2009 Bar Examination

2009 BAR EXAMINATION POLITICAL AND PUBLIC INTERNATIONAL LAW 06 September 2009 INSTRUCTIONS This questionnaire is in TWO (2) PARTS: Part I with ten (10) questions (numbered I to X), contained in seven (7) pages; and Part II with eight (8) questions (numbered XI-XVIII), contained in six (6) pages, for a total number of thirteen (13) pages. Write your answers to Part I and Part II in the corresponding portions indicated in the booklet. Begin your answer to each numbered question on a separate page; an answer to a subquestion under the same number may be written continuously on the same page and succeeding pages until completed. Answer the question directly and concisely. Do not repeat the question. Write legibly 8 A.M. - 12 Noon HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE GOOD LUCK!!! ____________________________________ ANTONIO EDUARDO B. NACHURA Chairperson 2009 Bar Examinations Committee PLEASE CHECK THAT THIS SET CONTAINS FOURTEEN (14) PAGES (INCLUDING THIS PAGE). WARNING: NOT FOR SALE OR UNAUTHORIZED USE POLITICAL LAW PART I I TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%) [a] A law making "Bayan Ko" the new national anthem of the Philippines, in lieu of "Lupang Hinirang," is constitutional. [b] Under the archipelago doctrine, the waters around, between, and connecting the islands of the archipelago form part of the territorial sea of the archipelagic state. [c] A law that makes military service for women merely voluntary is constitutional. [d] A law fixing the passing grade in the Bar examinations at 70%, with no grade lower than 40% in any subject, is constitutional. [e] An educational institution 100% foreign-owned may be validly established in the Philippines. II Despite lingering questions about his Filipino citizenship and his one-year residence in the district, Gabriel filed his certificate of candidacy for congressman before the deadline set by law. His opponent, Vito, hires you as lawyer to contest Gabriel's candidacy. [a] Before election day, what action or actions will you institute against Gabriel, and before which court, commission or tribunal will you file such action/s? Reasons. (2%) [b] If, during the pendency of such action/s but before election day, Gabriel withdraws his certificate of candidacy, can he be substituted as candidate? If so, by whom and why? If not, why not? (2%) [c] If the action/s instituted should be dismissed with finality before the election, and Gabriel assumes office after being proclaimed the winner in the election, can the issue of his candidacy and/or citizenship and residence still be questioned? If so, what action or actions may be filed and where? If not, why not? (2%) III The Municipality of Bulalakaw, Leyte, passed Ordinance No. 1234, authorizing the expropriation of two parcels of land situated in the poblacion as the site of a freedom park, and appropriating the funds needed therefor. Upon review, the |Sangguniang Panlalawigan of Leyte disapproved the ordinance because the municipality has an existing freedom park which, though smaller in size, is still suitable for the purpose, and to pursue expropriation would be needless expenditure of the people's money. Is the disapproval of the ordinance correct? Explain your answer. (2%) IV The Municipality of Pinatukdao is sued for damages arising from injuries sustained by a pedestrian who was hit by a glass pane that fell from a dilapidated window frame of the municipal hall. The municipality files a motion to dismiss the complaint, invoking state immunity from suit. Resolve the motion with reasons. (3%) V To address the pervasive problem of gambling, Congress is considering the following options: (1) prohibit all forms of gambling; (2) allow gambling only on Sundays; (3) allow gambling only in government-owned casinos; and (4) remove all prohibitions against gambling but impose a tax equivalent to 30% on all winnings. [a] If Congress chooses the first option and passes the corresponding law absolutely prohibiting all forms of gambling, can the law be validly attacked on the ground that it is an invalid exercise of police power? Explain your answer. (2%) [b] If Congress chooses the last option and passes the corresponding law imposing a 30% tax on all winnings and prizes won from gambling, would the law comply with the constitutional limitations on the exercise of the power of taxation? Explain your answer. (2%) VI In a criminal prosecution for murder, the prosecution presented, as witness, an employee of the Manila Hotel who produced in court a videotape recording showing the heated exchange between the accused and the victim that took place at the lobby of the hotel barely 30 minutes before the killing. The accused objects to the admission of the videotape recording on the ground that it was taken without his knowledge or consent, in violation of his right to privacy and the Anti-Wire Tapping law. Resolve the objection