Taxation Law Examinations Instructions

TAXATION LAW
12 September 2010 2 P.M – 5 P.M.

INSTRUCTIONS

This questionnaire is in TWO (2) PARTS: Part I with nine (9) questions (numbered I to IX), contained in five (5) pages; and Part II with nine (9) questions (numbered X to XVIII), contained in six (6) pages, for a total number of eleven (11) 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 sub-question/s 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 question. Write legibly.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE

GOOD LUCK!!!
_____________________________________
CONCHITA CARPIO MORALES
CHAIRPERSON
2010 BAR EXAMINATIONS COMMITTEE

PLEASE CHECK THAT THIS SET CONTAINS ELEVEN (11) PAGES (INCLUDING THIS PAGE).

WARNING: NOT FOR SALE OR UNAUTHORIZED USE

Taxation Law Question: I

True or False.

1. In civil cases involving the collection of internal revenue taxes, prescription is construed strictly against the government and liberally in favor of the taxpayer. (1%)

2. In criminal cases involving tax offenses punishable under the National Internal Revenue Code (NIRC), prescription is construed strictly against the government. (1%)

3. In criminal cases where the Court of Tax Appeals (CTA) has exclusive original jurisdiction, the right to file a separate civil action for the recovery of taxes may be reserved. (1%)

4. Proceedings before the CTA in the exercise of its exclusive original jurisdiction are in the nature of trial de novo. (1%)

5. Judgments, resolutions or orders of the Regional Trial Court in the exercise of its original jurisdiction involving criminal offenses arising from violations of the NIRC are appealable to the CTA, which shall hear the cases en banc. (1%)

Taxation Law Question: II

1. What is the "all events test"? Explain briefly. (2%)

2. What is the "immediacy test"? Explain briefly. (2%)

3. What is the "rational basis" test? Explain briefly. (2%)

4. What is the effect of the execution by a taxpayer of a "waiver of the statute of limitations" on his defense of prescription? (2%)

5. What is the basis for the computation of business tax on contractors under the Local Government Code? (2%)

6. How are retiring businesses taxed under the Local Government Code? (2%)

Taxation Law Question: III

Mirador, Inc., a domestic corporation, filed its Annual Income Tax Return for its taxable year 2008 on April 15, 2009. In the Return, it reflected an income tax overpayment of P1,000,000.00 and indicated its choice to carry-over the overpayment as an automatic tax credit against its income tax liabilities in subsequent years.

On April 15, 2010, it filed its Annual Income Tax Return for its taxable year 2009 reflecting a taxable loss and an income tax overpayment for the current year 2009 in the amount of P500,000.00 and its income tax overpayment for the prior year 2008 of P1,000,000.00.

In its 2009 Return, the corporation indicated its option to claim for refund the total income tax overpayment of P1,500,000.00

Choose which of the following statements is correct.

1. Mirador, Inc. may claim as refund the total income tax overpayment of P1,500,000.00 reflected in its income tax return for its taxable year 2009;

2. It may claim as refund the amount of P500,000.00 representing its income tax overpayment for its taxable year 2009; or

3. No amount may be claimed as refund.
   Explain the basis of your answer. (5%)

Taxation Law Question: IV

On March 10, 2010, Continental, Inc. received a preliminary assessment notice (PAN) dated March 1, 2010 issued by the Commissioner of Internal Revenue (CIR) for deficiency income tax for its taxable year 2008. It failed to protest the PAN. The CIR thereupon issued a final assessment notice (FAN) with letter of demand on April 30, 2010. The FAN was received by the corporation on May 10, 2010, following which or on May 25, 2010, it filed its protest against it.

The CIR denied the protest on the ground that the assessment had already become final and executory, the corporation having failed to protest the PAN.

Is the CIR correct? Explain. (5%)

Taxation Law Question: V

Does the Court of Appeals have the power to review compromise agreements forged by the Commissioner of Internal Revenue and a taxpayer? Explain. (5%)

Taxation Law Question: VI

Based on the Affidavit of the Commissioner of Internal Revenue (CIR), an Information for failure to file income tax return under Section 255 of the National Internal Revenue Code (NIRC) was filed by the Department of Justice (DOJ) with the Manila Regional Trial Court (RTC) against XX, a Manila resident.

