Labor Law: Book V; Title VIII; Chapter I Strikes and Lockouts (Arts. 278

Arts. 278 - 281

Q: For what reasons may a union hold a strike?

Q: Why, in the first place, does the law allow strikes at the workplace? Is strike a solution or a problem?

Q: What makes a strike legal or illegal?

Q: May a union member be compelled to join a strike?

Q: Does an employer need prior approval of DOLE to dismiss illegal strikers?

Q: May the employer hire workers to replace the strikers during the strike?

Q: May employees hold protest actions without going on strike?

Art. 278. Strikes, picketing and lockouts.

(a) It is the policy of the State to encourage free trade unionism and free collective bargaining.

(b) Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes.

(c) In case of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 day before the intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting, where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately.

(d) The notice must be in accordance with such implementing rules and regulations as the Minister of Labor and Employment may promulgate.

(e) During the cooling-off period, it shall be the duty of the Ministry to exert all efforts at mediation and conciliation to effect a voluntary settlement. Should the dispute remain unsettled until the lapse of the requisite number of days from the mandatory filing of the notice, the labor union may strike or the employer may declare a lockout.

(f) A decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in meetings or referenda called for that purpose. A decision to declare a lockout must be approved by a majority of the board of directors of the corporation or association or of the partners in a partnership, obtained by secret ballot in a meeting called for that purpose. The decision shall be valid for the duration of the dispute based on substantially the same grounds considered when the strike or lockout vote was taken. The Ministry may, at its own initiative or upon the request of any affected party, supervise the conduct of the secret balloting. In every case, the union or the employer shall furnish the Ministry the results of the voting at least seven days before the intended strike or lockout, subject to the cooling-off period herein provided.

(g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return-to-work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same.

In line with the national concern for and the highest respect accorded to the right of patients to life and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to every extent possible, be avoided, and all serious efforts, not only by labor and management but government as well, be exhausted to substantially minimize, if not prevent, their adverse effects on such life and health, through the exercise, however legitimate, by labor of its right to strike and by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, it shall be the duty of the striking union or locking-out employer to provide and maintain an effective skeletal workforce of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to insure the proper and adequate protection of the life and health of its patients, most especially emergency cases, for the duration of the strike or lockout. In such cases, therefore, the Secretary of Labor and Employment may immediately assume, within twenty four (24) hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by the Secretary of Labor and Employment or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and other affirmative relief, even criminal prosecution against either or both of them.

The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, and from intervening at any time and assuming jurisdiction over any such labor dispute in order to settle or terminate the same.

(h) Before or at any stage of the compulsory arbitration process, the parties may opt to submit their dispute to voluntary arbitration.

(i) The Secretary of Labor and Employment, the Commission or the voluntary arbitrator shall decide or resolve the dispute, as the case may be. The decision of the President, the Secretary of Labor and Employment, the Commission or the voluntary arbitrator shall be final and executory ten (10) calendar days after receipt thereof by the parties.

Notes

Policy and Rights:

State policy encourages free trade unionism and collective bargaining.
Workers have the right to engage in concerted activities for collective bargaining or mutual benefit.
Recognizes the right of legitimate labor organizations to strike and picket, and employers to lockout, but with limitations.

Bargaining Deadlocks:

Duly certified bargaining agent must file a notice of strike or the employer a notice of lockout 30 days before the intended date (15 days for unfair labor practices).
Immediate action allowed in cases of union officers' dismissal constituting union busting.

Cooling-off Period:

Ministry intervenes in mediation and conciliation during the 30-day cooling-off period.

Decision to Strike/Lockout:

Strike decision needs approval by a majority of union members through secret ballot.
Lockout decision needs approval by a majority of the board of directors or partners through secret ballot.
Valid for the duration of the dispute based on substantially the same grounds considered during the vote.

Secretary of Labor's Jurisdiction:

Secretary may assume jurisdiction over disputes in industries indispensable to the national interest.
Assumption or certification automatically enjoins the intended or impending strike or lockout.
In hospitals and medical institutions, efforts to avoid strikes and lockouts are emphasized, and a skeletal workforce is required for emergency cases.

Presidential Intervention:

The President may determine industries indispensable to national interest and intervene in labor disputes.

Voluntary Arbitration:

Parties may opt for voluntary arbitration before or during the compulsory arbitration process.

Finality of Decision:

Secretary of Labor, Commission, or voluntary arbitrator's decision is final and executory ten calendar days after receipt by the parties.

A Valid Strike Needs A Labor Dispute

Fundamentally, a strike can validly take place only in the presence of and in relation to a labor dispute between the employer and employees involved.

Strike

any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. (Article 219)

Labor dispute

includes any controversy or matter concerning terms and conditions of employment or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. (Article 219)

Read together, these provisions mean that a strike is recognized and protected only if the work stoppage is brought about by disagreements regarding terms and conditions of employment or regarding ways to arrange or adjust those terms and conditions.

Where there is no dispute or the dispute has nothing to do with the terms and conditions of employment in the establishment, the stoppage of work by its employees has no basis in labor law.
Employees who engage in such work stoppage actually commit an illegal strike and take the risks and consequences of their illegal act.

Because valid strike presupposes a labor dispute, it follows that a sympathetic or sympathy strike is illegal.

Sympathetic strike

one in which the striking employees have no demands or grievances of their own, but they strike for the purpose of directly or indirectly aiding others, without direct relation to the advancement of the interest of the strikers.

A "welga ng bayan" is in the nature of a general strike which is but an extended sympathetic strike.

It is work stoppage affecting numerous (if not all) employers, including a particular employer who has no dispute with his employees regarding their terms and conditions of employment.
Employees who are scheduled to work should come to work. If they refuse to work to join instead a "welga ng bayan, " they are committing an illegal work stoppage in the absence of a labor or industrial dispute (as defined in the Code) with their employer.

Politically, welga ng bayan can be justified, such as when it is a protest against giving an overthrown dictator and fake hero a hero's burial. It is also, justified to censure the return of an aristocratic demagogic plutocratic plunderer who, later, hypocritically called herself a poor congresswoman.

