I.
a) The legal yardstick in determining whether usage has become customary international law is expressed in the maxim opinio juris sive necessitatis or opinio juris for short. What does the maxim mean? (3%)
b) Under international law, differentiate "hard law" from "soft law". (3%)
II.
May a treaty violate international law? If your answer is in the affirmative, explain when such may happen. If your answer is in the negative, explain why. (5%)
III.
The President alone without the concurrence of the Senate abrogated a treaty. Assume that the other country-party to the treaty is agreeable to the abrogation provided it complies with the Philippine Constitution. If a case involving the validity of the treaty abrogation is brought to the Supreme Court, how should it be resolved? (6%)
IV.
Congress passed a law authorizing the National Housing Authority (NHA) to expropriate or acquire private property for the redevelopment of slum areas, as well as to lease or resell the property to private developers to carry out the redevelopment plan. Pursuant to the law, the NHA acquired all the properties within a targeted badly blighted area in San Nicolas, Manila, except a well-maintained drug and convenience store that poses no blight or health problem itself. Thereafter, NHA sold all the properties it has thus far acquired to a private realty company for redevelopment. Thus, the NHA initiated expropriation proceedings against the store owner who protested that his property could not be taken because it is not residential or slum housing. He also contended that his property is being condemned for a private purpose, not a public one, noting the NHA's sale of the entire area except his property to a private party. If you were the judge, how would you decide the case? (6%)
V.
Having received tips that the accused was selling narcotics, two police officers forced open the door of his room. Finding him sitting partly dressed on the side of the bed, the officers spied two capsules on the night stand beside the bed. When asked, "Are these yours?", the accused seized the capsules and put them in his mouth. A struggle ensued, in the course of which the officers pounced on the accused but failed to extract the capsules. The officers handcuffed the accused, took him to a hospital where at their direction, a doctor forced an emetic solution through a tube into accused's stomach against his will. This process induced vomiting. In the vomited matter were found two capsules which proved to contain heroin. In the criminal case, the chief evidence against the accused was the two capsules.
a) As counsel for the accused, what constitutional rights will you invoke in his defense? (4%)
b) How should the court decide the case? (3%)
VI.
The Philippine National Police (PNP) issued a circular to all its members directed at the style and length of a male police officers' hair, sideburns and moustaches, as well as the size of their waistlines. It prohibits beards, goatees and waistlines over 38 inches, except for medical reasons. Some police officers questioned the validity of the circular, claiming that it violated their right to liberty under the Constitution. Resolve the controversy. (6%)
VII.
JC, a major in the Armed Forces of the Philippines, is facing prosecution before the Regional Trial Court of Quezon City for the murder of his neighbor whom he suspected to have molested his (JC's) 15-year old daughter.
a) Is JC entitled to bail? Why or why not? (3%)
b) Assume that upon being arraigned, JC entered a plea of guilty and was allowed to present evidence to prove mitigating circumstances. JC then testified to the effect that he stabbed the deceased in self-defense because the latter was strangling him and that he voluntarily surrendered to the authorities. Subsequently, the trial court rendered a decision acquitting JC. Would an appeal by the prosecution from the decision of acquittal violate JC's right against double jeopardy? Why or why not? (3%)
VIII.
ST, a Regional Trial Court judge who falsified his Certificate of Service, was found liable by the Supreme Court for serious miconduct and inefficiency, and meted the penalty of suspension from office for 6 months. Subsequently, ST filed a petition for executive clemency with the Office of the President. The Executive Secretary, acting on the said petition issued a resolution granting ST executive clemency. Is the grant of executive clemency valid? Why or why not? (6%)
IX.
