is Narciso entitled to retirement benefits? (2.5%)
SUGGESTED ANSWER:
Yes, Narciso is entitled to retirement benefits. A part-
time lecturer, with a fixed-term employment, who did
not attain permanent status, is entitled to retirement
pay. This was ruled by the Supreme Court in De La Salle
Araneta University v. Bernardo, G. R. No. 190809,
February 13, 2017 as follows: Republic Act No. 7641
states that "any employee may be retired upon
reaching the retirement age x x x;" and "[i]n case of
such retirement benefits as he may have earned under
and other agreements." The Implementing Rules
provide that Republic Act No. 7641 applies to "all
employees in the private sector, regardless of their
position, designation or status and irrespective of the
method by which their wages are paid, except to
those specifically exempted x x x." And Secretary
Quisumbing' s Labor Advisory further clarifies that the
employees covered by Republic Act No. 7641 shall
"include part-time employees, employees of service
and other job contractors and domestic helpers or
persons in the personal service of another."
NOTE: This was the first time that this question was asked
in the bar examinations.
(b) If he is entitled to retirement benefits, how should
retirement pay be computed in the absence of any
contract between him and Norte University providing
for such benefits? (2.5%)
SUGGESTED ANSWER:
The retirement will be 22.5 days salary, exclusive of
leave conversion benefits. According to Capitol
Wireless, Inc. v. Honorable Secretary Ma. Nieves R.
Confessor, G.R. No. 117174, November 13,1996:
For purposes of computing compulsory and optional
retirement benefits and to align the current retirement
plan with the minimum standards of Art. 287 of the
Labor Code, as amended by R.A. 7641, and Sec. 5 (5.2)
of its implementing rules, “1/2 month salary” means
22.5 days salary, exclusive of leave conversion benefits.
xxx xxx xxx
Unless the parties provide for broader inclusions, the
term ‘one-half (1/2) month salary’ shall mean fifteen
(15) days plus one-twelfth (1/12) of the 13th month pay
and the cash equivalent of not more than five (5) days
of service incentive leaves x x x x (italics supplied).
NOTE: Questions involving the same subject matter
were given during the 2011 and 2001 Bar Examinations.
 II
Nayon Federation issued a charter certificate creating
a rank-and-file Neuman Employees Union. On the
same day, New Neuman Employees filed a petition for
certification election with the Department of Labor and
Employment (DOLE) Regional Office, attaching the
appropriate charter certificate.
a) The employer, Neuman Corporation, filed a motion
to dismiss the petition for lack of legal personality on
the part of the petitioner union. Should the motion be
granted? (2.5%)
SUGGESTED ANSWER:
The motion should be denied. For purposes of filing a
petition for certification election, New Neuman
Employees has legal personality from the time it was
issued with a charter certificate. This is clear under the
Labor Code, which provides that the chapter shall
acquire legal personality only for purposes of filing a
petition for certification election from the date it was
issued a charter certificate. (Article 241 [234-A])
Alternative answer:
The motion should be denied. The employer can
question the legal personality of the union only through
independent petition for cancellation of union
registration and not by way of collateral attack in the
petition for certification election.
NOTE: This was the first time that this question was asked
in the bar examinations.
b) The employer likewise filed a petition for
cancellation of union registration against New Neuman
Employees Union, alleging that Nayon Federation
already had a chartered local rank-and-file union,
Neuman Employees Union, pertaining to the same
bargaining unit within the establishment. Should the
petition for cancellation prosper? (2.5%)
SUGGESTED ANSWER:
Under Article 247 of the Labor Code, the following are
the relevant grounds for cancellation of union
registration:
(a) Misrepresentation, false statement or fraud in
connection with the adoption or ratification of the
constitution and by-laws or amendments thereto, the
minutes of ratification, and the list of members who
took part in the ratification;
(b) Misrepresentation, false statements or fraud in
connection with the election of officers, minutes of the
election of officers, and the list of voters;
(c) Voluntary dissolution by the members.
Unless the employer can prove that any of the
foregoing grounds are present the petition for
cancellation will not prosper.
NOTE: This was the first time that this question was asked
in the bar examinations.
III
Due to his employer’s dire financial situation, Nicanor
was prevailed upon by his employer to voluntarily
resign. In exchange, he demanded payment of salary
differentials, 13th month pay, and financial assistance,
as promised by his employer. Management promised
to pay him as soon as it is able to pay off all retrenched
rank-and-file employees. Five years later, and before
management was able to pay Nicanor the amount
promised to him, Nicanor died of a heart attack. His
widow, Norie, filed a money claim against the
company before the National Labor Relations
Commission (NLRC), including interest on the amount
of the unpaid claim. She also claimed additional
damages arguing that the supposed resignation letter
was obtained from her spouse through undue pressure
and influence. The employer filed a motion to dismiss
on the ground that (A) the NLRC did not have
jurisdiction over money claims, and (B) the action has
prescribed.
(a) Does the NLRC have jurisdiction to award money
claims including interest on the amount unpaid? (2.5%)
SUGGESTED ANSWER:
Jurisdiction will depend on the amount being claimed
by Nicanor’s surviving spouse.
If the amount exceeds Five Thousand Pesos
(PhP5,000.00) as provided in Article 224 (a [6]) of the
Labor Code then jurisdiction belongs to the Arbitration
Branch of the NLRC. However, if the amount did not
exceed Five Thousand Pesos (PhP5,000.00) then
jurisdiction belongs to the Regional Director under
Article 129 of the Labor Code involving recovery of
wages, simple money claims and other benefits. Either
of the said quasi-judicial body can award interest in the
concept of actual and compensatory damages. The
award of interest in money claim was explained in
Limlingan v. Asian Institute Management, Inc., G.R. No.
220481, February 17, 2016, that the rate of interest in the
concept of actual and compensatory damages as
well as its accrual are as follows:
1. When the obligation is breached, and it consists in
the payment of a sum of money, i.e., a loan or
forbearance of money, the interest due should be that
which may have been stipulated in writing.
Furthermore, the interest due shall itself earn legal
interest from the time it is judicially demanded. In the
absence of stipulation, the rate of interest shall be 6%
per annum to be computed from default, i.e., from
judicial or extrajudicial demand under and subject to
the provisions of Article 1169 of the Civil Code.
2. When an obligation, not constituting a loan or
forbearance of money, is breached, an interest on the
amount of damages awarded may be imposed at the
discretion of the court at the rate of 6% per annum. No
interest, however, shall be adjudged on unliquidated
claims or damages, except when or until the demand
can be established with reasonable certainty.
Accordingly, where the demand is established with
reasonable certainty, the interest shall begin to run
from the time the claim is made judicially or
extrajudicially (Art. 1169, Civil Code), but when such
certainty cannot be so reasonably established at the
time the demand is made, the interest shall begin to
run only from the date the judgment of the court is
made (at which time the quantification of damages
may be deemed to have been reasonably
ascertained). The actual base for the computation of
legal interest shall, in any case, be on the amount
finally adjudged.
3. When the judgment of the court awarding a sum of
money becomes final and executory, the rate of legal
interest, whether the case falls under paragraph 1 or
paragraph 2, above, shall be 6% per annum from such
finality until its satisfaction, this interim period being
deemed to be by then an equivalent to a forbearance
of credit.
NOTE: Questions involving the same subject matter
were given during the 2011 and 2016 (on award of
interest in money claim) Bar Examinations.
