What is the principle of codetermination?

(2007 Bar Question)

SUGGESTED ANSWER:

The principle of codetermination is one which grants to the workers the right to
participate in policy and decision-making processes affecting their rights and benefits.
(Art. 255, Labor Code)

FIRST ALTERNATIVE ANSWER:

By the principle of codetermination, the workers have a right to participate in the

decision making process of employers on matters affecting their rights and benefits,
through collective bargaining agreements, grievance machineries, voluntary modes of
settling disputes and conciliation proceedings mediated by government.

SECOND ALTERNATIVE ANSWER:

Codetermination is a term identified with workers’ participation in the determination of

business policy. Under the German model, the most common form of codetermination,
employees of some firms are allocated control rights by law, in the form of board seats.
It is based on the conviction that democratic legitimacy cannot be confined to
government but must apply to all sectors of society. Besides corporate control rights,
the German system deals with dual channels of representation of employees by unions
(at the industry-wide, and macroeconomic level) and works councils (at the firm level).

Q: 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%) (2009 Bar Question)

SUGGESTED ANSWER:

The first innovative measure, on abolition of the security of tenure clause in the Labor
Code, is unconstitutional as it goes against the entitlement of workers to security of
tenure under Section 3, Article XIII of the 1987 Constitution.

The second innovative measure, on a law allowing contractualization in all areas

needed in the employer’s business operations, is legal. Article 106 of the Labor Code
already allows the Secretary of Labor and Employment not to make appropriate
distinction between labor-only and job contracting. This means that the Secretary may
decide, through implementing regulation, not to prohibit labor-only contacting, which is
an arrangement where the person supplying workers to an employer does not have
substantial capital or investment in the form of tools, equipment, machineries, work
premises, among others, and the workers recruited and place by such person are
performing activities which are directly related to the principal business of the employer.

Hence, it would be legal for Congress to do away with the prohibition on labor-only
contracting and allow contractualization in all areas needed in the employer’s business
operations. Assuming, of course, that contractual workers are guaranteed their security
of tenure.

Q: Company C, a toy manufacturer, decided to ban the use of cell phones in the
factory premises. In the pertinent Memorandum, management explained that too
much texting and phone-calling by employees disrupted company operations.
Two employees-members of Union X were terminated from employment due to
violation of the memorandum-policy. The union countered with a prohibitory
injunction case (with prayer for the issuance of a temporary- restraining order)
Filed with the Regional Trial Court, challenging the validity and constitutionality
of the cell phone ban. The company filed a motion to dismiss, arguing that the
case should be referred to the grievance machinery pursuant to an existing
Collective Bargaining Agreement with Union X, and eventually to Voluntary
Arbitration. Is the company correct? Explain. (3%) (2010 Bar Question)

SUGGESTED ANSWER:

YES. Termination cases arising in or resulting from the interpretation and

implementation of collective bargaining agreements, and interpretation and enforcement
of company personnel policies which were initially processed at the various steps of the
plant-level Grievance Procedures under the parties collective bargaining agreements,
fall within the original and exclusive jurisdiction of the voluntary arbitrator pursuant to
Article 217 (c) and Article 261 of the Labor Code.

A spinster school teacher took pity on one of her pupils, a robust and precocious
12-year old boy whose poor family could barely afford the cost of his schooling.
She lives alone at her house near the School after her housemaid had left. In the
afternoon, she lets the boy do various chores as cleaning, fetching water and all
kinds of errands after school hours. She gives him rice and P100.00 before the
boy goes home at 7:00 every night. The school principal learned about it and
charged her with violating the law which prohibits the employment of children
below 15 years of age. In her defense, the teacher stated that the work performed
by her pupil is not hazardous. Is her defense tenable? Why? (5%) (2012 BAR)

Suggested Answer:
The defense is not tenable. Children below fifteen (15) years of age shall not be
employed except:
1. When a child works directly under the sole responsibility of his/her parents or
legal guardian and where only members of his/her family are employed…; or
2. Where a child’s employment or participation in public entertainment or
information through cinema, theater, radio, television or other forms of media
is essential … [ Section 12, RA 7610, as amended by RA 9231].

Mam-manu Aviation Company (Mam-manu) is a new airline company recruiting

flight attendants for its domestic flights. It requires that the applicant be single,
not more than 24 years old, attractive, and familiar with three (3) dialects, viz:
llonggo, Cebuano and Kapampangan. lngga, 23 years old, was accepted as she
possesses all the qualifications. After passing the probationary period, lngga
disclosed that she got married when she was 18 years old but the marriage was
already in the process of being annulled on the ground that her husband was
afflicted with a sexually transmissible disease at the time of the celebration of
their marriage. As a result of this revelation, lngga was not hired as a regular
flight attendant. Consequently, she filed a complaint against Mam-manu alleging
that the pre-employment qualifications violate relevant provisions of the Labor
Code and are against public policy. Is the contention of lngga tenable? Why?
(5%) (2012 BAR)

