Bar 1st Sunday

7/27/2019 Bar 1st Sunday

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POLITICAL LAW- BAR EXAM- FINAL- OCT. 6, 2013 1

2013 BAR EXAMINATIONSPOLITICAL AND INTERNATIONAL LAW

October 6, 2013 8:00A.M.- 12:00 P.M.INSTRUCTIONS

1. This Questionnaire contains FIFTEEN (15) pages including theseInstructions pages. Check the number of pages and the page numbersat the upper right hand corner of each page of this Questionnaire andmake sure it has the correct number of pages and their propernumbers.

There are TWELVE (12) Essay Questions numbered I to XII(with subquestions), and TWENTY (20) Multiple Choice Questions(MCQs) numbered I to XX, to be answered within four (4) hours.The essay portion contains questions that are worth 80% of thewhole examination, while the MCQ portion contains questions worth

20%.

2. Read each question very carefully and. write your answers in yourBar Examination Notebook in the same order the questions are posed.Write your answers only at the front, not the back, page of every sheetin your Examination Notebook. Note well the allocated percentagepoints for each number, question, or sub-question. In your answers, usethe numbering system in the questionnaire.

I f the sheets provided in your Examination Notebook are notsufficient for your answers, use the back pages of every sheet of yourExamination Notebook, starting at the back page of the first sheet andthe back of the succeeding sheets thereafter.

3. Answer the Essay questions legibly, clearly, and concisely. Starteach number on a separate page. An answer to a sub-question underthe same number may be written continuously on the same page and theimmediately succeeding pages until completed.

Your answer should demonstrate your ability to analyze the factspresented by the question, to select the material from the immaterial


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POLITICAL LAW- BAR EXAM- FINAL- OCT. 6, 2013 2facts, and to discern the points upon which the question turns. It shouldshow your knowledge and understanding of the pertinent principles andtheories of law involved and their qualifications and limitations. I tshould demonstrate your ability to apply the law to the given facts, andto reason logically in a lawyer-like manner to a sound conclusion fromthe given premises.

A mere "Yes" or "No" answer without any correspondingexplanation or discussion will not be given any credit. Thus, alwaysbriefly but fully explain your answers a l t h o u ~ : h the question does notexpressly ask for an explanation. At the same time, remember that acomplete explanation does not require that you volunteer informationor discuss legal doctrines that are not necessary or pertinent to thesolution to the problem. You do not need to re-write or repeat thequestion in your Examination Notebook.4. MCQs are to be answered by writing in your ExaminationNotebook the capital letter (A, B, C, D, or E) corresponding to yourchosen answer. The MCQ answers should begin in the page following thelast page ofyour essay answers.

There is only one correct answer to every MCQ; choose the BESTanswer from among the offered choices. Note that some MCQs mayneed careful analysis both of the questions and the choices offered.

5. Make sure you do not write your name or any extraneous note/s ordistinctive marking/s on your Examination Notebook that can serve asan identifying markls (such as names that are not in the given questions,prayers, or private notes to the Examiner).

Writing, leaving or making any distinguishing or identifyingmark in the Examination Notebook is considered cheating and candisqualify you for the Bar examinations.

You can use the questionnaire for notes you may wish/need towrite during the examination.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE

{ } , ~ ~J. ARTURO D. BRION

Chairman2013 Bar Examinations


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ESSAY QUESTIONSI.

In the last quarter of 2012, about 5,000 container vans of importedgoods intended for the Christmas Season were seized by agents of theBureau of Customs. The imported goods were released only on January 10,2013. A group of importers got together and filed an action for damagesbefore the Regional Trial Court of Manila against the Department of Financeand the Bureau of Customs.The Bureau of Customs raised the defense of immunity from suit and,alternatively, that liability should lie with XYZ Corp. which the Bureau had

contracted for the lease of ten (1 0) high powered van cranes but deliveredonly five (5) of these cranes, thus causing the delay in its cargo-handlingoperations. It appears that the Bureau, despite demand, did not pay XYZCorp. the Php 1.0 Million deposit and advance rental required under theircontract.(A) wm the action by the group of importers prosper? (5%)(B) Can XYZ Corp. sue the Bureau of Customs to collect rentals

for the delivered cranes? (5''/o)n.

While Congress was in session, the President appointed eight actingSecretaries. A group of Senators from the minority bloc questioned thevalidity of the appointments in a petition before the Supreme Court on theground that while Congress is in session, no appointment that requiresconfirmation by the Commission on Appointments, can be made without thelatter's consent, and that an undersecretary should instead be designated asActing Secretary.

Should the petition be granted? (5%)

III.A robbery with homicide had taken place and Lito, Badong and Rollie

were invited for questioning based on the information furnished by aneighbor that he saw them come out of the victim's house at about the timeof the robbery/killing. The police confronted the three with this and otherinformation they had gathered, and pointedly accused them of committingthe crime.


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POLITICAL LAW- BAR EXAM- FINAL- OCT. 6, 2013 4Lito initially resisted, but eventually broke down and admitted his

participation in the crime. Elated by this break and desirous of securing awritten confession soonest, the police called City Attorney Juan Buan toserve as the trio's counsel and to advise them about their rights during theinvestigation.

Badong and Rollie, weakened in spirit by Lito's early admission,likewise admitted their participation. The trio thus signed a joint extrajudicial confession which served as the main evidence against them at theirtrial. They were convicted based on their confession.Should the judgment of conviction be affirmed or reversed on

appeal? (5%)

IV.Congress enacted a law providing for trial by jury for those charged

with crimes or offenses punishable by reclusion perpetua or lifeimprisonment. The law provides for the qualifications of members of thejury, the guidelines for the bar and bench for their selection, the manner atrial by jury shall operate, and the procedures to be followed.Is the law constitutional? (6%)

v.As a leading member of the Lapiang Mandirigma in the House ofRepresentatives, you were tasked by the party to initiate the moves to

impeach the President because he entered into an executive agreement withthe US Ambassador for the use of the former Subic Naval Base by the USNavy, for free, i.e., without need to pay rent nor any kind of fees as a showof goodwill to the U.S. because of the continuing harmonious RP-USrelations.

Cite at least two (2) grounds for impeachment and explain whyyou chose them. (6%)

VI.Congress passed Republic Act No. 7711 to comply with the UnitedNations Convention on the Law of the Sea.In a petition filed with the Supreme Court, Anak Ti !locos, an

association of Ilocano professionals, argued that Republic Act No. 7711discarded the definition of the Philippine tenitory under the Treaty of Paris


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POLITICAL LAW- BAR EXAM- FINAL - OCT. 6, 2013 5and in related treaties; excluded the Kalayaan Islands and the ScarboroughShoals from the Philippine Archipelagic baselines; and converted internalwaters into archipelagic waters.

