RIGHTS OF LEGITIMATE LABOR ORGANIZATION
Exclusive bargaining agent; purpose
a. In general
(1) Autonomy and governance of its affairs,
particularly:
a. To draw up their constitution
b. To freely elect their representatives
c. To organize their activities and
formulate programs;
d. Dissolve or suspend the organization;
(2) Right to its funds or property;
(3) Right to protection from unfair labor practices
Art. 242. Rights of legitimate labor organizations. A
legitimate labor organization shall have the right:
(a) To act as the representative of its members for the
purpose of collective bargaining;
(b) To be certified as the exclusive representative of all
the employees in an appropriate collective
bargaining unit for purposes of collective bargaining;
(c) To be furnished by the employer, upon written
request, with his annual audited financial
statements, including the balance sheet and the
profit and loss statement, within 30 calendar days
from the date of receipt of the request, after the
union has been duly recognized by the employer or
certified as the sole and exclusive bargaining
representative of the employees in the bargaining
unit, or within 60 calendar days before the
expiration of the existing collective bargaining
agreement, or during the collective bargaining
negotiation.
(d) To own property, real or personal, for the use and
benefit of the labor organization and its members;
(e) To sue and be sued in its registered name; and
(f) To undertake all other activities designed to benefit
the organization and its members, including
cooperative, housing welfare and other projects not
contrary to law.
Notwithstanding any provision of a general or special law to
the contrary, the income, and the properties of legitimate
labor organizations, including grants, endowments, gifts,
donations and contributions they may receive from fraternal
or similar organizations, local or foreign, which are actually,
directly, and exclusively used for their lawful purposes, shall
be free from taxes, duties, and other assessments. The
exemptions provided herein may be withdrawn only by a
special law expressly repealing this provision.
b.
Exclusive Bargaining Representative – refers to a
legitimate labor union duly recognized or certified as the
sole and exclusive bargaining representative or agent of
all the employees in a bargaining unit.
Purpose: Art. 242 [a]:
(a) To act as the representatives of its members for
the purpose of collective bargaining.
c. Certification process: Election and voluntary
recognition (Arts. 256 to 258)
Art. 256. Representation issue in organized establishments.
In organized establishments, when a verified petition
questioning the majority status of the incumbent bargaining
agent is filed before the DOLE within the sixty day period
before the expiration of the collective bargaining agreement,
the Med-Arbiter shall automatically order an election by
secret ballot when the verified petition is supported by the
written consent of at least 25% of all the employees in the
bargaining unit to ascertain the will of the employees in the
appropriate bargaining unit. To have a valid election, at least
a majority of all eligible voters in the unit must have cast their
votes. The labor union receiving the majority of the valid
votes cast shall be certified as the exclusive bargaining agent
of all the workers in the unit. When an election which
provides for 3 or more choices results in no choice receiving a
majority of the valid votes cast, a run-off election shall be
conducted between the labor unions receiving the two
highest number of votes. Provided, that the total number of
votes for all contending unions is at least 50% of the number
of votes cast.
At the expiration of the freedom period, the employer shall
continue to recognize the majority status of the incumbent
bargaining agent where no petition for certification election is
filed.
Art. 257. Petitions in unorganized establishments. In any
establishment where there is no certified bargaining agent, a
certification election shall automatically be conducted by the
Med-Arbiter upon the filing of a petition by a legitimate labor
organization.
Art. 258. When an employer may file petition. When
requested to bargain collectively, an employer may petition
the Bureau for an election. If there is no existing certified CBA
in the unit, the Bureau shall, after hearing, order a
certification election.
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All certification cases shall be decided within 20 working days.
The Bureau shall conduct a certification election within 20
days in accordance with the rules and regulations prescribed
by the SOL.
d. Scope: Bargaining unit; Jurisdictional preconditions
to collective bargaining
Bargaining Unit – refers to a group of employees sharing
mutual interests within a given employer unit, comprised of
all or less than all of the entire body of employees in the
employer unit or any specific occupational or geographical
grouping within such employer unit. (DO 40-03)
Jurisdictional Preconditions to Collective Bargaining
(1) Possession of the status of majority representation
of the employee’s representative;
(2) Proof of majority representation;
(3) A demand to bargain
What is the right to collective bargaining?