Abdul ran and won May 2001, 2004 and 2007 elections for Vice-Governor of Tawi-Tawi. After being proclaimed Vice-Governor in 2004 elections, his opponent, Khalil, filed an election protest before the Commission on Elections. Ruling with finality on the protest, the COMELEC declared Khalil as duly elected Vice-Governor though the decision was promulgated only in 2007, when Abdul had wholly served 2004-2007 term and was in fact already on his 2007-2010 term as Vice-Governor.
a) Abdul now consults you if he can still run for Vice-Governor of Tawi-Tawi in the forthcoming May 2010 elections on the premise that he could not be considered as having served a Vice-Governor from 2004-2007 because he was not duly elected to the post, as he assumed office merely as a presumptive winner and that presumption was later overturned when the COMELEC decided with finality that he had lost in the May 2004 elections. What will be your advice? (3%)
b) Abdul also consults you whether his politcal party can validly nominate his wife as substitute candidate for Vice-Governor of Tawi-Tawi in May 2010 elections in case disqualifies him and denies due course to or cancels his certificate of candidacy in lieu of a false material representation therein. What will be your advice? (3%)
X.
The 1st Legislative District of South Cotabato is composed of General Santos and three municipalities including Polomolok. During the canvassing proceedings before the District Board of Canvassers in connection with the 2007 congressional elections, candidate MP objected the the certificate of canvass for Polomolok on the ground that it was obviously manufactured, submiting as evidence the affidavit of a mayoralty candidate of Polomolok. The certificate of canvass for General Santos was likewise objected to by MP on the basis of the confirmed report of the local NAMFREL that ten election returns from non-existent precincts were included in the certificate. MP moved that the certifcate of canvass for General Santos be corrected to exclude the results from the non-existent precincts. The District Board of Canvassers denied both objections and ruled to include the certificate of canvass. May MP appeal the rulings to the COMELEC? Explain. (6%)
XI.
On August 8, 2008, the Governor of Bohol died and Vice-Governor Cesar by operation of law. Accordingly, Benito, the highest ranking member of the Sangguniang Panlalawigan was elevated to the position of Vice-Governor. By the elevation of Benito to the office of the Vice-Governor, a vacancy in the Sangguniang Panlalawigan was created. How should the vacancy be filled? (3%)
XII.
The Mayor of San Jose City appointed his wife, Amelia, as City Treasurer among three (3) employees of the city considered for the said position. Prior to said promotion, Amelia had been an Assistant City Treasurer for ten (10) years, that is, even before she married the City Mayor. Should the Civil Service Commission the promotional appointment of Amelia? Why or why not? (6%)
XIII.
Congress enacted a law establishing the right to trial by jury of an accused charged with a felony or offense punishable by reclusion perpetua or life imprisonment. The law provides for the qualifications of prospective jury members, the guidelines to be observed by the judge and the lawyers in jury selection including the grounds for challenging the selection of jury members, and the methodology for jury deliberations. Is the law constitutional? Explain fully. (7%)
XIV.
In 1963, Congress passed a law creating a government-owned corporation named Manila War Memorial Commission (MWMC), with the primary function of overseeing the construction of a massive memorial in the heart of Manila to commemorate the victims of the 1945 Battle of Manila.
The MWMC charter provided an initial appropriation of P1,000,000, empowered the corporation to raise funds in its own name, and set aside a parcel of land in Malate for the memorial site. The charter set the corporate life of MWMC at 50 years with a proviso that Congress may not abolish MWMC until after the completion of the memorial.
Forty-five (45) years later, the memorial was only 1/3 complete, and the memorial site itself had long been overrun by squatters. Congress enacted a law abolishing the MWMC and requiring that the funds raised by it be remitted to the National Treasury. The MWMC challenged the validity of the law, arguing that under its charter its mandate is to complete the memorial no matter how long it takes. Decide with reasons. (6%)
XV.
The principal of Jaena High School, a public school, wrote a letter to the parents and guardians of all the school's pupils, informing them that the school was willing to provide religious instruction to its Catholic students during class hours, through a Catholic priest. However, students who wish to avail of such religious instruction needed to secure the consent of their parents and guardians in writing.
a) Does the offer violate the constitutional prohibition against the establishment of religion? (3%)
b) The parents of evangelical Christian students, upon learning of the offer, demanded that they too be entitled to have their children instructed in their own religious faith during class hours. The principal, a devout Catholic, rejected the request. As counsel for the parents of the evangelical student, how would you argue in support of their position? (3%)
XVI.