Is the petition meritorious? (6%)

vn.As he was entering a bar, Arnold - who was holding an unlit cigarettein his right hand - was handed a match box by someone standing near thedoorway. Arnold unthinkingly opened the matchbox to light his cigaretteand as he did so, a sprinkle of dried leaves fell out, which the guard noticed.The guard immediately frisked Arnold, grabbed the matchbox, and sniffed

its contents. After confirming that the matchbox contained marijuana, heimmediately arrested Arnold and called in the police.At the police station, the guard narrated to the police that hepersonally caught Arnold in possession of dried marijuana leaves. Arnolddid not contest the guard's statement; he steadfastly remained silent andrefused to give any written statement. Later in court, the guard testified andnarrated the statements he gave the police over Arnold's counsel's

objections. While Arnold presented his own witnesses to prove that hispossession and apprehension had been set-up, he himself did not testifY.

The court convicted Arnold, relying largely on his admission of thecharge by silence at the police investigation and during trial.From the constitutional law perspective, was the court correct inits ruling? (6%)

VIII.Bobby, an incoming third year college student, was denied admissionby his university, a premiere educational institution in Manila, after he failedin three (3) major subjects in his sophomore year. The denial of admissionwas based on the university's rules and admission policies.Unable to cope with the depression that his non-admission triggered,

Bobby committed suicide. His family sued the school for damages, citingthe school's grossly unreasonable rules that resulted in the denial ofadmission. They argued that these rules violated Bobby's human rights andthe priority consideration that the Constitution gives to the education of theyouth.

You are counsel for the university. Explain your arguments insupport of the university's case. (6%)


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POLITICAL LAW -BAR EXAM - FINAL - OCT. 6, 2013 6

IX.Conrad is widely known in the neighborhood as a drug addict. He is

also suspected of being a member of the notorious "Akyat-Condo Gang" thathas previously broken into and looted condominium units in the area.Retired Army Colonel Sangre - who is known as an anti-terrorism

fighter who disdained human and constitutional rights and has beennicknamed "terror of Mindanao" - is now the Head of Security of CapricornLand Corporation, the owner and developer of Sagittarius Estates where aseries of robberies has recently taken place.

On March l, 2013, Conrad informed his mother, Vannie, thatuniformed security guards had invited him for a talk in their office but herefused to come. Later that day, however, Conrad appeared to have relented;he was seen walking into the security office flanked by two security guards.Nobody saw him leave the office afterwards.

Conrad did not go home that night and was never seen again. Thefollowing week and after a week-long search, Vannie feared the worstbecause of Col. Sangre's reputation. She thus reported Conrad'sdisappearance to the police. When nothing concrete resulted from the policeinvestigation, Vannie - at the advice of counsel - f1led a petition for a writof amparo to compel Col. Sangre and the Sagittarius Security Office toproduce Conrad and to hold them liable and responsible for Conrad'sdisappearance.

(A) Did Vannie's counsel give the correct legal advice? (6%)(B) I f the petition would prosper, can Col. Sangre be held liable

and/or responsible for Conrad's disappearance? (6%)

X.The Ambassador of the Republic of Kafiristan referred to you for

handling, the case of the Embassy's Maintenance Agreement with CBM, aprivate domestic company engaged in maintenance work. The Agreementbinds CBM, for a defined fee, to maintain the Embassy's elevators, aircondit ioning units and electrical facilities. Section I 0 of the Agreementprovides that the Agreement shall be governed by Philippine laws and thatany legal action shall be brought before the proper court of Makati.Kafiristan terminated the Agreement because CBM aliegedly did not complywith their agreed maintenance standards.


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POLITICAL LAW- BAR EXAM- FINAL - OCT. 6, 2013 7CBM contested the tennination and filed a complaint againstKafiristan before the Regional Trial Court of Makati. The Ambassadorwants you to file a motion to dismiss on the ground of state immunity fromsuit and to oppose the position that under Section 10 of the Agreement,

Kafiristan expressly waives its immunity from suit.Under these facts, can the Embassy successfully invoke immunity

from suit? (6%)XI.

In her interview before t h t ~ Judicial and Bar Council (JBC),Commissioner Annie Amorsolo of the National Labor RelationsCommission claims that she should be given credit for judicial servicebecause as NLRC Commissioner, she has the rank of a Justice of the Courtof Appeals; she adjudicates cases that are appealable to the Court ofAppeals; she is assigned car plate No. 10; and she is, by law, entitled to therank, benefits and privileges of a Court of Appeals Justice.

I f you are a member of the JBC, would you give credit to thisexplanation? (6%)

xn.In the May 2013 elections, the Allied Workers' Group of thePhilippines (A WGP), representing land-based and sea-based workers in thePhilippines and overseas, won in the party list congressional elections. Atty.Abling, a labor lawyer, is its nominee.As part of the party's advocacy and services, Congressman Ablingengages in labor counseling, particularly for local workers with claimsagainst their employers and for those who need representation in collectivebargaining negotiations with employers. When labor cases arise, A WGP

enters its appearance in representation of the workers and the Congressmanmakes it a point to be there to accompany the workers, although a retainedcounsel also formally enters his appearance and is invariably there.Congressman Abling largely takes a passive role in the proceedings althoughhe occasionally speaks to supplement the retained counsel's statements. It isotherwise in CBA negotiations where he actively participates.Management lawyers, feeling that a congressman should not actively

participate in cases before labor tribunals and before employers because ofthe influence a congressman can wield, filed a disbarment case against theCongressman before the Supreme Court for his violation of the Code ofProfessional Responsibility and for breach of trust, in relation particularlywith the prohibitions on legislators under the Constitution.

Is the cited ground for disbarment meritorious? (6%)


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I.

MULTIPLE CHOICE QUESTIONSThe equal protection clause is violated by ____ (1%)(A) a law prohibiting motorcycles from plying on limited access

highways.(B) a law granting Value Added Tax exemption to electriccooperatives that sells electricity to the "homeless poor."

(C) a law providing that a policeman shall be preventivelysuspended until the termination of a criminal case against him.

(D) a law providing higher salaries to teachers in public schoolswho are "foreign hires."(E) a law that grants rights to local Filipino workers but denies the

same rights to overseas Filipino workers.

H. Offended by the President's remarks that the Bureau of Customs is apit ofmisfits and the corrupt, the Bureau ofCustoms Employees Associationcomposed of 3,000 workers seeks your legal advice on how best to protestwhat it views to be the President's baseless remarks.

A prudent legal advice is that----- ( 1%)(A) employees can go on mass leave of absence for one week(B) employees can march and rally at Mendiola every

Monday(C) employees can barricade the gates of the Port ofManila atSouth Harbor and call for the resignation of the incumbentCommissioner ofCustoms(D) employees can wear black arm bands and pins with theword "UNFAIR" inscribed(E) None of the above can legally be done.