Avoidance of Strike

Pacific measures or remedies must first be exhausted before strikes are declared.
Our courts have insisted on something analogous to the doctrine of exhausting administrative remedies, by requiring employees to exhaust available means of settling the dispute without resort to strike.
Strikes and other coercive acts are deemed justified only when peaceful alternatives have proved unfruitful in settling the dispute. (PHILMAROA, 103 Phil. 373; Interwood Employees, 99 Phil 82; Union of PECÒ Employees 91 Phil. 93)

The NCMB

An agency that helps avoid strikes by exhaustion of pacific measures is the NCMB.
The National Conciliation and Mediation Board is a dispute-resolution arm under the administrative supervision of the Secretary of Labor and Employment.

Created by E.O. No. 126 in 1987, the NCMB's main task is to help settle labor disputes to prevent actual work stoppages.

Promptly after receipt of notice of strike/lockout, the NCMB conciliator-mediators call the parties to conciliation conferences.

These "con-meds" play the role of "go-between" for the parties to continue communicating and hopefully find a mutually acceptable solution to their conflict.
They listen and empathize, they dissect and simplify issues, they propose and persuade, shuttling between the parties, in search of a win-win formula.
But because they are not judges, they cannot render a verdict.

Conciliation-Mediation

In the NCMB, the hearing officer is called Conciliator-Mediator.

There is no separate classification between conciliators and mediators.
When the Conciliator-Mediator performs his task, he does not make any distinction when he is acting as Conciliator or as Mediator.

However, the following definitions and description of these terms are prescribed:

Conciliation is conceived of as a mild form of intervention by a neutral third party, the Conciliator-Mediator, relying on his persuasive expertise, who takes an active role in assisting parties by trying to keep disputants talking, facilitating other procedural niceties, carrying messages back and forth between the parties, and generally being a good fellow who tries to keep things calm and forward-looking in a tense situation.
Mediation is a mild intervention by a neutral third party, the Conciliator Mediator, whereby he starts advising the parties or offering solutions or alternatives to the problems with the end in view of assisting them towards voluntarily reaching their own mutually acceptable settlement of the dispute.

Any information and statements made at conciliation proceedings should be treated as privileged communication and thus may not be used as an evidence in any proceedings.

They are inadmissible in evidence.
Conciliator and similar officials are not allowed to testify in any court or body regarding any matters taken up at conciliation proceedings conducted by them.
The privileged nature of the communication applies not only in cases conciliation and mediation proceedings before the BLR, its Med-Arbiters or any of its hearing officers but also in similar proceedings conducted by other labor officials, such as the Conciliators-Mediators of the NCMB as well as the Labor Arbiters and the Commissioners of the NLRC.
Privilege Communication:

BLR, Med-Arbiters or any of its hearing officers
NCMB
Labor Arbiters
Commissioners of the NLRC

Con-med can also urge submission of the dispute to preventive mediation or arbitration.

A dispute undergoing preventive mediation or arbitration cannot serve as reason for holding a strike or lockout.
Under preventive mediation, the notice of strike or lockout (if one has been filed) is dropped from the docket.
Under arbitration, the dispute is subjected to the binding judgment of an impartial, independent third person.
Under either proceeding, a strike or lockout is withheld.

Preventive Mediation

"Preventive mediation" is a remedy not found in the Labor Code, but under the law which created the NCMB, it provides preventive mediation to disputing parties.

It covers potential labor disputes that are the subject of a formal or informal request for conciliation and mediation assistance sought either or both parties or upon the initiative of the NCMB to avoid the occurrence of actual labor disputes and in order to remedy, contain or prevent its degeneration into a full blown dispute through amicable settlement.

The term "preventive mediation case" refers to the potential or brewing labor dispute which is the subject of a formal or informal request for conciliation and mediation assistance sought by either or both parties in order to remedy, contain or prevent its degeneration into a full blown dispute through amicable settlement.
Preventive mediation proceeding may be initiated in two (2) ways:

By filing a notice or request of preventive mediation, as distinguished from a notice of strike /lockout; or
By conversion of the notice of strike/lockout into a preventive mediation case.

Filing of the notice of preventive suspension is the first step to submit a case for mediation.

It is only after this step that a submission agreement may be entered into by the parties concerned.
Moreover, just like in notices of strike or lockout, only certified SEBAs may file a notice or request for preventive mediation in cases of bargaining deadlocks and unfair labor practices, the only two (2) grounds that may support a strike or lockout.

As distinguished from a notice of strike/lockout, "notice of preventive mediation" refers to the notification filed by either an employer or a duly registered labor union with the NCMB-DOLE informing the latter of its desire to submit the issues between them for preventive mediation and conciliation.
The issues that may be submitted for preventive mediation may either be:

strikeable or
non-strikeable

Strikeable

In cases of strikeable issues, the parties may mutually agree that the same be treated or converted into a preventive mediation case, in which event, no strike or lockout may be legally and validly mounted based on the same issues since their conversion into preventive mediation case has the effect of dismissing the notice of strike/lockout and removing it from the docket of notices of strike/lockout.

Non-strikeable

In cases of non-strikeable issues raised in a notice of strike or notice of lockout, the NCMB may, motu propio, convert the same into a preventive mediation case or, alternatively, refer said issues to:

voluntary arbitration, if they are in the nature of unresolved grievances or
Med-Arbiter, if they involve representation or inter-union disputes

Converting Notice of Strike/ Lockout Into a Preventive Mediation Case

The NCMB has the authority to convert a notice of strike /lockout filed by the union/employer into a preventive mediation case under any of the following circumstances:

When the issues raised in the notice of strike/lockout are not strikeable in character.
When the party which filed the notice of strike/lockout voluntarily asks for the conversion.
When both parties to a labor dispute mutually agree to have it subjected to preventive mediation proceeding.

To convert a notice of strike or lockout into a preventive mediation case, the following guidelines may be followed:

Clearly determine whether the issue/s raised in the notice of strike/lockout is/are strikeable or not.
If conversion is warranted, a written recommendation from the Conciliator-Mediator handling the case is required, after close consultation with the Regional Branch Director.
The written recommendation must be formally endorsed to the Regional Branch Director II for approval.
The conversion must be done before the cooling-off period expires or before the union conducts its strike balloting.
Parties concerned must be formally notified of the action taken by the Regional Branch Director through a letter signed by the Conciliator-Mediator handling the case and approved by the Director II.
The notice should be dropped from the docket of notices of strike/lockout and to be renumbered as a preventive mediation case and a conference thereon should be set on specific date.

Once the notice of strike is converted into a preventive mediation case, the notice is deemed dropped from the dockets as if no notice of strike has been filed.

Since there is no more notice of strike to speak of, any strike subsequently staged by the union after the conversion is deemed not to have complied with the requirements of a valid strike and therefore illegal.
The same rule applies in the case of lockout by the employer.