XX moved to quash the Information on the ground that the RTC has no jurisdiction in view of the absence of a formal deficiency tax assessment issued by the CIR.

Is a prior assessment necessary before an Information for violation of Section 255 of the NIRC could be filed in court? Explain. (4%)

Taxation Law Question: VII

What are the conditions that must be complied with before the Court of Tax Appeals may suspend the collection of national internal revenue taxes? (3%)

Taxation Law Question: VIII

What is the rule on appeal from decisions of the Collector of Customs in protest and seizure cases? When is the decision of the Collector of Customs appealable to the Court of Tax Appeals? Explain. (5%)

Taxation Law Question: IX

On May 15, 2009, La Manga Trading Corporation received a deficiency business tax assessment of P1,500,000.00 from the Pasay City Treasurer. On June 30, 2009, the corporation contested the assessment by filing a written protest with the City Treasurer.

On October 10, 2009, the corporation received a collection letter from the City Treasurer, drawing it to file on October 25, 2009 an appeal against the assessment before the Pasay Regional Trial Court (RTC).

1. Was the protest of the corporation filed on time? Explain. (3%)

2. Was the appeal with the Pasay RTC filed on time? Explain. (3%)

Taxation Law Question: X

True or False. (1% each)

1. Gains realized by the investor upon redemption of shares of stock in a mutual fund company are exempt from income tax.

2. A corporation can claim the optional standard deduction equivalent to 40% of its gross sales or receipts, as the case may be.

3. Premium payment for health insurance of an individual who is an employee in an amount of P2,500 per year may be deducted from gross income if his gross salary per year is not more than P250,000.

4. The Tax Code allows an individual taxpayer to pay in two equal installments, the first installment to be paid at the time the return is filed, and the second on or before July 15 of the same year, if his tax due exceeds P2,000.

5. An individual taxpayer can adopt either the calendar or fiscal period for purposes of filing his income tax return.

6. The capitalization rules may be resorted to by the BIR in order to compel corporate taxpayers to declare dividends to their stockholders regularly.

7. Informer’s reward is subject to a final withholding tax of 10%.

8. A non-resident alien who stays in the Philippines for less than 180 days during the calendar year shall be entitled to personal exemption not to exceed the amount allowed to citizens of the Philippines by the country of which he is subject or citizen.

Taxation Law Question: XI

Are the following transactions subject to VAT? If yes, what is the applicable rate for each transaction. State the relevant authority/ies for your answer.

1. Construction by XYZ Construction Co. of concrete barriers for the Asian Development Bank in Ortigas Center to prevent car bombs from ramming the ADB gates along ADB Avenue in Mandaluyong City. (3%)

2. Call Center operated by a domestic enterprise in Makati that handles exclusively the reservations of a hotel chain which are all located in North America. The services are paid for in US$ and duly accounted for with the Bangko Sentral ng Pilipinas. (3%)

3. Sale of orchids by a flower shop which raises its flowers in Tagaytay. (3%)

Taxation Law Question: XI

Are the following transactions subject to VAT? If yes, what is the applicable rate for each transaction. State the relevant authority/ies for your answer.

1. Construction by XYZ Construction Co. of concrete barriers for the Asian Development Bank in Ortigas Center to prevent car bombs from ramming the ADB gates along ADB Avenue in Mandaluyong City. (3%)

2. Call Center operated by a domestic enterprise in Makati that handles exclusively the reservations of a hotel chain which are all located in North America. The services are paid for in US$ and duly accounted for with the Bangko Sentral ng Pilipinas. (3%)

3. Sale of orchids by a flower shop which raises its flowers in Tagaytay. (3%)

Taxation Law Question: XII

Ferremaro, Inc., a manufacturer of handcrafted shoes, maintains its principal office in Cubao, Quezon City. It has branches/sales offices in Cebu and Davao. Its factory is located in Marikina City where most of its workers live. Its principal office in Quezon City is also a sales office.