HI. Congress enacted Republic Act No. 1234 requiring all candidates forpublic offices to post an election bond equivalent to the one (I) year salaryfor the position for which they are candidates. The bond shall be forfeited ifthe candidates fail to obtain at least 10% of the votes cast.

Is Republic Act No. 1234 valid? (1 %)


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POLITICAL LAW- BAR EXAM- FINAL- OCT. 6, 2013(A) It is valid as the bond is a means of ensuring fair, honest,peaceful and orderly elections.(B) It is valid as the bond requirement ensures that only candidateswith sufficient means and who cannot be corrupted, can runfor public office.(C) It is invalid as the requirement effectively imposes a propertyqualification to run for public office.(D) It is invalid as the amount of the surety bond is excessive andunconscionable.(E) It is valid because it is a reasonable requirement; the

Constitution itself expressly supports the accountability ofpublic officers.

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IV. What is the legal effect of decisions of the International Court ofJustice in cases submitted to it for resolution? (1 %)(A) The decision is binding on other countries in similar situations.(B) The decision is not binding on any country, even the countriesthat are parties to the case.(C) The decision is binding only on the parties but only with respect

to that particular case.(D) The decision is not binding on the parties and is only advisory.(E) The binding effect on the parties depends on their submissionagreement.

V. Under the UN Convention on the Law of the Sea, the exclusiveeconomic zone refers to an area . ( l %)

(A) that is at least 100 miles from the baselines from which theouter limit of the territorial sea is measured(B) that is at least 200 miles but not to exceed 300 miles from thebaselines from which the outer limit of the territorial sea ismeasured(C) beyond and adjacent to a country's territorial sea which cannotgo beyond 200 nautical miles from the baselines from whichthe outer limit of the territorial sea is measured(D) that can go beyond 3 nautical miles but cannot extend 300nautical miles from the baselines from which the outer limit ofthe territorial sea is measured(E) None of the above.

VI. A child born under either the 1973 or the 1987 Constitution, whosefather or mother is a Filipino citizen at the time of his birth, is-----(1%)


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POLITICAL LAW -BAR EXAM- FINAL- OCT. 6, 2013

(A) not a Filipino citizen as his father and mother must both beFilipino citizens at the time of his birth(B) not a Filipino citizen if his mother is a Filipino citizen but hisfather is not, at the time of his birth(C) a Filipino citizen no matter where he or she may be born

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(D) a Filipino citizen provided the child is born in the Philippines(E) a Filipino citizen if he or she so elects upon reaching the age of21

VII. Who has control of the expenditure of public funds? (I%)(A) The Office of the President through the Department ofBudget

and Management.(B) The House ofRepresentatives from where all appropriationbills emanate.(C) The Senate through its Committee on Finance.(D) The Congress of the Republic ofthe Philippines.(E) Both the members ofCongress and the President acting jointly,if so provided by the General Appropriations Act.

VIII. May the power of cities to raise revenues be limited by an executiveorder of the President? ( 1%)

(A) Yes, because local government units are under theadministrative control of the President through the Departmentof Interior and Local Government.(B) No, because local government units now enjoy full local fiscalautonomy.(C) No, because only limitations established by Congress candefine and limit the powers of local governments.(D) Yes, because the President has the power and authority toimpose reasonable restrictions on the power of cities to raiserevenues.(E) Yes, if so provided in a city's charter.

IX. The provision under the Constitution - that any memberwho took nopart, dissented, or inhibited from a decision or resolution must state thereason for his dissent or non-participation- applies . . (1%)

(A) only to the Supreme Court(B) to both the Supreme Court and the Court ofAppeals(C) to the Supreme Court, Court ofAppeals and theSandiganbayan(D) to the Supreme Court, the Court ofAppeals, the Sandiganbayan

and the Court ofTax Appeals(E) to all collegial judicial and quasi-judicial adjudicatory bodies


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X. Choose the least accurate statement about the independenceguaranteed by the 1987 Constitution to the following constitutional bodies:(1%)(A) The Constitution guarantees the COMELEC decisional andinstitutional independence similar to that granted to theJudiciary.(B) All bodies labeled as "independent" by the Constitution enjoyfiscal autonomy as an attribute of their independence.(C) Not all bodies labeled as "independent" by the Constitutionwere intended to be independent from the Executive branch of

government.(D) The Constitution guarantees various degrees of independencefrom the other branches of government when it labels bodies as"independent".(E) The COMELEC, the COA, and the CSC enjoy the same degreeof indepenc:!ence.

XI. At the Senate impeachment trial of Justice Pablo P. San Quintin, Hon.Emilio A. Tan, Congressman and Impeachment Panel Manager, wrote theSupreme Court requesting that the prosecutors be allowed to examine thecourt records of Stewards Association of the Philippines, Inc. (SAP!) v.Filipinas Air, et al., G.R. No. 987654, a case that is still pending. The HighCourt . (1%)

(Af may grant the request by reason of inter-departmental courtesy(B) may grant the request as the records of the Filipinas Air case arepublic records(C) should deny the request since records of cases that are pendingfor decision are privileged except only for pleadings, orders andresolutions that are available to the public(D) should deny the request because it violates the Court'sindependence and the doctrine of separation of powers(E) should grant the request because of the sui generis nature of thepower of impeachment, provided that the Bill ofRights is notviolated

XII. Mr. Sinco sued the government for damages. After trial, the courtruled in his favor and awarded damages amounting to P50 million againstthe government. To satisfY the judgment against the government, whichvalid option is available to Mr. Sinco? ( 1%)


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POLITICAL LAW -BAR EXAM- FINAL - OCT. 6, 2013 12

(A) Garnish the government funds deposited at the Land Bank.(B) File a claim with the Commission on Audit (COA) pursuant toCommonwealth Act 327, as amended by Presidential Decree1445.(C) Make representations with the Congress to appropriate theamount to satisfy the judgment.(D) File a petition for mandamus in court to compel Congress toappropriate P50 million to satisfy the judgment.(E) Proceed to execute the judgment as provided by the Rules ofCourt because the State allowed itself to be sued.

XHI. Which of the following provisions of the Constitution does not conferrights that can be enforced in the courts but only provides guidelines forlegislative or executive action? ( l%)

(A) The maintenance of peace and order, the protection of life,liberty, and property, and promotion of the general welfare areessential for the enjoyment by all the people of the blessings ofdemocracy.

(B) The State shall give priority to education, science andtechnology, arts, culture, and sports to foster patriotism andnationalism, accelerate social progress, and promote totalhuman liberation and development.(C) The natural and primary right and duty of parents in the rearingof the youth for civic efficiency and the development of moralcharacter shall receive the support of the Government.

(D) The right of the people to information on matters. of publicconcern shall be recognized. Access to official records, and todocuments and papers pertaining to official acts, transactions,or decisions, as well as to government research data used asbasis for policy development, shall be afforded the citizen,subject to such limitations as may be provided by law.(E) All the above only provide guidelines and are not selfexecuting.