(b) Assuming that the NLRC has jurisdiction, has the
action prescribed? (2.5%)
SUGGESTED ANSWER:
The action has not prescribed. This is because
Nicanor’s surviving spouse’s cause of action will accrue
upon the categorical denial of the claim.
In this case, there was demand for its payment,
however, the management had promised to pay as
soon as it is able to pay off all retrenched rank-and-file
employees. However, it is was only after five (5) years
that the management was able to pay. Moreover,
there was no denial of the claim. Therefore,
prescription did not set in.
the Supreme Court explained the accrual of a cause
of action under Article 306 [291] in Degamo v.
Avantgarde Shipping Corp., G.R. No. 154460,
November 22, 2005 and Serrano v. Court of Appeals,
G.R. No. 139420, August 15, 2001 .
NOTE: Questions involving the same subject matter was
given during the 2010 Bar Examination.
(c) May Nicanor’s spouse successfully claim additional
damages as a result of the alleged undue pressure and
influence? (2.5%)
SUGGESTED ANSWER:
Yes, Nicanor’s spouse can successfully claim additional
damages as a result of the alleged undue pressure and
influence. This is provided under Article 224 (a [4] of the
Labor Code which provides for claims for actual,
moral, exemplary and other forms of damages arising
from employer-employee relationship within the
jurisdictional authority of the Arbitration Branch of the
NLRC.
In the alternative, it can be argued that Nicanor’s
spouse cannot successfully claim additional damages
because it is not within the jurisdictional authority of the
Arbitration Branch of the NLRC. The employer-
employee relationship is only incidental and the cause
of action arises from other sources like torts and
damages. Therefore, jurisdiction belongs to the regular
courts.
NOTE: The foregoing answer can be found in pages 26,
32-38 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018, by Atty. Voltaire T.
Duano. Questions involving the same subject matter
were given during the 2016, 199 and 1995 Bar
Examinations.
IV
Natasha Shoe Company adopted an organizational
streamlining program that resulted in the retrenchment
of 550 employees in its main plant. After having been
paid their separation benefits, the retrenched workers
demanded payment of retirement benefits under a
CBA between their union and management Natasha
Shoe Company denied the workers’ demand.
(a) What is the most procedurally peaceful means to
resolve this dispute? (2.5%)
SUGGESTED ANSWER:
Since this is a money claim involving the interpretation
and implementation of the CBA, the retrenched
workers can refer the matter to the grievance
machinery and if it remained unresolved within seven
(7) days from the date of its submission the same shall
be automatically referred to the voluntary arbitration
prescribed in the CBA.
In the alternative, it can be argued that since this is a
dispute between the retrenched workers and the
employer the same cannot be the subject matter of
grievance and voluntary arbitration. This is because
only disputes between the union and the company, as
ruled in Tabique v. International Copra Export
Corporation, G. R. No. 183335, December 23, 2009,
shall be referred to grievance machinery or voluntary
arbitration. Thus, the dispute should be resolved by way
of mandatory conciliation-mediation in accordance
with Article 234 of the Labor Code. Then file a money
claim before the Labor Arbiter if it exceeds P5,000.00 or
if it is less than P5,000.00 for each of the employees then
the money claims is within the jurisdictional authority of
the Regional Director under Article 129 of the Labor
Code.
NOTE: Questions involving the same subject matter
were given during the 2017, 2010, 2008, 2001, 1997 and
1995 Bar Examinations.
(b) Can the workers claim both separation pay and
retirement benefits. (2.5%)
SUGGESTED ANSWER:
Yes, the workers can claim both separation pay and
retirement benefits. This was settled rule in the case of
Goodyear v. Marina Angus, G.R. No. 185499, 14
November 2014 where it was ruled that in the absence
of an express or implied prohibition against it, collection
of both retirement benefits and separation pay upon
severance from employment is allowed. This is
grounded on the social justice policy that doubts
should always be resolved in favor of labor rights.
(Aquino v. National Labor Relations Commission, G.R.
No. 87653, February 11, 1992)
V
Nelda worked as a chambermaid in Hotel Neverland
with a basic wage of PhP560.00 for an eight-hour
workday. On Good Friday, she worked for one (1) hour
from 10:00 PM to 11:00 PM. Her employer paid her only
PhP480 for each 8-hour workday, and PhP70.00 for work
done on Good Friday. She sued for underpayment of
wages and non-payment of holiday pay and night shit
differential for working on a Good Friday. Hotel
Neverland denied the alleged underpayment, arguing
that based on long-standing unwritten tradition, food
and lodging costs were partially shouldered by the
employer and partially paid for by the employee
through salary deduction. According to the employer,
such valid deduction caused the payment of Nelda’s
wage to be below the prescribed minim m. The hotel
also claimed that she was not entitled to holiday pay
and night shift differential pay hotel workers have to
work on holidays and may be be assigned to work at
night.
(a) Does the hotel have valid legal grounds to deduct
food and lodging costs from Nelda's basis salary?
(2.5%)
SUGGESTED ANSWER:
As held in Mabeza v. National Labor Relations
Commission, G.R. No. 118506, April 18, 1997: Granting
that meals and lodging were provided and indeed
constituted facilities, such facilities could not be
deducted without the employer complying first with
certain legal requirements. Without satisfying these
requirements, the employer simply cannot deduct the
value from the employee’s wages. First, proof must be
shown that such facilities are customarily furnished by
the trade. Second, the provision of deductible facilities
must be voluntarily accepted in writing by the
employee. Finally, facilities must be charged at fair and
reasonable value. (Labor Code, Art. 97 [f])
Applying the above, unless the hotel can comply with
the legal requirements it has no valid legal grounds to
deduct food and lodging costs from Nelda's basis
salary.
NOTE: Questions involving the same subject matter
were given during the 2013 and 2010 Bar Examinations.
(b) Applying labor standards law, how much should
Nelda be paid for work done Good Friday? Show the
computation in your test booklet and encircle your final
answer. (2.5%)
SUGGESTED ANSWER:
It can be argued:
The rule in order to be paid regular holiday like two
successive holidays provides as follows, where there
are two (2) successive regular holidays, like Holy
Thursday and Good Friday, an employee may not be
paid for both holidays if he absents himself from work
on the day immediately preceding the first holiday,
unless he works on the first holiday, in which case he is
entitled to his holiday pay on the second
holiday.(Section 10, Rule IV, Book III, Rules to Implement
the Labor Code)
Applying the above rule, unless Nelda had complied
with the rules on absences she is not entitled for her
holiday pay for work done on Good Friday.
The formula can be used: regular wage/8 x
200%x130%=_____x200%x130%x Hour/s of OT (1 hour).
However, on the assumption that she complied with
the rules Nelda should be paid as follows: P560/8 x
200%x130%= 182.00 x 200%x 130% x 1 hour= P473.2 This
is the OT rate per hour. Nelda should therefore be paid
the total amount of P1,593.00 (basic wage of P560 x
200% plus the OT rate/per hour)
NOTE: Questions involving the same subject matter was
given during the 2013 and 2010 Bar Examinations.
 VI
A certification election was conducted in Nation
Manufacturing Corporation, whereby 55% of eligible
voters in the bargaining unit cast their votes. The results
were as follows:
Union Nana : 45 votes
Union Nada : 40 votes
Union Nara : 30 votes
No Union : 80 votes
Union Nana moved to be declared as the winner of the
certification election.
a) Can Union Nana be declared as the winner? (2.5%)
SUGGESTED ANSWER:
Union Nana cannot be declared as the winner. This is
because the said union did not obtain the majority of
the valid votes casts as provided under Article 268 of
the Labor Code.