Sales of finished products for calendar year 2009 in the amount of P10 million were made at the following locations:

i)	Cebu branch	25%
ii)	Davao branch	15%
iii)	Quezon City branch	60%
	Total	100%

Where should the applicable local taxes on the shoes be paid? Explain. (3%)

Taxation Law Question: XIII

XYZ Shipping Corporation is a branch of an international shipping line with voyages between Manila and the West Coast of the U.S. The company’s vessels load and unload cargoes at the Port of Manila, albeit it does not have a branch or sales office in Manila. All the bills of lading and invoices are issued by the branch office in Makati which is also the company’s principal office.

The City of Manila enacted an ordinance levying a 2% tax on gross receipts of shipping lines using the Port of Manila.

Can the City Government of Manila legally impose said levy on the corporation? Explain. (3%)

Taxation Law Question: XIV

A inherited a two-storey building in Makati from his father, a real estate broker in the ‘60s. A group of Tibetan monks approached A and offered to lease the building in order to use it as a venue for their Buddhist rituals and ceremonies. A accepted the rental of P1 million for the whole year.

The following year, the City Assessor issued an assessment against A for non-payment of real property taxes.

Is the assessor justified in assessing A’s deficiency real property taxes? Explain. (3%)

Taxation Law Question: XV

Don Sebastian, single but head of the family, Filipino, and resident of Pasig City, died intestate on November 15, 2009. He left the following properties and interests:

House and lot (family home) in Pasig	P 800,000
Vacation house and lot in Florida, USA	1,500,000
Agricultural land in Naic, Cavite which he inherited from his father	2,000,000
Car which is being used by his brother in Cavite	500,000
Proceeds of life insurance where he named his estate as irrevocable beneficiary	1,000,000
Household furnitures and appliances	1,000,000
Claims against a cousin who has assets of P10,000 and liabilities of P100,000	100,000
Shares of stock in ABC Corp, a domestic enterprise	100,000
The expenses and charges on the estate are as follows:
Funeral Expenses	P 250,000
Legal fees for the settlement of the estate	500,000
Medical expenses of last illness	600,000
Claims against the estate	300,000

The compulsory heirs of Don Sebastian approach you and seek your assistance in the settlement of his estate for which they have agreed to the above-stated professional fees. Specifically, they request you to explain and discuss with them the following questions. You oblige:

1. What are the properties and interests that should be included in the computation of the gross estate of the decedent? Explain. (2.5%)

2. What is the net taxable estate of the decedent? Explain. (2.5%)

3. When is the due date for filing and payment of the applicable tax return and tax? Are these dates extendible? If so, under what conditions or requirements? (2.5%)

4. If X, one of the compulsory heirs, renounces his share in the inheritance in favor of the other co-heirs, is there any tax implication of X’s renunciation? What about the other coheirs? (2.5%)

Taxation Law Question: XVI

A is a travelling salesman working full time for Nu Skin Products. He receives a monthly salary plus 3% commission on his sales in a Southern province where he is based. He regularly uses his own car to maximize his visits even to far flung areas. One fine day a group of militants seized his car. He was notified the following day by the police that the marines and the militants had a bloody encounter and his car was completely destroyed after a grenade hit it.

A wants to file a claim for casualty loss. Explain the legal basis of your tax advice. (3%)

Taxation Law Question: XVII

In 2009, Caruso, a resident Filipino citizen, received dividend income from a U.S.-based corporation which owns a chain of Filipino restaurants in the West Coast, U.S.A. The dividend remitted to Caruso is subject to U.S. withholding tax with respect to a non-resident alien like Caruso.

1. What will be your advice to Caruso in order to lessen the impact of possible double taxation on the same income? (3%)

2. Would your answer in A. be the same if Caruso became a U.S. immigrant in 2008 and had become a non-resident Filipino citizen? Explain the difference in treatment for Philippine income tax purposes. (3%)

Taxation Law Question: XVIII

ABC, a domestic corporation, entered into a software license agreement with XYZ, a non-resident foreign corporation based in the U.S. Under the agreement which the parties forged in the U.S., XYZ granted ABC the right to use a computer system program and to avail of technical know-how relative to such program. In consideration for such rights, ABC agreed to pay 5% of the revenues it receives from customers who will use and apply the program in the Philippines.