XIV. The President entered into an executive agreement with Vietnam forthe supply to the Philippines of animal feeds not to exceed 40,000 tons inany one year. The Association of Animal Feed Sellers of the Philippinesquestioned the executive agreement for being contrary to R.A. 462 whichprohibits the importation of animal feeds from Asian countries.

Is the challenge correct? (1%)


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POLITICAL LAW- BAR EXAM- FINAL- OCT. 6, 2013 13(A) Yes, the executive agreement is contrary to an existingdomestic law.(B) No, the President is solely in charge of foreign relations and allhis actions in this role form part of the law of the land.(C) No, international agreements are sui generis and stand

independently of our domestic laws.(D) Yes, the executive agreement is actually a treaty which does not

take effect without ratification by the Senate.(E) Yes, the challenge is correct because there is no law

empowering the President to undertake the importation.

XV. The separation of Church and State 1s most clearly violated when------- 1 %)(A) the State funds a road project whose effect is to make a church

more accessible to its adherents(B) the State declares the birthplace of a founder of a religious sectas a national historical site(C) the State expropriates church property in order to construct anexpressway that, among others, provides easy access to the

Church's main cathedral(D) the State gives vehicles to bishops to assist them in church-

related charitable projects(E) the State allows prayers in schools for minor children without

securing the prior consent of their parents

XVI. Patricio was elected member of the House of Representative in theMay 2010 Elections. His opponent Jose questioned Patricio's victory beforethe House of Representatives Electoral Tribunal and later with the SupremeCourt.

In a decision promulgated in November 2011, the Court ruled inJose's favor; thus, Patricio was ousted from his seat in Congress. Within ayear from that decision, the President can appoint Patricio ____(1%)

(A) only as a member of the board of directors of any governmentowned and controlled corporation

(B) only as a deputy Ombudsman(C) only as a Commissioner of the Civil Service Commission(D) only as Chairman of the Commission on Elections(E) to any position as no prohibition applies to Patricio


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POLITICAL LAW- BAR EXAM- FINAL- OCT. 6, 2013 14XVII. Senator GSC proposed a bill increasing excise taxes on tobaccoand alcohol products. The generated incremental revenues shall be used forthe universal health care program for all Filipinos and for tobacco farmers'livelihood. After the Senate passed the bill on third reading, it wastransmitted to the House of Representatives which approved the bill in toto.The President eventually signed it into law. Atty. JFC filed a petition beforethe Supreme Court, questioning the constitutionality of the new law.

Is the law constitutional? ( 1%)(A) The law is constitutional because it is for a public purpose andhas duly satisfied the three-readings-on-separate-days rule inboth Houses.(B) The law is unconstitutional because it violates the equal

protection clause of the Constitution; it is limited only toalcohol and liquor products.(C) It is constitutional because of the Enrolled Bill Theory.(D) It is constitutional because it is valid in form and substance and

complied with the required lawmaking procedures.(E) None of the above is CO!Tect.

XVIII. Which of the following statements is correct? (I%)(A) The President, with the concurrence of the Monetary Board, canguarantee a foreign loan on behalf of the Republic of the

Philippines.(B) Congress may, by law, provide limitations on the President'spower to contract or guarantee foreign loans on behalf of the

Republic of the Philippines.(C) In order to be valid and effective, treaties and executiveagreements must be concurred in by at least two-thirds of all theMembers of the Senate.(D) The President shall, at the end of every quarter of the calendaryear, submit to Congress a complete report of the loanscontracted or guaranteed by the Government or governmentowned and controlled corporations.

(E) All the above choices are defective in some respects.

XIX. Candida has been administratively charged of immorality foropenly living with Manuel, a married man. Candida argues that her conjugalarrangement with Manuel fully conforms with their religious beliefs andwith the teachings of their church.


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POLITICAL LAW- BAR EXAM- FINAL- OCT. 6, 2013 15In resolving whether Candida should be administratively penalized,which is the best test to apply? ( 1%)(A) Clear and Present Danger Test(B) Compelling State Interest Test(C) Balancing ofinterests Test(D) Conscientious Objector Test(E) Dangerous Tendency Test

XX. Rafael questioned the qualifications of Carlos as congressmanof the Third District of Manila on the ground that Carlos is a citizen of theUSA. The decision disqualifying Carlos for being a US cit izen came only inMarch 2010, i.e., after the adjournment of the session of Congress on the 3'dyear of the position's three-year term.

What was Carlos' status during his incumbency as congressman?(1%)

(A) He was a de jure officer, having been duly elected andproclaimed.

(B) He was not a public officer because he effectively was notentitled to be a congressman.

(C) He was a de jure officer since he completed the service of histerm before he was disqualified.(D) He was a de facto officer since he had served and was only

disqualified later.(E) He neither possesses de jure nor de facto status as such

determination is pointless.

- 0 - 0 -0 -0 -


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LABOR LAW- BAR EXAM- FINAL- OCT. 6, 2013 1

BAR EXAMINATIONS 2013LABOR LAW

October 6, 2013 2:00-6:00 P.M.INSTRUCTIONS

1. This Questionnaire contains SEVENTEEN (17) pages includingthese Instructions pages. Check the number of pages and the pagenumbers at the upper right band corner of each page of thisQuestionnaire and make sure it has the correct number of pages andtheir proper numbers.

There are TEN (10) Essay Questions numbered I to X (withsubquestions), and EIGHTEEN (18) Multiple Choice Questions (MCQs)numbered I to XVIII (with subquestions), to be answered within four (4)hours.

The essay portion contains questions that are worth 80% of thewhole examination, while the MCQ portion contains questions worth20%.2. Read each question very carefully and write your answers in yourBar Examination Notebook in the same order the questions are posed.Write your answers only on the front, not the back, page of every sheetin your Examination Notebook. Note well the allocated percentagepoints for each number, question, or sub-question. In your answers, usethe numbering system in the questionnaire.

I f the sheets provided in your Examination Notebook are notsufficient for your answers, use the back pages of every sheet of yourExamination Notebook, starting at the back page of the first sheet andthe back ofthe succeeding sheets thereafter.3. Answer the Essay questions legibly, clearly, and concisely. Starteach number on a separate page. An answer to a sub-question underthe same number may be written continuously on the same page and theimmediately succeeding pages until completed.

Your answer should demonstrate your abmty to analyze the factspresented by the question, to select the material from the immaterialfacts, and to discern the points upon which the question turns. I t should


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LABOR LAW- BAR EXAM- FINAL- OCT. 6, 2013 2show your knowledge and understanding of the pertinent principles andtheories of law involved and their qualifications and limitations. Itshould demonstrate your ability to apply the law to the given facts, andto reason logically in a lawyer-like manner to a sound conclusion fromthe given premises.