The right of the EEs through the certified bargaining
agent to negotiate with the ER in order to reach agreements
regarding the terms and conditions of employment.
e. Duty to bargain with or without CBA (Arts. 250 to
253); four forms of violation of duty to bargain
Art. 252. Meaning of duty to bargain collectively. The duty to
bargain collectively means the performance of a mutual
obligation to meet and convene promptly and expeditiously
in good faith for the purpose of negotiating an agreement
with respect to wages, hours of work and all other terms and
conditions of employment including proposals for adjusting
any grievances or questions arising under such agreement
and executing a contract incorporating such agreements if
requested by either party but such duty does not compel any
party to agree to a proposal or to make any concession.
Art. 251. Duty to bargain collectively in the absence of
collective bargaining agreements. In the absence of an
agreement or other voluntary arrangement providing for a
more expeditious manner of collective bargaining, it shall be
the duty of the employer and the representatives of the
employees to bargain collectively in accordance with the
provisions of the labor code.
Art. 253. Duty to bargain collectively when there exists a
collective bargaining agreement. When there is a collective
bargaining agreement, the duty to bargain collectively shall
also mean that neither party shall terminate nor modify such
agreement during its lifetime. However, either party can
serve a written notice to terminate or modify the agreement
at least 60 days prior to its expiration date. It shall be the
duty of both parties to keep the status quo and continue in
full force and effect the terms and conditions of the existing
agreement during the 60 day period and/or until a new
agreement is reached by the parties.
f. Right to collective bargaining; single enterprise
bargaining or decentralized bargaining in multi-
employer bargaining (DO no. 40-03) & Industry-
wide bargaining
SINGLE ENTERPRISE BARGAINING/DECENTRALIZED
BARGAINING
When available:
Sec. 3. When single enterprise bargaining available. Any
voluntarily recognized or certified labor union may demand
negotiations with its employer for terms and conditions of
work covering employees in the bargaining unit concerned.
Sec. 4. Procedure in single enterprise bargaining. A
recognized or certified labor union that desires to negotiate
with its employer shall submit such intention in writing to the
employer, together with its proposals for collective
bargaining.
The recognized or certified labor union and its employer may
adopt such procedures and processes they may deem
appropriate and necessary for the early termination of their
negotiations. They shall name their respective
representatives to the negotiation, schedule the number and
frequency of meetings, and agree on wages, benefits and
other terms and conditions of work for all employees covered
in the bargaining unit.
PROCEDURE:
A recognized or certified labor union that desires to negotiate
with its employer shall submit such intention in writing to the
employer, together with its proposals for collective
bargaining.
The recognized or certified labor union and its employer may
adopt such procedures and processes they deem appropriate
and necessary for the early termination of their negotiations;
They shall:
(1) Name their respective representatives;
(2) Schedule the number and frequency of meetings;
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 (3) Agree on wages, benefits and other terms and
conditions of work for all employees covered in the
bargaining unit.
MULTI-EMPLOYER BARGAINING/INDUSTRY-WIDE
BARGAINING
Sec. 5. When Multi-Employer Bargaining Available. A
legitimate labor union(s) and employers may agree in writing
to come together for the purpose of collective bargaining,
provided:
(a) Only legitimate labor unions who are incumbent
exclusive bargaining agents may participate and
negotiate in the multi-employer bargaining;
(b) Only employers with counterpart legitimate
labor unions who are incumbent bargaining
agents may participate and negotiate in multi-
employer bargaining; and SEID
(c) Only those legitimate labor unions who pertain
to employer units who consent to multi-
employer bargaining may participate in multi-
employer bargaining
Sec. 6. Procedure in Multi-employer Bargaining. Multi-
employer bargaining may be initiated by the labor unions or
by the employers.
(a) Legitimate labor unions who desire to negotiate with
their employers collectively shall execute a written
agreement among themselves, which shall contain
the following:
(1) The names of the labor unions who desire to
avail of multiemployer bargaining;
(2) Each labor union in the employer unit;
(3) The fact that each of the labor unions are the
incumbent exclusive bargaining agents for their
respective employer units;
(4) The duration of the collective bargaining
agreements, if any, entered into by each labor
union with their respective employers.