with reasons. (3%) VII Crack agents of the Manila Police Anti-Narcotics Unit were on surveillance of a cemetery where the sale and use of prohibited drugs were rumored to be rampant. The team saw a man with reddish and glassy eyes walking unsteadily towards them, but he immediately veered away upon seeing the policemen. The team approached the man, introduced themselves as peace officers, then asked what he had in his clenched fist. Because the man refused to answer, a policeman pried the fist open and saw a plastic sachet filled with crystalline substance. The team then took the man into custody and submitted the contents of the sachet to forensic examination. The crystalline substance in the sachet turned out to be shabu. The man was accordingly charged in court. During the trial, the accused: [a] challenged the validity of his arrest; (2%) and [b] objected to the admission in evidence of the prohibited drug, claiming that it was obtained in an illegal search and seizure. (2%) Decide with reasons. VIII Congressman Nonoy delivered a privilege speech charging the Intercontinental Universal Bank (IUB) with the sale of unregistered foreign securities, in violation of R.A. 8799. He then filed, and the House of Representatives unanimously approved, a Resolution directing the House Committee on Good Government (HCGG) to conduct an inquiry on the matter, in aid of legislation, in order to prevent the recurrence of any similar fraudulent activity. The HCGG immediately scheduled a hearing and invited the responsible officials of IUB, the Chairman and Commissioners of the Securities and Exchange Commission (SEC), and the Governor of the Bangko Sentral ng Pilipinas (BSP). On the date set for the hearing, only the SEC Commissioners appeared, prompting Congressman Nonoy to move for the issuance of the appropriate subpoena ad testificandum to compel the attendance of the invited resource persons. The IUB officials filed suit to prohibit HCGG from proceeding with the inquiry and to quash the subpoena, raising the following arguments: [a] The subject of the legislative investigation is also the subject of criminal and civil actions pending before the courts and the prosecutor's office; thus, the legislative inquiry would preempt judicial action; (3%) and [b] Compelling the IUB officials, who are also respondents in the criminal and civil cases in court, to testify at the inquiry would violate their constitutional right against self-incrimination. (3%) Are the foregoing arguments tenable? Reasons. [c] May the Governor of the BSP validly invoke executive privilege and, thus, refuse to attend the legislative inquiry? Why or why not? (3%) IX Warlito, a natural-born Filipino, took up permanent residence in the United States, and eventually acquired American citizenship. He then married Shirley, an American, and sired three children. In August 2009, Warlito decided to visit the Philippines with his wife and children: Johnny, 23 years of age; Warlito, Jr., 20; and Luisa, 17. While in the Philippines, a friend informed him that he could reacquire Philippine citizenship without necessarily losing U.S. nationality. Thus, he took the oath of allegiance required under R.A. 9225. [a] Having reacquired Philippine citizenship, is Warlito a natural-born or a naturalized Filipino citizen today? Explain your answer. (3%) [b] With Warlito having regained Philippine citizenship, will Shirley also become a Filipino citizen? If so, why? If not, what would be the most speedy procedure for Shirley to acquire Philippine citizenship? Explain. (3%) [c] Do the children --- Johnny, Warlito Jr., and Luisa --- become Filipino citizens with their father's reacquisition of Philippine citizenship? Explain your answer. (3%) X Maximino, an employee of the Department of Education, is administratively charged with dishonesty and gross misconduct. During the formal investigation of the charges, the Secretary of Education preventively suspended him for a period of sixty (60) days. On the 60th day of the preventive suspension, the Secretary rendered a verdict, finding Maximino guilty, and ordered his immediate dismissal from the service. Maximino appealed to the Civil Service Commission (CSC), which affirmed the Secretary's decision. Maximino then elevated the matter to the Court of Appeals (CA). The CA reversed the CSC decision, exonerating Maximino. The Secretary of Education then petitions the Supreme Court (SC) for the review of the CA decision. [a] Is the Secretary of Education a proper party to seek the review of the CA decision exonerating Maximino? Reasons. (2%) [b] If the SC affirms the CA decision, is Maximino entitled to recover back salaries corresponding to the entire period he was out of the service? Explain your answer. (3%) *** END OF PART I *** PART II XI TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%) [a] Aliens are absolutely prohibited from owning private lands in the Philippines. [b] A