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 subquestion 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!!!

____________________________________
CHAIRMAN
2005 BAR EXAMINATION
COMMITTEE

PLEASE CHECK THE NUMBER OF PAGES IN THIS SET

WARNING: NOT FOR SALE OR UNAUTHORIZED USE

- 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:

(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:

(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:

(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

apply? (4%)

payroll reinstatement

and when does it

(d) Under what conditions may a compressed work week

schedule be legally authorized as an exception to the
day requirement under the Labor Code? (4%)

eight-hour a

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.

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.