A mere "Yes" or "No" answer without any correspondingexplanation or discussion will not be given any credit. Thus, alwaysbriefly but fully explain your answers although the question does notexpressly ask for an explanation. At the same time, remember that acomplete explanation does not require that you volunteer informationor discuss legal doctrines that are not necessary or pertinent to thesolution to the problem. You do not need to re-write or repeat thequestion in your Examination Notebook.4. MCQs are to be answered by writing in your ExaminationNotebook the capital letter (A, B, C, D, or E) corresponding to yourchosen answer. The MCQ answers should begin in the page following thelast page ofyour essay answers.

There is only one correct answer to every MCQ; choose the BESTanswer from among the offered choices. Note that some MCQs mayneed careful analysis both ofthe questions and the choices offered.5. Make sure you do not write your name or any extraneous note/s ordistinctive markingls on your Examination Notebook that can serve asidentifying mark/s (such as names that are not in the given questions,prayers, or private notes to the Examiner).

Writing, leaving or making any distinguishing or identifyingmark in the Examination Notebook is considered cheating and candisqualify you for the Bar examinations.

You can use the questionnaire for notes you may wish/need towrite during the examination.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE

q ~ ~Chairman2013 Bar Examinations


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LABOR LAW- BAR EXAM- FINAL- OCT. 6, 2013 3ESSAY QUESTIONS

I.

Jose and Erica, former sweethearts, both worked as salesrepresentatives for Magna, a multinational finn engaged in the manufactureand sale of pharmaceutical products. Although the couple had alreadybroken off their relationship, Jose continued to have special feelings forErica.One afternoon, Jose chanced upon Erica riding in the car of Paolo, a

co-employee and Erica's ardent suitor; the two were on their way back to theoffice from a sales call on Silver Drug, a major drug retailer. In a fit ofextreme jealousy, Jose rammed Paolo's car, causing severe injuries to Paoloand Erica. Jose's flare up also caused heavy damage to the two companyowned cars they were driving.(A) As lawyer for Magna, advise the company on whether just

and valid grounds exist to dismiss Jose. (4%)(B) Assuming this time that Magna dismissed Jose fromemployment for cause and you are the lawyer of Jose, how would you

argue the position that Jose's dismissal was illegal? (4%)

II.Gamma Company pays its regular employees P350.00 a day, andhouses them in a dormitory inside its factory compound in Manila. GammaCompany also provides them with three full meals a day.In the course of a routine inspection, a Department of Labor andEmployment (DOLE) Inspector noted that the workers' pay is below theprescribed minimum wage of P426.00 plus P30.00 allowance, and thusrequired Gamma Company to pay wage differentials.Gamma Company denies any liability, explaining that after the marketvalue of the company-provided board and lodging are added to theemployees' P350 cash daily wage, the employees' effective daily rate wouldbe way above the minimum pay required by law. The company counselfurther points out that the employees are aware that their food and lodging

form part of their salary, and have long accepted the arrangement.Is the company's position legally correct? (8%)


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LABOR LAW- BAR EXAM- FINAL- OCT. 6, 2013 4HI.

Inter-Garments Co. manufactures garments for export and requires itsemployees to render overtime work ranging from two to three hours a day tomeet its clients' deadlines. Since 2009, it has been paying its employees onovertime an additional 35% of their hourly rate for work rendered in excessof their regular eight working hours.

Due to the slowdown of its export business in 2012, Inter-Garmentshad to reduce its overtime work; at the same time, it adjusted the overtimerates so that those who worked overtime were only paid an additional 25%instead of the previous 35%. To replace the workers' overtime rate loss, thecompany granted a one-time 5% across-the-board wage increase.Vigilant Union, the rank-and-file bargaining agent, charged thecompany with Unfair Labor Practice on the ground that (1) no consultationshad been made on who would render overtime work; and (2) the unilateralovertime pay rate reduction is a violation of Article 100 (entitled ProhibitionAgainst Elimination or Diminution ofBenefits) of the Labor Code.Is the union position meritorious? (8%)

IV.Bobby, who was assigned as company branch accountant in Tarlacwhere his family also lives, was dismissed by Theta Company afteranomalies in the company's accounts were discovered in the branch. Bobby

filed a complaint and was ordered reinstated with full backwages after theLabor Arbiter found that he had been denied due process because noinvestigation actually took place

. Theta Company appealed to the National Labor RelationsCommission (NLRC) and at the same time wrote Bobby, advising him toreport to the main company office in Makati where he would be reinstatedpending appeaL Bobby refused to comply with his new assignment becauseMakati is very far from Tarlac and he cannot bring his family to live withhim due to the higher cost of living in Makati.

(A) Is Bobby's reinstatement pending appeal legally correct?(4%)

(B) Advise Bobby on the best course of action to take under thecircumstances. (4%)


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LABOR LAW -BAR EXAM-FINAL- OCT. 6, 2013 5

v.Cris filed a complaint for illegal dismissal against Baker Company.

The Labor Arbiter dismissed the complaint but awarded Cris financialassistance. Only the company appealed from the Labor Arbiter's ruling. Itconfined its appeal solely to the question of whether financial assistancecould be awarded. The NLRC, instead of ruling solely on the appealed issue,fully reversed the Labor Arbiter's decision; it found Baker Company liablefor illegal dismissal and ordered the payment of separation pay and fullbackwages.Through a petition for certiorari under Rule 65 of the Rules of Court,Baker Company challenged the validity of the NLRC ruling. It argued that

the NLRC acted with grave abuse of discretion when it ruled on the illegaldismissal issue, when the only issue brought on appeal was the legalpropriety of the financial assistance award.Cris countered that under Article 218(c) of the Labor Code, the NLRChas the authority to "correct, amend, or waive any error, defect orirregularity whether in substance or in form" in the exercise of its appellatejurisdiction.Decide the case. (8%)

VI.Because of the stress in caring for her four (4) growing children,Tammy suffered a miscarriage late in her pregnancy and had to undergo anoperation. In the course of the operation, her obstetrician further discovereda suspicious-looking mass that required the subsequent removal of her uterus(hysterectomy). After surgery, her physician advised Tammy to be on full

bed rest for six (6) weeks. Meanwhile, the biopsy of the sample tissue takenfrom the mass in Tammy's uterus showed a beginning malignancy thatrequired an immediate series of chemotherapy once a week for four (4)weeks.(A) What benefits can Tammy claim under existing social

legislation? (4%)(B) What can Roger- Tammy's 2nd husband and the father of

her two (2) younger children - claim as benefits under thecircumstances? (4%)


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LABOR LAW - BAR EXAM - FINAL - OCT. 6, 2013 6vu.