de facto public officer is, by right, entitled to receive the salaries and emoluments attached to the public office he holds. [c] The President exercises the power of control over all executive departments and agencies, including government-owned or controlled corporations. [d] Decisions of the Ombudsman imposing penalties in administrative disciplinary cases are merely recommendatory. [e] Dual citizenship is not the same as dual allegiance. XII William, a private American citizen, a university graduate and frequent visitor to the Philippines, was inside the U.S. embassy when he got into a heated argument with a private Filipino citizen. Then, in front of many shocked witnesses, he killed the person he was arguing with. The police came, and brought him to the nearest police station. Upon reaching the station, the police investigator, in halting English, informed William of his Miranda rights, and assigned him an independent local counsel. William refused the services of the lawyer, and insisted that he be assisted by a Filipino lawyer currently based in the U.S. The request was denied, and the counsel assigned by the police stayed for the duration of the investigation. William protested his arrest. [a] He argued that since the incident took place inside the U.S. embassy, Philippine courts have no jurisdiction because the U.S. embassy grounds are not part of Philippine territory; thus, technically, no crime under Philippine law was committed. Is William correct? Explain your answer. (3%) [b] He also claimed that his Miranda rights were violated because he was not given the lawyer of his choice; that being an American, he should have been informed of his rights in proper English; and that he should have been informed of his rights as soon as he was taken into custody, not when he was already at the police station. Was William denied his Miranda rights? Why or why not? (3%) [c] If William applies for bail, claiming that he is entitled thereto under the "international standard of justice" and that he comes from a U.S. State that has outlawed capital punishment, should William be granted bail as a matter of right? Reasons. (3%) XIII A terrorist group called the Emerald Brigade is based in the State of Asyaland. The government of Asyaland does not support the terrorist group, but being a poor country, is powerless to stop it. The Emerald Brigade launched an attack on the Philippines, firing two missiles that killed thousands of Filipinos. It then warned that more attacks were forthcoming. Through diplomatic channels, the Philippines demanded that Asyaland stop the Emerald Brigade; otherwise, it will do whatever is necessary to defend itself. Receiving reliable intelligence reports of another imminent attack by the Emerald Brigade, and it appearing that Asyaland was incapable of preventing the assault, the Philippines sent a crack commando team to Asyaland. The team stayed only for a few hours in Asyaland, succeeded in killing the leaders and most of the members of the Emerald Brigade, then immediately returned to the Philippines. [a] Was the Philippine action justified under the international law principle of "self-defense"? Explain your answer. (3%) [b] As a consequence of the foregoing incident, Asyaland charges the Philippines with violation of Article 2.4 of the United Nations Charter that prohibits "the threat or use of force against the territorial integrity or political independence of any State." The Philippines counters that its commando team neither took any territory nor interfered in the political processes of Asyaland. Which contention is correct? Reasons. (3%) [c] Assume that the commando team captured a member of the Emerald Brigade and brought him back to the Philippines. The Philippine Government insists that a special international tribunal should try the terrorist. On the other hand, the terrorist argues that terrorism is not an international crime and, therefore, the municipal laws of the Philippines, which recognize access of the accused to constitutional rights, should apply. Decide with reasons. (3%) XIV The Philippine Government is negotiating a new security treaty with the United States which could involve engagement in joint military operations of the two countries' armed forces. A loose organization of Filipinos, the Kabataan at Matatandang Makabansa (KMM) wrote the Department of Foreign Affairs (DFA) and the Department of National Defense (DND) demanding disclosure of the details of the negotiations, as well as copies of the minutes of the meetings. The DFA and the DND refused, contending that premature disclosure of the offers and counter-offers between the parties could jeopardize on-going negotiations with another country. KMM filed suit to compel disclosure of the negotiation details, and be granted access to the records of the meetings, invoking the constitutional right of the people to information on matters of public concern. [a] Decide