Legitimate labor unions who are members of
the same registered federation, national, or
industry union are exempt from execution of
this written agreement.
(b) The legitimate labor unions who desire to bargain
with multiemployers shall send a written notice to
this effect to each employer concerned. The written
agreement stated in the preceding paragraph, or the
certificates of registration of the federation,
national, or industry union, shall accompany said
notice.
Employers who agree to group themselves or use their
existing associations to engage in multi-employer
bargaining shall send a written notice to each of their
counterpart legitimate labor unions indicating their
desire to engage in multi-employer bargaining. Said
notice shall indicate the following:
(1) The names of the employers who desire to avail of
multiemployer bargaining;
(2) Their corresponding legitimate labor organizations;
(3) The fact that each corresponding legitimate union is
any incumbent exclusive bargaining agent;
(4) The duration of the current collective bargaining
agreement, if any, entered into by each employer
with the counterpart legitimate labor union
WHEN AVAILABLE:
When a legitimate labor union(s) and employers may agree in
writing to come together for the purpose of collective
bargaining, provided:
(1) The only legitimate labor unions who are incumbent
exclusive bargaining agents may participate and
negotiate in multi-employer bargaining;
(2) Only employers with counterpart legitimate labor
unions who are incumbent bargaining agents may
participate and negotiate in multi-employer
bargaining; and
(3) Only those legitimate labor unions who pertain to
employer units who consent to multi-employer
bargaining may participate in multi-employer
bargaining.
PROCEDURE:
(1) Legitimate labor unions who desire to negotiate with
their employers collectively shall execute a written
agreement among themselves, which shall contain
the following:
a. The names of the labor unions who desire
to avail of multi-employer bargaining;
b. Each labor union in the employer unit;
c. The fact that each of the labor unions are
the incumbent exclusive bargaining agent of
their respective employer units;
d. The duration of the collective bargaining
agreements, if any, entered into by each
labor union with their respective
employers.
(2) The legitimate labor unions who desire to bargain
with multi-employers shall send a written notice to
this effect to each employer concerned. The written
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 agreement stated in the preceding paragraph, or the
certificates of registration of the federation,
national, or industry union, shall accompany said
notice.
g. When to bargain
If the jurisdictional preconditions are present, the collective
bargaining should begin within the 12 months determination
and certification of the employee’s exclusive bargaining
representative.
h. Contents of CBA: grievance machinery (Art. 260) &
Union security clause; sec, 49, art. 6, IRR of RA 9165
(drug free workplace); mandatory subject of
bargaining; impasse; boulwarism
CONTENTS OF CBA:
1. Enumeration or reservation of management rights
2. Union recognition and security
3. Wage and fringe benefits and their administration
4. Physical working conditions
5. Selected and personnel management and plant
operation practices
6. Grievance and arbitration
7. Duration of contract
8. Programs to promote and drug-free workplace
GRIEVANCE MAHINERY
Art. 260 Grievance machinery and voluntary arbitration. The
parties to a CBA shall include therein provisions that will
ensure the mutual observance of its terms and conditions.
They shall establish a machinery for the adjustment and
resolution of grievances arising from the interpretation or
implementation of their CBA and those arising from the
interpretation or enforcement of company personnel policies.
All grievances submitted to the grievance machinery which
are not settled within 7 calendar days from the date of its
submission shall automatically be referred to voluntary
arbitration prescribed in the CBA.
For this purpose, parties to a CBA shall name and designate in
advance a VA or panel of Vas, or include in the agreement a
procedure for the selection of such VA or panel of Vas,
preferably from the listing of qualified Vas duly accredited by
the Board. In case the parties fail to select a VA or POVAs, the
Board shall designate the VA or POVAs, as may be necessary,
pursuant to the selection procedure agreed upon in the CBA,
which shall act with the same force and effect as if the
Arbitrator or Panel of Arbitrators has been selected by the
parties as described above.
UNION SECURITY CLAUSE
A union security clause is a stipulation in the CBA whereby
the management recognizes that the membership of
employees in the union which negotiated said agreement
should be maintained and continued as a condition for
employment or retention of employment. The obvious
purpose is to safeguard and ensure the continued existence
of the union.