Nationwide protests have erupted over rising gas prices, including disruptive demonstrations in many universities throughout the country. The Metro Manila State University, a public university, adopted a university-wide circular prohibiting public mass demonstrations and rallies within the campus. Offended by the circular, militant students spread word that on the following Friday, all students were to wear black T-shirts as a symbol of their protest both against high gas prices and the university ban on demonstrations. The effort was only moderately successful, with around 30% of the students heeding the call. Nonetheless, university officials were outraged and compelled the student leaders to explain why they should not be expelled for violating the circular against demonstrations.
The student leaders approached you for legal advice. They contended that they should not be expelled since they did not violate the circular, their protest action being neither a demonstration nor a rally since all they did was wear black T-shirts. What would you advice the students? (6%)
XVII.
As a reaction to the rice shortage and the dearth of mining engineers. Congress passed a law requiring graduates of public science high schools henceforth to take up agriculture or mining engineering as their college course. Several students protested invoking their freedom to choose their profession. Is the law constitutional? (6%)
Monday, September 8, 2008
2008 Bar Questions in Labor Law - My Answers
I.
a) Explain the automatic renewal clause of collective bargaining agreements. (3%)
b) Explain the extent of workers' right to participate in policy and decision-making process as provided under Article XIII, Section 3 of the Philippine Constitution. Does it include membership in the Board of Directors of a corporation. (3%)
II.
a) What issues or disputes may be the subject of voluntary arbitration under the Labor Code? (4%)
b) Can a dispute falling within the exclusive jurisdiction of the Labor Arbiter be submitted to voluntary arbitration? Why or why not? (3%)
III.
Savoy Department Store (SDS) adopted a policy of hiring salesladies on five-month cycles. At the end of a saleslady's five-month term, another person is hired as replacement. Salesladies attend to store customers, wear SDS uniforms, report at specified hours, and are subject to SDS workplace rules and regulations. Those who refuse the 5-month employment contract are not hired. The day after the expiration of her 5-month engagement, Lina wore her SDS white and blue uniform and reported for work but was denied entry into the store premises. Agitated, she went on a hunger strike and stationed herself in front of one of the gates of SDS. Soon thereafter, other employees whose 5-month term had also elapsed, joined Lina's hunger strike.
a) Lina and 20 other salesladies filed a complaint for illegal dismissal, contending that they are SDS' regular employees as they performed activities usually necessary or desirable in the usual business or trade of SDS and thus, their constitutional right to security of tenure was violated when they were dismissed without valid, just or authorized cause. SDS, in defense, argued that Lina, et al. agreed - prior to engagement - to a fixed period of employment and thus waived their right to a full-term tenure. Decide the dispute. (4%)
b) The owner of the SDS considered the hunger strike staged by Lina, et al., an eyesore and disruptive of SDS' business. He wrote the Secretary of Labor a letter asking him to assume jurisdiction over the dispute and enjoin the hunger "strike". What answer will you give if you were the Secretary of Labor? (3%)
c) Assume that no fixed-term worker complained, yet in a routine inspection of a labor inspector of the Regional Office of the DOLE found the 5-month term policy of SDS violative of the Labor Code's security of tenure provisions and recommended to the Regional Director the issuance of a compliance order. The Regional Director adopted the recommendation and issued a compliance order. Is the compliance order valid? Explain your answer. (3%)
IV.
Super Comfort Hotel employed a regular pool of "extra waiters" who are called or asked to report for duty when the Hotel's volume of business is beyond the capacity of the regularly employed waiters to undertake. Pedro has been an "extra waiter" for more than 10 years. He is also called upon to work on weekends, on holidays and when there are big affairs at the hotel. What is Pedros' status as an employee under the Labor Code? Why? Explain your answer fully. (6%)
V.
