arbitration (NCMB Revised Procedural Guidelines in the Conduct of Voluntary Arbitration Proceedings, Rule Il, Sec. 1(), October 15, 2004) Voluntary Arbitrator is different from a Mediator A mediator is a disinterested 3" party who helps settle disputes involving terms and conditions of a CBA. He is assigned and paid by the State and is not selected by the parties. He renders no final and binding decision, but merely suggests solutions. Voluntary arbitrators have no tenure of office and are not politically appointed or elected. Their primary function is to provide for a process for the ‘orderly disposition of disputes and a foundation for stable labor-management relations. Effect of Merger and Consolidation te y Doctrine states, that, a duty to arbitrate arising from a CBA.survives the employer's ceasing to do business as a Separate entity after itS'merger with @ substantially large. corporation, so as to be binding on the largerscorporation,. where. relevant similarity and continuity-of operations across the change in ownership is evidenced by thé vinolesalé transfer of smaller corporation's employees to the larger corporation's plarit:(2AZUCENA,.supra at 507). ARTICLE 274: JURISDICTION’ OF ‘VOLUNTARY ARBITRATORS OR PANEL, OF VOLUNTARY ARBITRATORS 4 kee See the Revised Procedural “Guidelines” in. the Conduct of Voluntary Arbitration Proceedings. Arbitrable Disputes: 4. Contract-negotiation disputes ~ dispiltes as to terms of CBA. (arbitration of interest) : 2. Contract-interpretation disputes \~ disputes arising under an existing CBA, involving such matters as the interpretation and application of the contract, or alleged violation. of its provisions. (arbitration of grievance or rights) (2 AZUCENA, supra at 526). Note: Termination dispute is not a grievable issue: hence, grievance machinery and voluntary arbitrators have no jurisdiction over this issue, UNLESS there is an express agreement between the ER and the bargaining agent (Landtex Industries v. CA, G.R. No. 150278, August 9, 2007). tis the Labor Arbiter and not the grievance machinery which has jurisdiction over dismissals, pursuant to the union security clause. : Only disputes involving the union and the company shall be referred to grievance machinery or voluntary arbitrators. The right of any employee or San BEDA COLLEGE OF LAW 1483016 CENTRALIZED BAR OPERATIONS group of employees 10, at any time, precy grievances to the employer does not imply the to submit, the same to voluntary. artit, (Tabigue v. International Copra Export Corp No. 18335, December 23, 2009). rt igh ion GR Jurisdiction of Voluntary Arbitrators Exclusive Original Jurisdiction Conte Law: (C'WaP) a 4. All unresolved grievances arising from interpretation or implementation of the CBA: 2) Unresolved grievances arising "Yon py interpretation or enforcement of Company, personnel policies; 3. Hear and decide Wage distortion issues aris from the application of any wage ordérs it organized establishments; and 4. Unresolved grievances’ arising from the interpretation and implementation. of the Productivity incentive programs under RA 6071. > {Note: The Voluntary Arbitrators have original and ‘exclusive’ jurisdiction .over money claims arising from’ the” interpretation or implementation of the CBA and, those arising from the interpretation « enforcement of company personnel policies (Sen Jose v. NLRC, G.R. No. 121227, August 17,1998) The Labor. Arbiter’s jurisdiction is limited only to those” money. claims “arising from statutes or contracts other than a CBA (Del Monte Philippines, + Ine: v. Saldivar, G.R. No. 158620, Oct. 11, 2006). Violations of CBA, except those which are gross it character, shall no longer be treated as ULP and shall.be resolved as grievances (LABOR CODE. ~"SArt. 261). Gross Violation is a flagrant and/or malicious refusal to comply with the economic provisions o the'CBA (LABOR CODE, Art. 261).. Jurisdiction by Agreement of the Parties The disputes that the parties may submit t0 ~Voluntary Arbitrator can include any or all the disputes mentioned in Art, 224 which otherwise fe! Under the exclusive jurisdiction of a Labor Arter (LABOR CODE, Art. 274)Distinctions among a Voluntary Arbitrator, Mediator, and a Court of Law oar A person |A_ disinterested | Regular courts. accredited by|party, usually a the Board as|government such of _alemployee who jperson_named|helps in settling for designated | disputes in the CBA by|involving terms: the parties to]and conditions act as their|of a CBA and is Voluntary not selected by [Arbitrator or |the parties, but one chosen lis usually ‘with or without |assigned and ‘the assistance |paid by. the of the NCMB,| State. pursuant to 2 selection procedure ‘ agreed upon in ‘ the CBA, or c any __ official authorized by the Sec, of ‘ Labor to act as } Voluntary < Avbitrator_ upon 7 |ad written request and agreement of parties to a wht labor dispute. a Perera ety Informal A mediator | Formal proceedings; _ [renders no final | proceedings... |. Arbitrator and binding |Rules of Court determines decision and] and the Rules what is|merely Jon’ » Evidence Jadmissible | suggests apply. evidence, solutions. He]~2 -\./ usually < suggests that - parties submit , the issue to an i arbitrator. Ad [Judges are bitrators are} inet obliged to} required to follow lovserve stare precedents set decisis. by ‘other | arbitrations in | simiar cases. k CA under RULE 43 of the RULES OF COURT. Judicial Review Grounds: (JADED) 1. Lack of Jurisdictic 2.. Grave Abuse of discretion; 3. Violation of Due process; 4. Erroneous interpretation of the law; and 44% Denial of substantial justice. ‘A Motion for Reconsideration may be filed from the Decision of a Voluntary Arbitrator tis, true that Ar. 275 makes the voluntary arbitration. award final and executory after ten (10) calendar days from receipt’of.copy of the award or decision.by the parties; Presumably, the decision may. still be ,reconsivered by the Voluntary Mbltratot 9 Af) 4, They shall abide by the -agreemeht) reached, whose terms may be-enforced through the appropriate writs issued by, the: Secretary of Labor. SQ mon All agreements settling the dispute should be in writing and signed by the parties as well'as the official .who mediated:-the~ dispute .