Union security is a generic term that covers:
1. Closed shop agreement
a. ER will only hire members of a CBU and
must remain a member for continued
employment
b. Considered as the most prized achievement
of unionism because there is no choice on
the part of any person who wishes to be
employed but to become a member of the
union
2. Maintenance of membership agreement
a. No EE is compelled to join the union but all
present or future members must as a
condition of employment remain in good
standing in the union
b. Goes together with the Union Shop in one
CBA
3. Union shop agreement
a. ER may hire persons who are not yet
members of a CBU however to continue
with their employment they have to
become members after a certain period
b. Who will benefit? The CBU because it will
add to the membership. The more
members the stronger the CB power. Adds
members and compulsory dues to support
the existence of the CBU.
4. Modified union shop agreement
5. Exclusive bargaining agreement
6. Bargaining for members only agreement
7. Agency shop agreement
8. Preferential hiring agreement
Are these clauses authorized by law?
- Yes, Article 248 (e) provides that nothing in this code
or in any other law shall stop the parties from
requiring membership in a recognized CBA as a
condition for employment, except those EEs who are
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 already members of another union at the time of the
signing of the CBA.
Employees exempted from union security:
1. Members of religious sect which prohibits
membership in labor organizations
2. EEs already in the service and already members of
the unions other than the majority union at the time
of the signing of the CBA
3. Supervisors ineligible to join the majority union
because of membership therein of members under
their supervision
4. Those excluded by express terms of the agreement
5. Managerial employees
6. Confidential employees
DRUG FREE WORKPLACE (RA9165)
Art. V. Promotion of a National Drug-Free Workplace
Program with the participation of Private and Labor sectors
and the DOLE.
Sec. 47. Drug-free Workplace. It is deemed a policy
of the state to promote drug-free workplaces using a
tripartite approach. With the assistance of the
Board, the DOLE shall develop, promote, and
implement a national drug abuse prevention
program in the workplace to be adopted by private
companies with 10 or more employees. Such
program shall include the mandatory drafting and
adoption of company policies against drug use in the
workplace in close consultation and coordination
with the DOLE, labor and employer organizations,
human resource development managers and other
such private sector organizations.
Sec. 48. Guidelines for the National Drug-Free
Workplace Program. The Board and the DOLE shall
formulate the necessary guidelines for the
implementation of the national drug-free workplace
program. The amount necessary for the
implementation of which shall be included in the
annual General Appropriations Act.
Art. VI. Participation of Private and labor sectors in the
enforcement of this act.
Sec. 49. Labor Organizations and the Private Sector.
All labor unions, federations, associations, or
organizations in cooperation with the respective
private sector partners shall include in their
collective bargaining or any similar agreements, join
continuing programs and information campaigns for
the laborers similar to the programs provided under
Sec. 47 of this act with the end in view of achieving a
drug free workplace.
Sec. 50.Government Assistance. The labor sector and
the respective partners may, in pursuit of the
programs mentioned in the preceding Section,
secure the technical assistance, such as but not
limited to, seminars and information dissemination
campaigns of the appropriate government and law
enforcement agencies.
MANDATORY SUBJECTS OF BARGAINING
1. Provision on wage increases;
2. Provision on grievance machinery and voluntary
arbitration;
3. A no strike, no lockout clause
Art. 252. Meaning of Duty To Bargain Collectively. The duty
to bargain collectively means the performance of a mutual
obligation to meet and convene promptly and expeditiously
in good faith for the purpose of negotiating an agreement
with respect to wages, hours of work, and all other terms and
conditions of employment including proposals for adjusting
any grievances or questions arising under such agreement
and executing a contract incorporating such agreements if
requested by either party but such duty does not compel any
party to agree to a proposal or to make any concession.
IMPASSE
A point at which no further progress can be made; a situation
that is so difficult that no progress can be made; a deadlock
or a stalemate.
BOULWARISM
It is an unfair labor practice to make a proposal which is not
subject to bargaining. In a US case the employer’s “firm and
final” offer, accompanied by a take it or leave it strategy, was
presented through a barrage of publicity praising the
‘fairness’ of the package and picturing the company (not the
union) as the employee’s true representative. In effect, there
was to be no bargaining and the union was rendered
ineffective or irrelevant. The company dealt with the union
through the employees rather than with the employees
through the union. This strategy, called Boulwarism because
it was first used by a Mr. Boulware, is construed by a US court
as bad-faith bargaining, hence an unfair labor practice.