Basic Objective of Strike

Basically, a strike is a coercive activity resorted to by employees to enforce their demands.

The idea behind a strike is that a company engaged in a profitable business cannot afford to have its production or activities interrupted, much less, paralyzed.
Any interruption or stoppage of production spells loss, even disaster.
The capital invested in machinery, factory and other properties would be unproductive during a strike while the overhead expenses consisting of salaries of its officials, real estate taxes, and license fees continue. (Philippine Can, July 13, 1950)

Strike and lockout are similar because they both connote temporary stoppage of work.

The difference is in the identity of the doer.

Strike is to the employees' union as lockout is to the employer.

Like strike, lockout may be caused by either a:

collective bargaining deadlock or
an unfair labor practice act of a union

The two are similar also because they both occur in relation to a labor or industrial dispute involving the parties.
Thus, the law treats strike and lockout similarly.

Legality of Strike: The Six Factors Affecting Legality

The authoritative Ludwig Teller says that an illegal strike is one which:

is contrary to a specific prohibition of law, such as strike by employees performing governmental functions; or
violates a specific requirement of law; or
is declared for an unlawful purpose, such as inducing the employer to commit an unfair labor practice against non-union employees; or
employs unlawful means in the pursuit of its objective, such as a widespread terrorism of non-strikers; or
is declared in violation of an existing injunction; or
is contrary to an existing agreement, such as a no-strike clause or conclusive arbitration clause.

In this sequence, the six factors are explained below. See also: Toyota, October 19, 2007.

First Factor in Legality of Strike: Statutory Prohibition

As discussed in the comments to Articles 253-257, government employees have the right to organize. But they do not have the right to strike.
A strike held by them is an example of a strike that violates a legal prohibition, hence illegal.
Even though the strikers (public school teachers) called their action "mass actions" or "peaceable assembly," the Court ruled that those "mass actions" were to all intents and purposes strike, undertaken for essentially economic reasons.

They constituted a concerted and unauthorized stoppage of, or absence from, work.
The actuations of the teachers definitely constituted conduct prejudicial to the best interest of the service, punishable under the Civil Service law, rules and regulations. (Bangalisan, et.al, July 31, 1997)

Second Factor in Legality of Strike: Procedural Requirements

A strike (or lockout), to enjoy the protection of law, must observe certain procedural requirements.
These are mentioned in Article 278 and and the Implementing Rules, namely:

A notice of strike (or lockout), with the required contents, should be filed with the Department of Labor and Employment, specifically the regional branch of the National Conciliation and Mediation Board (NCMB), copy furnished the employer or the union, as the case may be.

Who can file the notice?

If the reason for the strike notice is bargaining deadlock, only the recognized or certified bargaining agent can file the notice.
If the reason is ULP, the notice should be filed by the recognized or certified bargaining agent; in its absence, the LLO affected by the ULP may file the notice.

Only a legitimate labor organization (LLO) can legally hold a strike.

Ununionized employees cannot hold a lawful work stoppage because only a union can file a notice of strike and only a union can take a strike vote among its members and then report its result to NCMB.

A cooling-off period must be observed, i.e, a time gap is required to cool-off tempers between the filing of notice and the start of the actual work stoppage.

The cooling-off period is:

thirty days in case of bargaining deadlock and
15 days in case of unfair labor practice.

However, in case of union-busting as defined in Article 264(c), the 15-day cooling-off period shall not apply and the union may take action immediately after the strike vote is conducted and the results submitted to the Board. (See Implementing Rules, Book V, Rule XX, Sec. 3.)

During the cooling-off period, the NCMB mediates and conciliates the parties.

They are not allowed to do any act which may disrupt or impede the early settlement of the dispute.
As part of their duty to bargain, they are obliged to participate fully and promptly in the NCMB meetings.

Before a strike may actually start, the union should take a strike vote by secret balloting in meetings or referenda, with 24-hour prior notice to NCMB.

The decision to declare a strike requires the secret-ballot approval of majority of the total union membership, not just majority of the members attending the meeting.
Similarly, a lockout needs the secret-ballot concurrence of majority of the directors or partners.

The result of the strike (or lockout) vote should be reported to the NCMB at least seven days before the intended strike or lockout, subject to the cooling-off period.

An NCMB Primer indicates that the seven-day reporting period and the cooling-off period (if required) run separately are counted separately.

In other words, the seven days are in addition to the 15 or 30 days cooling-off period. X = 7 + 15 (or 30)

The cooling-off period and the seven-day reporting period are two different mandatory requirements.

And they must be separately counted because they have different purposes — one is devoted to conciliation efforts, the other to verification of the voting report. (See Capitol Medical Center, April 26, 2005.)

No strike or lockout shall be declared after certification or submission of the dispute to compulsory or voluntary arbitration, nor may a strike or lockout be declared during the pendency of cases involving the same grounds for the strike or lockout.

Hence, no strike or lockout shall be declared:

after assumption of jurisdiction by the President or the Secretary, or
while the case is pending in arbitration, whether compulsory or voluntary.

In Gold City Integrated Port Service, Inc. vs.NLRC, July 6, 1995, the strike, according to the court, was illegal because the workers failed to comply with the requirements of Article 278, particularly pars. (c) and (f) requiring a notice of strike and a strike vote through secret balloting.
Neither did the striking workers observe the cooling-off period and the strike vote reporting requirements. The court reiterated:

"As we stated in the case of National Federation of Sugar Workers vs. Ovejera, G.R. No. 1-59743, May 31, 1982, the language of the law leaves no room for doubt that the cooling-off period and the seven-day strike ban after the strike-vote report were intended to be mandatory."
A strike or walkout on the basis of grievances which have not been submitted to the grievance committee, as stipulated in the agreement of the parties sanctioned by the CIR [now NLRC], is premature and illegal. (Insurefco Paper Pulp, 95 Phil.761. See 51 C.J.S. 1088 and 48 Am Jur 2nd 795; GOP-CCP Workers Union us. CIR, 93 SCRA 116; also San Miguel Corp., etc., G.R. No. 99266, March 2, 1999)

Third Factor in Legality of Strike: Purpose; Economic and ULP Strike

A strike may legally be held because of either or both:

a collective bargaining deadlock and/or
an unfair labor practice act of the employer.

A strike not based on any of these two causes is necessarily tainted with illegality.