Discuss the tax implication of the transaction. (5%)

Civil Law Examinations Instructions

CIVIL LAW

12 September 2010 8 A.M. – 12 NN. INSTRUCTIONS There is only one Examiner in Civil Law. Hence, the following questionnaire consists of only ONE PART with sixteen (16) questions (numbered I to XVI), contained in eleven (11) pages. Begin your answer to each numbered question on a separate page; an answer to a sub-question/s 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 question. Write legibly. HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE GOOD LUCK!!! _____________________________________ CONCHITA CARPIO MORALES CHAIRPERSON 2010 BAR EXAMINATIONS COMMITTEE PLEASE CHECK THAT THIS SET CONTAINS ELEVEN (11) PAGES (INCLUDING THIS PAGE). WARNING: NOT FOR SALE OR UNAUTHORIZED USE CIVIL LAW

Civil Law Question: I

True or False.

1. Under Article 26 of the Family Code, when a foreign spouse divorces his/her Filipino spouse, the latter may re-marry by proving only that the foreign spouse has obtained a divorce against her or him abroad. (1%)

2. X, a widower, died leaving a will stating that the house and lot where he lived cannot be partitioned for as long as the youngest of his four children desires to stay there. As coheirs and co-owners, the other three may demand partition anytime. (1%)

Civil Law Question: II

Multiple choice.

1. A had a 4-storey building which was constructed by Engineer B. After five years, the building developed cracks and its stairway eventually gave way and collapsed, resulting to injuries to some lessees. Who should the lessees sue for damages? (1%)
   
   1. A, the owner
   2. B, the engineer
   3. both A & B

2. O, owner of Lot A, learning that Japanese soldiers may have buried gold and other treasures at the adjoining vacant Lot B belonging to spouses X & Y, excavated in Lot B where she succeeded in unearthing gold and precious stones. How will the treasures found by O be divided? (1%)
   
   1. 100% to O as finder
   2. 50% to O and 50% to the spouses X and Y
   3. 50% to O and 50% to the state
   4. None of the above

3. A executed a Deed of Donation in favor of B, a bachelor, covering a parcel of land valued at P1 million. B was, however, out of the country at the time. For the donation to be valid, (1%)
   
   1. B may e-mail A accepting the donation.
   2. The donation may be accepted by B’s father with whom he lives.
   3. B can accept the donation anytime convenient to him.
   4. B’s mother who has a general power of attorney may accept the donation for him.
   5. None of the above is sufficient to make B’s acceptance valid

4. A executed a 5-page notarial will before a notary public and three witnesses. All of them signed each and every page of the will.

   One of the witnesses was B, the father of one of the legatees to the will. What is the effect of B being a witness to the will? (1%)
   
   1. The will is invalidated
   2. The will is valid and effective
   3. The legacy given to B’s child is not valid

Civil Law Question: III

Define, Enumerate or Explain. (2% each)

1. What is the difference between "guaranty" and "suretyship"?

2. Define quasi tort. Who are the persons liable under quasi torts and what are the defenses available to them?

3. Give at least two reasons why a court may assume jurisdiction over a conflict of laws case.

Civil Law Question: IV

Spouses B and G begot two offsprings. Albeit they had serious personality differences, the spouses continued to live under one roof. B begot a son by another woman. G also begot a daughter by another man.

1. If G gives the surname of B to her daughter by another man, what can B do to protect their legitimate children's interests? Explain. (5%)

2. If B acquiesces to the use of his surname by G’s daughter by another man, what is/are the consequence/s? Explain. (5%)

Civil Law Question: V

G filed on July 8, 2000 a petition for declaration of nullity of her marriage to B. During the pendency of the case, the couple entered into a compromise agreement to dissolve their absolute community of property. B ceded his right to their house and lot and all his shares in two business firms to G and their two children, aged 18 and 19.

B also opened a bank account in the amount of P3 million in the name of the two children to answer for their educational expenses until they finish their college degrees.

For her part, G undertook to shoulder the day-to-day living expenses and upkeep of the children. The Court approved the spouses’ agreement on September 8, 2000.

1. Suppose the business firms suffered reverses, rendering G unable to support herself and the children. Can G still ask for support pendente lite from B? Explain. (3%)

2. Suppose in late 2004 the two children had squandered the P3 million fund for their education before they could obtain their college degrees, can they ask for more support from B? Explain. (3%)

Civil Law Question: VI

Gigolo entered into an agreement with Majorette for her to carry in her womb his baby via in vitro fertilization. Gigolo undertook to underwrite Majorette’s pre-natal expenses as well as those attendant to her delivery. Gigolo would thereafter pay Majorette P2 million and, in return, she would give custody of the baby to him.