Philippine Electric Company is engaged in electric power generationand distribution. It is a unionized company with Kilusang Makatao as theunion representing its rank-and-file employees. During the negotiations fortheir expired collective bargaining agreement (CBA), the parties duly servedtheir proposals and counter-proposals on one another. The parties, however,failed to discuss the merits of their proposals and counter-proposals in anyformal negotiation meeting because their talks already bogged down on thenegotiation ground rules, i.e., on the question of how they would conducttheir negotiations, particularly on whether to consider retirement as anegotiable issue.

Because of the continued impasse, the union went on strike. TheSecretary of Labor and Employment immediately assumed jurisdiction overthe dispute to avert widespread electric power interruption in the country.After extensive discussions and the filing of position papers (before theNational Conciliation and Mediation Board and before the Secretaryhimself) on the validity of the union's strike and on the wage and othereconomic issues (including the retirement issue), the DOLE Secretary ruledon the validity of the strike and on the disputed CBA issues, and ordered theparties to execute a CBA based on his rulings.

Did the Secretary of Labor exceed his jurisdiction when heproceeded to rule on the parties' CBA positions even though the partiesdid not fully negotiate on their own? (8%)

VIII.After thirty (30) years of service, Beta Company compulsorily retiredAlbert at age 65 pursuant to the company's Retirement Plan. Albert was dulypaid his full retirement benefits of one (1) month pay for every year ofservice under the Plan. Thereafter, out of compassion, the company allowedAlbert to continue working and paid him his old monthly salary rate, butwithout the allowances that he used to enjoy.After five (5) years under this arrangement, the company finally

severed all employment relations with Albert; he was declared fully retiredin a fitting ceremony but the company did not give him any furtherretirement benefits. Albert thought this treatment unfair as he had renderedfull service at his usual hours in the past five (5) years. Thus, he filed acomplaint for the allowances that were not paid to him, and for retirementbenefits for his additional five (5) working years, based either on thecompany's Retirement Plan or the Retirement Pay Law, whichever isapplicable.


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(A) After Albert's retirement at age 65, should he be considereda regular employee entitled to all his previous salaries and benefitswhen the company allowed him to continue working? (4%)

(B) Is he entitled to additional retirement benefits for theadditional service he rendered after age 65? (4%)

IX.Pablo works as a driver at the National Tire Company (NTC). He is amember of the Malayang Samahan ng Manggagawa sa NTC, the exclusiverank-and-file collective bargaining representative in the company. The

union has a CBA with NTC which contains a union security and a check-offclause. The union security clause contains a maintenance of membershipprovision that requires all members of the bargaining unit to maintain theirmembership in good standing with the union during the term of the CBAunder pain of dismissal. The check-off clause on the other hand authorizesthe company to deduct from union members' salaries defined amounts ofunion dues and other fees. Pablo refused to issue an authorization to thecompany for the check-off of his dues, maintaining that he will personallyremit his dues to the union.

(A) Would the NTC management commit unfair labor practiceif it desists from checking off Pablo's union dues for lack of individualauthorization from Pablo? (4%)

(B) Can the union charge Pablo with disloyalty for refusing toallow the check off of his union dues and, on this basis, ask the companyto dismiss him from employment? (4%)

X.For ten (10) separate but consecutive yearly contracts, Cesar has beendeployed as an able-bodied seaman by Meritt Shipping, through its localagent, Ace Maritime Services (agency), in accordance with the 2000Philippine Overseas Employment Administration Standard EmploymentContract (2000 POEA-SEC). Cesar's employment was also covered by a

CBA between the union, AMOSl.JP, and Meritt Shipping. Both the 2000POEA-SEC and the CBA commonly provide the same mode and proceduresfor claiming disability benefits. Cesar's last contract (for nine months)expired on July 15, 2013.

Cesar disembarked from the vessel MIV Seven Seas on July 16, 2013as a seaman on "finished contract". He immediately reported to the agencyand complained that he had been experiencing spells of dizziness, nausea,


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LABOR LAW -BAR EXAM -FINAL - OCT. 6, 20 !3 8general weakness, and difficulty in breathing. The agency referred him toDr. Sales, a cardio-pulmonary specialist, who examined and treated him;advised him to take a complete rest for a while; gave him medications; anddeclared him fit to resume work as a seaman.

After a month, Cesar went back to the agency to ask for redeployment. The agency rejected his application. Cesar responded bydemanding total disability benefits based on the ailments that he developedand suffered while on board Meritt Shipping vessels. The claim was basedon the certification of his physician (internist Dr. Reyes) that he could nolonger undertake sea duties because of the hypertension and diabetes thatafflicted him while serving on Meritt Shipping vessels in the last 10 years.Rejected once again, Cesar filed a complaint for illegal dismissal and thepayment of total permanent disability benefits against the agency and itsprincipal.

Assume that you are the Labor Arbiter deciding the case. Identifythe facts and issues you would consider material in resolving the illegaldismissal and disability complaint. Explain your choices and theirmateriality, and resolve the case. (8"/o)

MULTIPLE CHOICE QUESTIONSI. The parties to a labor dispute can validly submit to voluntaryarbitration (1%)

(A) any disputed issue they may agree to voluntarily arbitrate(B) only matters that do not fall within the exclusive jurisdiction ofthe Labor Arbiter(C) any disputed issue but only after conciliation at the NationalConciliation and Mediation Board fails(D) any disputed issue provided that the Labor Arbiter has notassumed jurisdiction over the case on compulsory arbitration(E) only matters relating to the interpretation or implementation ofa collective bargaining agreement

H. When there is no recognized collective bargaining agent, can alegitimate labor organization validly declare a strike against theemployer? (1%)

(A) Yes, because the right to strike is guaranteed by theConstitution and cannot be denied to any group of employees.(B) No, because only an exclusive bargaining agent may declare astrike against the employer.


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LABOR LAW -BAREXAM-FINAL- OCT. 6, 2013 9(C) Yes, because the right to strike is a basic human right that thecountry's international agreements and the International LaborOrganization recognize.(D) Yes, but only in case of unfair labor practice.(E) No, in the absence of a recognized bargaining agent, theworkers' recourse is to file a case before the Department ofLabor and Employment.

HI. Mr. Del Carmen, unsure if his foray into business (messengerialservice catering purely to law firms) would succeed but intending to golong-term if he hurdles the first year, opted to open his operations with oneyear contracts with two law firms although he also accepts messengerialservice requests from other firms as their orders come. He started with onepermanent secretary and six (6) messengers on a one-year, fixed-term,contract.Is the arrangement legal from the perspective of labor standards?

(1%)(A) No, because the arrangement will circumvent worker's right to

security of tenure.(B) No. If allowed, the arrangement will serve as starting point inweakening the security of tenure guarantee.(C) Yes, if the messengers are hired through a contractor.(D) Yes, because the business is temporary and the contractedundertaking is specific and time-bound.(E) No, because the fixed term provided is invalid.