with reasons. (3%) [b] Will your answer be the same if the information sought by KMM pertains to contracts entered into by the Government in its proprietary or commercial capacity? Why or why not? (3%) XV The KKK Television Network (KKK-TV) aired the documentary, "Case Law: How the Supreme Court Decides," without obtaining the necessary permit required by P.D. 1986. Consequently, the Movie and Television Review and Classification Board (MTRCB) suspended the airing of KKK-TV programs. MTRCB declared that under P.D. 1986, it has the power of prior review over all television programs, except "newsreels" and programs "by the Government", and the subject documentary does not fall under either of these two classes. The suspension order was ostensibly based on Memorandum Circular No. 98-17 which grants MTRCB the authority to issue such an order. KKK-TV filed a certiorari petition in court, raising the following issues: [a] The act of MTRCB constitutes "prior restraint" and violates the constitutionally guaranteed freedom of expression; (3%) and [b] While Memorandum Circular No. 98-17 was issued and published in a newspaper of general circulation, a copy thereof was never filed with the Office of the National Register of the University of the Philippines Law Center. (2%) Resolve the foregoing issues, with reasons. XVI [a] Angelina, a married woman, is a Division Chief in the Department of Science and Technology. She had been living with a married man, not her husband, for the last fifteen (15) years. Administratively charged with immorality and conduct prejudicial to the best interest of the service, she admits her live-in arrangement, but maintains that this conjugal understanding is in conformity with their religious beliefs. As members of the religious sect, Yahweh's Observers, they had executed a Declaration of Pledging Faithfulness which has been confirmed and blessed by their Council of Elders. At the formal investigation of the administrative case, the Grand Elder of the sect affirmed Angelina's testimony and attested to the sincerity of Angelina and her partner in the profession of their faith. If you were to judge this case, will you exonerate Angelina? Reasons. (3%) [b] Meanwhile, Jenny, also a member of Yahweh's Observers, was severely disappointed at the manner the Grand Elder validated what she considered was an obviously immoral conjugal arrangement between Angelina and her partner. Jenny filed suit in court, seeking the removal of the Grand Elder from the religious sect on the ground that his act in supporting Angelina not only ruined the reputation of their religion, but also violated the constitutional policy upholding the sanctity of marriage and the solidarity of the family. Will Jenny's case prosper? Explain your answer. (2%) XVII Filipinas Computer Corporation (FCC), a local manufacturer of computers and computer parts, owns a sprawling plant in a 5,000square meter lot in Pasig City. To remedy the city's acute housing shortage, compounded by a burgeoning population, the Sangguniang Panglungsod authorized the City Mayor to negotiate for the purchase of the lot. The Sanggunian intends to subdivide the property into small residential lots to be distributed at cost to qualified city residents. But FCC refused to sell the lot. Hard pressed to find a suitable property to house its homeless residents, the City filed a complaint for eminent domain against FCC. [a] If FCC hires you as lawyer, what defense or defenses would you set up in order to resist the expropriation of the property? Explain. (5%) [b] If the Court grants the City's prayer for expropriation, but the City delays payment of the amount determined by the court as just compensation, can FCC recover the property from Pasig City? Explain. (2%) [c] Suppose the expropriation succeeds, but the City decides to abandon its plan to subdivide the property for residential purposes having found a much bigger lot, can FCC legally demand that it be allowed to repurchase the property from the City of Pasig? Why or why not? (2%) XVIII What are the essential elements of a valid petition for a people's initiative to amend the 1987 Constitution? Discuss. (2%) -NOTHING FOLLOWSThe Lawphil Project - Arellano Law Foundation BAR EXAMINATION 2009 LABOR AND SOCIAL LEGISLATION 06 September 2009 INSTRUCTIONS This questionnaire is in TWO (2) PARTS: Part I with ten (10) questions (numbered I to X), contained in six (6) pages; and Part II with eight (8) questions(numbered XI-XVIII), contained in six (6) pages, for a total number of twelve (12) pages. Write your answers to Part I and Part II in the corresponding portions indicated in the booklet. Begin your answer to each numbered question on a separate page; an answer to a subquestion under the same number may be written continuously on the same page and succeeding pages until completed. Answer the questions directly and concisely. Do not repeat the questions. Write