Suggested Answer:
Yes. Man-manu’s pre-employment requirement cannot be justified as a “bona fide
occupational qualification,” where the particular requirements of the job would justify it.
The said requirement is not valid because it does not reflect an inherent quality that is
reasonably necessary for a satisfactory job performance. [PT&T vs. NRLC, G.R. No.
118978, May 23, 1997 citing 45A Am. Jur. 2d, Job Discrimination, Sec. 506, p.468)

Q: 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%)
SUGGESTED ANSWER:

Atty. Renan is guilty of sexual harassment. This conclusion is predicated upon the
following consideration:

1. Atty. Renan has authority, influence or moral ascendancy over Miss Maganda;
2. While the law calls for a demand, request or requirement of a sexual favor, it is
not necessary that the demand, request or requirement of a sexual favor be
articulated in a categorical oral or written statement. It may be discerned, with
equal certitude from the acts of the offender. (Domingo vs. Rayala, 546 SCRA 90
[2008]);
3. The acts of Atty. Renan towards Miss Maganda resound with deafening clarity
the unspoken request for a sexual favor, regardless of whether it is accepted or
not by Miss Maganda.
4. In sexual harassment, it is not essential that the demand, request or requirement
be made as a condition for continued employment or promotion to a higher
position. It is enough that Atty.
Renan’s act result in creating an intimidating, hostile or offensive environment for Miss
Maganda.

Q: 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
deliver}' 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. (2009 Bar Question)

[a] Is the Service Agreement between Jolli-Mac and MMSI legal and valid? Why or
why not? (3%)

SUGGESTED ANSWER:

No. It is not legal and valid because MMSI is engaged in labor-only contracting. For
one, the workers supplied by MMSI to Jolli-Mac are performing services which are
directly related to the principal business of Jolli-Mac. This is so because the duties
performed by the workers are integral steps in or aspects of the essential operations of
the principal. (Baguio, et al. v. NLRC, et al., 202 SCRA 465 [1991]; Kimberly
Independent Labor Union, etc. v. Drillon, 185 SCRA 190 [1990]. For another, MMSI was
organized by Jolli-Mac itself to supply its personnel requirements. (San Miguel
Corporation v. MAERC Integrated Services, Inc., et al., 405 SCRA 579 [2003]).

A. Recruitment of local and migrant workers

Q: On December 12, 2008, A signed a contract to be part of the crew of ABC

Cruises, Inc. through its Philippine manning agency XYZ. Under the standard
employment contract of the Philippine Overseas Employment Administration
(POEA), his employment was to commence upon his actual departure from the
port in the point of hire, Manila, from where he would take a flight to the USA to
join the cruise ship “MS Carnegie”. However, more than three months after A
secured his exit clearance from the POEA for his supposed departure on January
15,2009, XYZ still had not deployed him for no valid reason. Is A entitled to relief?
Explain. (3%) (2010 Bar Question)

SUGGESTED ANSWER:

YES. Even if no departure took place, the contract of employment has already been
perfected which creates certain rights and obligations, the breach of which may give rise
to a cause of action against the erring party:
(1) A can file a complaint for Recruitment Violation for XYZ’s failure to
deploy him within the prescribed period without any valid reason, a
ground for the imposition of administrative sanctions against XYZ
under Section 2, Rule I, Part V of the 2003 POEA Rules on
Employment of Seafarers.

(2) At the same time, A can file a case for illegal recruitment under Section 6(L) of
Rep. Act No. 8042 (cf: Section 11 Rule I, Part V of the 2003 POEA Rules on
Employment of Seafarers)

(3) A may likewise file a complaint for breach of contract, and claim damages
therefore before the NLRC, despite absence of employer-employee relationship.
Section 10 of Rep. Act No. 8042 conferred jurisdiction on the Labor Arbiter not only
on claims arising out of EER, but also by virtue of any law or contract involving
Filipino workers for overseas deployment including claims for actual, moral,
exemplary and other forms of damages. (Santiago vs. CF Sharp Crew Management,
527 SCRA 165 [2007]).

Q: The rank- and-file union staged a strike in the company premises which
caused the disruption of business operations. The supervisors’ union of the
same company filed a money claim for unpaid salaries for the duration of the
strike, arguing that the supervisors’ failure to report for work was not attributable
to them. The company contended that it was equally faultless, for the strike was
not the direct consequence of any lockout or unfair labor practice. May the
company be held liable for the salaries of the supervisors? Decide. (6%) (2008 Bar
Question)

SUGGESTED ANSWER:

No. I will apply the “No Work No Pay” principle. The supervisors are not entitled to their
money claim for unpaid salaries, as they should not be compensated for services
skipped during the strike of the rank-and-file union.

The age-old rule governing the relation between labor and capital, or management and
employee of a “fair day’s wage for a fair day’s labor” remains as the basic factor in
determining employees’ wages (Aklan Electric Cooperative, Inc. v. NLRC, 323 SCRA
258[2000]).