NOTE: Questions involving the same subject matter
were given during the 2014, 2009 Bar Examinations.
b) Assume that the eligibility of 30 voters was
challenged during pre-election conference. The
ballots of the 30 challenged voters were placed inside
an envelope sealed by the DOLE Election Office.
Considering the said envelope remains sealed, what
should be the next course of action with respect to the
said challenged votes? (2.5%)
SUGGESTED ANSWER:
The procedure in the Challenge of Votes provides as
follows:
The ballot of the voter who has been property
challenged during the Pre-Election conferences, shall
be placed in an envelope which shall be sealed by the
Election Officer in the presence of the voter and the
representatives of the contending unions. The election
Officer shall indicate on the envelope the voter’s
name, the union challenging the voter, and the
ground for the challenged. The sealed envelope shall
then be signed by the Election Officer and the
representatives of the contending unions. The Election
Officer shall note all challenges in the minutes of the
election proceedings and shall have custody of all
envelops containing the challenged votes. The
envelopes shall be opened and the question of
eligibility shall be passed upon by the Mediator-Arbiter
only if the number of segregated votes will materially
alter the results of the election. (Section 11, Rule IX,
Book V, Rules to Implement the Labor Code, as
amended by Department Order No. 40-F-03, Series of
2008 and renumbered by Department Order No. 40-I-
15, Series of 2015)
Applying the said procedure, if the number of
segregated votes will materially alter the results of the
election the next course of action with respect to the
said challenged votes is to open the said envelopes
and the question of eligibility shall be passed upon by
the Mediator-Arbiter.
NOTE: This is the first time that this type if question was
asked in the Bar Examinations.
VII
Nico is a medical representative engaged in the
promotion of Pharmaceutical products and medical
devices for North Pharmaceuticals, Inc. He regularly
visits. physicians' clinics to inform them of the chemical
composition and benefits of his employer's products. A
the end of everyday, he receives a basis wage of
PhP700.00 plus a PhP150.00 "productivity allowance."
For purposes of computing Nico's 13th month pay,
should the daily "productivity allowance" be included?
(2.5%)
SUGGESTED ANSWER:
For purposes of computing Nico's 13th month pay his
daily "productivity allowance" cannot be included.
In Philippine Spring Water Resources, Inc. v. Court of
Appeals, G.R. No. 205278, June 11, 2014, clarified as to
when a commission forms part of basic salary to be
considered in the computation of 13th month pay. The
High Court said: It is well-established in jurisprudence
that the determination of whether or not a commission
forms part of the basic salary depends upon the
circumstances or conditions for its payment. In Phil
Duplicators, Inc. v. NLRC, G.R. No. 110068, November
11, 1993, 227 SCRA 747, the Court held that
commissions earned by salesmen form part of their
basic salary. The salesmen’s commissions, comprising a
pre-determined percentage of the selling price of the
goods sold by each salesman, were properly included
in the term basic salary for purposes of computing the
13th month pay. The salesmen’s commissions are not
overtime payments, nor profit-sharing payments nor
any other fringe benefit, but a portion of the salary
structure which represents an automatic increment to
the monetary value initially assigned to each unit of
work rendered by a salesman.
On the other hand, in Boie-Takeda Chemicals, Inc. v.
De la Serna, G.R. Nos. 92174 and 102552, December 10,
1993, 228 SCRA 329, the so-called commissions paid to
or received by medical representatives were excluded
from the term basic salary because these were paid to
the medical representatives and rank-and-file
employees as productivity bonuses, which were
generally tied to the productivity, or capacity for
revenue production, of a corporation and such
bonuses closely resemble profit-sharing payments and
had no clear direct or necessary relation to the amount
of work actually done by each individual employee.
Applying the above rule, the productivity allowance
cannot be included.
NOTE: Question involving the same subject matter was
given during the 2011 Bar Examination. An alternative
answer can be given by stating that it will depend as
to whether the productivity bonus form part of the
salary. In fine, whether or not the productivity bonus
forms part of the basic salary depends upon the
circumstances or conditions for its payment, which
indubitably are factual in nature. If the productivity
bonuses were because they were generally tied to the
productivity, or capacity for revenue production it will
not form part of the salary. However, if has a clear
direct or necessary relation to the amount of work
actually done by each individual employee then it
form part of the salary. This was the distinction given by
the case of Reyes v. NLRC, G.R. No. 160233, August 8,
2007 citing the cases of Phil Duplicators, Inc. v. NLRC,
G.R. No. 110068, November 11, 1993 and monetary
value initially assigned to each unit of work rendered
by a salesman. On the other hand, in Boie-Takeda
Chemicals, Inc. v. De la Serna, G.R. Nos. 92174 and
102552, December 10, 1993.
 VIII
Nathaniel has been a salesman assigned by Newmark
Enterprises (Newmark) for nearly two years at the
Manila office of Nutrition City, Inc. (Nutrition City). He
was deployed pursuant to a service agreement
between Newmark and Nutrition City, the salient
provisions of which were as follows:
a) the Contractor (Newmark) agrees to perform and
provide the Client (Nutrition City), on a non-exclusive
basis, such tasks or activities that are considered
contractible under existing laws, as may be needed by
the Client from time to time;
b) the Contractor shall employ the necessary
personnel like helpers, salesmen, and drivers who are
determined by the Contractor to be efficiently trained;
c) the Client may request replacement of the
Contractor’s personnel if quality of the desired result is
not achieved;
d) the Contractors personnel will comply with the
Client's policies, rules, and regulations; and
e) the Contractor’s two service vehicles and necessary
equipment will be utilized in carrying out the provisions
of this Agreement.
When Newmark fired Nathaniel, he filed an illegal
dismissal case against the wealthier company,
Nutrition City, Inc., alleging that he was a regular
employee of the same. Is Nathaniel correct? (2.5%)
SUGGESTED ANSWER:
Nathaniel is correct in so far as the existence of
employer-employee relationship between him and the
principal.
The rules requires that the Service Agreement between
the principal and the contractor shall include the
following:
i. The specific description of the job or work
being subcontracted, including its term or
duration.
ii. The place of work and terms and conditions
governing the contracting arrangement, to
include the agreed amount of the contracted
job or work as well as the standard
administrative fee of not less than ten percent
(10%) of the total contract cost; and
iii. A provision on the issuance of the bond/s
defined under Section 3(a) renewable every
year. (Section 11, D.O. No. 174, Series of 2017)
On the other hand, a finding of violation of 11 shall
render the principal the direct employer of the
employees of the contractor or subcontractor,
pursuant to Article 109 of the Labor Code, as
amended. (Section 12, D.O. No. 174, Series of 2017)
Applying the above rules, since Newmark and Nutrition
City violated the required terms to be stated in the
Service Agreement then Nutrition City is the direct
employer of Nathaniel.
As to whether Nathaniel is a regular employee of
Nutrition City, the rules are as follows: Regular
employees are further classified into: (1) regular
employees by nature of work; and (2) regular
employees by years of service. (E. Ganzon, Inc. vs.
National Labor Relations Commission, G.R. No. 123769,
22 December 1999, 321 SCRA 434, 440) The former
refers to those employees who perform a particular
activity which is necessary or desirable in the usual
business or trade of the employer, regardless of their
length of service; while the latter refers to those
employees who have been performing the job,
regardless of the nature thereof, for at least a year.
(Pangilinan vs. General Milling Corporation, G.R. No.