(No. 54 NCMB Primer on Grievance -Settlament and voluntary Arbitration). “~"") Ay ‘ DOLE Regional Directors and Assistant Regional Directors may act as ex-officio voluntary arbitrators (0.0. 83-07 (2007)). Note: Philippine Arbitration Law and Alternative Dispute Resolution are NOT applicable~to labor cases (Sec. 6(a), R.A: 9285) TITLE EIGHT. STRIKES AND LOCKOUTS AND FOREIGN INVOLVEMENT IN TRADE UNION ACTIVITIES CHAPTER I. STRIKES AND LOCKOUTS ARTICLE 278: STRIKES, PICKETING AND LOCKOUTS Forms of Concerted acti 1. Strike 2. Lockout 3. Picketing San BeoA COLLEGE OF LAW 150 2016 CENTRALIZED BAR OPERATIONS Concerted Activity is one undertaken by two o- more employees or by one on behalf of the others, Strike is any temporary stoppage of work by the concerted action of employees’ as a result of an industrial or labor dispute. Strike encompasses not ‘only work stoppages but also the following: 4. Slowdowns; 2. Mass leaves; 3. Sitdowns; 4. Attempts to damage, destroy, or sabotage plant equipment and facilfies and similar activities; o¢ 5. Overtime boycott. Labor dispute includes any controversy or matter conceming terms or conditions of employment or the. association or representation of persons in negotiations:.. fixing, maintaining, changing or artahging the terms and conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employers and employees (Gold City Integrated Port Service, inc. v. NLRC, GR. Nos. 103560, 103599, July 6, 1995). Gr Leavy hve Importance: It is the most effective weapon of labor: in protecting the rights of employees to improve the . terms."and conditions of their ‘employment (2 AZUCENA, supra at 552). Some Principles on Strikes 1. Government employees may form labor unions but are not allowed to strike; 2.-.Only. legitimate. labor organizations are given the right to strike; ‘= 3. (Unionized workers ‘may hold a protest action pout not a strike; and <4, Not all concerted activities are strikes; they may only."be protest actions. And they do not “necessarily cause work stoppage by the protesters. A strike, in contrast, is always 2 .* 9rOup action accompanied by work stoppage The Law may prohibit strike but net the right to self-organization A law may be passed prohibiting selected sectors of labor from resorting to strikes. However, @ lat cannot be passed prohibiting selected sectors 0 labor from organizing unions. Lockout means the temporary refusal of 2 employer to furnish work as a result of an indus or labor dispute. It is consists of: shuldowns: mae retrenchment and dismissals initiated by Ie employer; employer's act of excluding employer who are union members. i t Nature of the Right to Strike and Lockout The right to strike is a constitutional and an of the workers as the employers have the intand statutory right to lockout, all within the context of labor relations and collective bargaining, itis @ means of last resort and presupposes that the duly to bargain in good faith has been fulfiled and other voluntary modes of dispute settlement have been tried and exhausted (Guidelines Governing Labor Relations). ALockout is deemed lawful Whent 4, Inanticipation of a.threatened strike; 2. Inresponse to an unprotected strike or walkout; or 3, In response to @ whipsaw strike (2 AZUCENA, supra at 556). ALockout is deemed unlawful ‘When: SoA iy 1. Itis to discourage and dissipate membership in + alabor organization or otherwise kill the union; 2. It is to aid the particular union by préyentiig.t further organizational work of. its. rival,”or" to. coerce the employees’ to joini the. favoured: union; or when - 3. Itis to avoid bargaining (ibid). ~ v. Lockout They both involve temporary stoppage of work 24 They both arise out ofan, industrial and: labor dispute : Done by the employer ~ Done by the employees Boycott is an attempt, by arousing a fear of loss, to coerce others, against their-will to withhold from one denominated ‘unfriendly .to labor” . their beneficial business intercourse. Slowdown is a method by which one’s employees, without seeking a complete stoppage of work, fetard production and distribution in an’ effort to” compel compliance by the employer with the Jabor demands made upon him. “ Picketing is an act of marching to and fro the employer's premises, usually accompanied by the Cisplay of placards and other signs making known the facts involved in a labor dispute. This is an exercise of one's freedom of speech, Note: Article 278(a) of the Labor Code prohibits @ny person engaged in picketing from obstructing the fee ingress to and agress from the employer's Bremises “(Jackbilt Industries, Inc. v. ache Employees Workers Union-NAFLU-KMU,. 6. 171618.19, March 20, 2009). Note: The picketing of a private home in S 'esidenial gistnct is generally held improper, even ~ -of “establishment “struck against. when the picketers are domestic servants. This is ‘on the grounds that “a home is not an industrial or a business enterprise, that it is not acquired or maintained for pecuniary gain or profit, but rather, that it is an institution used and maintained as a place of abode, and that an enterprise not conducted as means of livelihood, or for profit, does not come within the ordinary meaning of such terms as ‘business’, ‘trade’, or ‘industry’ (Slate v. Cooper, 205 Minn. 333, 285 N.W. 903, 122 A.L.R. 77). Commission by any picketing employee of any act of violence, coercion or intimidation is prohibited. Similarly, stationary picket and the use of means like placing of objects to constitute permanent blockade or to effectively close points of entry or exit in company premises are likewise not allowed by law (0:0, 7)._ Strike-Breaker ‘is any persony who obstructs, impedes OF interferes by foroe;-Violence, coercion, threats"or intimidation with /any. peaceful picketing by~\employees during. \any. labor controversy affecting, Wages, hour'or conditions of work or in the exercise _of..the right”to self-organization or Collective’ bargaining, “s* Strike . Area’ refers- rimer on Strike, Pickeling “Note: In the event the result of the ‘strike/lockout-ballot is filed within the cooling- ‘off period, the 7-day requirement shall be ‘outed from the day following the expiration of the’ cooling-off period (National Federation of. Sugar Workers v. Ovejera, G.R. No. L- rics, 59743, May-31, 1982). In effect, the seven \(@).days are ADDED to the 15-day or 30-day cooling off period, as the case may be. 6, “Except iff cases of union busting, the Cooling off period prescribed by law should be fully observed; and The 7-day waiting period or strike ban after submission of strike or lockout vote to the NCMB-DOLE should be fully observed in ALL cases, including union busting. Six (6) Factors Affecting Legality of Strikes oakweNe Statutory Prohibition; Procedural Requirements of the Law; Purpose must be ULP and Economic; Lavrful means and methods; Injunction: and ‘Agreement of the patties. First Factor: Statutory Prohibition Employees in the public service may not engage in strikes. While the Constitution recognizes the Fight ‘of government employees to organize, they of Prohibited from staging strikes, demonstrations: mass leaves, walk-ouls and other forms of massction which will result in temporary stoppay disruption of public services (Bangalisen’ “CA, G.R. No. 124678, July 31, 1997), " Remedy of Government Employees: Refer the dispute to the Public Sector Labor-Management ‘Council (PSLMC). Second Factor: Strict Compliance with Procedural Requirements of the Law Strict Compliance with Procedural and Substantive Requirements of Law: 1. Notice of Strike — must be filed prior to the intended date of strike, taking into consideration the cooling-off period, Note: The failure of the union to serve the company a copy of the notice of strike is a clear violation of IRR of the LABOR CODE, .Book.V,~- Rule XXil, Sec.-3 > the constitutional precepts of due process mandate that the other party be. notified of the adverse-action_of the opposing” . party (Filipino Pipe and Foundry’ Corporation‘ v:: NLRC, G.R. No. 115180, November 16, 1999)... 2. Cooling-off Period before the intended date of actual strike subject to the 7-day strike ban... a. Bargaining deadlock +30 days * A b. ULP-1Sdays So tt Le c, Union Busting ~ cooling-off period need not be observed and the union may take. action immediately after the strike :-voto--is ‘conducted and results submitted to regional branch. . It is that period of time given to the NCMB to mediate and conciliate the parties. It is that ‘span of time allotted by law for the parties to seltle their disputes in a peaceful manner, before staging a strike or lockout. It is reckoned from the time when the notice of strike or lockout is filed with the NCMB, a copy of said notice having been served to the other party concerned. Otherwise, the mere filing of the notice with the NCMB without @ proof of valid service thereof to the other party concerned will Tot trigger the running of the cooling-off period, 3. Strike Vote - a requirement wherein the decision to declare @ strike must be: ‘a, Approved by a majority of the total union membership in. the bargaining unit concerned (not of the whole bargaining unit); and b. Obtained by secret ballot in m referenda called for the purpose. ~ the 7-day waiting period the purported strike (within ings or 4, 7-Day Strike Ban before the date of which the union intending to conduct a strike must at least submit a report to the Department as to the result of the strike vote) intended to give the Department an opportunity to verify Whether the projected strike really carries the imprimatur of the majority of the union members in addition to the cooling-off period before actual strike, Note: The requirements of cooling-off period and 7-day strike ban must be BOTH complied with, although the labor union may take a strike vote and report the same within the statutory ccooling-off period. Third Factor! Purpose; ULP/Economic Purpose Test - the strike must be due to either due to.’ bargaining ‘deadlock; and/or an unfair labor practi A strike may be legal atiitS-inception but eventually be declared illegal if the“strike is accompanied by violence:.which is'\widespread, pervasive and adopted .2s_4 .matter-of policy and not merely violence which is Sporadic which normally occur in a.strike-aréa (See prohibited activities under Art. See gre Note:The :three~(3)-:tests must concur. Non- compliance; with “.any of the aforementioned requisites renders the strike illegal. 4. Purpose Test; 2." Mpans Employed.Test; and 3. Compliance with procedural requirements Good Faith Strike Doctrine A strike, may be considered legal where the union believed that the company committed ULP and the circumstances warranted such belief in good faith, although subsequently such allegations of ULP are: found out as not true (Bacus v. Opie, -G.R. No. L- 56856, October 23, 1984). Doctrine of Means and Purposes A strike is legal when lawful means concur with lawful purpose (GOP-CCP Workers Union v. CIR, GR. No. L-33018, September 10, 1979). When Strike is Illegal: (PIRMA-MU-P?0) 1, Contrary to specific Prohibition of law, such as strike by employees performing governmental functions; 2. Declared in violation of an existing Injunction; As @ general rule, injunction cannot be issued against the conduct of picketing except: SAN BEDA COLLEGE OF LAW 2016 CENTRALIZED Bar Opcrations 155,a. Where picketing is carried out through illegal means, + | b. Where picketing involves the use of violence and other illegal acts ©. Where injunction becomes necessary to protect the rights of third parties. Otherwise, injunction cannot be issued Note: -Strikes or lockouts cannot be enjoined except when illegal acts are committed or if the strike or lockout appears to be illegal in nature. 3. Violates a specific Requirement of law; 4, Empioys uniawful Means in the pursuit of its objective, such as widespread terrorism of non- strikers; 5. Contrary to an existing Agreement, such as a no strike clause or conclusive arbitration clause; Note: The right-td ‘strike is not absolute. It has heretofore beer held that a no-strike, no-lockout Provision in the “CBA is a valid although the clause may be invoked. by. an employer only when:the/strike is. economic in alure or one which is-conducted fo, force wage or other concessions ftom’the employer that are Rot mandated to be granted by the law itself (but notULP cases) Ev) i Z Lh ~ 6. Strike staged by a Minority union: | 7. Strike staged by a Union which is not legitimaté: 8. Declared for an unlawful’ Purpose, such as inducing the employer.to commit ULP.