2005 BAR EXAMINATIONS IN
LABOR AND SOCIAL LEGISLATION
BAR EXAMINATIONS 2005
LABOR AND SOCIAL LEGISLATION
4 September 2005 2 P.M. — 5 P.M.
INSTRUCTIONS
This questionnaire consists of nine (9) numbers contained in nine (9)
pages. Read each question very carefully. Answer legibly, clearly and
concisely. Start each number on a separate page; an answer to a
sub-question under the same number may be written continuously on the
same and immediately succeeding pages until completed. Do not repeat
the question. A mere “Yes” or “No” answer without any corresponding
discussion will not be given any credit.
HAND IN YOUR NOTEBOOK WITH THIS
QUESTIONNAIRE GOOD LUCK!!!
(Sgd.) Romeo J. Callejo, Sr.
Chairman
2005 Bar Examination Committee
PLEASE CHECK THE NUMBER OF PAGES IN
THIS SET WARNING: NOT FOR SALE OR UNAUTHORIZED USE
chanroblesvirtualawlibrary
LABOR AND SOCIAL LEGISLATION
- I -
(1.) As Human Resources Department (HRD) manager of EZ Components, an
unorganized manufacturer of electric and electronic components for
household appliances, you are suddenly confronted with demands for
recognition and collective bargaining negotiations from two competing
labor unions. They both claim to represent all the rank-and-file
employees. Union A is led by a moderate faction, while Union B is
affiliated with a militant federation identified with leftist ideology.
Which of the following courses of action should you take to best
protect the interests of your company and employees?
(a) Recognize Union A as the rightful
bargaining representative because it will be more reasonable to deal
with;
(b) Recognize Union B because you do
not want to antagonize its leftist connections and foment inter-union
conflicts;
(c) Ignore the demands of either union
since you cannot be compelled legally to deal with them at this stage;
or
(d)
Petition the Bureau of Labor Relations to conduct a certification
election to determine which union really represents the majority of the
employees in the bargaining unit; (10%)
(2.) Little Hands Garment Company, an unorganized manufacturer of
children’s apparel with around 1,000 workers, suffered losses for the
first time in history when its US and European customers shifted their
huge orders to China and Bangladesh. The management informed its
employees that it could no longer afford to provide transportation
shuttle services. Consequently, it announced that a nominal fare would
be charged depending on the distance traveled by the workers availing
of the service.
Was the Little Hands Garments Company within its rights to withdraw
this benefit which it had unilaterally been providing to its employees?
Select the best answer(s) and briefly explain your reason(s) therefor.
(a) Yes, because it can withdraw a
benefit that is unilaterally given;
(b) Yes, because it is suffering losses
for the first time;
(c) Yes, because this is a management
prerogative which is not due to any legal or contractual obligation;
(d) No, because this amounts to a
diminution of benefits which is prohibited by the Labor Code;
(e) No, because it is a fringe benefit
that has already ripened into a demandable right or entitlement. (10%)
- II -
(1.) During the open forum following your lecture to a group of
managers and HRD personnel, you were asked the following questions:cralaw:red
(a)
What qualifying circumstances will convert “illegal recruitment” to
“economic sabotage,” thus subjecting its perpetrator or perpetrators to
a penalty of life imprisonment and a fine of at least P500,000.00? (3%)
(b) Is the commission of an unfair
labor practice by an employer subject to criminal prosecution? (3%)
(c)
How are the “portability” provisions of Republic Act No. 7699
beneficial or advantageous to SSS and GSIS members in terms of their
creditable employment services in the private sector or the government,
as the case may be, for purposes of death, disability or retirement?
(3%)
Please explain your answers briefly.
(2.) Mariano Martillo was a mason employed by the ABC Construction
Company. Every time that ABC had a project, it would enter into an
employment contract with Martillo for a fixed period that coincided
with the need for his services, usually for a duration of three to six
months.
Since the last project involved the construction of a 40-storey
building, Martillo was contracted for 14 months. During this period,
ABC granted wage increases to its regular employees, composed mostly of
engineers and rank-and-file construction workers as a result of the
just concluded CBA negotiations. Feeling aggrieved and discriminated
against, Martillo and other similarly-situated project workers demanded
that the increases be extended to them, inasmuch as they should now be
considered regular employees and members of the bargaining unit.