The Pizza Corporation (PizCorp) and Ready Supply Cooperative (RSC) entered into a "service agreement" wherein RSC, in consideration of service fees to be paid by PizCorp, will exclusively supply PizCorp with a group of RSC motorcyle-owning cooperative members who will henceforth perform PizCorp's pizza delivery service. RSC assumes --- under the agreement --- full obligation for the payment of the salaries and other statutory monetary benefits of its members deployed to PizCorp. The parties also stipulated that there shall be no employer-employee relationship between PizCorp and the RSC members. However, if PizCorp is materially prejudiced by any act of the delivery crew that violates PizCorp's directives and orders, PizCorp can directly impose disciplinary actions on, including the power to dismiss, the erring RSC member/s.
a) Is the contractual stipulation that there is no employer-employee relationship binding on labor officials? Why? Explain fully. (3%)
b) Based on the test/s for employer-employee relationship, determine the issue of who is the employer of the RSC members. (4%) c) Assume that RSC has a paid-up capitalization of P1,000,000.00. Is RSC engaged in "labor only" contracting, permissible job contracting or simply, recruitment? (3%)
VI.
On the day that the union could validly declare a strike, the Secretary of Labor issued an order assuming jurisdiction over the dispute and enjoining the strike, or if one has commenced, ordering the striking workers to immediately return to work. The return-to-work order required the employees to return to work within twenty-four hours and was served at 8 a.m. of the day the strike was to start. The order at the same time directed the Company to accept all employees under the same terms and conditions of employment prior to the work stoppage. The Union members did not return to work on the day the Secretary's ssumption order was served, nor on the next day; instead, they held a continuing protest rally against the company's alleged unfair labor practices rally against the company's alleged unfair labor practices. Because of the accompanying picket, some of the employees who wanted to return to work failed to do so. On the 3rd day, the workers reported for work, claiming that they do so in compliance with the Secretary's return-to-work order that binds them as well as the Company. The Company, however, refused to admit them back since they have violated the Secretary's return-to-work order and are now considered to have lost their employment status.
The Union officers and members filed a complaint for illegal dismissal arguing that that there was no strike but a protest rally which is a valid exercise of the workers' constitutional right to peaceable assembly and freedom of expression. Hence, there was no basis for the termination of their employment. You are the Labor Arbiter to whom the case was raffled. Decide, ruling on the following issues:
a) Was there a strike? (4%)
b) Were the employees simply exercising their constitutional right to petition for redress of their grievances? (3%) c) What are the consequences, if any, of the acts of the employees? (3%) VII. Tito Pacencioso is an employee of a foundry shop in Malabon, Metro Manila. He is barely able to make ends meet with his salary of P4,000.00 a month. One day, he asked his employer to stop deducting from his salary his SSS monthly contribution, reasoning out that he is waiving his social security coverage. If you were Tito's employer, would you grant his request? Why? (6%)
VIII.
Carol de la Cruz is the secretary of the proprietor of an auto dealership in Quezon City. She resides in Caloocan City. Her office hours start at 8:00 a.m. and end at 5:00 p.m. On July 30, 2008, at 7 a.m. while waiting for public transport at Rizal Avenue Extension as has been her routine, she was sideswiped by a speeding taxicab resulting in her death. The father of Carol filed a claim for employee's compensation with the Social Security System. Will the claim prosper? Why? (6%)
IX.
Assume that in Problem 5, Mario, an RSC member disgusted with the non-payment of his night shift differential and overtime pay, filed a complaint with the DOLE Regional Office against RSC and PizCorp. After inspection, it was found that indeed Mario was not getting his correct differential and overtime pay and that he was not declared an SSS member (so that no premiums for SSS membership were ever remitted). On this basis, the Regional Director issued a compliance order holding PizCorp and RSC solidarily liable for the payment of the correct differential and overtime pay and ordering PizCorp to report Mario for membership with SSS and remit the overdue SSS premiums. Who has the obligation to report the RSC members for membership with the SSS, with the concommitant obligation to remit SSS premiums? Why? (6%)
X.
Pepe Santos was an international flight steward of FlySafe Airlines. Under FSA's Cabin Crew Administration Manual, Santos must maintain, given his height, a weight of 150 to 170 pounds.
