2009 BAR EXAM TOPICS

1. Employment Contracts
Terms and conditions and other benefits not provided by the
minimum requirements are valid if the whole employment package is
more beneficial to the worker than the minimum. But the stipulations
should not contradict law, public policy and morals.
Minimum Provisions for Contract
o Guaranteed wages, for regular working hours and overtime
pay for services rendered beyond regular work hours in
accordance with the
o standards established by the Administration
o Free transportation from point of hire to site of employment
and return
o Free emergency medical and dental treatment and facilities
o Just causes for the termination of the contract or of the services
of the workers
o Workmens compensation benefits and war hazard protection
o Repatriation of workers remains and properties in case of
death to the point of hire, or if this is not
2. Confidential Employees
a confidential employee is one who is entrusted with confidence on
delicate matters, or with custody, handling, or care and protection of
the employers property. (National Association of Trade Unions
(NATU) Republic Planters Bank Supervisors Chapter v. Honorable
Ruben Torres, 1994)
Confidential employees assist and act in a confidential capacity to, or
have access to confidential matters of, persons who exercise
managerial functions in the field of labor relations [Philips Industrial
Development v. NLRC; G.R. No. 88957 (June 25, 1992)]
NOTE: Confidential employees may be managerial, supervisory or
even a rank and file employee.
Under Art. 245, confidential employees are not prohibited from
joining, assisting, or forming any labor organization. But by virtue of
necessary implication, confidential employees are similarly
disqualified.
3. Runaway Shop
An industrial plant moved by its owners from one location to another
to escape union labor regulations or state laws or to discriminate
against employees at the old plant because of their union activities.
Resorting to runaway shop is ULP.
Where a plant removal is for business reasons but the relocation is
hastened by anti union motivation, the early removal is unfair labor
practice. It is immaterial that the relocation is accompanied by a
transfer of title to a new employer who is an alter ego of the original
employer.
Mere ownership by a single stockholder or by another corporation of
all or nearly all of the capital stock of a corporation is not of itself
sufficient ground for disregarding the separate corporate personality.
4. The Substitutionary Doctrine
The "substitutionary" doctrine only provides that the employees
cannot revoke the validly executed collective bargaining contract with
their employer by the simple expedient of changing their bargaining
agent. And it is in the light of this that the phrase "said new agent
would have to respect said contract" must be understood. It only
means that the employees, thru their new bargaining agent, cannot
renege on their collective bargaining contract, except of course to
negotiate with management for the shortening thereof. (Benguet
Consolidated v. BCI Employees, G.R. No. L-24711, April 30, 1968).
5. The Visitorial and Enforcement Powers of the DOLE Regional Director
Art. 128. Visitorial and enforcement power. Power of the Sec. of Labor
or his duly authorized representative, including labor regulation
officers to:
1. have access to employers records and premises at any time of the
day or night whenever work is being undertaken therein
2. right to copy records
3. to question any employee
4. investigate any fact, condition, or matter which may be necessary to
determine violations or which may be necessary to aid in enforcement
of the Labor Code or any labor law or order
5. issue compliance orders to give effect to labor legislation based on
the findings of employment and enforcement officers or industrial
safety engineers made in the course of inspection
6. Constitutional Policies on Labor
It is true the Constitution regards labor as "a primary social economic
force." But so does it declare that it "recognizes the indispensable role
of the private sector, encourages private enterprise, and provides
incentives to needed investment." The Constitution bids the State to
"afford full protection to labor." But it is equally true that "the law, in
protecting the right's of the laborer, authorizes neither oppression nor
self-destruction of the employer." And it is oppression to compel the
employer to continue in employment one who is guilty or to force the
employer to remain in operation when it is not economically in his
interest to do so. (Serrano vs. NLRC [G.R. No. 117040, 27 January
2000])
7. Jurisdiction of the Labor Arbiter
JURISDICTION OF THE LABOR ARBITERS
a. Original and exclusive jurisdiction to hear and decide the following cases involving all workers, whether
agricultural or non-agricultural:
1. Unfair labor practice cases;
2. Termination disputes;
3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages,
rates of pay, hours of work and other terms and
conditions of employment;
4. Claims for actual, moral, exemplary and other forms of damages arising from employer-employee
relations;
5. Cases arising from any violation of Article 264 of the Labor Code, as amended, including questions
involving the legality of strikes and lockouts;
6. Except claims for employees compensation not included in the next succeesing paragraph, social
security, MEDICARE , and maternity benefits, all other
claims arising from employer-employee relations, including those of persons in domestic or household
service, involving an amount exceeding Five
Thousand Pesos (P5,000.00), whether or not accompanied with a claim for reinstatement;
7. Wage distortion disputes in unorganized establishments not voluntarily settled by the parties pursuant
to Republic Act No. 6727;
8. Enforcement of compromise agreements when there is non-compliance by any of the parties pursuant
to Article 227 of the Labor Code, as
amended;
9. Money claims arising out of employer-employee relationship or by virtue of any law or contract,
involving Filipino workers for overseas deployment,
including claims for actual, moral, exemplary and other forms of damages as provided by Section 10,
Republic Act No. 8042, as amended by Republic
Act No. 10022; and
10. Other cases as may be provided by law.
8. Employer-Employee Relationship
In determining the existence of employer-employee relationship, the
following elements are generally considered, namely: (1) the
selection and engagement of the employee; (2) the payment of
wages; (3) the power of dismissal; and (4) the power to control the
employees' conduct-although the latter is the most important element.
(35 Am. Jur. 445).
[T]o determine whether a person who performs work for another is the
latter's employee or an independent contractor, the National Labor
Relations relies on 'the right to control' test. Under this test an
employer-employee relationship exist where the person for whom the
services are performed reserves the right to control not only the end
to be achieved, but also the manner and means to be used in
reaching the end. (LVN vs. Philippine Musicians Guild [G.R. No.
12582] citing United Insurance Company, 108, NLRB No. 115.)
9. Project Employees
[W]here the employment has been fixed for a specific project or
undertaking, the completion or termination of which has been
determined at the time of the engagement of the employee or
where the work or service to be performed is seasonal in nature
and the employment is for the duration of the season. (1
st