legibly. HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE. GOOD LUCK! _____________________________________ ANTONIO EDUARDO B. NACHURA CHAIRPERSON 2009 BAR EXAMINATIONS COMMITTEE PLEASE CHECK THAT THIS SET CONTAINS THIRTEEN (13) PAGES (INCLUDING THIS PAGE) WARNING: NOT FOR SALE OR UNAUTHORIZED USE LABOR AND SOCIAL LEGISLATION PART I I 8 A.M. - 12 Noon TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%) [a] An employment contract prohibiting employment in a competing company within one year from separation is valid. [b] All confidential employees are disqualified to unionize for the purpose of collective bargaining. [c] A runaway shop is an act constituting unfair labor practice. [d] In the law on labor relations, the substitutionary doctrine prohibits a new collective bargaining agent from repudiating an existing collective bargaining agreement. [e] The visitorial and enforcement powers of the DOLE Regional Director to order and enforce compliance with labor standard laws can be exercised even when the individual claim exceeds P5,000.00. II [a] Enumerate at least four (4) policies enshrined in Section 3, Article XIII of the Constitution that are not covered by Article 3 of the Labor Code on declaration of basic policy. (2%) [b] Clarito, an employee of Juan, was dismissed for allegedly stealing Juan’s wristwatch. In the illegal dismissal case instituted by Clarito, the Labor Arbiter, citing Article 4 of the Labor Code, ruled in favor of Clarito upon finding Juan’s testimony doubtful. On appeal, the NLRC reversed the Labor Arbiter holding that Article 4 applies only when the doubt involves "implementation and interpretation" of the Labor Code provisions. The NLRC explained that the doubt may not necessarily be resolved in favor of labor since this case involves the application of the Rules onEvidence, not the Labor Code. Is the NLRC correct? Reasons. (3%) III Richie, a driver-mechanic, was recruited by Supreme Recruiters (SR) and its principal, Mideast Recruitment Agency (MRA), to work in Qatar for a period of two (2) years. However, soon after the contract was approved by POEA, MRA advised SR to forego Richie’s deployment because it had already hired another Filipino driver-mechanic, who had just completed his contract in Qatar. Aggrieved, Richie filed with the NLRC a complaint against SR and MRA for damages corresponding to his two years’ salary under the POEAapproved contract. SR and MRA traversed Richie’s complaint, raising the following arguments: [a] The Labor Arbiter has no jurisdiction over the case; (2%) [b] Because Richie was not able to leave for Qatar, no employer-employee relationship was established between them; (2%) and [c] Even assuming that they are liable, their liability would, at most, be equivalent to Richie’s salary for only six (6) months, not two years. (3%). Rule on the validity of the foregoing arguments with reasons. IV Diosdado, a carpenter, was hired by Building Industries Corporation (BIC), and assigned to build a small house in Alabang. His contract of employment specifically referred to him as a "project employee," although it did not provide any particular date of completion of the project. Is the completion of the house a valid cause for the termination of Diosdado’s employment? If so, what are the due process requirements that the BIC must satisfy? If not, why not? (3%) V [a] Baldo was dismissed from employment for having beenabsent without leave (AWOL) for eight (8) months. It turned outthat the reason for his absence was his incarceration after he was mistaken as his neighbor’s killer. Eventually acquitted and released from jail, Baldo returned to his employer and demanded reinstatement and full backwages. Is Baldo entitled to reinstatement and backwages? Explain your answer. (3%) [b] Domingo, a bus conductor of San Juan Transportation Company, intentionally did not issue a ticket to a female passenger, Kim, his long-time crush. As a result, Domingo was dismissed from employment for fraud or willful breach of trust. Domingo contests his dismissal, claiming that he is not a confidential employee and, therefore, cannot be dismissed from the service for breach of trust. Is Domingo correct? Reasons. (2%) VI Albert, a 40-year old employer, asked his domestic helper, Inday, to give him a private massage. When Inday refused, Albert showed her Article 141 of the Labor Code, which says that one of the duties of a domestic helper is to minister to the employer’s personal comfort and convenience. [a] Is Inday’s refusal tenable? Explain. (3%) [b] Distinguish briefly, but clearly, a "househelper" from a "homeworker." (2%) VII Johnny is the duly elected President and principal union organizer of the Nagkakaisang Manggagawa ng Manila Restaurant (NMMR), a legitimate labor organization. He was unceremoniously dismissed by management for spending virtually 95% of his working hours in union activities. On the same day Johnny