Economic strike is intended to force wage and other concessions from the employer, which he is not required by law to grant. (Consolidated Labor Association, 11 SCRA 589)

It is declared for the purpose of:

securing higher wages

other immediate conditions of labor, such as a:

shorter work-day
higher rate of overtime compensation
other economic benefits that are usually included in a collective bargaining contract

It is also known as bargaining strike. (Mastro Plastics Unfair Corp. vs. NLRB, 350 US 270)

Unfair labor practice strike is held against the unfair labor practices of the employer, usually for the purpose of making him desist from further committing them. (Mastro Plastics Corp. vs. NLRB, 350 US 270)
There are two tests in determining the existence of an unfair labor practice strike:

Objectively, when the strike is declared in protest of unfair labor practice which is found to have been actually committed; and
Subjectively, when a strike is declared in protest of what the union believed to be unfair labor practices committed by management, and the circumstances warranted such belief in good faith, although found subsequently as not committed. (Norton and Harrison, 29 SCRA 310, 315)

This is the doctrine of ULP strike in good faith.

But even this kind of "good-faith strike" must comply with the notice requirement and the other mandatory requirements of holding holding a a lawful strike.
Inter-union and intra-union disputes and violation of labor standards laws are not valid grounds for strike or lockout. The law provides for med-arbitration procedures in the disposition of inter-and intra-union disputes, and labor enforcement in the case of labor standards violations. (DOLE Guidelines Governing Labor Relations, October 19, 1987)
Salary distortion is a non-strikeable issue. (Ilaw at Buklod ng Manggagawa, June 27, 1991)

Not valid grounds for strike or lockout:

inter-union disputes
intra-union disputes
violation of labor standards laws
salary distortion

The employees' unjustified alteration of the 24-hour work schedule through their concerted activities of "overtime boycott" and work slowdown" can be classified as a strike on an installment basis.

It constituted a violation of their CBA which prohibits the union or employee, during the existence of the CBA, to stage or engage in slowdown or interruption of work. (Interphil, etc, December 19, 2001)

Fourth Factor in Legality of Strike: Means and Methods

A strike has to be pursued within the bounds of law.
A strike does not suspend the binding force of law; it does not place the strikers above the law or above their fellowmen.
In other words, the right to self-organization and the right to strike, as off-springs of the industrial civilization, are not envisioned to create an uncivilized situation.
Thus, the law puts limits to their exercise.
These limits are among the activities prohibited under Article 279 particularly par, (e), It states that "no person engaged in picketing shall:

commit any act of violence, coercion or intimidation, or
obstruct the free ingress to or egress from the employer's premises for lawful purposes, or
obstruct public thoroughfares."

If the picket, although peaceful and moving effectively blocked the entry and exit points, then the picket constitutes illegal obstruction, thus making the strike illegal. (Phimco Industries, August 11, 2010)
Coercing or threatening non-striking employees is illegal. As commented under Article 260, such act amounts to unfair labor practice by a labor organization.
The use of violence or threat to pursue labor rights is punishable under the Revised Penal Code, Article 289.

Fifth Factor in Legality of Strike: Injunction; "National Interest" Disputes

Virtually every employer dislikes a strike and, when it is held, wants it stopped.
For this purpose, he needs to secure writ of injunction which is a command to do or not to do something.
The labor injunction is an employer's most effective remedy in a labor dispute. However narrow its scope, the issuance of an injunction for any purpose in a labor dispute will generally tip the scales of the controversy.
The issuance of an injunction in the early phases of a strike can critically sway the balance of the economic struggle against the union.
Mainly because of its drastic effect, labor injunction is not favored in law.

Thus, Article 266 (in the preceding chapter) states that labor disputes are generally not subject to injunction.
Injunction is frowned upon as a matter of labor relations policy.
The law prefers voluntary and peaceful means of dispute settlement.

Nonetheless, the protective force of law will be applied when prohibited or unlawful acts are being or about to be committed that will cause grave or irreparable damage to the complaining party.

Article 266 itself indicates that where Article 279, regarding prohibited acts, is being violated, the anti-injunction policy will be brushed aside and a writ of injunction or restraining order will issue following the procedure under Article 225.

Even in non-"national interest" disputes the NLRC can enjoin the strike itself (not just the illegal acts in the course of the strike) if the strike or the threatened strike is illegal because it lacks the required notice of strike or it violates the CBA's arbitration clause.

Not to issue a writ of injunction in such a situation is an abuse of discretion by NLRC. (San Miguel Corp., G.R. No. 119293, June 10, 2003)

"National Interest" Cases

"National interest" disputes are treated differently.
Injunction in "national interest" cases is expressly allowed under the present Article, par. (g).

This therefore is an additional exception to the no-injunction rule under Article 265.
In fact, in "N.I." cases, an injunction may be issued automatically, that is, even if none of the parties asks for it.
This takes the nature of automatic injunction.

Prohibited under Articles 278(g) and 279 is the the holding of a strike or lockout after assumption of jurisdiction, by the President or the Secretary Labor or after certification or submission of the dispute to compulsory or voluntary arbitration.

By assumption of jurisdiction, the Secretary steps into the picture and helps the parties settle their dispute.
By assigning or certifying the case to the NLRC, the Secretary places the dispute under compulsory arbitration.

Article 278(g) grants extraordinary and preemptive power.

This grant is not limited to the grounds cited in the notice of strike or lockout.
It gives the Secretary full authority to resolve all matters arising from or related to the dispute, including cases over which the NLRC's labor arbiter has exclusive jurisdiction.
And when the Secretary makes an arbitral award, it is considered an approximation of collective bargaining that has the force and effect of a valid contract obligation. (Cirteh Employes, November 15, 2010)
To such an award, the hold-over principle applies, i.e., the CBA continues in full effect until a new agreement is reached. (General Milling, June 15, 2011)

The court has ruled that the exercise of the assumption power does not need the existence of actual deadlock in the CBA negotiation.

It is enough that a controversy exists between the employer and the negotiating union because of their differing proposal and counterproposal.