149329, 12 July 2004)
Tested from the nature of his work and the activity of
the principal Nathaniel could be a regular employee
while if it is tested on the length of service then
Nathaniel is a regular employee as he has been
employed with the principal for a least a year. In fact
he was employed for nearly two years.
NOTE: Questions involving the same subject matter
were given during the 2009 (on terms of Service
Agreement) and 22013 and 2008 (on regular
employees) Bar Examinations. An alternative answer
can be given by characterizing the relationship of the
principal with the contractor as to whether it is a job
contracting or LOC. Then as to who would be the
direct employer and extent of liability can be
determined or concluded.
 IX
Sgt. Nemesis was a detachment non-commissioned
officer of the Armed Forces of the Philippines in Nueva
Ecija. He and some other members of his detachment
sought permission from their Company Commander for
an overnight pass to Nueva Vizcaya to settle some
important matters. The Company Commander orally
approved their request and allowed them to carry their
firearms as the place they were going to was classified
as a “critical place.” They arrived at the place past
midnight; and as they were alighting from a tricycle,
one of his companions accidentally dropped his rifle,
which fired a single shot, and in the process hit Sgt.
Nemesis fatally. The shooting was purely accidental. At
the time of his death, he was still legally married_to
Nelda but had been separated de facto from her for 17
years. For the last 15 years of his life, he was living in
with Narda, with whom he has two minor children.
Since Narda works as a kasambahay, the two children
lived with their grandparents, who provided their daily-
support. Sgt. Nemesis and Narda only sent money to
them every year to them for their school tuition.
Nelda and Narda, both for themselves and the latter,
also on behalf of her minor children, separately filed
claims for compensation as a result of the death of Sgt.
Nemesis. The Line of Duty Board of the AFP declared
Sgt. Nemesis’ death to have been “in line of duty’, and
recommended that all benefits due to Sgt. Nemesis be
given to his dependents. However, the claims were
denied by GSIS because Sgt. Nemesis was not in his
workplace nor performing his duty as a soldier of the
Philippine Army when he died.
(a) Are the dependents of Sgt. Nemesis entitled to
compensation as a result of his death? (2.5%)
SUGGESTED ANSWER:
The death of Sgt. Nemesis is compensable because it
is work-connected. However, in so far as entitlement of
the dependents of Sgt. Nemesis for compensation as a
result of his death the dependent spouse cannot claim
compensation. The law requires that the dependent
spouse should be a legitimate spouse living with the
employee. (Article 173 [i], Labor Code).
In this case, the legitimate spouse Nelda is not entitled
because she is not living with Sgt. Nemesis while Narda
will not qualify as dependent spouses as she is not a
legitimate spouse of Sgt. Nemesis although she is living
with the latter. On the other hand, in so far as the
dependent child the law requires that the dependent
child be legitimate, legitimated, legally adopted or xxx,
who is unmarried, not gainfully employed, not over 21
years of age provided he is incapacitated and
incapable of self-support due to physical or mental
defect which is congenital or acquired during minority.
The two minor children are therefore qualified as
dependent children. Hence, entitled to
compensation.
NOTE: Question involving the same subject matter was
given during the 2005 and 1996 Bar Examinations.
(b) As between Nelda and Narda, who should be
entitled to the benefits? (2.5%)
SUGGESTED ANSWER:
Nelda and Narda are not entitled to the benefits
because they failed to qualify within the definition
(Article 173 [i], Labor Code) of dependent
spouse. NOTE: Question involving the same subject
matter was given during the 2005 and 1996 Bar
Examinations.
 X In Petroleum Shipping Limited (formerly Esso
Nonato had been continuously employed and
deployed as a seaman who performed services that
were necessary and desirable to the business of N-
Train hipping, through its local agent, Narita Maritime
Services (Agency), in accordance with the 2010
Philippine Overseas Employment Administration
Standard Employment Contract (2010 POEA-SEC).
Nonato's last contract (for ye months) expired on
November 15, 2016. Nonato was then repatriated due
to "finished contract." He immediately reported to the
Agency and complained that e had been
experiencing dizziness, weakness, and difficulty in
breathing. The agency referred him to Dr. Neri, who
examined, treated, and prescribed him with
medications. After a few months of treatment and
consultations, Nonato was declared fit to resume work
as a seaman. Nonato went back to the Agency to ask
for re-deployment but the Agency rejected his
application. Nonato filed an illegal dismissal case
against the Agency and its principal, with a claim for
total disability benefits based on the ailments that he
developed on board N-Train hipping-vessels. The
claim was based on the certification of his own
physician, Dr. Nunez, that he was unfit for sea duties
because of his hypertension and diabetes.
a) Was Nonato a regular employee of N-Train
Shipping? (2.5%)
SUGGESTED ANSWER:
Nonato is not a regular employee of N-Train Shipping.
The fact that seafarers are not regular employees is
already a settled rule.
International Shipping (Bahamas) Co., Ltd.) v. NLRC,
G.R. No. 148130, June 16,2006, the Supreme Court said
that the issue on whether seafarers are regular
employees is already a settled matter. Thus, the High
Court said: It was in Ravago v. Esso Eastern Marine, Ltd.,
G.R. No. 158324, 14 March 2005, 453 SCRA 381 where
the Honorable Supreme Court traced its ruling in a
number of cases that seafarers are contractual, not
regular, employees. Thus, in Brent School, Inc. v.
Zamora, G.R. No. 48494, 5 February 1990, 181 SCRA 702
the Supreme Court cited overseas employment
contract as an example of contracts where the
concept of regular employment does not apply,
whatever the nature of the engagement and despite
the provisions of Article 280 of the Labor Code. In
Coyoca v. NLRC, G.R. No. 113658 March 31, 1995, the
Supreme Court held that the agency is liable for
payment of a seaman’s medical and disability benefits
in the event that the principal fails or refuses to pay the
benefits or wages due the seaman although the
seaman may not be a regular employee of the
agency.
The Supreme Court squarely passed upon the issue in
Millares v. NLRC, G.R. No. 110524, July 29, 2002, where
one of the issues raised was whether seafarers are
regular or contractual employees whose employment
are terminated every time their contracts of
employment expire. The Supreme Court explained: [I]t
is clear that seafarers are considered contractual
employees. They can not be considered as regular
employees under Article 280 of the Labor Code. Their
employment is governed by the contracts they sign
everytime they are rehired and their employment is
terminated when the contract expires. Their
employment is contractually fixed for a certain period
of time. They fall under the exception of Article 280
whose employment has been fixed for a specific
project or undertaking the completion or termination
of which has been determined at the time of
engagement of the employee or where the work or
services to be performed is seasonal in nature and the
employment is for the duration of the season. We need
not depart from the rulings of the Court in the two
aforementioned cases which indeed constitute stare
decisis with respect to the employment status of
seafarers.
NOTE: Questions involving the same subject matter
were given during the 2017, 2014 and 2002 Bar
Examinations.
b) Can Nonato successfully claim disability benefits
against N-Train Shipping and its agent Narita Maritime
Services? (2.5%)
SUGGESTED ANSWER:
The claim for disability benefits of Nonato against N-
Train Shipping and its agent Narita Maritime Services
will not prosper for prematurity.
