Mock Bar Q & A- Labor Law

By: Cecilio Duka

How to solve wage distortion (qualify: if establishment is organized or not
organized(
If unorganized:
1. Employees and management will settle the issues
2. Submit to NCMB
3. Go to Labor Arbiter
If organized:
1. Submit to grievance machinery
2. Go to the voluntary arbitrator
Any issue that falls under the jurisdiction of the voluntary arbitrator cannot be
submitted to the Labor Arbiter even by agreement between the parties. However,
the parties may agree to submit the issues under the jurisdiction of the Labor
Arbiter to the voluntary arbitrator.
After 5 years, file a revival of judgment. After 10 years, estoppel by laches prevent
one to his right. But prior 5 years, one may file motion to issue an order of preexecution conference.
Holiday pay does not apply when the employer employs less than 10 employees.
But this requires the employer to secure permit of exemption from payment of HP.
The hearing requirement under the rules on dismissal does not necessarily refer to
verbal hearing. It admits written explanation.
In certification election, double majority rule applies.
1st majority requirement- 50% +1 of the total membership
2nd majority requirement-50% + 1 of the total votes cast
If the 1st majority requirement is not met, there is failure of election (out of 410, 1 st
majority is 206)
In certification election, no union maybe a choice while in a run-off election, it is
not a choice.
In case within the 5 years period expired without a new CBA signed, the automatic
renewal rule will apply. Meaning, the old CBA will continue to become the CBA for
the next CBA period. No new CBA will be entered into after the freedom period (60
days before the end of 5 years) as prohibited under the contract bar rule.

After the 3rd year period, the parties may agree on economic benefits. If they cant
agree on the effectivity date of the newly agreed economic benefits, submit to the
voluntary arbitrator.
Automatic retroaction- if the new economic benefit has been agreed within a period
of 6 months from the end of the 3rd year period, it will retroact on the 1st day after
the end of the said period.
Distinguish from automatic renewal.
2 lifetime of the CBA
1. 5 years- political issue- determination as to who is the bargaining
representative
2. 3 years- economic benefits
OJT- exception to the rule that apprentice must be paid for not less than 75% of the
prescribed minimum wage.
No employee must receive less than the salary equivalent of 22.5 days (15 days
plus 1/12 of 13th month pay plus 5 days SIL).
The no-strike prohibition applies only to those agencies/GOCCs covered by Civil
Service Commission. Hence, GOCCs without original charter is not covered by the
prohibition.
Economic sabotage (syndicated/large scale) now punishable by life imprisonment.
Simple illegal recruitment- fine now increased to 2m
Under the Batas Kasambahay Law, domestic helper is entitled to 13 th month payeffective as of June 18, 2013
Mandatory remittance of foreign earnings:
50%- if without free board and lodging, except Domestic Helper, even w/ free
board/lodging, still remit 50%
70%- other professionals with free board and lodging
80% - seamen
Under the kasambahay law- DH is entitled to a minimum of 8 straight hours of rest
daily.
Overtime cannot be offset against undertime because it is higher than the rate of
the latter.

For intra-corporate disputes-RTC has jurisdiction, not the Labor Arbiter. This applies
when it involves a corporate officer (VP is not recognized as an officer as a rule,
unless designated as such under the by-laws of the corporation).
2 regular holidays- if unworked= 200%; if worked= 300%
A CBA not registered with BLR is valid as between the union and employer. But as
against the other unions, it is not recognized, hence, it will not be a bar for the other
union to conduct certification election (contract bar rule will not be availed by the
unregistered union).
Religious freedom is a preferred right, hence, it must be considered by the employer
in fixing an employees rest day.
Under EO 180, members of the AFP, PNP, BFP and BJMP are not allowed to self
organize.
Premium Pay- work rendered during rest day or during special holiday.
Overtimepay- work rendered during regular day.
When employee works on his rest day which happens to be special holiday, the
employee is entitled to 150%.
During special holiday, no pay, no such thing as holiday pay because the latter
applies only to regular holiday.
If worked during special holiday, same rule on work during rest day, employee
entitled to 130%.
To avail the benefits under the Solo Parent Act, one must have an approved
application with DSWD.
De facto separation- more than 1 year, considered abandonment, qualifies the
spouse with custody of the children as solo parent.
Under the Magna Carta of Women, a woman is entitled to 2 months leave with pay
(to be paid by the employer) provided that she worked for at least 6 months before
the leave.
Application for registration of federation is with BLR, not with the regional office. An
independent union operating as the only union within the region, apply with the