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 i. Ratification of CBA, when and when not needed &
registration of CBA
WHEN NEEDED
The agreement negotiated by the employee’s bargaining
agent should be ratified or approved by the majority of all the
workers in the bargaining unit, as provided under Art. 231 of
the LC.
The ratification and the way to do it are mandatory. The CBA
should be posted for at least 5 days in 2 conspicuous places in
the establishment before ratification, to enable the workers
to inform themselves of its provisions. Moreover, the CBA to
be submitted to the DOLE should carry the sworn statement
of the union secretary, attested to be the union president,
that the CBA had been duly posted and ratified. The
requirements are mandatory; noncompliance makes the CBA
ineffective.
WHEN NOT NEEDED
Ratification of the CBA by the employees in the bargaining
unit is not needed when the CBA is a product of an arbitral
award by appropriate government authority or a voluntary
arbitrator.
The CBA is valid without ratification. The purpose of
ratification is that in its absence, the CBA is unenforceable.
REGISTRATION OF CBA
Section 1. Where to file. – Within 30 days from execution of a
CBA, the parties thereto shall submit 2 duly signed copies of
the agreement to the Regional Office which issued the
certificate of registration/certificate of creation or chartered
local of the labor union party to the agreement. Where the
certificate of creation of the concerned chartered local was
issued by the Bureau, the agreement shall be filed with the
Regional Office which has jurisdiction over the place where it
principally operates.
Multi-employer collective bargaining agreements shall be
filed with the Bureau.
Section 2. Requirements for registration. – The application for
CBA registration shall be accompanied by the original and 2
duplicate copies of the following documents which must be
certified under oath by the representatives of the employers
and labor unions concerned.
(a) CBA
(b) A statement that the CBA was posted in at least 2
conspicuous places in the establishment or
establishments concerned for at least 5 days before
the ratification and;
(c) A statement that the CBA was ratified by the
majority of the employees in the bargaining unit of
the employer or employers concerned.
No other document shall be required in the registration of a
CBA
j. Term of CBA: representation aspect; all other
provisions (Arts. 253-A) & renegotiation of CBA/
retroactivity
Section 7. Term of Representation Status; Contract Bar Rule.
The representation status of the incumbent exclusive
bargaining agent which is a party to a duly registered CBA
shall be for a term of 5 years from the date of the effectivity
of the CBA. No petition questioning the majority status of the
incumbent exclusive bargaining agent or petition for
certification election filed outside the 60 day period
immediately preceding the expiry date of such five-year term
shall be entertained by the Department.
The 5 year representation status acquired by an incumbent
bargaining agent either through single enterprise CB or multi-
employer bargaining shall not be affected by a subsequent
CBA executed between the same bargaining agent and the
employer during the same 5 year period.
Art. 253-A. Terms of a CBA. Any CBA that the parties may
enter into shall, insofar as the representation aspect is
concerned, be for a term of 5 years. No petition questioning
the majority status of the incumbent bargaining agent shall
be entertained and no certification election shall be
conducted by the DOLE outside the sixty-day period
immediately before the date of expiry of such 5 year term of
the CBA. All other provisions of the CBA entered into within 6
months from the date of expiry of the term of such other
provisions as fixed in such CBA, shall retroact to the day
immediately following such date. If any such agreement is
entered into beyond 6 months, the parties shall agree on the
duration of retroactivity thereof. In case of a deadlock in the
renegotiation of the CBA, the parties may exercise their rights
under this Code.
RENEGOTIATION/RETROACTIVITY OF CBA
If the CBA is the very first for the bargaining unit, the Code
does not state any rule on the CBA’s effectivity date. The
parties have to decide it for themselves. But if the ensuing
CBA is renewal, modification or renegotiation of an expiring
one, the Code offers a formula for the effectivity date. Art.