The Supreme Court laid down the procedures for filing
disability benefits and its effect in case of failure to
comply with the procedures in Daraug v. KGJS Fleet
Management Manila, G.R. No. 211211, January 14,
2015. Thus, in denying the claim for disability benefits
due to prematurity the Supreme Court ruled: Petitioner
Did Not Comply With The Procedures
In Vergara v. Hammonia Maritime Services, Inc.31
(Vergara), it was stated that the Department of Labor
and Employment (DOLE), through the POEA, has
simplified the determination of liability for work-related
death, illness or injury in the case of Filipino seamen
working on foreign oceangoing vessels. Every seaman
and the vessel owner (directly or represented by a
local manning agency) are required to execute the
POEA Standard Employment Contract (POEA-SEC) as
a condition sine qua non prior to the deployment of
the seaman for overseas work. The POEA-SEC is
supplemented by the Collective Bargaining
Agreement (CBA) between the owner of the vessel
and the covered seaman. In this case, the parties
entered in to a contract of employment in
accordance with the POEA-SEC and they agreed to
be bound by the CBA.
Thus, in resolving petitioner’s claim for disability
compensation, the Court will be guided by the
procedures laid down in the POEA-SEC and in the CBA.
On this point, Section 20(B)(3) of the POEA-SEC
provides: Upon sign-off from the vessel for medical
treatment, the seafarer is entitled to sickness
allowance equivalent to his basic wage until he is
declared fit to work or the degree of permanent
disability has been assessed by the company-
designated physician but in no case shall this period
exceed one hundred twenty (120) days.
For this purpose, the seafarer shall submit himself to a
post-employment medical examination by a
company-designated physician within three working
days upon his return except when he is physically
incapacitated to so, in which case, a written notice to
the agency within the same period is deemed a
compliance. Failure of the seafarer to comply with the
mandatory reporting requirement shall result in his
forfeiture of the right to claim the above benefits.
If a doctor appointed by the seafarer disagrees with
the assessment, a third doctor may be agreed jointly
between the Employer and the seafarer. The third
doctor’s decision shall be final and binding on both
parties.
NOTE: Question involving the same subject matter was
given during the 2013 Bar Examination.
 Xl
Your favorite relative, Tita Nilda, approaches you and
seeks your advice n her treatment of her kasambahay,
Noray. Tita Nilda shows you a document called a
“Contract of Engagement” for your review. Under the
Contract of Engagement, Noray shall be entitled to a
rest day every week, provided that she may be
requested to work on a rest day if Tita Nilda should
need her services that day. Tita Nilda also claims that
this Contract of Engagement should embody the terms
and conditions of Noray’s work as the engagement of
a kasambahay is a private matter and should not be
regulated by the State.
a) Is Tita Nilda correct in saying that this is a private
matter and should not be regulated by the State?
(2.5%)
SUGGESTED ANSWER:
Tita Nilda is not correct in saying that engagement of
a kasambahay is a private matter and should not be
regulated by the State.
This is a valid subject matter of the exercise of police
power to give effect to the declared policy of the law
such as the need to protect the rights of domestic
workers against abuse, harassment, violence,
economic exploitation and performance of work that
is hazardous to their physical and mental health; and
in protecting domestic workers and recognizing their
special needs to ensure safe and healthful working
conditions, promotes gender-sensitive measures in the
formulation and implementation of policies and
programs affecting the local domestic work. (Section
2, Article I, Republic Act No. 10361)
NOTE: This is the first time that this type of question was
asked in the Bar Examination.
b) Is the stipulation that she may be requested to work
on a rest day legal? (2.5%)
SUGGESTED ANSWER:
The stipulation that Noray may be requested to work
on a rest day is legal.
The law provides that, “ Nothing in this provision shall
deprive the domestic worker and the employer from
agreeing to the following:
(a) Offsetting a day of absence with a particular rest
day;
(b) Waiving a particular rest day in return for an
equivalent daily rate of pay;
(c) Accumulating rest days not exceeding five (5)
days; or
(d) Other similar arrangements. (Section 21, Article IV,
Republic Act No. 10361)
NOTE: This is the first time that this type of question was
asked in the Bar Examination.
c) Are stay-in family drivers included under the
Kasambahay Law?(2.5%)
SUGGESTED ANSWER:
Stay-in family drivers are not included under the
Kasambahay Law. This was very clear in the Rules
Implementing the Kasambahay Law providing as
follows:
The following are not covered:
(a) Service providers;
(b) Family drivers;
(c) Children under foster family arrangement; and
(d) Any other person who performs work occasionally
or sporadically and not on an occupational basis.
(Section 2, Rule I, Implementing Rules and Regulations
of Republic Act 10361)
NOTE: Questions involving the same subject matter
were given during the 2012 and 1998 Bar
Examinations.
 XII above acts would result in an intimidating, hostile, or
Nena worked as an Executive Assistant for Nesting, offensive environment for the employee.
CEO of Now Corporation. One day, Nesting called Contrary to Nesting’s claim, it is enough that his acts
Nena into his office and showed her lewd pictures of result in creating an intimidating, hostile or offensive
women in seductive poses which Nena found environment for the employee.
offensive. Nena complained before the General NOTE: Questions involving the same subject matter
Manager who, in turn, investigated the matter and were given during the 2011, 2009, 2006, 2005, 2004,
recommended the dismissal of Nesting to the Board of 2003 and 2000 Bar Examinations.
Directors. Before the Board of Directors, Nesting
argued, that-since the Anti-Sexual Harassment Law
requires the existence of “sexual favors,” he should not
be dismissed from the service since he did not ask for
any-sexual favor from Nena. Is Nesting correct? (2.5%)
SUGGESTED ANSWER:
Nesting is not correct.
The law penalizing sexual harassment in our jurisdiction
is RA 7877. Section 3 thereof defines work-related
sexual harassment in this wise:
Sec. 3. Work, Education or Training-related Sexual
Harassment Defined.—Work, education or training-
related sexual harassment is committed by an
employer, manager, supervisor, agent of the
employer, teacher, instructor, professor, coach,
trainor, or any other person who, having authority,
influence or moral ascendancy over another in a
work or training or education environment, demands,
requests or otherwise requires any sexual favor from
the other, regardless of whether the demand, request
or requirement for submission is accepted by the
object of said Act.
(a) In a work-related or employment environment,
sexual harassment is committed when: xxx (3) The
 XIII
Nicodemus was employed as a computer programmer
by Network Corporation, a telecommunications firm.
He has been coming to work in shorts and sneakers, in
violation of the “prescribed uniform policy” based on
company rules and regulations. The company human
resources manager wrote him a letter, giving him 10
days to comply with the company uniform policy.
Nicodemus asserted that wearing shorts and sneakers
made him more productive, and cited his above-
average output. When he came to work still in violation
of the uniform policy, the company sent him a letter of
termination of employment. Nicodemus filed an illegal
dismissal case. The Labor Arbiter ruled in favor of
Nicodemus and ordered his reinstatement with
backwages. Network Corporation, however, refused to
reinstate him. The NLRC 1st Division sustained the Labor
Arbiter’s judgment. Network Corporation still refused to
reinstate Nicodemus. Eventually, the Court of Appeals
reversed the decision of the NLRC and ruled that the
dismissal was valid. Despite the reversal, Nicodemus
still filed a motion for execution with respect to his
accrued backwages.
(a) Were there valid legal grounds to dismiss
Nicodemus from his employment? (2.5%)
SUGGESTED ANSWER:
Yes, Nicodemus can be dismissed based on willful
disobedience to the lawful order under Article 297 (a)
of the Labor Code and the “prescribed uniform policy”
of the company.
The basis is the case of St. Luke’s v. Sanchez, G.R. No.
212054, March 11, 2015 were it was ruled: At the same
time, the employee has the corollary duty to obey all
reasonable rules, orders, and instructions of the
employer; and willful or intentional disobedience
thereto, as a general rule, justifies termination of the
contract of service and the dismissal of the employee.