After Majorette gives birth and delivers the baby to Gigolo following her receipt of P2 million, she engages your services as her lawyer to regain custody of the baby.

1. What legal action can you file on behalf of Majorette? Explain. (2.5%)

2. Can Gigolo demand from Majorette the return of the P2 million if he returns the baby? Explain. (2.5%)

3. Who of the two can exercise parental authority over the child? Explain. (2.5%)

4. Is the child entitled to support and inheritance from Gigolo? Explain. (2.5%)

Civil Law Question: VII

G and B were married on July 3, 1989. On March 4, 2001, the marriage, which bore no offspring, was declared void ab initio under Article 36 of the Family Code. At the time of the dissolution of the marriage, the couple possessed the following properties:

• a house and lot acquired by B on August 3, 1988, one third (1/3) of the purchase price (representing downpayment) of which he paid; one third (1/3) was paid by G on February 14, 1990 out of a cash gift given to her by her parents on her graduation on April 6, 1989; and the balance was paid out of the spouses’ joint income; and

• an apartment unit donated to B by an uncle on June 19, 1987.

1. Who owns the foregoing properties? Explain. (5%)

2. If G and B had married on July 3, 1987 and their marriage was dissolved in 2007, who owns the properties? Explain. (5%)

Civil Law Question: VIII

Spouses Rex and Lea bore two children now aged 14 and 8. During the subsistence of their marriage, Rex begot a child by another woman. He is now 10 years of age.

On Lea’s discovery of Rex’s fathering a child by another woman, she filed a petition for legal separation which was granted.

Rex now wants to adopt his illegitimate child.

1. Whose consent is needed for Rex’s adoption of his illegitimate child? (2.5%)

2. If there was no legal separation, can Rex still adopt his illegitimate child? Explain. (2.5%)

Civil Law Question: IX

Eighteen-year old Filipina Patrice had a daughter out of wedlock whom she named Laurie. At 26, Patrice married American citizen John who brought her to live with him in the United States of America. John at once signified his willingness to adopt Laurie.

Can John file the petition for adoption? If yes, what are the requirements? If no, why? (5%)

Civil Law Question: X

In 1997, B and G started living together without the benefit of marriage. The relationship produced one offspring, Venus. The couple acquired a residential lot in Parañaque. After four (4) years or in 2001, G having completed her 4-year college degree as a fulltime student, she and B contracted marriage without a license.

The marriage of B and G was, two years later, declared null and void due to the absence of a marriage license.

1. If you were the judge who declared the nullity of the marriage, to whom would you award the lot? Explain briefly. (3%)

2. Is Venus legitimate, illegitimate, or legitimated? Explain briefly. (3%)

Civil Law Question: XI

The spouses Peter and Paula had three (3) children. Paula later obtained a judgment of nullity of marriage. Their absolute community of property having been dissolved, they delivered P1 million to each of their 3 children as their presumptive legitimes.

Peter later re-married and had two (2) children by his second wife Marie. Peter and Marie, having successfully engaged in business, acquired real properties. Peter later died intestate.

1. Who are Peter’s legal heirs and how will his estate be divided among them? (5%)

2. What is the effect of the receipt by Peter’s 3 children by his first marriage of their presumptive legitimes on their right to inherit following Peter’s death? (5%)

Civil Law Question: XII

On May 5, 1989, 16-year old Rozanno, who was issued a student permit, drove to school a car, a gift from his parents. On even date, as his class was scheduled to go on a field trip, his teacher requested him to accommodate in his car, as he did, four (4) of his classmates because the van rented by the school was too crowded. On the way to a museum which the students were scheduled to visit, Rozanno made a wrong maneuver, causing a collision with a jeepney. One of his classmates died. He and the three (3) others were badly injured.

