Labor Questions

1. ILLEGAL DISMISSAL + OT and other benefits + Job contracting Jose Katindig, a security guard, was caught sleeping on the job while on duty at the Barako Coffee Factory. As a result, he was dismissed from employment by the Bantayan Security Agency, an independent contractor. At the time of his dismissal, Jose 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 Barako Coffee Factory, which he claimed was his actual and direct employer. As the Labor Arbiter to hear the case, how would you correctly resolve the following: a. Joses charge of illegal dismissal (2%) b. Joses claim for OT and other benefits; (3%) 2. WAGES Can an employer and an employee enter into an agreement reducing or increasing the minimum percentage provided for nigh differential pay, overtime pay, and premium pay? (5%) 3. DOMESTIC EMPLOYEES OF THE RESTHOUSE Nova Banking Corporation has a resthouse and recreational facility in the highlands of Tagaytay City for the use of ifs top executive and corporate clients. The resthouse staff includes a caretaker, two cooks and a laundrywoman. All of them are reported to the Social Security System as domestic or household employees of the resthouse and recreational facility and not of the bank. Can the bank legally consider the caretaker, cooks and laundrywoman as domestic employees of the resthouse and not of the bank? (3%) 4. EMPLOYMENT OF WOMEN An exclusive school for girls, run by a religious order, has a policy of not employing unwed mothers, women with live-in partners, and lesbians. Is the policy violative of any provision of the Labor Code n employment of women? (3%) 5. CHOOSING BARGAINING REPRESENTATIVE Distinguish between Certification Election, Consent Election, and Runoff Election (6%) 6. BENEFITS GIVEN TO EMPLOYEES/ FACILITIESWAGES Osh Kosh Kaposh, an unorganized manufacturer of childrens 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 not 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 Osh Kosh Kaposh Company within its rights to withdraw this benefit which it had unilaterally been providing to its employees? Select the best answer and briefly explain your reasons therefore. (3%) (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 dimunition 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. 7. HOLIDAYS/WAGES/PAYROLL REINSTATEMENT During the open forum following your lecture before members of various unions affiliated with a labor federation, you were asked the following questions: (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? (3%) (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? (3%) (c) What is meant by payroll reinstatement and when does it apply? (3%) (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? (3%) 8. PROJECT EMPLOYEES, REGULAR EMPLOYEES Peter Paco was a mason employed by the El Grande Construction Company. Everytime that El Grande had a project, it would enter into an employment contract with Paco 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, Paco was contracted for 14 months. During this period, El Grande granted wage increases to its regular employees, comprised mostly of engineers and rank-andfile construction workers as a result of the just concluded CBA negotiations. Feeling aggrieved and discriminated against, Paco 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.

If you were El Grandes legal counsel, how would you respond to this demand? (5%) 9. PATERNITY BENEFITS Bart Cruz had been an employee of Singko Company for the last 10 years. His wife of six years died last year. They had four (4) children. He remarried to his co-employee, Connie. In October this year, Barts 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 A Company denied his application, on the ground that Bart had already used up his entitlement under that law. Bart 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) (b) Whose contention is correct, Bart or the HRD manager? (3%) Is Connie entitled to maternity leave benefits (3%)

10. RIGHT TO SELF-ORGANIZATION Kapisanan ng mga Manggagawa ng Champoy Co. and Champoy Co. Supervisors Union both joined the National Union for Champoy Makers. Kapisanan includes not only rank-and-file workers of Champoy Co., but also the security guards of Champoy Co. To assure its legal status as a labor organization, Kapisanan asked your legal opinion as a counsel regarding the validity of joining the same national union as that of the supervisors of their company and as to the membership of the security guards of the company. How would you advise Kapisanan? (3%) 11. SEXUAL HARRASSMENT Marimar, 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 banks personnel policy, a third rating of below average will result in termination. Mr. Sergio called Marimar 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. Sergio renewed his invitation, and Marimar again declined. He then warned her to watch out because she might regret it later on. A few days later, Marimar found that her third and last rating was again below average. Marimar then filed a complaint for sexual harassment against Mr. Sergio with the Department of Labor and Employment. In his counter-affidavit, he claimed that he was enamored with Marimar. 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 Marimar failed to refer the matter to the Committee on Decorum and Discipline