(Malabago v. NLRC, 533 Phil. 292, 300 [2006]) x x x x.
Note that for an employee to be validly dismissed on
this ground, the employer’s orders, regulations, or
instructions must be: (1) reasonable and lawful, (2)
sufficiently known to the employee, and (3) in
connection with the duties which the employee has
been engaged to discharge.”
NOTE: Questions involving the same subject matter
were given during the 2008, 2003 and 1995 Bar
Examinations.
(b) Should Nicodemus’ motion for execution be
granted? (2.5%)
SUGGESTED ANSWER:
Yes, Nicodemus’ motion for execution should be
granted. He is entitled to his accrued salary.
The accrued wages/salaries (reinstatement
wages/salaries) is the consequence of the
reinstatement aspect of the decision of the Labor
Arbiter referred in paragraph 3, Article 229 [223] of the
Labor Code. This means that a dismissed employee
whose case was favorably decided by the Labor
Arbiter is entitled to receive wages pending appeal
upon reinstatement, which is immediately executory. In
other words, it refers to the wages or salaries which
automatically accrued to a dismissed employee from
the notice of the Labor Arbiter’s order of reinstatement
until its ultimate reversal by the higher court, which
could be the NLRC, the Court of Appeals or the
Supreme Court. The entitlement to accrued
wages/salaries (reinstatement wages/salaries ) of a
dismissed employee was discussed in the cases of
Roquero v. Philippine Airlines, G.R. No. 152329, 449 Phil.
437 (2003), Garcia v. Philippine Airlines, G.R. No. 164856,
January 20, 2009, 576 SCRA 479, Islriz Trading v.
Capada, G.R. No. 168501, January 31, 2011, Pfizer Inc.
v. Velasco, G.R. No. 177467, March 9, 2011 and Wenphil
Corporation v. Abing, G.R. No. 207983, April 7, 2014.
In resolving the rule on entitlement to accrued wages
between the period where the Labor Arbiter’s order of
reinstatement is pending appeal and the NLRC
Resolution overturning that of the Labor Arbiter, the
case of Garcia v. Philippine Airlines, Inc., G.R. No.
164856, January 20, 2009, 576 SCRA 479, is in point. The
Supreme Court examined its conflicting rulings with
respect to the application of paragraph 3 of Article 223
of the Labor Code, viz:
The core of the seeming divergence is the application
of paragraph 3 of Article 223 of the Labor Code which
reads: ‘In any event, the decision of the Labor Arbiter
reinstating a dismissed or separated employee, insofar
as the reinstatement aspect is concerned, shall
immediately be executory, pending appeal. The
employee shall either be admitted back to work under
the same terms and conditions prevailing prior to his
dismissal or separation or, at the option of the
employer, merely reinstated in the payroll. The posting
of a bond by the employer shall not stay the execution
for reinstatement provided herein.’
The view as maintained in a number of cases is that:
‘x x x [E]ven if the order of reinstatement of the Labor
Arbiter is reversed on appeal, it is obligatory on the part
of the employer to reinstate and pay the wages of the
dismissed employee during the period of appeal until
reversal by the higher court. On the other hand, if the
employee has been reinstated during the appeal
period and such reinstatement order is reversed with
finality, the employee is not required to reimburse
whatever salary he received for he is entitled to such,
more so if he actually rendered services during the
period.
In other words, a dismissed employee whose case was
favorably decided by the Labor Arbiter is entitled to
receive wages pending appeal upon reinstatement,
which is immediately executory. Unless there is a
restraining order, it is ministerial upon the Labor Arbiter
to implement the order of reinstatement and it is
mandatory on the employer to comply therewith.
NOTE: Question involving the same subject matter was
given during the 2009 Bar Examination.
 XIV
Nelson complained before the DOLE Regional Office
about Needy Corporation's failure to pay his wage
increase amounting to PhP5,000.00 as mandated in a
Wage Order issued by the Regional Tripartite Wages
and Productivity Board. Consequently, Nelson-asked
the DOLE to immediately issue an Order sustaining his
money claim. To his surprise, he received a notice from
the DOLE to appear before the Regional Director for
purposes of conciliating the dispute between him and
Needy Corporation. When conciliation before the
Regional Director the latter proceeded to direct both
parties to submit their respective position papers in
relation to the dispute. Needy Corporation argued, that
since Nelson was willing to settle for 75% of his money
claim during conciliation proceedings, only a
maximum of 75% of the said money claim may be
awarded to him.
(b) Should the Regional Director sustain Needy
Corporation’s argument? (2.5%)
SUGGESTED ANSWER:
The Regional Director should not sustain Needy
Corporation’s argument. This is because under Article
239 of the Labor Code, information and statements
made at conciliation proceedings shall be treated as
privileged communication and shall not be used as
evidence in the Commission. Conciliators and similar
officials shall not testify in any court or body regarding
any matters taken up at conciliation proceedings
conducted by them. Thus, Needy Corporation cannot
raise the argument that Nelson was willing to settle for
75% of his money claim during conciliation
proceedings.
NOTE: Question involving the same subject matter was
given during the 2007 Bar Examination.

(a) Was DOLE’s action to conduct mandatory

conciliation in light of Nelson’s complaint valid? (2.5%)
SUGGESTED ANSWER:
Yes, the DOLE’s action to conduct mandatory
conciliation is valid. This is mandated by Article 234 of
the Labor Code, except as provided in Title VII-A, Book
V of this Code, as amended, or as may be excepted
by the Secretary of Labor and Employment, all issues
arising from labor and employment shall be subject to
mandatory conciliation-mediation.
NOTE: This was the first time that a question of this
nature was asked in the Bar Examinations.
 XV
Nexturn Corporation employed Nini and Nono, whose
tasks involved directing and supervising rank-and-file
employees engaged in company operations. Nini and
Nono are required to ensure that such employees obey
company rules and regulations, and recommend to
the company's Human Resources Department any
required disciplinary action against erring employees.
In Nexturn Corporation, there are independent unions,
representing rank- and-file and supervisory
employees, respectively.
Yes, the two unions can be affiliated with the same
Union Federation. This is clearly allowed under Article
255 of the Labor Code which provides in substance
that the rank-and-file union and the supervisors’ union
operating within the same establishment may join the
same federation or national union.
NOTE: Question involving the same subject matter was
given during the 2017, 2010, 2004 and 1994 Bar
Examinations.

a) May Nini and Nono join a union? (2.5%)

SUGGESTED ANSWER:
Yes, Nini and Nono can join a union. This is clearly
allowed under Article 255 of the Labor Code which
provides in substance that supervisory employees may
join, assist or form separate collective bargaining units
and/or legitimate labor organizations of their own.
As ALTERNATIVE ANSWER: It can be argued that if Nini
and Nono assist or act in confidential capacity to
persons who formulate, determine, and effectuate
management policies in the field of labor relations then
they are excluded from the exercise of right to self-
organization.
NOTE: Question involving the same subject matter was
given during the 2017, 2010, 2004 and 1994 Bar
Examinations.

b) May the two unions be affiliated with the same Union

Federation? (2.5%)
SUGGESTED ANSWER:
 XVI
Nagrab Union and Nagrab Corporation have an
existing CBA which contains the following provision:
“New_employees within the coverage of the
bargaining unit who may be regularly employed shall
become members of Nagrab Union. Membership in
good standing with the Nagrab Union is a requirement
for continued employment with Nagrab Corporation.”