In one case, the union was asking for a 20% wage increase, while the management proposed a P80,000.00 lump sum pay increase for all the covered employees.
The union alleged that the management was bargaining in bad faith.
When the DOLE Secretary assumed jurisdiction over the case, the union objected.
The court upheld the assumption order. It ruled that the Secretary did not abuse his discretion because a dispute was already existing — a dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest. (Tabangao Shell, April 7, 2014)

In actual implementation, however, the DOLE Secretary proceeds cautiously in assuming jurisdiction over a dispute.
One of two situations must exist before he (or she) issues an assumption or a certification order, namely:

Both parties have requested the Secretary of Labor and Employment to assume jurisdiction over the labor dispute; or
After a conference called by the office of the Secretary of Labor and Employment on the propriety of its issuance, motu propio or upon a request or petition by either [party] to the dispute. (D.O. No, 40-G-03, March 29, 2010)

Nonetheless, consistent with Articles 218(a) and 275, the present Article 278(h) allows the parties, at any stage, to withdraw the case from compulsory arbitration to bring it instead to a voluntary arbitrator.

The Court holds in International Pharmaceutical that the Secretary's jurisdiction over "N.L." labor disputes extends to all questions arising from that dispute. However, the Court excepted from this ruling the situation where in their CBA the parties categorically agreed that disputes between them shall be referred to the grievance machinery which ends in voluntary arbitration. (University of San Agustin, March 28, 2006)

The assumption or certification has the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order.
If a strike or lockout has already in taken place at the time of assumption or certification, all striking or locked out employees shall immediately return to work and the employer shall immediately resume the operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout.
Assumption and certification orders are executory in character and are to be strictly complied with by the parties even during the pendency of any petition questioning their validity.

This extraordinary authority given to the Secretary of Labor is aimed at arriving at a peaceful and speedy solution to labor disputes, without jeopardizing national interests.

Regardless therefore of their motives, or the validity of their claims, the striking workers must cease and/or desist from any and all acts that tend to, or undermine this authority of the Secretary of Labor, once an assumption and/or certification order is issued. They cannot, for instance, ignore return-to-work orders, citing unfair labor practices on on the part part of the company, to justify their actions. (Union of Filipro Employees, December 19, 1990)

Actual, Not Payroll, Readmission

Under the third sentence of Article 278(g), the employer has to readmit all workers "under the same terms and conditions."
This phrase contemplates actual, not payroll, reinstatement of the workers.

The Supreme Court (through Justice Azcuna) reiterates that "this law was written as a means to be used by the State to protect itself from an emergency or crisis. It is not for labor, nor is it for management." (Manila Diamond Hotel Employes Union, December 16, 2004)
The placement of the striking teachers to "substantially equivalent academic assignments" could not be considered reinstatement under the "same terms and conditions prevailing before the strike." (University of Sto. Tomas vs. NLRC, 190 SCRA 758 [1990])
In a case of striking ship personnel, the order of readmission simply means they should be returned to their [same] ship assignment as before they staged their strike. The employer is mandated to issue embarkation order to the employees despite the employer's apprehension over peace and safety in the ship. (Trans-Asia Shipping, G.R. No. 145428, July 7, 2004)

The assumption or certification order under Article 278 (g) has the effect of regulating the management prerogative of determining the assignment or movement of employees. Thus, pending the resolution of the dispute, the lay-off of 94 rank-and-file employees was declared illegal as it was violative of the assumption order. (Metrolab Industries, Inc. vs. Roldan-Confesor 254 SCRA 182 [1996])

Exception: Payroll Readmission

Payroll reinstatement [under Article 278(g)] in lieu of actual reinstatement is a departure from the rule in these cases and there must be a showing of special circumstances rendering actual reinstatement impracticable... or otherwise not conducive to attaining the purpose of the law. (Manila Diamond Hotel Employees' Union, December 16, 2004)
One of the "superseding circumstances" that justifies payroll reinstatement [instead of actual reinstatement which is the norm in readmission of workers under Article 264(g)] is the fact that the subject employees positions were declared confidential in nature by a panel of voluntary arbitrators.

Insisting on their actual reinstatement is impracticable and more likely to exacerbate on the situation. In ordering payroll rather than actual reinstatement the Secretary of Labor did not abuse his discretion. (University of Immaculate Concepcion, Inc, January 14, 2005)

Defiance or Abandonment

A strike that is undertaken despite the issuance by the Secretary of Labor of an assumption or certification order becomes a prohibited activity and thus illegal, pursuant to the second paragraph of Article 279 of the Labor Code, as amended. (Zamboanga Wood Products, October 13, 1989)
Defiance to the assumption and return-to-work orders of the Secretary after he has assumed jurisdiction is a valid ground for loss of the employment status of the defiant union officer or member.

The refusal to receive such orders and other processes is described by the Supreme Court in Navale, et al. vs.CA, 253 SCRA 705, as an "apparent attempt to frustrate the ends of justice." (See also: University of San Agustin, March 28, 2006.)

Those strikers who defy the order and refuse to return to work cannot complain if they are deemed to have forfeited their employment as a consequence of their intransigence. (Sarmiento vs. Tuico, June 27, 1988)
Not only union officers but also union members who defy return-to-work order are subject to dismissal. They are deemed to have participated in an illegal act. (St. Scholastica's College, June 29, 1992)
Abandonment of work as a ground to dismiss under Article 297(b) of the Code should not be confused with abandonment of work under the law on strike, particularly under Articles 278 and 279.

The rule in employee dismissal is that to constitute abandonment of position there must be concurrence of the intention to abandon and some overt act from which it may be inferred that the employee has no more interest in working.
This rule is available as a defense against dismissals under Article 297. But the same rule cannot be invoked in dismissals resulting from a striker's defiance of return to work order under Articles 278 and 279. (See Allied Banking Comp., July 12, 1996.)

But the dismissal of the defiant employee cannot happen automatically.
Due process has to be observed. The fact of issuance of the order, of its service to the employee, and of his unjustified defiance should be established.
What appears as defiance may turn out to be not defiance at all. The employee is entitled to ample opportunity to air his side before he loses his job.
Still, it should be stressed that assumption or certification order is legally allowed only in "national interest" cases.
In "non-N.l." cases, the anti-injunction policy under Article 266 prevails.