253-A provides that the ensuing agreement, if entered into
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within 6 months from expiry of the old one, shall retroact to
the date following such expiry date. For example, if the CBA
expired on December 31 and the new one is concluded on,
say, March 31, its effectivity date is January 1. If on the other
hand, the new agreement is concluded after June 30, then
the matter of retroaction and the possible retroactive date
are left to the parties.
The determining point is the date of the parties agreed, not
the date they signed.
a. Rule involving CBAs concluded by the
parties through negotiation (not concluded
through arbitral award)
(1) The CBA or other provisions of such agreement
entered into within 6 months from the date of expiry
of the term of such other provisions as fixed in the
CBA shall retroact to the day immediately following
such date.
(2) If any such agreement is entered into beyond 6
months, the parties shall agree on the date of
effectivity thereof.
b. Rule involving CBAs concluded through
arbitral awards by DOLE secretary, NLRC or
Voluntary Arbitrator.
In case of arbitral awards, the retroactivity of the CBA
provided under Art. 253-A of the Labor Code has no
application. Thus, the Supreme Court ruled;
In St. Luke’s Medical Center v. Torres (1993), the effectivity
date was made retroactive to the date of the expiration of
the previous CBA.
HOLD OVER PRINCIPLE. In the absence of a new CBA, the
parties must maintain the status quo and must continue in
full force and effect the terms and conditions of the existing
agreement until a new agreement is reached.
SUBSTITUTIONARY DOCTRINE provides that the employees
cannot revoke the validly executed collective bargaining
contract with their employer by the simple expedient of
changing their bargaining agent. The new agent must respect
the contract. The employees, thru their new bargaining
agent, cannot renege on the CBC, except to negotiate with
management for the shortening thereof.
k. Right to financial statements
Art. 242. Rights of Legitimate Labor Organizations. A
legitimate labor organization shall have the right:
(c) to be furnished by the employer, upon written request,
with its annual audited financial statements, including the
balance sheet and the profit and loss statement, within 30
days from the date of receipt of the request, after the union
has been duly recognized by the employer or certified as the
sole and exclusive bargaining representative of the
employees in the bargaining unit, or within 60 calendar days
before the expiration of the existing CBA, or during their
collective bargaining negotiation.
l. Right to policy and decision making process (Art.
255)
Art. 255. Exclusive Bargaining representation and workers’
participation in policy and decision-making. The labor
organization designated or selected by the majority of the
employees in an appropriate collective bargaining unit shall
be the exclusive representative of the employees in such unit
for the purpose of collective bargaining. However, an
individual employee or group of employees shall have the
right at any time to present grievances to their employer.
Any provision of law to the contrary notwithstanding,
workers shall have the right, subject to such rules and
regulations as the SOLE may promulgate, to participate in
policy and decision-making processes of the establishment
where they are employed insofar as said processes will
directly affect their rights, benefits, and welfare. For this
purpose, workers and employers may form labor-
management councils: provided, that the representatives of
the workers in such labor-management councils shall be
elected by at least the majority of all employees in said
establishment.
PRINCIPLE OF CO-DETERMINATION states that it is a joint
responsibility of the employer and the employee to establish
terms and conditions of employment. In establishing such
terms and conditions of employment, the employer and the
employee must take into consideration existing laws and
regulations. The basis for the principle of codetermination is
Paragraph 3, section 3 of Article XIII of the Constitution which
states, in part, that the State shall promote the principle of
shared responsibility between workers and employers.
m. Right to engage in peaceful concerted activities
(Art. 263)
Art. 263. Strikes, picketing, and lockouts.
a. It is the policy of the state to encourage
free trade unionism and free collective
bargaining
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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 days before the
intended date thereof. In cases of ULP, 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. A notice must be in accordance with such
implementing rules and regulations as the
Minister of Labor and Employment may
regulate
e. During 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 of the results of the voting at least 7
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 SOLE 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 SOLE or the Commission
may seek the assistance of law enforcement
agencies to ensure compliance with the
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 and
other health personnel, whose movement
Page 8 of 20
 and services shall be unhampered and
unrestricted, as are necessary to insure the
strike or lockout. In such cases, therefore,
the SOLE may immediately assume, within
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 SOLE
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 SOLE, the commission or the voluntary
arbitrator shall decide or resolve the
dispute, as the case may be. The decision of
the president, the SOLE, the commission or
the VA shall be final and executor 10
calendar days after receipt thereof by the
parties.
n. Forms of concerted activities
ON THE PART OF THE EMPLOYEES:
1. Strike- any temporary stoppage of work by the
concerted action of the employees as a result of an
industrial or labor dispute. Refers to any temporary
stoppage of work by the concerted action of
employees as a result of labor or industrial dispute.