IV. Chito was illegally dismissed by DEF Corp. effective at the close ofbusiness hours of December 29, 2009.IV(1). He can file a complaint for illegal dismissal without any

legal bar within . (1%)(A) three (3) years(B) four (4) years(C) five (5) years(D) six (6) years(E) ten (10) yearsIV(2). I f he has money claims against DEF Corp., he can make

the claim without any legal bar within . (1%)(A) three (3) years(B) four (4) years(C) five (5) years(D) six (6) years(E) ten (10) years


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LABOR LAW- BAR EXAM-FINAL- OCT. 6, 2013 10

V. After vainly struggling to stay financially afloat for a year, LMNCorp. finally gave up and closed down its operations after its major creditorsfiled a petition for LMN's insolvency and liquidation.

In this situation, LMN's employees are entitled to______ asseparation pay. (1%)

(A) one-half month pay for every year of service(B) one month pay for every year of service(C) one-half month pay(D) one month pay(E) no separation pay at all

VI. At age 65 and after 20 years of sewing work at home on a piece ratebasis for PQR Garments, a manufacturer-exporter to Hongkong, Aling Nenadecided it was time to retire and to just take it easy.Is she entitled to retirement pay from PQR? (1%)

(A) Yes, but only to one month pay.(B) No, because she was not a regular employee.(C) Yes, at the same rate as regular employees.(D) No, because retirement pay is deemed included in hercontracted per piece pay.(E) No, because homeworkers are not entitled to retirement pay.

VII. The minimum wage prescribed by law for persons with disability is_____ (1%)(A) 50% of the applicable minimum wage(B) 75% ofthe applicable minimum wage(C) 100% of the applicable minimum wage(D) the wage that the parties agree upon, depending on thecapability of the disabled.(E) the wage that the parties agree upon, depending on thecapability of the disabled, but not less than 50% of the

applicable minimum wageVHI. What is the financial incentive, if any, granted by law to SPQGarments whose cutters and sewers in its garments-for-export operations are80% staffed by deaf and deaf-mute workers? (1%)


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(A) Additional deduction from its gross income equivalent to 25%of amount paid as salaries to persons with disability.

(B) Additional deduction from its gross income equivalent to 50%of the direct costs of the construction of facilities for the use ofpersons with disability.(C) Additional deduction from its net taxable income equivalentto 5% ofits total payrolL

(D) Exemption from real property tax for one (1) year of theproperty where facilities for persons with disability have beenconstructed.

(E) The annual deduction under (A), plus a one-time deductionunder (B).IX. Mr. Ortanez has been in the building construction business for severalyears. He asks you, as his new labor counsel, for the rules he must observein considering regular employment in the construction industry.

You clarify that an employee, project or non-project, will acquireregular status if (1%)

(A) he has been continuously employed for more than one year(B) his contract of employment has been repeatedly renewed, from

project to project, for several years(C) he performs work necessary and desirable to the business,without a fixed period and without reference to any specificproject or undertaking(D) he has lived up to the company's regularization standards(E) All ofthe above.

X. Samahang Tunay, a union of rank-and-file employees lost in acertification election at Solam Company and has become a minority union.The majority union now has a signed CBA with the company and theagreement contains a maintenance of membership clause.

What can Samahang Tunay stm do within the company as a unionconsidering that it stm has members who continue to profess continuedloyalty to it? (1%)

(A) It can still represent these members in grievance committeemeetings.(B) It can collect agency fees from its members within thebargaining unit.(C) It can still demand meetings with the company on companytime.

(D) As a legitimate labor organization, it can continue to representits members on non-CBA-related matters.(E) None of the above.(F) All of the above.


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XI. The members of the administrative staff of Zeta, a constructioncompany, enjoy ten (10) days of vacation leave with pay and ten (10) daysof sick leave with pay, annually. The workers' union, Bukluran, demandsthat Zeta grant its workers service incentive leave of five (5) days incompliance with the Labor Code.

Is the union demand meritorious? (1%)(A) Yes, because non-compliance with the law will result in thediminution of employee benefits.(B) Yes, because service incentive leave is a benefit expresslyprovided under and required by the Labor Code.(C) No, because Zeta already complies with t.'Ie law.(D) No, because service incentive leave is a Labor Code benefit thatdoes not apply in the construction industry.(E) Yes, because Labor Code benefits are separate from thosevoluntarily granted by the company.

XU. Upon the expiration of the first three (3) years of their CBA, the unionand the company commenced negotiations. The union demanded that thecompany continue to honor their 30-day union leave benefit under the CBA.The company refused on the ground that the CBA had already expired, andthe union had already consumed their union leave under the CBA.

Wbo is correct? (1%)(A) The company is correct because the CBA has expired; hence it

is no longer bound to provide union leave.(B) The company is correct because the union has alreadyconsumed the allotted union leave under the expired CBA.(C) The union is correct because it is still the bargainingrepresentative for the next two (2) years.(D) The union is correct because union leaves are part of theeconomic tenns that continue to govern until new terms areagreed upon.(E) They are both wrong.

XIII. Hector, a topnotch Human Resource Specialist who had worked inmultinational firms both in the Philippines and overseas, was recruited byABC Corp., because ofhis impressive credentials. In the course of Hector'semployment, the company management frequently did not follow hisrecommendations and he felt offended by this constant rebuff.


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LABOR A W ~ BAR X A M ~ FINAL- OCT. 6, 2013 13

Thus, he toyed with the idea of resigning and of asking for the sameseparation pay that ABC earlier granted to two (2) department heads whenthey left the company.

To obtain a legal opinion regarding his options, Hector sent an emailto ABC's retained counsel, requesting for advice on whether the grant by thecompany of separation pay to his resigned colleagues has already ripenedinto a company practice, and whether he can similarly avail of this benefit ifhe resigns from his job.As the company's retained legal counsel, how will you respond to

Hector? (1%)(A) I would advise him to write management directly and inquire

about the benefits he can expect if he resigns.(B) I would advise him that the previous grant of separation pay tohis colleagues cannot be considered a company practicebecause several other employees had resigned and were notgiven separation pay.(C) I would advise him to ask for separation pay, not on account ofcompany practice, but on the basis of discrimination as he issimilarly situated as the two resigned department heads whowere paid their separation pay.(D) I would not give him any legal advice because he is not myclient.(E) I would maintain that his question involves a policy matterbeyond the competence of a legal counsel to give.

XIV. Aleta Quiros was a faculty member at BM Institute, a privateeducational institution. She was hired on a year-to-year basis under theprobationary employment period provision of the Manual of Regulations forPrivate Schools. The terms and conditions of her engagement were definedunder her renewable yearly contract.