After 5 years as a flight steward, Santos began struggling with his weight; he weighed 200 lbs. , 30 pounds over the prescribed maximum weight. The Airline gave him a one-year period to attain the prescribed weight, and enrolled him ins everal weight reduction programs. He consitently failed to meet his target. He was given a 6-month grace period, after which he still failed to meet the weight limit. FSC thus sent him a Notice of Administrative Charge for violation of company standards on weight requirements. He stated in his answer that, for medical reasons, he cannot have a rapid weight loss. A clarificatory hearing was held where Santos fully explained his predicament. The explanation did not satisfy FSA and so it decided to terminate Santos' service for violation of company standards.
Santos filed a complaint for illegal dismissal, arguing that the comapany's weight requirement policy is unreasonable and that his case is not a disciplinary but a medical issue (as one get older, the natural tendency is to grow heavier). FSA defended its policy as a valid exercise of management prerogative and from the point of view of passenger safety and extraordinary diligence required by law of common carriers; it also posited that Santos' failure to achieve his ideal weight constituted gross and habitual neglect of duty, as well as willful disobedience to lawful employer orders. The Labot Arbiter found the dismissal illegal for there was neither gross and habitual neglect of duty nor willful disobedience.
Is the Labor Arbiter correct? Why or why not? Explain fully. (6%)
XI.
Complainants had worked five (5) years as waitresses in a cocktail lounge owned by the respondent. They did not receive any salary directly from the respondent but shared in all service charges collected for food and drinks to the extend of 75%. With respondent's pripor permission, they could sit with and entertain guests inside the establishment and approrpiate for themselves the tips given by guests. After five (5) years, the complainants' individual shares in the collected service charges dipped to below minimum wage level asa consequence of the lounge's marked business decline. Thereupon, complainants asked respondent to increase their share in the collected service charges to 85%, or the minimum wage level, whichever is higher.
Respondent terminated the services of the complainants who countered by filing a consolidated complaint for unlawful dismissal, with prayer for 85% of the collected services or the minimum wage for the appropriate periods, whichever is higher. Decide. (6%)
XII.
Arnaldo, President of "Bisig" Union in feamwear Company, readied himself to leave exactly at 5:00 pm which was the end of his normal shift to be able to send off his wife who was scheduled to leave for overseas. However, the General Manager required him to render overtime work to meet the company's export quota. Arnaldo begged off, explaining to the General Manager that he had to see of his wife who was leaving to work abroad. The company dismissed Arnaldo for insubordination. He filed a case for illegal dismissal. Decide. (6%)
XIII.
The rank-and-file union staged a strike in the company premises which caused the disruption of business operations. The supervisors' union of the same company filed a money claim for unpaid salaries for the duration of the strike, arguing that the supervisors' failure to report for work was not attributable to them. The company contended that it was equally faultless, for the strike was not the direct consequence of any lockout or unfair labor practice. May the company be held liable for the salaries of the supervisors? Decide. (6%)
XIV.
"Puwersa", a labor federation, after having won in a certification election held in the company premises, sent a letter to respondent company reminding it of its obligation to recognize the local union the federation represents and enter into a CBA with the local union. Respondent company replied that though it is willing, the rank-and-file employees had already lost interest in joining the local union as they had dissolved it. "Puwersa" argued that since it won in a certification election, it can validly perform its function as a bargaining agent and represent the rank-and-file employees despite the union's dissolution.
Is the argument of "Puwersa" tenable? Decide with reasons. (6%)
a) Explain the automatic renewal clause of collective bargaining agreements. (3%)
An automatic renewal clause, sometimes referred to as an "evergreen clause" purports to continue the terms of the contract or agreement indefinitely until the parties renegotiate and ratify a successor agreement. An automatic renewal clause is a cost item and it therefore does not bind the parties unless it has been ratified by the body.