received the notice of termination, the labor union went on strike. Management filed an action to declare the strike illegal, contending that: [a] The union did not observe the "cooling-off period" mandated by the Labor Code; (2%) and [b] The union went on strike without complying with the strike-vote requirement under the Labor Code. (2%) Rule on the foregoing contentions with reasons. [c] The Labor Arbiter found management guilty of unfair labor practice for the unlawful dismissal of Johnny. The decision became final. Thereafter, the NMMR filed a criminal case against the Manager of Manila Restaurant. Would the Labor Arbiter’s finding be sufficient to secure the Manager’s conviction? Why or why not? (2%) VIII Alexander, a security guard of Jaguar Security Agency (JSA), could not be given any assignment because no client would accept him. He had a face only a mother could love. After six (6) months of being on "floating" status, Alexander sued JSA for constructive dismissal. The Labor Arbiter upheld Alexander’s claim of constructive dismissal and ordered JSA to immediately reinstate Alexander. JSA appealed the decision to the NLRC. Alexander sought immediate enforcement of the reinstatement order while the appeal was pending. JSA hires you as lawyer, and seeks your advice on the following: [a] Because JSA has no client who would accept Alexander, can it still be compelled to reinstate him pending appeal even if it has posted an appeal bond? (2%) [b] Can the order of reinstatement be immediately enforced in the absence of a motion for the issuance of a writ of execution? (2%) [c] If the order of reinstatement is being enforced, what should JSA do in order to prevent reinstatement? (2%) Explain your answers. IX [a] What is wage distortion? Can a labor union invoke wage distortion as a valid ground to go on strike? Explain. (2%) [b] What procedural remedies are open to workers who seek correction of wage distortion? (2%) X [a] State briefly the compulsory coverage of the Government Service Insurance Act. (2%) [b] Can a member of a cooperative be deemed an employee for purposes of compulsory coverage under the Social Security Act? Explain. (2%) *** END OF PART I *** PART II XI TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%) [a] Seafarers who have worked for twenty (20) years on board the same vessel are regular employees. [b] Employment of children below fifteen (15) years of age in any public or private establishment is absolutely prohibited. [c] Government employees have the right to organize and join concerted mass actions without incurring administrative liability. [d] A waiver of the right to claim overtime pay is contrary to law. [e] Agency fees cannot be collected from a non-union member in the absence of a written authorization signed by the worker concerned. XII In her State of the Nation Address, the President stressed the need to provide an investor-friendly business environment so that the country can compete in the global economy that now suffers from a crisis bordering on recession. Responding to the call, Congress passed two innovative legislative measures, namely: (1) a law abolishing the security of tenure clause in the Labor Code; and (2) a law allowing contractualization in all areas needed in the employer’s business operations. However, to soften the impact of these new measures, the law requires that all employers shall obtain mandatory unemployment insurance coverage for all their employees. The constitutionality of the two (2) laws is challenged in court. As judge, how will you rule? (5%) XIII Atty. Renan, a CPA-lawyer and Managing Partner of an accounting firm, conducted the orientation seminar for newly-hired employees of the firm, among them, Miss Maganda. After the seminar, Renan requested Maganda to stay, purportedly to discuss some work assignment. Left alone in the training room, Renan asked Maganda to go out with him for dinner and ballroom dancing. Thereafter, he persuaded her to accompany him to the mountain highway in Antipolo for sight-seeing. During all these, Renan told Maganda that most, if not all, of the lady supervisors in the firm are where they are now, in very productive and lucrative posts, because of his favorable endorsement. [a] Did Renan commit acts of sexual harassment in a work- related or employment environment? Reasons. (3%) [b] The lady supervisors in the firm, slighted by Renan’s revelations about them, succeeded in having him expelled from the firm. Renan then filed with the Arbitration Branch of the NLRC an illegal dismissal case with claims for damages against the firm. Will the case prosper? Reasons. (2%) XIV Jolli-Mac Restaurant Company (Jolli-Mac) owns and operates the largest food chain in the country. It engaged Matiyaga Manpower Services, Inc. (MMSI), a job contractor registered with the Department of Labor and Employment, to provide its restaurants the necessary personnel, consisting of