-against non-union employees; 9. Premature Strike- A’ strike-is illegal”if staged without giving the employer reasonable time. to consider and act on the demands made by the union (Almeda v. CIR, ‘G.R. No. L-7425, July 21, 1955). et “4 ; 10. Strike in violation of assumption’ or certification Order. ak) 5 ~ ANI A Conversion Doctrine involves thé conversion, of a strike from an economic to an ULP and.vice versa, A strike or lockout may start as an economic strike or lockout but later on, because of the actuation of the parties, the same may be converted to an unfair labor practice (ULP) strike or lockout, or vice versa. Under this situation, the conversion doctrine shall apply in which case the requirements for the converted strike/lockout (to economic from ULP, or vice versa, as the case maybe) shall be observed (Consolidated Labor Association of the Phils. v. Marsman and Co, Inc., G.R. Nos. L- 17038, 17057, July 31, 1964), 156 SAN BEDA COLLEGE OF LAW 2016 CENTRALIZED Bar Operations Fifth Factor: Injunction When can the Secretary of Labor Assum, Jurisdiction over a Strike " When there exists a labor dispute causing oF like fo cause a strike or lockout in an. indust’, indispensable to the national interest. The power 2, assumption of jurisdiction or certification by the Secretary of Labor is in the nature of a police pow measure (Philiread Workers Union. See Confesor, G.R. No. 117769. March 12, 1997) Conditions for a Valid Exercise of” the Assumption of Jurisdiction Authority 1. Both parties have requested the Secretary of Labor to assume jurisdiction over the laos, -..dispute; or 2. After a conference called by the Secretary of Labor on the propriety of the issuance of the ‘Assumption or Certification Order, motu propria or upon request or petition by either party to the “$2 Sabor dispute (Operational Guidelines of DO. 5, -40-G-03 (2010), as amended by 0.0. 40-41-13, Qs pSee.1).s tis £ Note: in the said conference, the parties shalt ~ also be encouraged. to amicably settle the dispute. S The Secretary of Labor may either: 1. Assume jurisdiction and decide or 2::. Certify the Same to the NLRC for compulsory =-_ arbitration. (delegation) i (Personal) Note!) A”labor ‘dispute may be assumed by the Secretary or certified to the NLRC even before the actual staging of a strike oF a lockout since Art. 263 of the Labor Code -does not require the existence of the strike but only of a labor dispute involving national interest, What constitutes “indispensable ~~ industry: \is based upon the discretion of the Secretary of Labor. However, the President of the Philippines shall not be precluded from determining industries Which in his opinion are indispensable tO the national interest. Prior notice and hearing are not required in the issuance of the assumption or certification order. Industries Indispensable to Interest: (HE-WAS) 1. Hospital sector: 2. Electrical power supply; - 3. Water supply services, to exclude small wal Supply services such’ as bottling and refilind stations; 4. Air traffic control; and the National5, Such other Sectors as may be recommended by the National Tripartite industrial Peace Council (NTIPC) (0.0. 40-H-13, Sec. 2). Effects of the Assumption of Jurisdiction of the Secretary 1. Automatically enjoins the intended or impending strike or lockout as specified in the assumption or certification order: “Automatic Injunction”- assumption or 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. 2. If one has already taken place at the time of assumption or certification, all striking or locked-out employees shall within 24 hours retum to work from receipt of an assumption or certification order; and ts 3. The employer: shall immediately - resume operations and. re-admit all workers under the same terms and conditions prevailing? before the strike or lockout (Operational Guidelines of D.O. 40-G-03, Sec"3 (2010)... sens Exception: When the reinstatement would bé impracticable and would only exacerbate the situation such as when hotel employees shaved their heads or cropped their hair | which embarrassed the hotel to its guests and disrupted its operations (National Union of Workers in the Hotel Restaurant and Allied Industries-! Dusit Hotel Nikko Chapter v. CA, G.R. No. 163942, November 11, 2008). Note: It was held in the aforementioned case that payroll reinstatement would be proper in. case Circumstances arose which” makes actual reinstatement impracticable such as in cases where teachers were ordered to return to work’ in ‘the middle of the semester of the academic year (UST V. NLRC, G.R. No. 89920, October 18, 1990); and Wherein the employment is confidential in nature (University of Immaculate Conception, Inc.'v. The Honourable Secretary of Labor, G.R. No. 151379, van.14, 2005) Parties are not prevented from submitting the dispute to Voluntary Arbitrator with the DOLE Secretary or his authorized representative as Voluntary Arbitrator or Panel of Voluntary Arbitrators ‘A motion for reconsideration does not suspend the effects, as the assumption order is immediately executory, Decision on the Assumed Labor Dispute; Finality Within five (6) days trom 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 Panels of Voluntary Arbitrators as the case may be. ‘The decision of the Secretary of Labor, the NLRC or Voluntary Arbitrator or Panels 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 (0.0, 40-G-03 (2010), as amended by D.O. 40-H- 13, S804) Issues ‘that the Secretary of Labor can Resolve when he Assumes Jurisdiction over a Labor Disput ty, Yee 7. -Only issues submitted to-the Secretary may be ' Fresolved. byuhim™ Philippine Airlines, Inc. v. Secretary of Labor,.G.R. No. 88210, January 23, 1991).2 Neo 2... Issues submitted to the Secretary for resolution and ‘such”issues"inyolved in the labor dispute itself (St. Scholastica’s College v. Torres, G.R. No..100158, Jiune: 2.1992). 