What Are "National Interest Industries"? The List under D.O. No. 40-H of 2013

The question remains: what is a "national interest" case?
The law gives no answer and leaves the matter to the circumstances as assessed by the secretary's sound judgment.
Thus, the law says, "When, in his opinion. But the discretion, though unbound, cannot be capricious or abusive. Judicial precedents therefore have established some justifying criteria, such as the size of the work force affected, the kind of products or services involved, the effect on the public, or the impact to the economy. The absence of statutory definition or criteria of industries that are "indispensable to national interest" has caused much disputation. This fact prompted the DOLE to issue Department Order No. 40-H-13 (dated October 21, 2013). It amended D.O. No. 40-G-03, Series of 2010, by, among other things, adding a new section which reads:

Section 16. Industries Indispensable to the National Interest—
For the guidance of the workers and employers in the filing of petition for assumption of jurisdiction, the following industries/services are hereby recognized as deemed indispensable to the national interest:

hospital sector;
electric power industry;
water supply services, to exclude small water supply services such as bottling and refilling stations;
air traffic control;
such other industries as may be recommended by the National Tripartite Industrial Peace Council (NTIPC)
banking

R.A. No. 8791, or "The General Banking Law of 2000," approved on April 12, 2000, explicitly classifies banking as an industry indispensable to the national interest.

Action After Issuance of Order

Aside from enumerating some "national interest" industries, D.O. No. 40-H13 also specifies some action.
It says: "Within five (5) days from the issuance of the Assumption or Certification order, a preliminary conference or hearing shall immediately be conducted by the Office of the Secretary of Labor and Employment, the NLRC or the voluntary arbitrator or panel of voluntary arbitrators as the case may be."

Decision within 30 Days

D.O. No. 40-H-13 reiterates the earlier directive: The decision of Secretary of Labor and Employment, the NLRC or Voluntary Arbitrator, or Panel of Voluntary Arbitrators shall be rendered within thirty (30) calendar days from submission of the case for resolution and shall be final and executory ten (10) calendar days after receipt thereof by the parties.

Sixth Factor in Legality of Strike: Agreement of the Parties

A no-strike clause in a CBA is applicable only to economic strikes.
Therefore, if the strike is founded on an unfair labor practice of the employer, the strike declared by the union cannot be considered a violation of the no strike clause. (Philippine Metal Foundries, 90 SCRA 135 [1979]; Master Iron, February 17, 1993)
As already mentioned, the employees' "overtime boycott" and "work slowdown" amount to a strike that violates the no-strike clause in the CBA. (Interphil, December 19, 2001)

Art. 279. Prohibited Activities.

(a) No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in the preceding Article or without the necessary strike or lockout vote first having been obtained and reported to the Ministry.

No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout.

Any worker whose employment has been terminated as a consequence of an unlawful lockout shall be entitled to reinstatement with full back wages. Any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status: Provided, That mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike.

(b) No person shall obstruct, impede, or interfere with by force, violence, coercion, threats or intimidation any peaceful picketing by employees during any labor controversy or in the exercise of the right of self-organization or collective bargaining, or shall aid or abet such obstruction or interference.

(d) No public official or employee, including officers and personnel of the Armed Forces of the Philippines or the Integrated National Police, or armed person shall bring in, introduce or escort in any manner any person who seeks to replace strikers in entering and/or leaving the premises of a strike area or to work in place of the strikers: Provided, That nothing herein shall be interpreted to prevent any public officer from taking any measure necessary to maintain peace and order and/or protect life and property.

(e) No person engaged in picketing shall commit any act of violence, coercion or intimidation or obstruct the free ingress to or egress from the employer’s premises for lawful purposes, or obstruct public thoroughfares.

Notes:

(a) Preconditions for Strikes/Lockouts

Collective bargaining according to Title VII
Filing of the notice required (declaring a strike or lockout mandated)
Necessary strike or lockout vote obtained and reported to the Ministry

Prohibitions on Declaration of Strike or Lockout

After assumption of jurisdiction by the President or the Minister
After certification or submission of the dispute to compulsory or voluntary arbitration
During the pendency of cases involving the same grounds for the strike or lockout.

Effect: Entitled to Reinstatement with Full Back Wages

Any worker whose employment has been terminated as a consequence of an unlawful lockout.

Effect: Loss of Employment Status

Any union officer who knowingly participates in an illegal strike
Any worker or union officer who knowingly participates in the commission of illegal acts during a strike

mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike.

(b) Prohibited Acts in the Exercise of Self-Organization or Collective Bargaining

obstruct
impede
interfere with by:

force
violence
coercion
threats
intimidation

aid or abet such obstruction or interference

(c) Strikebreakers

Employers forbidden from employing strikebreakers.
A person is forbidden from being a strikebreaker.

(d) Prevention of Personnel Escorted by Officials:

Who:

public official or employee
officers and personnel of the Armed Forces of the Philippines
officers and personnel of the Integrated National Police,
armed person

Prohibited Acts:

bring in
introduce
escort in any manner

Any person who seeks to:

to replace strikers in entering and/or leaving the premises of a strike area
to work in place of the strikers:

That nothing herein shall be interpreted to prevent any public officer from taking any measure necessary to maintain peace and order and/or protect life and property.

(e) Picketing Restrictions

Picketing individuals must refrain from:

violence
coercion
intimidation
obstruct free ingress to or egress from the employer’s premises
obstruct public thoroughfares.

Picketing

Article 279(b) protects peaceful picketing.
Picketing consists in walking or patrolling in the vicinity of a place of business involved in a labor dispute to inform the public about an ongoing dispute.

Picketing usually accompanies a strike, but picketing, as a form of protest action, may happen even if there is no strike or work stoppage.

The right to picket as a means of communicating the facts of a labor dispute is a phase of the freedom of speech guaranteed by the Constitution. (People vs. Calica, March 1, 1957)
But while peaceful picketing is entitled to protection as an exercise of free speech, the courts are empowered to confine or localize the sphere of communication or the demonstration to the parties to the labor dispute.
The Court may insulate establishments or persons with no industrial connection or having interest totally foreign to the context of the dispute.
Thus, the right may be regulated at the instance of third parties or "innocent bystanders."

The "bystander" establishment which is entitled to enjoin a labor strike or picket must be entirely different from, without any connection whatsoever to, either party to the dispute. If such establishment is in fact partly owned by the employer struck against, and, furthermore, produces the same product and uses the same factory and machinery which said employer owns, then the bystander rule does not apply. The petition for a writ of injunction may be denied. (MSF Tire, August 5, 1999)

Permissible activities of the picketing workers do not include obstruction of access of customers.
Pickets may not aggressively interfere with:

the right of peaceful ingress and egress to and from the employers' shop, or
obstruct the public thoroughfares

Picketing is not peaceful where the sidewalk or entrance to a place of business is obstructed by pickets parading around in a circle or lying on the sidewalk.
Picketing carried on with intimidation, threats, coercion, or force is unlawful, however laudable the strikes' motive or purpose, and regardless of whether the intimidated persons are the employer's employees or potential employees or customers.
Vandalism and acts of a less terroristic nature which are also designed to cause physical discomfort to the employer's customers are unlawful.