cashiers, motorcycle delivery boys and food servers, in its operations. The Service Agreement warrants, among others, that MMSI has a paid- up capital of P2,000,000.00; that it would train and determine the qualification and fitness of all personnel to be assigned to Jolli- Mac; that it would provide these personnel with proper Jolli-Mac uniforms; and that it is exclusively responsible to these personnel for their respective salaries and all other mandatory statutory benefits. After the contract was signed, it was revealed, based on research conducted, that MMSI had no other clients except Jolli- Mac, and one of its major owners was a member of the Board of Directors of Jolli-Mac. [a] Is the Service Agreement between Jolli-Mac and MMSI legal and valid? Why or why not? (3%) [b] If the cashiers, delivery boys and food servers are not paid their lawful salaries, including overtime pay, holiday pay, 13th month pay, and service incentive leave pay, against whom may these workers file their claims? Explain. (2%) XV Among the 400 regular rank-and-file workers of MNO Company, a certification election was ordered conducted by the Med-Arbiter of the Region. The contending parties obtained the following votes: 1. Union A - 70 2. Union B - 71 3. Union C - 42 4. Union D - 33 5. No union - 180 6. Spoiled votes - 4 There were no objections or challenges raised by any party on the results of the election. [a] Can Union B be certified as the sole and exclusive collective bargaining agent among the rank-and-file workers of MNO Company considering that it garnered the highest number of votes among the contending unions? Why or why not? (3%) [b] May the management or lawyer of MNO Company legally ask for the absolute termination of the certification election proceedings because 180 of the workers --- a clear plurality of the voters --- have chosen not to be represented by any union? Reasons. (3%) [c] If you were the duly designated election officer in this case, what would you do to effectively achieve the purpose of certification election proceedings? Discuss. (3%) XVI The Company and Triple-X Union, the certified bargaining agent of rank-and-file employees, entered into a Collective Bargaining Agreement (CBA) effective for the period January 1, 2002 to December 31, 2007. For the 4th and 5th years of the CBA, the significant improvements in wages and other benefits obtained by the Union were: 1) Salary increases of P1,000 and P1,200 monthly, effective January 1, 2006 and January 1, 2007, respectively; 2) Vacation Leave and Sick Leave were adjusted from 12 days to 15 days annually for each employee; 3) Medical subsidy of P3,000 per year for the purchase of medicines and hospitalization assistance of P10,000 per year for actual hospital confinement; 4) Rice Subsidy of P600 per month, provided the employee has worked for at least 20 days within the particular month; and 5) Birthday Leave with Pay and Birthday Gift of P1,500. As early as October 2007, the Company and the Union started negotiations to renew the CBA. Despite mutual good faith and earnest efforts, they could not agree. However, no union filed a petition for certification election during the freedom period. On March 30, 2008, no CBA had been concluded. Management learned that the Union would declare a bargaining deadlock on the next scheduled bargaining meeting. As expected, on April 3, 2008, the Union declared a deadlock. In the afternoon of the same day, management issued a formal announcement in writing, posted on the bulletin board, that due to the CBA expiration on December 31, 2007, all fringe benefits contained therein are considered withdrawn and can no longer be implemented, effective immediately. [a] When was the "freedom period" referred to in the foregoing narration of facts? Explain. (2%) [b] After April 3, 2008, will a petition for certification election filed by another legitimate labor union representing the rank-and-file employees legally prosper? Reasons. (3%) [c] Is management’s withdrawal of the fringe benefits valid? Reasons. (2%) [d] If you were the lawyer for the union, what legal recourse or action would you advise? Reasons. (3%) XVII Alfredo was dismissed by management for serious misconduct. He filed suit for illegal dismissal, alleging that although there may be just cause, he was not afforded due process by management prior to his termination. He demands reinstatement with full backwages. [a] What are the twin requirements of due process which the employer must observe in terminating or dismissing an employee? Explain. (3%) [b] Is Alfredo entitled to reinstatement and full backwages? Why or why not? (3%) XVIII [a] Cite four (4) instances when an illegally dismissed employee may be awarded separation pay in lieu of reinstatement. (3%) [b] Explain the impact of the union security clause to the employees’ right to security of tenure. (2%) -NOTHING FOLLOWSThe Lawphil Project - Arellano Law Foundation