Nagrab Corporation subsequently acquired all the
assets and rights of Nuber Corporation and absorbed
all of the latter’s employees. Nagrab Union
immediately demanded enforcement of the above-
stated CBA provision with respect to the absorbed
employees. Nagrab Corporation refused on the ground
that this should not apply fo the absorbed employees
who were former employees of another corporation
whose assets and rights it had acquired.
(a) Was Nagrab Corporation correct in refusing to
enforce the CBA 4 provision with respect to the
absorbed employees? (2.5%)
SUGGESTED ANSWER:
Nagrab Corporation was not correct in refusing to
enforce the CBA provision with respect to the
absorbed employees. This is because it cannot invoke
its merger with another corporation as a valid ground
to exempt its absorbed employees from the coverage
of a union shop clause contained in its existing
Collective Bargaining Agreement (CBA) with its own
certified labor union.
In BANK OF THE PHILIPPINE ISLANDS V. BPI EMPLOYEES
UNION-DAVAO CHAPTER-FEDERATION OF UNIONS IN
BPI UNIBANK, G.R. No. 164301, August 10, 2010, the High
Court resolved the question in this manner: At the
outset, we should call to mind the spirit and the letter
of the Labor Code provisions on union security clauses,
specifically Article 248 (e), which states, x x x Nothing in
this Code or in any other law shall stop the parties from
requiring membership in a recognized collective
bargaining agent as a condition for employment,
except those employees who are already members of
another union at the time of the signing of the
collective bargaining agreement. This case which
involves the application of a collective bargaining
agreement with a union shop clause should be
resolved principally from the standpoint of the clear
provisions of our labor laws, and the express terms of
the CBA in question, and not by inference from the
general consequence of the merger of corporations
under the Corporation Code, which obviously does not
deal with and, therefore, is silent on the terms and
conditions of employment in corporations or juridical
entities.
NOTE: Question involving the same subject matter was
given during the 2011 Bar Examination.
(b) May a newly-regularized employee of Nagrab
Corporation (who is not-part of the absorbed
employees) refuse to join Nagrab Union? How would
you advise the human resources manager of Nagrab
Corporation to proceed? (2.5%)
SUGGESTED ANSWER:
The newly-regularized employee of Nagrab
Corporation (who is not-part of the absorbed
employees) cannot refuse to join Nagrab Union in view
of the union security clause provision of the CBA. While
the right to join includes the right not to join, however,
the exception is the UNION SECURITY CLAUSE where it
imposes upon employees the obligation to acquire or
retain union membership as a condition affecting
employment. Thus, I will advise the human resources
manager of Nagrab Corporation to comply with the
provision of the CBA stating that : “New employees
within the coverage of the bargaining unit who may
be regularly employed shall become members of
Nagrab Union.
NOTE: Questions involving the same subject matter
were given during the 2005, 2011 and 1997 Bar
Examinations.
 XVII
Upon compliance with the legal requirements on the
conduct of a strike, Navarra Union staged a strike
against Newfound Corporation on account of a
collective bargaining deadlock. During the strike,
some members of Navarra Union broke the windows
and punctured the tires of the company-owned buses.
he Secretary of Labor and Employment assumed
jurisdiction over the dispute.
(a) Should all striking employees be admitted back to
work upon the assumption of jurisdiction by the
Secretary of Labor and Employment? Will these include
striking employees who damaged company
properties? (2.5%)
SUGGESTED ANSWER:
All striking employees should be admitted back to work
and including striking employees who damaged
company properties.
The effect of assumption of jurisdiction of the Secretary
of Labor is clear under Article 278 (g) which provides in
substance that such assumption shall have the effect
of automatically enjoining the intended or impending
strike or lockout as specified in the assumption or
certification order. If one has already taken place at
the time of assumption or certification, all striking or
locked out employees shall immediately return-to-work
and the employer shall immediately resume operations
and readmit all workers under the same terms and
conditions prevailing before the strike or lockout.
NOTE: Questions involving the same subject matter
were given during the 2003 and 1997 Bar Examinations.
(b) May the company, readmit strikers only by restoring
them to the payroll? (5%)
SUGGESTED ANSWER:
The company may not readmit strikers by restoring
them to the payroll.
The phrase “under the same terms and conditions”
found in Article 278 (g) [263 (g)] of the Labor Code was
interpreted by the Supreme Court in the case of the
University of Immaculate Concepcion, Inc. v. Secretary
of Labor, G.R. No. 151379, January 14, 2005 as follows:
With respect to the Secretary’s Order allowing payroll
reinstatement instead of actual reinstatement for the
individual respondents herein, an amendment to the
previous Orders issued by her office, the same is usually
not allowed. Article 263(g) of the Labor Code
aforementioned states that all workers must
immediately return to work and all employers must
readmit all of them under the same terms and
conditions prevailing before the strike or lockout. The
phrase “under the same terms and conditions” makes
it clear that the norm is actual reinstatement. This is
consistent with the idea that any work stoppage or
slowdown in that particular industry can be detrimental
to the national interest.
Clearly, reinstatement should be actual and not payroll
reinstatement.
NOTE: This is the first time that a question of this nature
was asked in the Bar Examinations.
 XVIII
Nestor and Nadine have been living in for the last 10
years without the benefit of marriage. Their union has
produced four children. Nadine was three months
pregnant with her 5th child when Nestor left her for
another woman. When Nadine was eight months
pregnant with her 5th child, she applied for maternity
leave benefits. Her employer refused on the ground
that this was already her 5" pregnancy and that she
was only living in with the father of her child, who is now
in a relationship with another woman. When Nadine
gave birth, Nestor applied for paternity leave benefits.
His employer also denied the application on the same
grounds that Nadine’s employer denied her
application.
(a) Can Nadine’s employer legally deny her claim for
maternity benefits? (2.5%)
SUGGESTED ANSWER:
Yes, Nadine’s employer can legally deny her claim for
maternity benefits. This is because the maternity
benefits shall be paid only for the first four (4) deliveries
or miscarriages. (See Section 14-A, RA 8282)
In this case, the said pregnancy was the 5th child of
Nadine. Thus, she already exhausted the limitations for
entitlement to maternity benefits under the law.
NOTE: Questions involving this subject matter were
given during the 2015, 2012, 2010, 2005 and 2000 Bar
Examinations.
(b) Can Nestor’s employer legally deny his claim for
paternity benefits? (2.5%)
SUGGESTED ANSWER:
Nestor’s employer can legally deny his claim for
paternity benefits for his failure to comply with the
conditions for entitlement to paternity benefits.
Under the law, a married male employee shall be
entitled to paternity benefits provided that:
a. He is an employee at the time of delivery of his
child;
b. He is cohabiting with his spouse at the time she
gives birth or suffers a miscarriage.
c. He has applied for paternity leave in
accordance with Section 4 hereof; and
d. His wife has given birth or suffered a miscarriage.
(Section 3, Revised Implementing Rules and
Regulations of Republic Act No. 8187 for the
Private Sector)
In this case, Nadine is not Nestor’s lawful wife to whom
he is cohabiting.
NOTE: Questions involving this subject matter were
given during the 2013, 2012, 2011, 2005 and 2002 Bar
Examinations.