for her reply affidavit, Marimar 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%) 12. TRAVEL AGENCIES AS RECRUITER Wow Philippines Travel and Tours Agency (WPTTA) is well known travel agency and an authorized sales agent of the Philippine Air lInes. Since majority of its passengers are overseas workers, WPTTA applied for a license for recruitment and placement activities. It stated in its application that its purpose is not for profit but to help Filipinos find employment abroad. Should the application be approved? (2%) 13. BARGAINING DEADLOCK As a result of bargaining deadlock between LILY Corporation and LILY Employees Union, its members staged a strike. During the strike, several employees committed illegal acts. The company refused to give in to the unions demands. Eventually, its members informed the company of their intention to return to work. 1. Can LILY Corporation refuse to admit all the strikers? (3%) 2. Assuming the company admits all the strikers, can it later on dismiss those employees who committed illegal acts? (3%) 3. If due to the prolonged strike, ROSE Corporation hired replacements, can it refuse to admit the replaced strikers? (3%) 14. PETITION FOR CERTIFICATION, CHARTER CERTIFICATE-NATIONAL UNION-LOCAL UNION The National Union of Garment Workers issued a Charter Certificate to Damit Garments, Inc. Workers Union as a local chapter. The local union is not registered with the DOLE. Is the High Class Garments Union, the local, a legitimate labor union on the basis of the charter certificate? (5%) 15. FINALITY OF JUDGMENT, CERTIFICATION ELECTIONS The certificate of registration of Union A was cancelled. Union A appealed the said cancellation to the med-arbiter. A certification election was going to be held while the appeal of Union A was pending. Can Union A be one of the workers choices in a certification election while its appeal is pending resolution. (5%) 16. NONREPLY TO OFFER TO BARGAIN BY UNION A lawyer, after carefully reading the long lists of union proposals, advised his client (the employer) not to bother answering and negotiating what is obviously an outrageous, unrealistic and outlandish union proposal without fear of an unfair labor practice case. The employer did not answer the unions demands. The union then filed an unfair labor practice case.

If you were to rule on the case, is the lawyers advice correct and in accord with law? (5%) 17. DUTY TO BARGAIN: BARGAINABLE ISSUES, LEGAL IMPLICATIONS The union and the employer submitted its proposals and counterproposals to the company, your client, as legal counsel, which of the proposals are mandatory and non-mandatory and what are the legal implications of the classification. How will you advise your client? (5%) 18. RESTRICTIONS/ INNOCENT THIRD PARTY RULE AND LIABILITIES A Company occupies a fenced compound with other business establishments, including that of Company B whose bodega occupies the innermost part of the compound. The employees of A Company, led by A Union and its members, picketed the gate leading to the compound. The truck of Company B was prevented from entering the compound as the union members intimidated and threatened with bodily harm the employees of Company B who were in the truck. If you were the lawyer for Company B, what would you advice your client regarding A unions acts? (5%) 19. TOTAL LOSS OF MEMBERSHIP; EXPIRED CBA Union X was the bargaining representative of Maganda Co. They executed a CBA, which has already expired as of May 2008. The CBA was not renewed as the all the members of Union X decided to join different unions instead. As the CBA was already expired, and no new bargaining representative was elected by the employees, Maganda Co. was thinking of keeping the status quo just apply the existing CBA. If you were the counsel of Maganda Co., what would you advise your client? (5%) 20. In the previous example, if only 2/3 of Union Xs members decided to resign from the union, can the Bureau of Labor Relations motu propio cancel the Unions Certificate of Registration? (3%)