In the absence of a binding automatic renewal clause, a CBA ends on its termination date. Once a CBA expires, while the parties continue to negotiate for a successor agreement, their obligations to one another are governed by the doctrine of maintaining the status quo. The principle of maintaining the status quo demands that all terms and conditions of employment remain the same during collective bargaining after a CBA has expired. This does not mean that the expired CBA continues in effect; rather, it means that the conditions under which the workers worked endure throughout the collective bargaining process.
b) Explain the extent of workers' right to participate in policy and decision-making process as provided under Article XIII, Section 3 of the Philippine Constitution. Does it include membership in the Board of Directors of a corporation. (3%)
The workers have the right to participate in policy and decision-making process on matters affecting their rights and benefits. This participation can be through collective bargaining, grievance machineries, voluntary modes of settling disputes, and conciliation proceedings mediated by government.
This right does not automatically include the right to membership in the Board of Directors of a corporation, insofar as Sec. 23 of the Corporation Code requires the directors to be owners of at least one share of stock in a stock corporation, and must be subsisting members in a non-stock
corporation. Cessation as stockholders or member, respectively, automatically disqualifies them as directors. Moreover, a majority of them must be Philippine residents.
II.
a) What issues or disputes may be the subject of voluntary arbitration under the Labor Code? (4%)
Voluntary arbitrators of voluntary arbitration panels have original and exclusive jurisdiction to hear and decide:
(a) all unresolved grievances, including termination cases, arising from the interpretation or implementation of the CBA, and those arising from the interpretaton or enforcement of company personnel policies submitted to the Grievance Machinery provided for the purpose in the CBA. All grievances unresolved within seven days from the date of its submission for
resolution to the last step of the grievance machinery are automatically referred to voluntary arbitration;
(b) violations of a CBA, except those which are gros in character, such violations are no longer treated as unfair labor practices, but are resolved as grievances under the CBA;
(c) upon agreement of the parties, all other disputes including unfair labor practices and bargaining deadlocks.
b) Can a dispute falling within the exclusive jurisdiction of the Labor Arbiter be submitted to voluntary arbitration? Why or why not? (3%)
Although Article 217 of the Labor Code speaks of exclusive and original jurisdiction of Labor Arbiters, the cases enumerated thereto may be submitted to voluntary arbitration by agreement by the parties under Article 262. This is because the law prefers voluntary to compulsory arbitration.c) Can a dispute falling within the jurisdiction of a voluntary arbitrator be submitted to compulsory arbitration? Why or why not? (3%)
III.
Savoy Department Store (SDS) adopted a policy of hiring salesladies on five-month cycles. At the end of a saleslady's five-month term, another person is hired as replacement. Salesladies attend to store customers, wear SDS uniforms, report at specified hours, and are subject to SDS workplace rules and regulations. Those who refuse the 5-month employment contract are not hired. The day after the expiration of her 5-month engagement, Lina wore her SDS white and blue uniform and reported for work but was denied entry into the store premises. Agitated, she went on a hunger strike and stationed herself in front of one of the gates of SDS. Soon thereafter, other employees whose 5-month term had also elapsed, joined Lina's hunger strike.
a) Lina and 20 other salesladies filed a complaint for illegal dismissal, contending that they are SDS' regular employees as they performed activities usually necessary or desirable in the usual business or trade of SDS and thus, their constitutional right to security of tenure was violated when they were dismissed without valid, just or authorized cause. SDS, in defense, argued that Lina, et al. agreed - prior to engagement - to a fixed period of employment and thus waived their right to a full-term tenure. Decide the dispute. (4%)
b) The owner of the SDS considered the hunger strike staged by Lina, et al., an eyesore and disruptive of SDS' business. He wrote the Secretary of Labor a letter asking him to assume jurisdiction over the dispute and enjoin the hunger "strike". What answer will you give if you were the Secretary of Labor? (3%)
c) Assume that no fixed-term worker complained, yet in a routine inspection of a labor inspector of the Regional Office of the DOLE found the 5-month term policy of SDS violative of the Labor Code's security of tenure provisions and recommended to the Regional Director the issuance of a compliance order. The Regional Director adopted the recommendation and issued a compliance order. Is the compliance order valid? Explain your answer. (3%)
IV.