paragraph of Article 280 of the Labor Code)
A project employee has been defined to be one whose employment
has been fixed for a specific project or undertaking, the completion or
termination of which has been determined at the time of the
engagement of the employee, . . . . (Mercado, Sr. vs. NLRC [G.R. No.
79869, 05 September 1991])
10. Reinstatement and Backwages
Since private respondent's dismissal was for just and valid cause,
the order of public respondent for the reinstatement of private
respondent with award of backwages has no factual and legal
basis. (PAL vs. NLRC [G.R. No. 126805, 16 March 2000])
[A]n employee who is unjustly dismissed is entitled to his full
backwages computed from the time his compensation was
withheld from him up to the time of his reinstatement. Mere offer to
reinstate a dismissed employee, given the circumstances in this
case, is not enough. If petitioner were sincere in its intention to
reinstate private respondent, petitioner should have at the very
least reinstated him in its payroll right away. We are thus
constrained to conclude that private respondent should be paid by
petitioner not only the sum of P26,866.64 awarded by the NLRC,
but the petitioner should be held liable for the entire amount of
backwages due the private respondent from the day he was
illegally dismissed up to the date of his reinstatement. Only then
could observance of labor laws be promoted and social justice
upheld. (Condo Suite Club Travel, Inc. vs. NLRC [G.R. No.
125671, 28 January 2000])
We agree that no full backwages from the time their pay was
withheld up to the time of actual reinstatement can be ordered
paid to petitioners. R.A. No. 6715, which amended Art. 279 of the
Labor Code by requiring that an employee who is illegally
dismissed shall be paid "his full backwages, inclusive of
allowances, and to his other benefits or their monetary equivalent
computed from the time his compensation was withheld from him
up to the time of his actual reinstatement," has no retroactive
effect and does not apply to cases of illegal dismissal taking place
before its effectivity on March 21, 1989. Since petitioners were
dismissed in 1987, they cannot demand payment of full
backwages until they were actually reinstated. BALLADARES vs.
NLRC G.R. No. 111342 [19 June 1995]
11. Househelpers and Homeworkers
Homeworker applies to any person who performs industrial
homework for an employer, contractor or sub-contractor

Industrial Homeworker system of production under which work for
an employer or contractor is carried out by a homeworker at his/her
home. Materials may or may not be furnished by the employer or
contractor
Employer of Homeworker includes any person, natural or artificial
who, for his account or benefit, or on behalf of any person residing
outside the country, directly or indirectly, or through an employee,
agent contractor, sub-contractor or any other person:
a. Delivers, or causes to be delivered, any goods, articles or materials
to be processed or fabricated in or about a home and thereafter to be
returned or to be disposed of or distributed in accordance with his
directions
b. Sells any goods, articles or materials to be processed or fabricated
in or about a home and then rebuys them after such processing or
fabrication, either by himself or through some other person
Domestic or Household Service services in the employers home
which is which is usually necessary or desirable for the maintenance
and enjoyment thereof and includes ministering to the personal
comfort and convenience of the members of the employers
household, including services of family drivers.
12. Cooling-Off Period
13. Strike Vote Requirement
14. Wage Distortion
15. Compulsory Coverage of the GSIA
16. Compulsory Coverage of the SSA
17. Employment of Children
18. The Right of Government Employees to Strike
19. Agency Fees
20. Sexual Harassment
21. Service Agreements
22. Non-Payment of Wages
23. Certification Election Proceedings
24. Freedom Period
25. Due Process in Dismissing an Employee
26. Separation Pay in Lieu of Reinstatement
27. Union Security Clause