3. Secretary of Labor may subsume pending labor cases before Labor-Arbiters which are involved inthe disputé~and decide even issues falling ~under the exclusivé and original jurisdiction of Labor /Arbiters such as the declaration of legality ormillegality of strike (Intemational “Pharmaceuticals,inc. v. Secretary of Labor, G-R.No. 92981-83, January 9, 1992) 4. Power of, Secretary of Labor is plenary and discretionary “(St. Luke's Medical Center v. Torres, G.R..No. 99395, June 29, 1993). Note: \Under “Art. 277(b) of the Labor Code, as amended, the Secretary of Labor may suspend the effects of the termination pending resolution of the dispute in the event of a prima facie finding by the appropriate official of DOLE before whom such dispute is pending that the termination may cause a Serious labor dispute or is in the implementation of amass lay-off, The Secretary of Labor can render an arbitral award, The decisions or orders of the Secretat ry of Labor should be elevated via a Petition for Certiorar under RULE 65 of the RULES OF COURT, ‘SAN BEDA COLLEGE OF Law 2016 CenTRALIZED BAR OPERATIONS 157Entitlement to Strike Duration Pay General Rule: Strikers are not entitled to their wages during the period of a strike, even if the strike is legal. Reason: No work, no pay, or a fair day's wage for a fair day's labor, Remedy: A worker who absents himself from work as a result of a strike, must seek reimbursement of his wages from his union which declared the strike, ‘or he might have his absence from work charged against his unused vacation leaves. Exceptions: 4. In case of an ULP strike, in the discretion of the authority deciding the case (See table for more distinctions between Economic and ULP strike). 2. Where the. strikers voluntarily. © ‘and unconditionally offered to return to work; but.the ‘employer refused:t0 accept the offer (e.g. ‘we will return tomort6w" and not “willing 4, return. provided’) ~< a ee Elements: < ~ a. That the strike wasiégal, ; b. That there was an "Note: Those union members who joined an illegal ‘strike but have not committed any illegal act shal (be reinstated but without any backwages. Requirement for Minimum Operational Service In labor disputes adversely affecting the continued © operation of hospitals, clinics, or _ medical institutions, if shall’be the duty of the striking union ~ or locking-out employer to provide and maintain en effective skeletal -workforce of medical and other hhéalth personnel, whose movement and services shall be-.unhampered and unrestricted, as are necessary to ensure the proper and adequate _ protection of life. and health of its patients, most = especially emergency cases, for the duration of the strike or lockout (0.0. 40-G-03 (2010), as amended “by D.0, 40-H-13, Sec: 3). Sixth Factor: Agreement of Parties ‘Ano-strike prohibition in a CBA is applicable only ‘6 “economic strikes: In other words, ULP strike is not covered and. workers may go on strike based © ULP “despite the no-strike provision (Philipte < Metal Foundries Inc. v. CIR, GR. Nos. L-4948-49 May 15, 1979). The authorities are numerous which hold that Tikes held in violation of the terms contained © Sai ao legal, especially when they provide °° Caiasive arbivation clauses. These auihoriee conte strictly adhered to and respected if It Gnds have to be achieved (GOP-COP Work Gien'. CIR, GR. No, L-23075, September 1 1979). Requisites for Lawful Picketing 4, Itshould peacefully carried out: . 2 There should be no act of violence, coercion intimidation attendant thereto;3, The ingress or egress from the com; premises should not be obstructed; peny 4. Public thoroughfares should not ‘be impeded (0.0. 40-03, February 17, 2003). Note: While a strike focuses an stoppage of work, picketing focuses on publicizing the labor dispute and its incident to inform the public of what is happening in the company struck against. ‘Once the dispute has been converted into a preventive mediation case, the notice of strike 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 about, any strike subsequently staged by the Union is deemed not to have complied with the requirements of a valid strike, The same rule applies in the case of lockout. by an employer.(PAL v. Sec. of Labor, G. R. No. G.R. No. 86210, January 23, 1991). By mutual agreement, the parties may decide to bring the dispute for resolution before an accredite voluntary arbitrator of their choice, ‘in’ which ‘case the Notice is deemed automatically withdrawn and dropped from the dockets...(Primer on Strike; Picketing, and Lockout). $ ARTICLE 279: PROHIBITED ACTIVITIES ~~~ A ary it ¢ Who has Jurisdiction to Determine the Legality of Strike and Lockout?L i 1. Labor Arbiter - upon the filing «of a. proper complaint and after due hearing; 2, DOLE Secretary - in cases where he assumed jurisdiction and the illegality or legality of the strikellockout is raised; and * 3. NLRC - in cases certified by the Secretary of Labor to the Commission for compulsory arbitration. 3 Labor Organizations 7 No labor organization or employer shall-declare a strike of lockout? | 1. Without first having bargained collectively in accordance with Title VII of this Book; 2. Without first having filed the notice required in Art. 277; and 3. Without the necessary strike or lockout vote first having been obtained and reported to DOLE. No Strike or Lockout shall be declared 1. After assumption of jurisdiction by the President oF the Secretary of Labor, 2. After certification or submission of the dlepute to compulsory or voluntary arbitration; or 3. During’ the pendency of cases involving the same grounds for the sinke 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 (Stanford Marketing Corp. v. Julian, G.R. No, 145496, February 24, 2004). Who may lose employment by reason of strike 1. Any union officer who knowingly participates in an illegal strike; and 2. Any worker or union officer who knowingly Participates in the commission of illegal acts uring a strike may be declared to have lost his ‘employment, even if a replacement had been hired by the employer during such lawful strike. Thus, it is necessary for the company to adduce proof of the participation of the striking employees ~ in the commission of illegal acts during the strikes (NUWHRAIN-APL-IUF Dusit Hotel Nikko Chapter v, CA;'G:R.No. 163942, November.11, 2008). Avy Provided, that mere participation of a worker in a lawful’, strike, shall not\.constitute grounds for termination’, of \zhis employment, even if a replacement has been hired by the employer during Such lawful strike. 