Super Comfort Hotel employed a regular pool of "extra waiters" who are called or asked to report for duty when the Hotel's volume of business is beyond the capacity of the regularly employed waiters to undertake. Pedro has been an "extra waiter" for more than 10 years. He is also called upon to work on weekends, on holidays and when there are big affairs at the hotel. What is Pedros' status as an employee under the Labor Code? Why? Explain your answer fully. (6%)
V.
The Pizza Corporation (PizCorp) and Ready Supply Cooperative (RSC) entered into a "service agreement" wherein RSC, in consideration of service fees to be paid by PizCorp, will exclusively supply PizCorp with a group of RSC motorcyle-owning cooperative members who will henceforth perform PizCorp's pizza delivery service. RSC assumes --- under the agreement --- full obligation for the payment of the salaries and other statutory monetary benefits of its members deployed to PizCorp. The parties also stipulated that there shall be no employer-employee relationship between PizCorp and the RSC members. However, if PizCorp is materially prejudiced by any act of the delivery crew that violates PizCorp's directives and orders, PizCorp can directly impose disciplinary actions on, including the power to dismiss, the erring RSC member/s.
a) Is the contractual stipulation that there is no employer-employee relationship binding on labor officials? Why? Explain fully. (3%)
b) Based on the test/s for employer-employee relationship, determine the issue of who is the employer of the RSC members. (4%) c) Assume that RSC has a paid-up capitalization of P1,000,000.00. Is RSC engaged in "labor only" contracting, permissible job contracting or simply, recruitment? (3%)
VI.
On the day that the union could validly declare a strike, the Secretary of Labor issued an order assuming jurisdiction over the dispute and enjoining the strike, or if one has commenced, ordering the striking workers to immediately return to work. The return-to-work order required the employees to return to work within twenty-four hours and was served at 8 a.m. of the day the strike was to start. The order at the same time directed the Company to accept all employees under the same terms and conditions of employment prior to the work stoppage. The Union members did not return to work on the day the Secretary's ssumption order was served, nor on the next day; instead, they held a continuing protest rally against the company's alleged unfair labor practices rally against the company's alleged unfair labor practices. Because of the accompanying picket, some of the employees who wanted to return to work failed to do so. On the 3rd day, the workers reported for work, claiming that they do so in compliance with the Secretary's return-to-work order that binds them as well as the Company. The Company, however, refused to admit them back since they have violated the Secretary's return-to-work order and are now considered to have lost their employment status.
The Union officers and members filed a complaint for illegal dismissal arguing that that there was no strike but a protest rally which is a valid exercise of the workers' constitutional right to peaceable assembly and freedom of expression. Hence, there was no basis for the termination of their employment. You are the Labor Arbiter to whom the case was raffled. Decide, ruling on the following issues:
a) Was there a strike? (4%)
b) Were the employees simply exercising their constitutional right to petition for redress of their grievances? (3%) c) What are the consequences, if any, of the acts of the employees? (3%) VII. Tito Pacencioso is an employee of a foundry shop in Malabon, Metro Manila. He is barely able to make ends meet with his salary of P4,000.00 a month. One day, he asked his employer to stop deducting from his salary his SSS monthly contribution, reasoning out that he is waiving his social security coverage. If you were Tito's employer, would you grant his request? Why? (6%)
VIII.
Carol de la Cruz is the secretary of the proprietor of an auto dealership in Quezon City. She resides in Caloocan City. Her office hours start at 8:00 a.m. and end at 5:00 p.m. On July 30, 2008, at 7 a.m. while waiting for public transport at Rizal Avenue Extension as has been her routine, she was sideswiped by a speeding taxicab resulting in her death. The father of Carol filed a claim for employee's compensation with the Social Security System. Will the claim prosper? Why? (6%)
IX.