1. Who is liable for the death of Rozanno’s classmate and the injuries suffered by Rozanno and his 3 other classmates? Explain. (2%)

2. How about the damage to the jeepney? Explain. (2%)

3. Under the same facts, except the date of occurrence of the incident, this time in mid-1994, what would be your answer? Explain. (2%)

Civil Law Question: XIII

Franz was the owner of Lot E which was surrounded by four (4) lots one of which – Lot C – he also owned. He promised Ava that if she bought Lot E, he would give her a right of way in Lot C.

Convinced, Ava bought Lot E and, as promised, Franz gave her a right of way in Lot C.

Ava cultivated Lot E and used the right of way granted by Franz.

Ava later found gainful employment abroad. On her return after more than 10 years, the right of way was no longer available to her because Franz had in the meantime sold Lot C to Julia who had it fenced.

1. Does Ava have a right to demand from Julia the activation of her right of way? Explain. (2.5%)

2. Assuming Ava opts to demand a right of way from any of the owners of Lots A, B, and D, can she do that? Explain. (2.5%)

Civil Law Question: XIV

Primo owns a pet iguana which he keeps in a man-made pond enclosed by a fence situated in his residential lot. A typhoon knocked down the fence of the pond and the iguana crawled out of the gate of Primo’s residence. N, a neighbor who was passing by, started throwing stones at the iguana, drawing the iguana to move toward him. N panicked and ran but tripped on something and suffered a broken leg.

Is anyone liable for N’s injuries? Explain. (4%)

Civil Law Question: XV

A, B, and C entered into a partnership to operate a restaurant business. When the restaurant had gone past break-even stage and started to garner considerable profits, C died. A and B continued the business without dissolving the partnership. They in fact opened a branch of the restaurant, incurring obligations in the process. Creditors started demanding for the payment of their obligations.

1. Who are liable for the settlement of the partnership’s obligations? Explain? (3%)

2. What are the creditors’ recourse/s? Explain. (3%)

Civil Law Question: XVI

X was the owner of an unregistered parcel of land in Cabanatuan City. As she was abroad, she advised her sister Y via overseas call to sell the land and sign a contract of sale on her behalf.

Y thus sold the land to B1 on March 31, 2001 and executed a deed of absolute sale on behalf of X. B1 fully paid the purchase price.

B2, unaware of the sale of the land to B1, signified to Y his interest to buy it but asked Y for her authority from X. Without informing X that she had sold the land to B1, Y sought X for a written authority to sell.

X e-mailed Y an authority to sell the land. Y thereafter sold the land on May 1, 2001 to B2 on monthly installment basis for two years, the first installment to be paid at the end of May 2001.

Who between B1 and B2 has a better right over the land? Explain. (5%)

Labor Law Examinations Instructions

LABOR LAW

05 September 2010	2 P.M. – 5 P.M.
INSTRUCTIONS This questionnaire is in TWO (2) PARTS: Part I with thirteen (13) questions (numbered I to XIII), contained in seven (7) pages; and Part II with twelve (12) questions (numbered XIV-XXV), 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. HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE. GOOD LUCK! _____________________________________ CONCHITA CARPIO MORALES CHAIRPERSON 2010 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

Labor Law Question: I

TRUE OR FALSE. Explain your answer briefly.

1. Deeds of release, waivers and quitclaims are always valid and binding. (2%)

2. The relations between employer and employee are purely contractual in nature. (2%)

3. As a general rule, direct hiring of Overseas Filipino Workers (OFWs) is not allowed. (2%)

Labor Law Question: II

1. Distinguish the terms “conciliation,” “mediation” and “arbitration.” (3%)

2. Differentiate “surface bargaining” from “blue-sky bargaining.” (2%)

Labor Law Question: III

A, single, has been an active member of the Social Security System for the past 20 months. She became pregnant out of wedlock and on her 7th month of pregnancy, she was informed that she would have to deliver the baby through caesarean section because of some complications. Can A claim maternity benefits? If yes, how many days can she go on maternity leave? If not, why is she not entitled? (3%)

Labor Law Question: IV

A, a worker at ABC Company, was on leave with pay on March 31, 2010. He reported for work on April 1 and 2, Maundy Thursday and Good Friday, respectively, both regular holidays. Is A entitled to holiday pay for the two successive holidays? Explain. (3%)