7 Note: Declaration of illégality of strike is not a Prerequisite 10 the. dismissal of members who committed illegal acts duting a strike. However, the ER must: desist from acting on the matter when it has a_pending complaint for illegal strike in the MERGE E- « foe Third Persons No person} (3'4"persons) shall obstruct, impede or interfere with by force, violence, coercion, threats or intimidation: (j.— ‘Any peacefull picketing by employees during any labor controversy or in the exercise of the right. \ of: -self-organization or collective bargaining: or 2. Shallaid” or abet such obstruction or interference. Employers No employer shall use or employ any strike-broaker nor shall any person be employed as a strikebreaker. Public Official or Employee No public official or employee, including officers and personnel of the Armed Forces of the Philippines or the Integrated National Police, or armed persons: 1. Shall bring in, introduce or escort in any ‘manner, a scab or any individual who seeks to replace stikers in entering or leaving the premises of a strike area, i promises 0 ‘Fea, OF work in place of SAN BEDA COLLEGE OF Law 2016 CENTRALIZED BAR OPERATIONS 159‘Scab is an employee who refuses to join a strike or a union member who refuse to strike or who feturns to work before a strike is ended or settled, 2. The police force shall keep out of the picket lines unless actual violence or other criminal acts occur therein: Provided, that nothing herein shall be interpreted to prevent any public officers from taking any measure necessary to: a. Maintain peace and order; b. Protect life and property; and/or ¢. Enforce the law and legal order. Prohibited Acts by Persons Picketing No person engaged in picketing shall 1. Commit any Sact ,of violence; intimidation; “<4. + 2. Obstruct the free ‘employer's premises for. lawful, purposes; and” 3. Obstruct Public theroughfares’ 74 35 i! Sy Kinds of Boycott >-¥ é = 1. Primary Boycott is ‘applied directly and alone to the offending person -by withdrawing from him all business relations.-on the fart of the Organization that initiated'the boycott.) |! / aS Engaged _in coercion: or 2 Secondary Boycott “is; a: combination not merely to refrain from dealing with asperson, or to advice or by peaceable: means persuade his customers to refrain, but to’ exercise. coercive Pressure upon “such r-customers,- actual of Prospective, in order to Cause them to withhold or withdraw patronage from him through fear of loss or damage to themselves should they deal with him. - Rule on Defiance of Assumption or Certification Order or Return-to-Work Order pursuant thereto. issued by the DOLE Secretary or the NLRC Non-compliance with the assumption or certification order of the Secretary of Labor, of a return-to-work Order issued pursuant thereto by the Secretary of Labor or by NLRC, to which a labor dispute is Gertifed, 18 considered an illegal act committed in the course of the strike or lockout, 160 SON BEDA Courter oF Law ‘CENTRALIZED BaR OPeRaTiOns ee “ingress to or egress"front the « Moreover, the strike becomes illegal because of tng disregard of the relum-o-work order issued by ine Secrotary (Union of Filioro Employees v. Nesie Phils. G.R, No. 88710-13, December 19, 1900), Note: Retum-to-work order is enforceable imespectve of the legality of sirke. (Calamog Medical Center, inc. v. NLRC, G.R. No. 176404, Nov. 25, 2008) Period of defiance of the return-to-work order is not material. Defiance ‘of less than one (1) day Sufficient to effect termination of defiant stikers (University of San Agustin Employees’ Union -Friy v. CA, G.R, No, 169632, March 28, 2006), The mere finding or dectaration of ilegality of strike “will result in the termination of all union officers. itis -fot required. that the officers should commit an illegal act during strike (Phimco ‘industries, Ino. v “ [Phiric Industries labor Association, G.R. No, = 2170830, Aug. 11, 2010).\\-—~ -~/T0 effectively hold ordinary union members liable, those who participated in the commission of ilegel acts must not only be ‘identified but the specific illegal.acts: they. each” committed should be described with particularity (G&S transport Corp. v. Infante, G.R. No. 160303, September 13, 2007). Prohibited Activities under Article 279: 1: No labor organization or employer shall declare a strike or lockout without first having bargained Collectively “or: without first having filed the ‘notice required or-without the necessary strike or lockout vote first having been obtained and reported to the DOLE; 2. No strike or ‘lockout shall be dectared alter ” assumption of jurisdiction by the President or the Secretary of Labor or after cerlfication of Submission’ of the dispute to compulsory oF ‘voluntary arbitration or during the pendency of cases involving the same grounds for the strike oF lockout. No person shail obstruct, impede, of interfere with, by force, violence, coercion, threats or intimidation, any peaceful picketing by employees during any labor controversy of in the exercise of the right to settorganizaton or collective bargaining, or shall aid or abet such obstruction or interference; - 3. No employer shall use or employ any sth breaker, nor shall any person be employed a5 strike-breaker; 8 4. No public oficial or. employes, including ofcers and personnel of the Armed Forces of th Philippines or the Integrated National Fore (now the Philippine National Police), or amet Person, shall bring in, introduce or escort in anmanner, any individual who seeks to replace strikers in entering or leaving the premises of a strike area, or work in place of the strikers: and 5. 