 XIX
Northeast Airlines sent notices to transfer without
diminution in salary or rank, to 50 ground crew
personnel who were front-liners at Northeast Airlines
counters at the Ninoy Aquino International Airport
(NAIA). The 50 employees were informed that they
would be distributed to various airports in Mindanao to
anticipate robust passenger volume growth in the
area. Northeast Union representing rank-and-file
employees, filed unfair labor practice and illegal
dismissal cases before the NLRC, citing, among others,
the inconvenience of the 50 concerned employees
and union discrimination, as 8 of the 50 concerned
round crew personnel were union officers. Also, the
Union argued that Northeast Airlines could easily hire
additional employees from Mindanao to boost ground
operations in the Mindanao airports.
a) Will the transfer of the 50 ground crew personnel
amount to Illegal dismissal (5%)
SUGGESTED ANSWER:
The transfer of the 50 ground crew personnel does not
amount to Illegal dismissal. This is because their transfer
is a valid exercise of management prerogatives.
In Gemina, Jr. v. Bankwise, Inc. (Thrift Bank) G.R. No.
175365, October 23, 2013, it was held: The employer’s
right to conduct the affairs of its business, according to
its own discretion and judgment, is well-recognized. An
employer has a free reign and enjoys wide latitude of
discretion to regulate all aspects of employment and
the only criterion to guide the exercise of its
management prerogative is that the policies, rules and
regulations on work-related activities of the employees
must always be fair and reasonable. (The Coca-Cola
Export Corporation v. Gacayan, G.R. No. 149433,
December 15, 2010, 638 SCRA 377, 398-399)
According to Endico v. Quantum Foods Distribution
Center, G.R. 161615, January 30,2009, “Managerial
prerogatives, however, are subject to limitations
provided by law, collective bargaining agreements,
and general principles of fair play and justice. The test
for determining the validity of the transfer of employees
was explained in the case of Blue Dairy Corporation v.
NLRC, G.R. No. 129843, 14 September 1999, 314 SCRA
401, 408-409 the Supreme Court explained the test for
determining the validity of the transfer of employees,
as follows:
But, like other rights, there are limits thereto. The
managerial prerogative to transfer personnel must be
exercised without grave abuse of discretion, bearing in
mind the basic elements of justice and fair play. Having
the right should not be confused with the manner in
which that right is exercised. Thus, it cannot be used as
a subterfuge by the employer to rid himself of an
undesirable worker. In particular, the employer must be
able to show that the transfer is not unreasonable,
inconvenient or prejudicial to the employee; nor does
it involve a demotion in rank or a diminution of his
salaries, privileges and other benefits.
As their employer, Northeast Airlines has the right to
regulate, according to its discretion and best
judgment, work assignments, work methods, work
supervision, and work regulations, including the hiring,
firing and discipline of its employees. The Supreme
Court upholds these management prerogatives so
long as they are exercised in good faith for the
advancement of the employer’s interest and not for
the purpose of defeating or circumventing the rights of
the employees under special laws and valid
agreements. (Challenge Socks Corporation v. Court of
Appeals, G.R. No. 165268, November 8, 2005, 474 SCRA
356, 362-363)
In this case it does not show that Northeast Airlines
implemented the transfer for the purpose of defeating
or circumventing the rights of the said 50 ground crew
personnel.
NOTE: Questions involving management prerogatives
were given during the 2000, 2001 and 1994 Bar
Examinations.
exercise of employees’ rights; and that it is not
necessary that there be direct evidence that any
employee was in fact intimidated or coerced by
statements of threats of the employer if there is a
reasonable inference that anti-union conduct of the
employer does have an adverse effect on self-
organization and collective bargaining.
In the given facts, it does not show that the act of
Northern Airlines in sending notices of transfer relates to
the commission of acts that transgress their right to
organize or it was made to interfere, restrain or coerce
them with the exercise of their right to self-organization.

b) Will the unfair labor practice case prosper? (2.5%)

SUGGESTED ANSWER:
The unfair labor practice case will not prosper. This is
because the act did not constitute an act of
interfering, restraining or coercing the said employees
in the exercise of their right to self-organization under
Article 259 [a] of the Labor Code.
In T & T Shoplifters Corporation/Gin Queen Corporation
v. T&T Shoplifters Corporation/Gin Queen Corporation
Workers Union, G.R. No. 191714, February 26, 2014 citing
the case of Insular Life Assurance Co., Ltd. Employees
Association – NATU v. Insular Life Assurance Co., Ltd.,
(147 Phil. 194 [1971]) the Supreme Court had occasion
to lay down the test of whether an employer has
interfered with and coerced employees in the exercise
of their right to self-organization, that is, whether the
employer has engaged in conduct which, it may
reasonably be said, tends to interfere with the free

XX
In Northern Lights Corporation, union members Nad,
Ned and Nod sought permission from the company to
distribute flyers with respect to a weekend union
activity. The company HR manager granted the
request through a text message sent to another union
member, Norlyn. While Nad, Ned, and Nod re
distributing the flyers at the company assembly plant,
a Company supervisor barged in and demanded that
they cease from distributing the flyers, stating that the
assembly line employees were trying to beat a
production deadline and were thoroughly distracted.
Norlyn tried to show the HR manager's text message
authorizing flyer distribution during work hours, but the
supervisor brushed it aside. As a result, Nad, Ned, and
Nod were suspended for violating company rules on
trespass and highly-limited union activities during work
hours. The Union filed an unfair labor practice (ULP)
case before the NLRC for union discrimination.
a) Will the ULP case filed by the Union prosper? (2.5%)
SUGGESTED ANSWER:
The ULP case filed by the Union will not prosper. This is
because the act did not constitute an act of
interfering, restraining or coercing the said employees
in the exercise of their right to self-organization under
Article 259 [a] of the Labor Code.
In T & T Shoplifters Corporation/Gin Queen Corporation
v. T&T Shoplifters Corporation/Gin Queen Corporation
Workers Union, G.R. No. 191714, February 26, 2014 citing
the case of Insular Life Assurance Co., Ltd. Employees
Association – NATU v. Insular Life Assurance Co., Ltd.,
(147 Phil. 194 [1971]) the Supreme Court had occasion
to lay down the test of whether an employer has
interfered with and coerced employees in the exercise
of their right to self-organization, that is, whether the
employer has engaged in conduct which, it may
reasonably be said, tends to interfere with the free
exercise of employees’ rights; and that it is not
necessary that there be direct evidence that any
employee was in fact intimidated or coerced by
statements of threats of the employer if there is a
reasonable inference that anti-union conduct of the
employer does have an adverse effect on self-
organization and collective bargaining.
In the given facts, it does not show that the act of the
company supervisor in barging in and demanding for
Nad, Ned, and Nod to cease from distributing the flyers
relates to the commission of acts that transgress their
right to organize or it was made to interfere, restrain or
coerce them with the exercise of their right to self-
organization.
By way of ALTERNATIVE ANSWER: It can be argued also
that the right was violated applying the test stated
above.
NOTE: The foregoing answer can be found in page 282-
284 of the book entitled Principles and Cases Labor
Relations, Second Edition 2018. . Questions involving
the same subject matter were given during the 2004
Bar Examinations.
b) Assume the NLRC ruled in favor of the Union. The
Labor Arbiter's judgment included, among others, an
award for moral and exemplary damages at
PhP50,000.00 each for Nad, Ned, and Nod. Northern
Lights Corporation argued that any award of damages
should be given to the Union and not individually to its
members. Is Northern Lights Corporation correct?
(2.5%)
SUGGESTED ANSWER:
Northern Lights Corporation is not correct. The rights
that were violated belongs to the union members,
Nad, Ned, and Nod, and not the union itself. Further,
the said union members were the real party in interest
in the said case for ULP filed by the union against the
corporation and not the union itself. The union is a
juridical person and as a rule it cannot not suffer moral
damages.