2. Picketing – or peaceful picketing, is the right of
workers to peacefully march to and fro before an
establishment involved in a labor dispute generally
accompanied by the carrying and display of signs,
placards and banners intended to inform the public
about the dispute. There must be NO temporary
stoppage of work (part of freedom of speech).
3. Boycott – the concerted refusal to patronize an
employer’s goods or services and to persuade others
to a like refusal
ON THE PART OF THE EMPLOYER:
1. Lockout – any temporary refusal of an employer to
furnish work as a result of an industrial or labor
dispute.
INDUSTRIAL OR LABOR DISPUTE – includes an controversy or
matter concerning terms and conditions of employment or
the association or representation of person 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.
o. Strike & lock-out; basis; constitutional/statutory
Right to strike and lockout – the right to strike is a
constitutional and legal right of the workers as employers
have the right to lockout, all within the context of labor
relations and collective bargaining. Subject to the enactment
of Congress of amendments or a new law on labor relations,
the provisions of existing laws shall govern the exercise of
those rights.
CONSTITUTIONAL BASIS
Section 3, Article XIII, 1987 Constitution: the state shall afford
full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of
employment opportunities for all.
It shall guarantee the rights of all workers to self-
organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike in
accordance with law. They shall be entitled to security of
tenure, humane conditions of work, and a living wage. They
shall also participate in policy and decision-making processes
affecting their rights and benefits as may be provided by law.
The state shall promote the principle of shared responsibility
between workers and employers and the preferential use of
voluntary modes in settling disputes, including conciliation,
and shall enforce their mutual compliance therewith to foster
industrial peace.
STATUTORY BASIS
Page 9 of 20
Art. 263. 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 cases of bargaining deadlock, the duly certified or
recognized bargaining agent may file a notice of strike or the
employer may file a notice of lockout with the Department at
least thirty (30) days before the intended date thereof. In
cases of unfair labor practice, the period of notice shall be
fifteen (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 Secretary of Labor and
Employment may promulgate.
(e) During the cooling-off period, it shall be the duty of the
Department 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 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 Department 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 Department 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
Page 10 of 20
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 labor dispute in such industries
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 or panel of voluntary arbitrators
shall decide or resolve the dispute within thirty (30) calendar
days from the date of the assumption of jurisdiction or the
certification or submission of the dispute, as the case may be.
The decision of the President, the Secretary of Labor and
Employment, the Commission or the voluntary arbitrator or
panel of voluntary arbitrators shall be final and executory ten
(10) calendar days after receipt thereof by the parties. (As
amended by RA 6715)
p. Kinds and forms of strike: categories of illegal strike
(1) AS TO EXTENT
a. GENERAL STRIKE – extends over a whole
community, province, state, or country
b. LOCAL OR PARTICULAR STRIKE – one
undertaken by workers in a particular
enterprise, locality, or occupation.
(2) AS TO THE NATURE OF THE ACT
a. STRIKE PROPER
b. SIT-DOWN STRIKE – when a group of
employees or others interested in obtaining
a certain objective in a particular business
establish themselves within the plant, stop
its production and refuse access to the
owners or to others desiring work
c. PARTIAL OR QUICKIE STRIKE- intermittent,
unannounced work stoppage, including
slowdowns, unauthorized extension of rest
periods, and walkouts for portions of a shift
or for entire shifts.
(3) AS TO THE DEGREE OF EMPLOYEE INTEREST
a. PRIMARY STRIKE- one declared by the
employees who have a direct and
immediate interest, whether economic or
otherwise, in the subject of the dispute
which exists between them and the
employer.
b. SECONDARY STRIKE – a coercive measure
adopted by workers against an employer
connected by product or employment with
alleged unfair labor conditions or practices.
c. SYMPATHETIC STRIKE – one in which the
striking employees have no demands or
grievances of their own, but strike for the
purpose of directly or indirectly aiding
others, without direct relation to the
advancement of the interest of the strikers.