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. Rule on Backwages in Strike: General Rule: The strikers are not entitled to backwages on the principle that “a fair day's wage" accrues only for a “fair day's labor" Exception The following are entitled to backwages: 4. Involuntary strikers illegally locked-out; 2. Voluntary strikers in ULP Strike, who olfered to return to work unconditionally; and Bes 3. ‘If there is a strike-duration pay in the CBA 2... ety nes Rule on Hiring of Replacements a ‘The hiring of replacements ‘or the strikers during a. strike is not an unfair“labor practice act.of-th employer. Such hiring may even be, done ona permanent basis in case of an ecoriomic strike. An employer is entitled to carry out his business; But in an unfair labor practice ‘strike, such replacements may not be permanently employed. In case ,of defiance of a return-to-work order, or a'certifigation for assumption order, a hearing’ is not required for the employer to validly hire replacement for workers, Who commited the defiance! / coe Liability of Persons Committing Prohibited Acts under Article 27: rip 1. Fine of not less than P1,000.00 nor more than 10,000.00; and/or “A, = 2. Imprisonment for not jess than three (3). months nor more than three (3) years: * E {the person so convicted is a foreigner: >, . 1. He shall be subjected to immediate summary deportation; and fo Naa 2. He will be permanently barred from re-entering the country without the special permission of the President of the Philippines. I{the act at the same time is a violation of the RPC: 1. A prosecution under the Labor Code will preclude prosecution for the same act under the RPC; or ARTICLE 280: IMPROVED OFFER BALLOTING Improved Offer Balloting Areterendum conducted by the NCMB on or before the 30" day of the strike, for the purpose of ciermining whether or not the improved offer of the empioyer is acceptable to the union members. 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 signing of the agreement. Reduced Offer Balloting A referendum conducted by:the NCMB on or before the 30" day of lockout, for the purpose of determining whether or not the reduced offer of the union is acceptable to the board of directors, trustees or partners. ‘When at least a majority of the board of directors or trustees or the partners holding the controlling interest _in the partnership, vote to accept the reduced’ offer, the workers shall immediately return ‘to work and the employer shall thereupon readmit them upon signing of the agreement. meee nue Note: ;During the cooling-off-pefiod, there cannot _ possibly bean improved.offerfrom the employer as there is.no, Strike yet, «Neither can there be a reduced offer. from the :employees as there is no lockoutyet. No 1°~ To. determine whether:-or not. the improved offer of the employer So ig acceptable “ft “the Union members.: 2.,70 ascertain the real sentiment of the: silent majority of, the “uhion members on strike. 11. To determine whether jor_not the improved loffer of the union is lacceptable to board, ltrustees and partners. 2. To ascertain the real sentiment of the silent Imajority of the union members on strike On,or bet Gay-ot-the strike, before the 30” [day of the lockout. ARTICLE 281: REQUIREMENT FOR AND DETENTION ARREST General Rule: A police officer cannot arrest or detain @ union member for union activities without Previous consultations with the Secretary of Labor. Except on grounds of: 1. National security; 2. Public peace; and 3. Commission of a crime, SAN BEDA COLLEGE OF Law 2016 CENTRALIZED BAR OPERATIONS 161An arrest can be lawfully made in the following cases: 1. Any person who obstructs the free and lawful ingress and egress from the employer's premises or who obstructs public thoroughfares. 2. Any person who shall have in his possession deadly weapons’ in violation of B.P. 6 (An Act Reducing the Penalty For Illegal Possession Of Bladed, Pointed Or Blunt Weapons, And For Other Purposes, Amending For The Purpose P.D. 9) and firearms and explosives (Guidelines for the Conduct of PNP/AFP Personnel in Labor Disputes). CHAPTER TWO: ASSISTANCE TO LABOR ORGANIZATIONS Tree ARTICLE 282: ASSISTANCE BY THE de DEPARTMENT OF: BEABOR Se At ad ARTICLE 283: ASSISTANCE BY THE INSTITUTE OF LABOR AND MANPOWER STUDIES " - LEC a ) ULLE There is no more Institute’ of Haber and Manpower. Studies. Its. powers and~-functions © are now performed by the Instituteor Labor Studies seated by virtue of E.O. 251 issuiéd'on, sly 25, 19871! A CHAPTER THREE: FOREIGN, ‘Acrivmtés 8 ARTICLE 284: PROHIBITION [AGAINST ALIENS; EXCEPTIONS. General Rule: All liens, natural or juridical as well as foreign organizations are-sirictly prohibited from engaging in al forms of trad union activities: Exception: Aliens who: (a) work in,the country with valid permits issued by the-DOLE;*and (b) are nationals of a country which grants the same or similar rights to Filipino workers. "<2 1./ hi ARTICLE 285: REGULATION OF FOREIGN, ASSISTANCE — “Trade union activities” shall mean 1, Organization, formation and administration of labor organization; 2. Negotiation and ' administration of collective bargaining agreements; 3. All forms of concerted union action; 4. Organizing, managing, or assisting union conventions, meetings, rallies, referenda, teach-ins, seminars, conferences and inslitutes; 5. Any form of participation or involvement in Fepresentation proceedings, representation elections, consent elections, union elections; and 6. Other activities or actions analogous to the foregoing. SAN BEDA COLLEGE OF LAW 1622016 CenTRALIZED BAR OPERATIONS ARTICLE 286: APPLICABILITY TO FARM TENANTS AND RURAL WORKERS The provisions of this Title pertaining to foreign organizations and activities shall be deemed applicable likewise to all organizations of farm tenants, rural workers, and the like: Provided, That in appropriate cases, the Secretary of Agrarian Reform shall exercise the powers and responsibilities vested by this Title in the Secretary of Labor. CHAPTER FOUR: PENALTIES FOR VIOLATION ARTICLE 287: PENALTIES ~.-» Regular Courts have jurisdiction over any criminal action ufder Art. 287 of the Labor Code. Article 303, Foreigners who vioiate the provision of Title 8 {L(Strikés, ‘Lockouts and | Foreign Involvement in Trade Union Activites) shall = be.* subject™ to immediate; ~and‘[. | summary deportation. } ns (foreigners) fund guity shat be | summarily deported | upon completion of Service of sentence. | TITLE NINE: SPECIAL PROVISIONS - ART. 287: STUDY OF LABOR-MANAGEMENT RELATIONS ‘ART. 288: VISITORIAL POWER AUS) «Malis Powe under Article 128 v. Article 288 EEE Pertains 1-3 Administrative ~ of law or regulation enforcement of relating only to S.Labor— Code | financial activities and |}, Provisions records of labor 2. labor laws organizations. 