(a) If you were ABC’s legal counsel,
how would you respond to this demand?
(b) How is a project worker different
from a casual or contractual worker?
Briefly explain your answers. (6%)
- III -
(1.) Antonio Antuquin, a security guard, was caught sleeping on the job
while on duty at the Yosi Cigarette Factory. As a result, he was
dismissed from employment by the Wagan Security Agency, an independent
contractor. At the time of his dismissal, Antonio had been serving as a
watchman in the factory for many years, often at stretches of up to 12
hours, even on Sundays and holidays, without overtime, nighttime and
rest day benefits. He thereafter filed a complaint for illegal
dismissal and non-payment of benefits against Yosi Cigarette Factory,
which he claimed was his actual and direct employer.
As the Labor Arbiter assigned to hear the case, how would you correctly
resolve the following:cralaw:red
(a) Antonio’s charge of illegal
dismissal; and
(b) Antonio’s claim for overtime and
other benefits. (6%)
(2.) Mans Weto had been an employee of Nopolt Assurance Company for the
last ten (10) years. His wife of six (6) years died last year. They had
four (4) children. He then fell in love with Jovy, his co-employee, and
they got married. In October this year, Weto’s new wife is expected to
give birth to her first child. He has accordingly filed his application
for paternity leave, conformably with the provisions of the Paternity
Leave Law which took effect in 1996. The HRD manager of the assurance
firm denied his application, on the ground that Weto had already used
up his entitlement under that law. Weto argued that he has a new wife
who will be giving birth for the first time, therefore, his entitlement
to paternity leave benefits would begin to run anew.
(a) Whose contention is correct, Weto
or the HRD manager?
(b) Is Jovy entitled to maternity leave
benefits? (6%)
- IV -
(1.) Malyn Vartan is a well-known radio-TV talk show host. She signed a
contract with XYZ Entertainment Network to host a one-hour daily talk
show where she interviews various celebrities on topical subjects that
she herself selects. She was paid a monthly remuneration of
P300,000.00. The program had been airing for almost two years when
sponsors’ advertising revenues dwindled, constraining the network to
cancel the show upon the expiration of its latest contract with Ms.
Vartan. The talk-show host protested the discontinuance of her monthly
talent fee, claiming that it was tantamount to her illegal dismissal
from the network since she has already attained the status of a regular
employee.
(a)
As the network’s legal counsel, how would you justify its decision to
cancel Ms. Vartan’s program which in effect terminated her services in
the process?
(b) As counsel for the talk-show host,
how would you argue your case? (6%)
- V -
During the open forum following your lecture before members of various
unions affiliated with a labor federation, you were asked the following
questions:cralaw:red
(a)
Araw ng Kagitingan and Good Friday are among the 10 paid regular
holidays under Article 94 of the Labor Code. How much will an employee
receive when both holidays fall on the same day? (4%)
(b)
May a rank-and-file employee, who is not a member of the union
representing his bargaining unit, avail of the wage increases which the
union negotiated for its members? (4%)
(c) What is meant by “payroll
reinstatement” and when does it apply? (4%)
(d)
Under what conditions may a “compressed work week” schedule be legally
authorized as an exception to the “eight-hour a day” requirement under
the Labor Code? (4%)
State your answers and your reasons
therefor.
- VI -
A group of employees in XYZ Factory belonging to a religious sect, in
conformity with the teachings and dictates of their religion, refused
to join the labor union in the factory. The labor union was able to
negotiate a substantial wage increase in its collective bargaining
agreement with management. A provision therein stated that the wage
increase would be paid to the members of the union only in view of a
“closed shop” union security clause in the new agreement. The members
of the sect protested and demanded that the wage increase be extended
to them. The officers of the union countered by demanding their
termination from the company pursuant to the “closed shop” provision in
the just-concluded CBA.
(a) Is the CBA provision valid?
(b) Should the company comply with the
union’s demand of terminating the members of the religious sect? (6%)
- VII -
(1.) Ricky Marvin had worked for more than ten (10) years in IGB
Corporation. Under the terms of the personnel policy on retirement, any
employee who had reached the age of 65 and completed at least ten (10)
years of service would be compulsorily retired and paid 30 days’ pay
for every year of service.