A picket, although peaceful and moving, may constitute illegal obstruction if it effectively blocks the entry and exit points of the company premises, thus violating the law and making the strike itself illegal. (Phimco Industries Labor Association, August 11, 2010)

In short, the laws of the land are not suspended during a strike or picket.

The strikers or picketers do not personify the law just because they have a valid grievance or because they have strength in number.
Strike and picketing are grants by law, and are regulated by law.
Nemo est supra legis. (No one is above the law.)

Consequences of Concerted Actions: Employment Status

We should stress that a strike is not favored in law.
Strike is work stoppage that entails lost earnings of employers and employees.

Unions and workers debate and deliberate — even prayerfully — before they do decide to hold a strike.
They realize it's a costly decision, one that may even cause losing their jobs.

Whether to strike or not is a quandary that needs a cool-headed weighing of facts and options.

It calls for an open and democratic evaluation of contending views to be be adjudged in a secret balloting.

Every step ought to be studied carefully because doing an illegal strike is a legal reason to dismiss and employees.

Gleaned from the "six and factors" discussed above, Philippine law and regulations abound with pitfalls and potholes discussed that can trap workers into an illegal strike.

What can happen to strikers?

Article 279 differentiates between union members and union officers who participate in a strike.

Participation of a worker in a lawful strike does not constitute sufficient ground for termination of his employment.

Even his participation in a strike that turned out to be illegal does not necessarily result in his loss of job.

But anyone who commits an illegal act (e.g., destruction of property) during a strike may be dismissed from employment, whether he is a member or an officer of the union and regardless of whether the strike itself is legal not.

Particularly as regards union officers, any union officer who:

knowingly participates in an illegal strike or
knowingly participates in the commission of illegal acts during a strike, even if the strike is legal

may be declared to have lost his employment status.

In plain language, an illegal dismisses the illegal striker.
Nonetheless, the kind and extent of the officer's participation should be proved with certainty. The fact that he is an officer is not reason enough to dismiss him. (Fadriquelan, June 8, 2011)
The officers and members are treated differently because of their positions.

Officers are leaders, members are followers. Union officers have the duty to guide their members to observe the law.
If, instead of doing so, the officers urged the members to violate the law and defy the duly constituted authorities, their dismissal from the service is a just penalty for their unlawful acts and misguided leadership.
The officers' responsibility is greater than that of the members. (See Continental Cement, August 30, 1990.)

May the Employer Instruct the Strikers to Stop the Strike and Return to Work?

Because the striking employees were blocking the entry and exit areas, the employer issued to them a "Notice to Return to Work." Those who did not comply with the notice were dismissed on ground of "insubordination", "abandonment," etc. Is the strikers' dismissal legal?
The Court ruled that disobedience to the directive from the employer
was not itself a valid ground of dismissal.

The employees' right to exercise their right to concerted activities should not be defeated by the directive from [the employer] for them to return to work."
By striking the employees were asserting their right to demand improvement in their terms and conditions of work.
A return-to-work memorandum from their employer does not suffice to stifle their constitutional right. (Hong Kong and Shanghai Banking Corp. January 11, 2016)

Who Dismisses the Illegal Strikers?

Article 279, third paragraph states that the union officer or worker x x x "may be declared to have lost his employment status." Who makes the declaration?
In the Gold City case, the Supreme Court made these statements:

The fate of private respondent — union officers — is different. Their insistence for unconditional reinstatement or separation pay and backwages is unwarranted and unjustified. For knowingly participating in an illegal strike, the law mandates that a union officer may be terminated from employment.
Notwithstanding the fact that Inport [the employer] previously accepted other union officers and that the screening required by it was uncalled for, still it cannot be gainsaid that it possessed the right and prerogative to terminate the union officers from service. The law, in using the word "may," grants the employer the option of declaring a union officer who participated in an illegal strike as having lost his employment. (Gold City Integrated Port, July 6, 1995)

Dismissible strikers may be dismissed from employment although the employer has not filed a complaint denouncing the illegality of the strike. (Jacinilt Industries, March 20, 2009)

Employer's Right to Hire Replacements During Strike

Under present law, the employer may hire workers to replace the striking employees.

This is plain from Article 279, third paragraph. which reads in part:
"Mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike."

It has been held that during the pendency of an economic strike, the employer may hire replacements on a permanent basis and is not bound to discharge such permanent replacements in the event that the strikers decide to resume their employment. (Consolidated Labor Assn., 11 SCRA 589 [1964])
On the other hand, while replacements may also be hired by the employer to take the places left vacant by employees engaged in an unfair labor practice strike, such replacements are not permanent and the employer is under a duty to dismiss them as soon as the strikers request reinstatement to their previous position. (Insular Life Assurance, 37 SCRA 244 [1971); Cromwell Employees, 12 SCRA 124 [1964])
A lawful strike, it should be remembered, is a protected workers' activity.

An employee on strike is still an employee.
After the strike, he has the right to reassume his job unless in the meantime he has lost it by committing certain illegal acts.

What the law prohibits is not the hiring of temporary replacements but the use of strike-breakers.

Strike-breakers are not bona fide workers; they are trouble-makers. (See the definition in Art. 219[r].)

The Code does not prohibit the hiring of temporary replacements.

But D.O. No. 174 (March 16, 2017), like the previous D.O. No. 18-A, prohibits contracting out of a job, work, or service directly related to the business or operation of the principal by reason of a strike or lockout, whether actual or imminent.

Backwages

"No work, no pay" is the general rule during a strike or lockout.
In an economic strike, the strikers are not entitled to backwages because of the principle that "a fair day's wage" accrues only for a "fair day's labor." This has been established even in pre-Industrial Peace Act era. (Heilbronn, January 20, 1953)
In unfair labor practice strike, two types of employees should be distinguished, namely:

those who were discriminatorily dismissed for union activities, and
those who voluntarily went on strike even if it is in protest of an unfair labor practice

Discriminatorily dismissed employees

receive backpay from the date of the act of discrimination, that is, from the day of their illegal discharge in other words, the law on dismissal (Book VI of the Code) applies.