regional office. But if within the region, there are more than 1 independent union,
apply with BLR.
Appeal re: application for registration
1. If application for registration is made with regional office, appeal with BLR
2. If application for registration is made with the BLR, appeal with Secretary of
Labor
Rules on non-diminution:
Art. 100
Art. 127
Non-injunction Rules
Art. 126
Art. 254, exception: if issue is constitutionality, TRO or injunction can be issued to
enjoin/prevent the company from implementing the policy
By jurisprudence, an employee cannot be compelled to retire earlier than 60 years
old (mandatory age as provided by law) if he doesnt want to, even if there is an
existing retirement program of the company which provides for 55 as mandatory
retirement age. Compulsion is equivalent to constructive dismissal.
Requisites of valid strike:
1. Valid ground
a. CBA deadlock
b. ULP- act of yer or union or representatives that cause restraint to
unionism.
c. Union busting also a ULP
2. Notice of strike submit to NCMB
a. In case of CBA deadlock- 30 days before intended strike
b. ULP- 15 days
c. Union busting- immediate
3. Cooling off period
a. CBA deadlock- 30 days
b. ULP- 15 days
c. Union busting- no cooling off period but observe the 7 days strike ban
4. Strike vote- majority of the total union membership
5. Submit strike vote report to NCMB w/in 24 hours from the time the strike vote
was obtained
6. Observe strike ban within 7 days from submission of SVR to NCMB
7 strike ban is separate from the cooling off period. Non-compliance would
render the strike illegal. However, note that the strike vote and strike vote
report maybe within the cooling off period. In this case, the strike maybe

undertaken from the time the strike vote was submitted to the NCMB, not
from the end of the cooling off period.
Illegal dismissal- reinstatement, backwages and damages
Ineffectual dismissal- in this case, the dismissal is legal but ineffectual. No
backwages, no reinstatement but employer will pay damages (if procedural process
not complied with).
Abandonment- considered as one of the circumstances analogous to the
enumerated just causes of dismissal.
Even amount is less that 5k, if with claim for reinstatement, hence, jurisdiction of
labor arbiter.
If no employer-employee relationship- courts jurisdiction
Essay:
1. A. No. The expiration of the contract means the expiration of employment.
After the 6th month period, the employer is free to hire its employees.
B. Sec. 32 of the Magna Carta for disabled persons
2. A. Yes, under Art. 283 of the labor code. Inform the DOLE, regional office 1
month before the closure and the employees within same period.
B. Yes, under Article 283, depend
Authorized causes of dismissal:
1. automation
2. Redundancy
3. Retrenchment to prevent losses- no need for actual losses but it must be
substantial
4. Closure or cessation of operation provided it is not intended to defeat the
purpose of the law- 1 month salary or month salary whichever is higher
3. A. check recording
B. Yes, but observe due process.
4. Orosco v CA case
A. Mel Vanco is an independent contractor, not considered an employee.
B. Ms. Vanco is not a regular employee.
5. A. Olvido v CA (requirements for dismissing employees under the Union
security clause:
a. Strictly provided in the CBA
b. Apply prospectively
c. Should not apply to the rival of the other union or religious objectors
d. Due process
Answer: provision is not valid
C. The company should not dismiss because it does not apply to religious
objectors

6. A. Yes, the continuous re-hiring of project employee will make him regular as
long as the project continuous to exist.
B. 2 kinds of regular employee:
a. those engaged to perform work that is usual and necessary in the regular
business of the employer;
b. performs work for at least 1 year, continuous or intermittent (even the
work is not necessary or desirable in the business of the employer)
Project employee is engaged for a specific undertaking within specific period
of time.
7. A. Yes, sexual harassment :
a. moral ascendancy over the victim
b. sexual favour can be inferred from the acts/words, need not be demanded
in writing or verbally
B. Remedies in case the criminal complaint was dismissed, file an
administrative or civil case against the offender. Quantum of proof is
different in crim and admin case (which requires substantial evidence) and
civil (preponderance of evidence)
Extradition, neither civil nor criminal- quantum of evidence is clear and
convincing evidence.
8. A. No. Cesar was not constructively dismissed because the guard in the case
has been in floating status only for 5 months. It should be 6 months.
B. Yes, guards are entitled to the benefits.
9. A. Yes, the arbiter is correct in dismissing the case but the reason is incorrect.
IRRI is an international organization, not within the jurisdiction of neither
labor arbiter or Civil Service.
B. Parameters by the court in legally dismissed employee due to loss of trust
and confidence:
1. employee must occupy a confidential position;
2. if must be proven by substantial evidence
3. due process must be observed
10.A. No. It was done during meal break which is non-compensable; hence,
employee is free to do whatever he wants during this period. It was only
picketing which is not illegal.
B. Yes, because when, in the opinion of the secretary of labor, there is a strike
or an impending strike, the Labor Secretary may intervene to resolve the
issue or certify the issue to the labor arbiter. In both instances, the return to
work order is automatic.