3.Wage orders _ in | employer establishments, Needs sworn complaint filed and supported by at least 20% of the Inspection may be | organization's done through the | membership DOLE's initiative. Note: In Art. 249, 30% is required to support violation of member’ fights,Note: Art. 128 is broader than Art, 268, ARTICLE 290: TRIPARTISM AND TRIPARTITE CONFERENCES (as amended by R.A. 10395) Tripartism is the representation of the three seclors — the public or the government, the employers and the workers in policy-making bodies of the government, 4, Such kind representation in the policy-making bodies of private enterprises is not ordained, riot even by the Phil, Constitution and does not mean representation in the corporate board, 2. What is provided is worker's participation in policy and decision-making process directly affecting their rights, benefits and welfare. Tripartism is observed in the following government agencies: F 4, NLRC; Sein pies 2. National Wages and Productivity Commission; 3. Employees Compensation Commission” °* 4, POEA Governing Board; oe LS 5. Philippine Health Insurange Corporation’. = £2 6. Social Security Commission; and. 7. GSIS Board of Trustees. ’5 Ve, i Note: This amendment created: the...National Tripartite Industrial Peace Council, A AS ARTICLE 291: GOVERNMENT EMPLOYEES The terms and conditions’ of employment; of all government employees, ‘including employees. of government-owned and «controlled ‘corporations, shall be governed by the Civil’ Service Law, rules and regulations. NO + ARTICLE 292: MISCELLANEOUS PROVISIONS Note: Art. 292(b) speaks of statutory/procediral due process to be observed; in.:terminating .an employee under any of the grounds. provided for under Art. 297 (Just Causes)-or®.Art. ; 298 (Authorized Causes). " The last part of Art.292(b) is different from the assumption or cerlification powers of the Secretary of Labor provided for under Art. 278(g) in that the former needs a hearing first before the Secretary of Labor may suspend the effects of the termination Pending resolution of the dispute. BOOK SIX: POST EMPLOYMENT TITLE ONE. TERMINATION OF EMPLOYMENT This part presupposes the existence of ER-EE relationship. ARTICLE 294: SECURITY OF TENURE Security of Tenure is the constitutional right granted the employee, that the employer shall not terminate the services of an employee except for just cause or when authorized by law. It extends to regular (permanent) as well as non-regular (temporary) employment (Kiamco v. NLRC, G.R. No.;129449, June 29, 1999). ~ Note:,Not every performance of-services for a fee creates an* employer-employee relationship. To hold: tHiat every person.,who- tenders services to ‘another for.a fee is an employee- to give meaning to the Security. of-tenure clause- will lead to absurd results, (Sonza y. ABS-CEN Broadcasting Corp., “G.R. No. 138051, June 10,2004). Ey ‘Security'of tenure clause‘is not confined to cases of termination of ER-EE ‘relationship alone. It is also intended (0 shield-workérs from unwarranted and unconsented demotion and transfer. Consequences of ‘the’ Violation of a Worker's ‘Security of Tenure: (RBD) ‘Reinstatement withiout loss of seniority rights {and other privileges; ull’ Backwages, inclusive of allowances and + Sothery benefits “or’ their monetary equivalent computed from-ihe time his compensation was “withheld from him up to the time of his actual reinstatement/“arid 3.” Recovery’moral and exemplary Damages and _allomney’s fees (ALCANTARA, supra at 599). Aes Reinstatement is the restoration of the employee fo the-state from which he has been unjustly removed or separated without loss of seniority rights and other privileges. Reinstatement ~ order | Reinstatement order by the Labor Arbiter --'| by the NLRC Immediately executory | Not mediately executory Pending appeal After final and executory judgment Actual or payroll Actual reinstatement or ‘separation pay in lieu of Feinstatement (SPIR) SAN BEDA COLLEGE OF Law 2016 CenTRALIZED BaROPERaTIONs 163Forms of Reinstatement: 1. Actual or Physical Reinstatement — the employee shall be admitted back to work. 2. Payroll Reinstatement ~ the employee is merely reinstated in the payroll (University of Immaculate Concepoton, inc. v. Hon. Secretary of Labor, G.R. No. 151379, January 14, 2005). Effect of the Reversal of Labor Arbiter's Decision to the Reinstated Employee Where the decision of the Labor Arbiter reinstating the employee was reversed on ‘appeal by the NLRC, the Supreme Court ruled that it is obligatory on the part of the employer to reinstate the employee and pay his wages during the period of appeal until the decision of the Labor Arbiter_is — reversed by the higher or highest court: Further;,the court ruled thatthe Labor Arbiter’s. order” of, reinstatement is imiyediately executory and:no.writ of execution is hecessary. to implement the said order of reinstatement (Garcia v. PhilippinéAirlines; ° Inc., G.R. No, 164856~January 20,2009), ~"*_*"_* (Ji Natire of Work Test =whether or not there is reasonable conneciion between particular “activity performéd'by’the employee in relation tothe jusudl business or trade of the employer. if usually,necessary or desirable in the usual business or trade of the employer, the employment’ is deemed _ regular employment.(D6_Leon v. NLRC, G.R. No. 70708, August 24; 1989). Shemployee\is:nésessary or desirable can be determined ‘by. looking at the services Ffenderedsand.-its relation to the general “scheme under-which the business or trade is pursued in the‘usual course. oo Reihe lik” Period of-Service Test ~ whether or not the employee has rendered at least one year of service. An employee, who is allowed to work efor at least one year, whether the same is continuous or broken, shall be considered regular employee, lil. Probationary Employment Test — whether or not the employee is allowed to work after the lapse of the probationary period. An. employee who is allowed to work after the lapse of the probationary period shall be considered a regular employee. SAN BEDA COLLEGE OF Law 2016 CENTRALIZED BAR OPERATIONS 167