The rest of the employees
- who struck as a voluntary act of protest against what they considered unfair labor practices of the company are not entitled to backwages.
- The stoppage of their work was not the direct consequence of the company's unfair labor practice.
- Hence, their economic loss should not be shifted to the employer. (See Dinglasan, November 28, 1959; Cromwell Commercial, September 30, 1964.)
Nevertheless, even after the court has made a finding of unfair labor practice, it has the discretion to determine whether to grant backpay.

Such discretion was not abused when the court denied backwages to complainants considering the climate of violence which attended the strike and picket that the complainants conducted. (See Consolidated Labor; 11 SCRA 589 [1964].)
In 2011 in Abaria vs. MCCH, the court reiterated its holding in G&S Transport vs. Infante (2007) where the court denied backwages to the workers whose strike was found illegal.

They were not awarded backwages because they rendered no work during the strike but whose dismissal was also illegal.
The principle of no "fair day's wage for a fair day's work" was applied.

The exception, however, is where the workers offered to return to work but were illegally locked out.

In such case, they should be entitled to backwages.
But this exception applies only if the strike itself was legal.

If the strike was illegal such workers would not be entitled to backwages even if their dismissal was later found unwarranted, (See Abaria us, MCCH, December 7, 2011.)*

We call attention, however, to a significant decision in 2016.

The Supreme Court ruled that employee-strikers who were illegally dismissed were entitled to backwages (as provided in Art, 294) from the time they were dismissed until their reinstatement.
Their backwages should exclude only the period they were on strike. (Hong Kong and Shanghai Banking Corp, January 11, 2016)

No Firearms, No Violence, No Threats

Workers who want to work during a strike may legally do so, but they:

❌ cannot bear firearms
❌ cannot be accompanied any armed person, either policeman or civilian.

The employer or the union cannot employ:

❌ violence
❌ threats
❌ coercion

These acts are unlawful with or without a strike/lockout.
The role of military personnel posted in a strike location is to enforce law and legal order, but they should keep out of the picket line unless actual violence or other criminal acts occur there.
The DOLE Guidelines for the Conduct of INP/AFP Personnel During Strikes instructs police/military personnel to maintain themselves outside a 50-meter radius from the picket line.
However, if the 50-meter radius includes a public thoroughfare, they may station themselves at that thoroughfare to keep free flow of traffic.

Non-striking Union Members

What may the union do to its non-striking members?

The union may persuade, but cannot coerce or intimidate them to join the strike.
Moreover, the union may enforce its rules on acquisition and retention of membership as spelled out in the union by-laws.
This is allowed in Article 259(a).

To enforce members' obligations is legal and to strike is a legal right.
But any right, if abused, becomes a legal wrong.

Art. 280. Improved offer balloting.

In an effort to settle a strike, the Department of Labor and Management shall conduct a referendum by secret balloting on the improved offer of the employer on or before the 30th day of the strike. When at least a majority of the union members vote to accept the improved offer, the striking workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement.

In case of a lockout, the Department of Labor and Employment shall also conduct a referendum by secret balloting on the reduced offer of the union on or before the 30th day of the lockout. When at least a majority of the board of directors or trustees or the partners holding the controlling interest in the case of a partnership vote to accept the reduced offer, the workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement.

Notes:

Settlement Referendum Process:

Department of Labor and Management conducts a secret ballot referendum.
For strikes:

Union members vote on the improved offer by the employer within 30 days of the strike.

For lockouts:

Board of directors, trustees, or controlling partners vote on the reduced offer by the union within 30 days of the lockout.

Acceptance Criteria:

Strike resolution:

Majority of union members must accept the improved offer.

Lockout resolution:

Majority of the governing body (board of directors, trustees, or controlling partners) must accept the reduced offer.

Immediate Action Upon Acceptance:

If criteria are met, striking workers must return to work immediately.
Employers must readmit workers upon the signing of the agreement.

Department of Labor and Employment's Role:

Facilitates the referendum process for both strikes and lockouts.

Timing Requirement:

Referendum to be conducted on or before the 30th day of the strike or lockout for resolution.

Notes:

A device to shorten if not avert a strike is the "improved offer balloting" mentioned in Article 280, an innovative idea introduced by R.A. No. 6715 (March 21, 1989).
Sometimes a strike occurs because of:

miscommunication between the parties, or
because a party merely wants to make a show of force, or
to test the other's last bargaining position.

Sometimes after a strike has actually begun and the parties have started feeling its pernicious effects, either the employer or the union wants to end the strike, but neither of them wants to take the first conciliatory step because to do so might mean a "loss of face." That's Filipino psyche.
Article 280 helps a party extricate itself, without losing face, from a fruitless impasse, at times prolonged by an egoistic posture. The improved offer balloting, in other words, opens a graceful exit to break a stalemate.

Art. 281. Requirement for Arrest and Detention.

Except on grounds of national security and public peace or in case of commission of a crime, no union members or union organizers may be arrested or detained for union activities without previous consultations with the Secretary of Labor.

Requirement for Arrest and Detention:

grounds of national security
grounds of public peace
commission of a crime

Questions:

What is a labor dispute?

A labor dispute is a controversy or matter concerning the terms and condition of employment or representation of the employees in collective bargaining.

What is the main objective of a strike? Explain.

The main objective of a strike is to coerce the employers to enforce the demands of the employees by interrupting their productivity.

Briefly explain the six factors affecting the legality of a strike.

The following are the six factors affecting the legality of strike:

Contrary to prohibition of law

A strike is illegal if it is prohibited by laws or regulation, such as strike by government employees.

Violation of specific legal requirement

A strike is illegal if it violates legal requirements, such as procedure or notice.

Declared for unlawful purpose

A strike is illegal if the purpose is unlawful, such as if motivated by subversive goals.

Employs unlawful means

A strike is illegal if it employs violence or intimidation, such as threatening other employees not participating in the strike.

Violation of existing injunction

A strike is illegal if it violates an existing injunction issued by the court prohibiting a strike.

Contrary to existing agreements

A strike is illegal if there is an agreement between the employer and the employees, such as a no-strike clause in the Collective Bargaining Agreement.

Search This Blog

sic itur ad astra

Labor Law: Book V; Title VIII; Chapter I Strikes and Lockouts (Arts. 278 - 281)

Comments

Post a Comment

Popular posts from this blog

Equality and Human Rights: The United Nations and Human Rights System (September 16, 2023)

Commercial Laws 1: R.A. No. 11057 — Personal Property Security Act

Land Title and Deeds: Chapter 1 — What Lands are Capable of Being Registered