Ricky Marvin, whose immigrant visa to the USA had just been approved,
celebrated his 60th birthday recently. He decided to retire and move to
California where the son who petitioned him had settled. The company
refused to grant him any retirement benefits on the ground that he had
not yet attained the compulsory retirement age of 65 years as required
by its personnel policy; moreover, it did not have a policy on optional
or early retirement.
Taking up the cudgels for Ricky Marvin, the union raised the issue in
the grievance machinery as stipulated in the CBA. No settlement was
arrived at, and the matter was referred to voluntary arbitration.
If you were the Voluntary Arbitrator, how would you decide? Briefly
explain the reasons for your award. (5%)
(2.) Carissa, a comely bank teller, was due for her performance
evaluation which is conducted every six months. A rating of
“outstanding” is rewarded with a merit increase. She was given a “below
average” rating in the last two periods. According to the bank’s
personnel policy, a third rating of “below average” will result in
termination. Mr. Perry Winkle called Carissa into his office a few days
before submitting her performance ratings. He invited her to spend the
night with him in his rest house. She politely declined. Undaunted, Mr.
Winkle renewed his invitation, and Carissa again declined. He then
warned her to “watch out” because she might regret it later on. A few
days later, Carissa found that her third and last rating was again
“below average.”chanroblesvirtualawlibrary
Carissa then filed a complaint for sexual harassment against Mr. Winkle
with the Department of Labor and Employment. In his counter-affidavit,
he claimed that he was enamored with Carissa. He denied having
demanded, much less received any sexual favors from her in
consideration of giving her an “outstanding” rating. He also alleged
that the complaint was premature because Carissa failed to refer the
matter to the Committee on Decorum and Discipline for investigation and
resolution before the case against him was filed. In her reply
affidavit, Carissa claimed that there was no need for a prior referral
to the Committee on Decorum and Discipline of her complaint.
Resolve the case with reasons. (5%)
- VIII -
(1.) Odeck, a policeman, was on leave for a month. While resting in
their house, he heard two of his neighbors fighting with each other.
Odeck rushed to the scene intending to pacify the protagonists.
However, he was shot to death by one of the protagonists. Zhop, a
housemaid, was Odeck’s surviving spouse whom he had abandoned for
another woman years back. When she learned of Odeck’s death, Zhop filed
a claim with the GSIS for death benefits. However, her claim was denied
because (a) when Odeck was killed, he was on leave; and (b) she was not
the dependent spouse of Odeck when he died.
Resolve with reasons whether GSIS is correct in denying the claim. (5%)
(2.) Maryrose Ganda’s application for the renewal of her license to
recruit workers for overseas employment was still pending with the
Philippine Overseas Employment Administration (POEA). Nevertheless, she
recruited Alma and her three sisters, Ana, Joan and Mavic, for
employment as housemaids in Saudi Arabia. Maryrose represented to the
sisters that she had a license to recruit workers for overseas
employment. Maryrose also demanded and received P30,000.00 from each of
them for her services. However, Maryrose’s application for the renewal
of her license was denied, and consequently failed to employ the four
sisters in Saudi Arabia.
The sisters charged Maryrose with large scale illegal recruitment.
Testifying in her defense, Maryrose declared that she acted in good
faith because she believed that her application for the renewal of her
license would be approved. Maryrose adduced in evidence the Affidavits
of Desistance which the four private complainants had executed after
the prosecution rested its case. In the said affidavits, they
acknowledged receipt of the refund by Maryrose of the total amount of
P120,000.00 and indicated that they were no longer interested to pursue
the case against Maryrose. Resolve the case with reasons. (5%)
- IX -
Kitchie Tempo was one of approximately 500 production operators at
HITEC Semiconductors, Inc., an export-oriented enterprise whose
business depended on orders for computer chips from overseas. She was
hired as a contractual employee four years ago. Her contracts would be
for a duration of five (5) months at a time, usually after a one-month
interval. Her re-hiring was contingent on her performance for the
immediately preceding contract.
Six months after the expiration of her last contract, Kitchie went to
HITEC’s personnel department to inquire why she was not yet being
recalled for another temporary contract. She was told that her
performance during her last stint was “below average.” Since there was
no union to represent her,
Kitchie seeks your advice as a labor lawyer about her chances of
getting her job back. What will your advice be? (5%)
NOTHING FOLLOWS.
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