Labor Law Question: V

Company XYZ has two recognized labor unions, one for its rank-and-file employees (RFLU), and one for supervisory employees (SELU). Of late, the company instituted a restructuring program by virtue of which A, a rank-and-file employee and officer of RFLU, was promoted to a supervisory position along with four (4) other colleagues, also active union members and/or officers. Labor Union KMJ, a rival labor union seeking recognition as the rank-and-file bargaining agent, filed a petition for the cancellation of the registration of RFLU on the ground that A and her colleagues have remained to be members of RFLU. Is the petition meritorious? Explain. (3%)

Labor Law Question: VI

"A" is a member of the labor union duly recognized as the sole bargaining representative of his company. Due to a bargaining deadlock, 245 members of the 500-strong union voted on March 13, 2010 to stage a strike. A notice of strike was submitted to the National Conciliation and Mediation Board on March 16, 2010. Seven days later or on March 23, 2010, the workers staged a strike in the course of which A had to leave and go to the hospital where his wife had just delivered a baby. The union members later intimidated and barred other employees from entering the work premises, thus paralyzing the business operations of the company.

A was dismissed from employment as a consequence of the strike.

1. Was the strike legal? Explain. (3%)

2. Was A’s dismissal valid? Why or why not? (3%)

Labor Law Question: VII

A was an able seaman contracted by ABC Recruitment Agency for its foreign principal, Seaworthy Shipping Company (SSC). His employment contract provided that he would serve on board the Almieda II for eight (8) months with a monthly salary of US$450. In connection with his employment, he signed an undertaking to observe the drug and alcohol policy which bans possession or use of all alcoholic beverages, prohibited substances and un-prescribed drugs on board the ship. The undertaking provided that: (1) disciplinary action including dismissal would be taken against anyone in possession of the prohibited substances or who is impaired by the use of any of these substances, and (2) to enforce the policy, random test sampling would be done on all those on board the ship.

On his third month of service while the Almieda II was docked at a foreign port, a random drug test was conducted on all members of the crew and A tested positive for marijuana. He was given a copy of the drug test result. In compliance with the company’s directive, he submitted his written explanation which the company did not find satisfactory. A month later, he was repatriated to the Philippines.

Upon arrival in the Philippines, A filed with the National Labor Relations Commission (NLRC) a complaint against the agency and the principal for illegal dismissal with a claim for salaries for the unexpired portion of his contract.

1. Was A’s dismissal valid? Explain. (3%)

2. Is his claim for salaries for the unexpired portion of his contract tenable? Explain. (3%)

Labor Law Question: VIII

ABC company and U labor union have been negotiating for a new Collective Bargaining Agreement (CBA) but failed to agree on certain economic provisions of the existing agreement. In the meantime, the existing CBA expired. The company thereafter refused to pay the employees their midyear bonus, saying that the CBA which provided for the grant of midyear bonus to all company employees had already expired. Are the employees entitled to be paid their midyear bonus? Explain your answer. (3%)

Labor Law Question: IX

A was working as a medical representative of RX pharmaceutical company when he met and fell in love with B, a marketing strategist for Delta Drug Company, a competitor of RX. On several occasions, the management of RX called A’s attention to the stipulation in his employment contract that requires him to disclose any relationship by consanguinity or affinity with coemployees or employees of competing companies in light of a possible conflict of interest. A seeks your advice on the validity of the company policy. What would be your advice? (3%)

Labor Law Question: X

A, an employee of XYZ Cooperative, owns 500 shares in the cooperative. He has been asked to join the XYZ Cooperative Employees Association. He seeks your advice on whether he can join the association. What advice will you give him? (3%)

Labor Law Question: XI

Because of continuing financial constraints, XYZ, Inc. gave its employees the option to voluntarily resign from the company. A was one of those who availed of the option. On October 5, 2007, he was paid separation benefits equivalent to seven (7) months pay for his six (6) years and seven (7) months of service with the company and he executed a waiver and quitclaim.

A week later, A filed against XYZ, Inc. a complaint for illegal dismissal. While he admitted that he was not forced to sign the quitclaim, he contended that he agreed to tender his voluntary resignation on the belief that XYZ, Inc. was closing down its business. XYZ, Inc., however, continued its business under a different company name, he claimed.

Rule on whether the quitclaim executed by A is valid or not. Explain. (3%)

Labor Law Question: XII

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%)