For reasons of its own, BM Institute no longer wanted to continuewith Aleta's teaching services. Thus, after the contract for her second yearexpired, BM Institute advised Aleta that her contract would no longer berenewed. This advice prompted Aleta to file a complaint for illegal dismissalagainst BM Institute.wm the complaint prosper? (1'%)(A) Yes, because no just or authorized cause existed for the

termination of her probationary employment.(B) Yes, because under the Labor Code, Aleta became a regularemployee after 6 months and she may now only be dismissedfor cause.


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LABOR LAW- BAR EXAM-- FINAL- OCT. 6, 2013 14

(C) No, because there was no dismissal to speak of. Heremployment was automatically terminated upon the expirationof her year-to-year fixed term employment.(D) No, because BM Institute may dismiss its faculty members atwill in the exercise of its academic freedom.(E) No, because Aleta was still on probationary employment.

XV. Robert, a,'l employee of ABC Company, is married to Wanda. Oneday, Wanda visited the company office with her three (3) emaciated minorchildren, and narrated to the Manager that Robert had been squandering hisearnings on his mistress, leaving only a paltry sum for the support of theirchildren. Wanda tearfully pleaded with the Manager to let her have one halfof Robert's pay every payday to ensure that her children would at least havefood on the table. To support her plea, Wanda presented a Kasulatan signedby Robert giving her one half of his salary, on the condition that she wouldnot complain if he stayed with his mistress on weekends.

I f you were the Manager, would you release one half of Robert'ssalary to Wanda? (1%)

(A) No, because an employer is prohibited from interfering with thefreedom of its employees to dispose of heir wages.

(B) Yes, because ofRobert's signed authorization to give Wandaone half of his salary.(C) No, because there is no written authorization for ABCCompany to release Robert's salary to Wanda.(D) Yes, because it is Robert's duty to financially support his minorchildren.(E) No, because Robert's Kasulatan is based on an illegalconsideration and is of doubtful legal validity.

XVI. Ricardo operated a successful Makati seafood restaurant patronizedby a large clientele base for its superb cuisine and impeccable service.Ricardo charged its clients a 10% service charge and distributed 85% of thecollection equally among its rank-and-file employees, 10% amongmanagerial employees, and 5% as reserve for losses and breakages. Becauseof the huge volume of sales, the employees received sizeable shares in thecollected service charges.

As part of his business development efforts, Ricardo opened a branchin Cebu where he maintained the same practice in the collection anddistribution of service charges. The Cebu branch, however, did not attractthe forecasted clientele; hence, the Cebu employees received lesser servicecharge benefits than those enjoyed by the Makati-based employees. As aresult, the Cebu branch employees demanded equalization of benefits and


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LABOR LAW- BAR EXAM- FINAL- OCT. 6, 2013 15filed a case with the NLRC for discrimination when Ricardo refused theirdemand.

XVI(l) wm the case prosper? (1%)(A) Yes, because the employees are not receiving equal treatment in

the distribution of service charge benefits.(B) Yes, because the law provides that the 85% employees' share inthe service charge collection should be equally divided amongall the employees, in this case, among the Cebu and Makatiemployees alike.(C) No, because the employees in Makati are not similarly situatedas the Cebu employees with respect to cost ofliving andconditions of work.(D) No, because the service charge benefit attaches to the outletwhere service charges are earned and should be distributedexclusively among the employees providing service in theoutlet.(E) No, because the market and the clientele the two branches areserving, are different.

XVI(2). In order to improve the Cebu service and sales, Ricardodecided to assign some of its Makati-based employees to Cebu to train Cebuemployees and expose them to the Makati standard of service. A chef andthree waiters were assigned to Cebu for the task. While in Cebu, theassigned personnel shared in the Cebu service charge collection and thusreceived service charge benefits lesser than what they were receiving inMakati.

I f you were the lawyer for the assigned personnel, what would youadvice them to do? (1%)(A) I would advise them to file a complaint for unlawful diminution

of service charge benefits and for payment of differentials.(B) I would advise them to file a complaint for illegal transferbecause work in Cebu is highly prejudicial to them in termsof convenience and service charge benefits.(C) I would advise them to file a complaint for discrimination inthe grant of service charge benefits.(D) I would advise them to accept their Cebu training assigmnentas an exercise of the company's management prerogative.

(E) I would advise them to demand the continuation of theirMakati-based benefits and to file a complaint under (B)above if the demand is not heeded.


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LABOR LAW- BAR EXAM- FINAL- OCT. 6, 2013 16XVII. Constant Builders, an independent contractor, was charged withillegal dismissal and non-payment of wages and benefits of ten dismissedemployees. The complainants impleaded as co-respondent Able Company,Constant Builder's principal in the construction of Able's office building.The complaint demanded that Constant and Able be held solidarily liable forthe payment of their backwages, separation pay, and all their unpaid wagesand benefits.

I f he Labor Arbiter rules in favor of the complainants, choose thestatement that best describes the extent of the liabilities of Constant andAble. (1%)

(A) Constant and Able should be held solidarily liable for theunpaid wages and benefits, as well as backwages and separationpay, based on Article 109 of the Labor Code which providesthat "every employer or indirect employer shall be heldresponsible with his contractor or subcontractor for anyviolation of any provision of this Code."

(B) Constant and Able should be held solidarily liable for theunpaid wages and benefits, and should order Constant, as theworkers' direct employer, to be solely liable for the backwagesand separation pay.(C) Constant and Able should be held solidarily liable for theunpaid wages and benefits and the backwages since thesepertain to labor standard benefits for which the employer andcontractor are liable under the law, while Constant alone - asthe actual employer- should be ordered to pay the separationpay.(D) Constant and Able should be held solidarily liable for theunpaid wages and benefits, and Constant should be held liablefor their backwages and separation pay unless Able is shown tohave participated with malice or bad faith in the workers'dismissal, in which case both should be held solidarily liable.(E) The above statements are all inaccurate.

XVIII. The Pinagbuklod union filed a Petition for Certification Election,alleging that it was a legitimate labor organization of the rank-and-fileemployees of Delta Company. On Delta's motion, the Med Arbiterdismissed the Petition, based on the finding that Pinagbuklod was not alegitimate labor union and had no legal personality to file a Petition forCertification Election because its membership was a mixture of rank-and-fileand supervisory employees.


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LABOR L A W ~ BAR E X A M ~ FINAL- OCT. 6. 2013

Is the dismissal of the Petition for Certification Election by theMed-Arbiter proper? (1 /o)

(A) Yes, because Article 245 of the Labor Code prohibitssupervisory employees from joining the union of he rank andfile employees and provides that a union representing both rankand file and supervisory employees as members is not alegitimate labor organization.(B) No, because the grounds for the dismissal of a petition forcertification election do not include mixed membership in oneumon.(C) No, because a final order of cancellation of union registration isrequired before a petition for certification election may bedismissed on the ground oflack of!egal personality of theumon.(D) No, because Delta Company did not have the legal personalityto participate in the certification election proceedings and to filea motion to dismiss based on the legitimacy status of thepetitioning union.

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