MIDTERMS

1. No. Acme cannot treat the service charge the same as tips. When a service charge is
abolished, it is deemed incorporated in the employees wages by getting the average
service charge in the past 12 months and dividing it equally to the employees.
As to the tips, it can only be had if the management will oversee its collection and
distribution. Only then can it distribute 85% for the employees and 15% to the
management. (5)

2. No. The law is clear that to be entitled to service incentive leave, an employee must have
been employed for at least 12 months, continuous or broken, without severance of
employer-employee relationship.
The fact that the approved leave was without pay is of no moment as the law is
categorized when it said continuous or broken.
The employee’s employment was not severed as he was on approved leave. He or she is
entitled to service incentive leave. (5)

3. No. the law has set working limits for health workers so that they can attend to their jobs
efficiently. As long as the number of hours per week is worked and paid, it is enough. They
cannot claim payment for days not worked (5)

4. I will grant the underpayment of wages but only to cover May 28, 2008 until the day prior
to the approval by DOLE of the Apprenticeship Program.
When Jose signed the Apprenticeship agreement on May 28, 2008, Acme was not
authorized just yet by DOLE to proceed with the program, hence, Jose should have been
paid full until the program was approved. (5)

5. The exception to the rule that shortened meal break is when an employee seeks to be
able to leave work 30 minutes earlier than the usual hours of work: If the employee
themselves request for a shortened meal period for them to leave work earlier and it
must be in writing with waiver of overtime pay.

6. Pedro is being underpaid by Acme Corporation. His monthly salary is P12,625 and the
company is using P500 as daily rate, then the contention of the company that he is being
paid his rest day and regular holidays is of no moment. His monthly salary should be
P15,208.33.
[500x365]÷12 = 15,208.33
7. Pedro is entitled to an additional 50% premium, the day he worked being on a special day
falling on his rest day. His overtime pay will be based on the 150% total but on an hourly
 rate multiplied by his 4 hours overtime plus 30% overtime incentive as it was a rest day.
His take home is P1,237.5. (5)
500x150% = 750 [pay for the day] ÷ 8 hrs = 93.75/hr x 4 hrs ot = 375 x 130% = 487.5
487.5+750 = 1,237.5
8. Yes. I would grant the application because the plant and equipment are only P2million.
To be entitled to the exception from coverage of the Minimum Wage Law, the plant’s
worth should fall below P5 million.
In this case, the plant is below P5 million worth, because in computing, the market value
of the land is not included. Thus, Pedro’s agro processing plant is exempted from the
Minimum Wage Law. (5)

9. A formula came about as below:

Existing Minumum Wage = % x Prescribed Wage Increase
Actual Salary of Employee
= Distortion Adjustment Amount
This however does not preclude the employee from seeking a higher increase in wage.
And if a better contingency is stipulated in the CBA, it will be followed. (1)

10. Free health assessment prior to engagement in night work or even during night work for
medical needs arising on that work.
Facilities – First aid kits; sleeping quarters; free transportation to the nearest point to and
from work and home.
Transfer – Should an aspiring night worker be deemed not fit for night work, that he/she
be transferred to a position equivalent. If not, the worker should be given benefits as
ordinary worker.
10% night differential pay. (5)

11. An indirect employer is a person, corporation, entity, or partnership who, not being an
employer, engages an independent contractor to do a work or job. Basically, an indirect
employer is the principal to the contractor or subcontractor but is an indirect employer
of the contractor or subcontractor’s employee in being solidarily liable for payment of
wages. (5)

12. If of age, an heir should submit an affidavit to the employer, attesting therein that he/she
is the heir to the exclusion of others. Once the employer is satisfied, the employer shall
submit the deceased employee’s accrued salary to the DOLE for proper distribution. (3)
13. A. Bonto-Perez Formula:
Existing Minimum Wage = Percentage
Daily Premium
Percentage x Increase = Wage Distortion
B. P250 = percentage x 50 = increase =0.8333%x50
P300 =41.67
Corrected wage: 300+41.67 = P341.67 (5)

14. Wages enjoy preference in insolvency proceedings. The employees must be paid their
wages even the insolvency proceeding is still ongoing. Insolvency proceedings generally
take time and workers cannot be made to suffer the wait. (1)

15. No. Pedro is incorrect because he cannot be compensated twice for both injuries or
disabilities acquired, therefore, SSS is correct in the deduction. (5)

16. No. Pedro is incorrect because an employer may validly dismiss his employee for just
causes such as habitual absenteeism. R.A. 8504 is not applicable in this case because AIDS
is not the reason why Pedro was terminated from his employment.