Assume that in Problem 5, Mario, an RSC member disgusted with the non-payment of his night shift differential and overtime pay, filed a complaint with the DOLE Regional Office against RSC and PizCorp. After inspection, it was found that indeed Mario was not getting his correct differential and overtime pay and that he was not declared an SSS member (so that no premiums for SSS membership were ever remitted). On this basis, the Regional Director issued a compliance order holding PizCorp and RSC solidarily liable for the payment of the correct differential and overtime pay and ordering PizCorp to report Mario for membership with SSS and remit the overdue SSS premiums. Who has the obligation to report the RSC members for membership with the SSS, with the concommitant obligation to remit SSS premiums? Why? (6%)
X.
Pepe Santos was an international flight steward of FlySafe Airlines. Under FSA's Cabin Crew Administration Manual, Santos must maintain, given his height, a weight of 150 to 170 pounds.
After 5 years as a flight steward, Santos began struggling with his weight; he weighed 200 lbs. , 30 pounds over the prescribed maximum weight. The Airline gave him a one-year period to attain the prescribed weight, and enrolled him ins everal weight reduction programs. He consitently failed to meet his target. He was given a 6-month grace period, after which he still failed to meet the weight limit. FSC thus sent him a Notice of Administrative Charge for violation of company standards on weight requirements. He stated in his answer that, for medical reasons, he cannot have a rapid weight loss. A clarificatory hearing was held where Santos fully explained his predicament. The explanation did not satisfy FSA and so it decided to terminate Santos' service for violation of company standards.
Santos filed a complaint for illegal dismissal, arguing that the comapany's weight requirement policy is unreasonable and that his case is not a disciplinary but a medical issue (as one get older, the natural tendency is to grow heavier). FSA defended its policy as a valid exercise of management prerogative and from the point of view of passenger safety and extraordinary diligence required by law of common carriers; it also posited that Santos' failure to achieve his ideal weight constituted gross and habitual neglect of duty, as well as willful disobedience to lawful employer orders. The Labot Arbiter found the dismissal illegal for there was neither gross and habitual neglect of duty nor willful disobedience.
Is the Labor Arbiter correct? Why or why not? Explain fully. (6%)
XI.
Complainants had worked five (5) years as waitresses in a cocktail lounge owned by the respondent. They did not receive any salary directly from the respondent but shared in all service charges collected for food and drinks to the extend of 75%. With respondent's pripor permission, they could sit with and entertain guests inside the establishment and approrpiate for themselves the tips given by guests. After five (5) years, the complainants' individual shares in the collected service charges dipped to below minimum wage level asa consequence of the lounge's marked business decline. Thereupon, complainants asked respondent to increase their share in the collected service charges to 85%, or the minimum wage level, whichever is higher.
Respondent terminated the services of the complainants who countered by filing a consolidated complaint for unlawful dismissal, with prayer for 85% of the collected services or the minimum wage for the appropriate periods, whichever is higher. Decide. (6%)
XII.
Arnaldo, President of "Bisig" Union in feamwear Company, readied himself to leave exactly at 5:00 pm which was the end of his normal shift to be able to send off his wife who was scheduled to leave for overseas. However, the General Manager required him to render overtime work to meet the company's export quota. Arnaldo begged off, explaining to the General Manager that he had to see of his wife who was leaving to work abroad. The company dismissed Arnaldo for insubordination. He filed a case for illegal dismissal. Decide. (6%)
XIII.
The rank-and-file union staged a strike in the company premises which caused the disruption of business operations. The supervisors' union of the same company filed a money claim for unpaid salaries for the duration of the strike, arguing that the supervisors' failure to report for work was not attributable to them. The company contended that it was equally faultless, for the strike was not the direct consequence of any lockout or unfair labor practice. May the company be held liable for the salaries of the supervisors? Decide. (6%)
XIV.
"Puwersa", a labor federation, after having won in a certification election held in the company premises, sent a letter to respondent company reminding it of its obligation to recognize the local union the federation represents and enter into a CBA with the local union. Respondent company replied that though it is willing, the rank-and-file employees had already lost interest in joining the local union as they had dissolved it. "Puwersa" argued that since it won in a certification election, it can validly perform its function as a bargaining agent and represent the rank-and-file employees despite the union's dissolution.
Is the argument of "Puwersa" tenable? Decide with reasons. (6%)
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