17. Total income is divided by 12 excluding overtime pay.

70,000 = 5,833.3333
12
th
Thus, 13 month pay is P5,833.33. (5)

18. Because it was connected to her work when she slipped and fell. She was rendering her
hours of work when the accident occurred and her fall was the proximate cause of her
death. Therefore, her heir is entitled to the compensation. (5)

19. Z. The 24 hour duty doctrine is only applicable for purposes of compensability if the cause
of death of a police officer is connected to the nature of his work and not by a personal
act of the officer. (2.5)

K. No. In the case of Rivera with similar facts as in this case, payment was received in 1993,
by Art. 1150 of the Civil Code, the cause of action arose that same moment. 2 years passed
until Rivera demanded from the employer which by Art. 1155 of the Civil Code, tolled the
running of the prescription as demand will stop the running of prescription. However, the
prescription ran again when the employer denied the claim but was timely filed with the
arbiter as only less than 3 years had passed.
In this case 2 years had passed before Pedro demanded his claim. When he made the
demand, the prescription was tolled. The employer only denied after a year which reran
the prescription and Pedro filed 6 months later, all in all the action will still be admissible
 as only 2 years and 6 months were used. Pedro has 3 years given by law. The labor arbiter
was wrong. (10)
FINALS
1. Unresolved grievances arising from the interpretation and implementation of the CBA.
Unresolved grievances arising from the interpretation and implementation of company
and personnel policies.
Wage distortion issue in organized establishments.
Dispute arising from drug abuse policy of the company.
Failure to settle dispute between employer and employee with their grievance
machinery. (7)

2. No. The law favors the primacy of voluntary arbitration. What will be allowed are cases
not currently with the voluntary arbitrator, at any stage, which will be submitted for
voluntary arbitration. The law favors settlement between parties first before going to
judicial processes. (10)

3. Mere issuance of a charter certificate is sufficient for purposes of filing a petition for
certification election.
Mere membership is no longer a ground for cancellation of the registration of the union,
excluded employees are automatically removed from the list of membership with the
local chapter. (2)

4. They are employees who by the character of their work and nature of their employment
have a fiduciary relationship with the employer or employees who have access to
confidential data that pertains to labor relations. (10)

5. Those that are implied in a stature are deemed necessarily expressed.

As in the prohibition of managerial employees from forming a union due to the nature
of confidence and trust to them by the employer; the nature and character of a
confidential employee’s work also limits them from joining unions.
It must be noted that managerial employees are confidential employees but not all
confidential employees are managerial employees. (10)

6. No. The requirement of an individual written authorization is only for check-off. In this
case, the members will directly give, should they want to, their contribution. The
individual written authorization will only be a superfluity since there is no check-off
here. (10)

7. Unlawful. While K observed some of the procedural requirements: notice of intention to

strike; 30 days cooling off period for this case of deadlock; it failed to observe the
 proper 7-day strike ban. The purpose of the 7-day strike ban is to give time for DOLE to
determine the truth as to the veracity of the votes. The result of the strike vote should
have been given 7 days prior to the intended date of strike. (10)

8. As held in the case of Yupangco, the trial court is correct. A third party claimant may file
a separate civil action outside the labor case that he is third party to.
A third party claimant must file his claim with the sheriff or the labor arbiter and if
denied may appeal to the NLRC. This however does not bar a third party claimant from
instituting an action over his proper in regular courts. (10)

9. In the case of Espiritu, the court said that the right to collectively bargain entails the
right to suspend it. On this matter, the 5 year term in the law may be extended so long
as agreed bilaterally.
In the union’s exercise of right to bargain is included the right to suspend the CBA.

10. (Refer to Run-Off Elections)