(4) AS TO THE NATURE OR PURPOSE OF EMPLOYEE
INTEREST
a. ECONOMIC STRIKE – intended to force
wage and other concessions from the
employer which he is not required by law to
grant
b. ULP STRIKE – Called against the unfair labor
practice of the employer.
q. NCMB Manual of Procedure for conciliation and
preventive mediation
Article 260. Grievance machinery and voluntary arbitration.
The parties to a collective bargaining agreement shall include
therein provisions that will ensure the mutual observance of
its terms and conditions. They shall establish a machinery for
the adjustment and resolution of grievances arising from the
interpretation or implementation of their collective
bargaining agreement and those arising from the
interpretation or enforcement of company personnel policies.
All grievances submitted to the grievance machinery which
are not settled within seven (7) calendar days from the date
of its submission shall automatically be referred to voluntary
arbitration prescribed in the collective bargaining agreement.
Page 11 of 20
For this purpose, parties to a collective bargaining agreement
shall name and designate in advance a voluntary arbitrator or
panel of voluntary arbitrators, or include in the agreement a
procedure for the selection of such voluntary arbitrator or
panel of voluntary arbitrators, preferably from the listing of
qualified voluntary arbitrators duly accredited by the Board.
In case the parties fail to select a voluntary arbitrator or panel
of voluntary arbitrators, the Board shall designate the
voluntary arbitrator or panel of voluntary arbitrators, as may
be necessary, pursuant to the selection procedure agreed
upon in the collective bargaining agreement, which shall act
with the same force and effects as if the voluntary arbitrator
or panel of voluntary arbitrators have been selected by the
parties as described above. (As added by RA 6715)
Article 261. Jurisdiction of voluntary arbitrators and panel of
voluntary arbitrators. The voluntary arbitrator or panel of
voluntary arbitrators shall have original and exclusive
jurisdiction to hear and decide all unresolved grievances
arising from the interpretation or implementation of the
collective bargaining agreement and those arising from the
interpretation or enforcement of company personnel policies
referred to in the immediately preceding Article. Accordingly,
violations of a collective bargaining agreement, except those
which are gross in character, shall no longer be treated as
unfair labor practice and shall be resolved as grievances
under the collective bargaining agreement. For purposes of
this Article, gross violations of a collective bargaining
agreement shall mean flagrant and/or malicious refusal to
comply with the economic provisions of such agreement.
The Commission, its Regional Offices and the Regional
Directors of the Department of Labor and Employment shall
not entertain disputes, grievances or matters under the
exclusive and original jurisdiction of the voluntary arbitrator
or panel of voluntary arbitrators and shall immediately
dispose and refer the same to the grievance machinery or
voluntary arbitration provided in the collective bargaining
agreement. (As added by RA 6715)
Article 262. Jurisdiction over other labor disputes. The
voluntary arbitrator or panel of voluntary arbitrators, upon
agreement of the parties, shall also hear and decide all other
labor disputes including unfair labor practices and bargaining
deadlocks. (As added by RA 6715)
Article 262-A. Procedures. The voluntary arbitrator or panel
of voluntary arbitrators shall have the power to hold
hearings, receive evidences and take whatever action is
necessary to resolve the issue or issues subject of the dispute,
including efforts to effect a voluntary settlement between
parties.
All parties to the dispute shall be entitled to attend the
arbitration proceedings. The attendance of any third party or
the exclusion of any witness from the proceedings shall be
determined by the voluntary arbitrator or panel of voluntary
arbitrators. Hearings may be adjourned for cause or upon
agreement by the parties.
Unless the parties agree otherwise, it shall be mandatory for
the voluntary arbitrator or panel of voluntary arbitrators to
render an award or decision within twenty (20) calendar days
from the date of submission of the dispute to voluntary
arbitration.
The award or decision of the voluntary arbitrator or panel of
voluntary arbitrators shall contain the facts and the law on
which it is based. It shall be final and executory after ten (10)
calendar days from receipt of the copy of the award or
decision by the parties.
Upon motion of any interested party, the voluntary arbitrator
or panel of voluntary arbitrators or the Labor Arbiter in the
region where the movant resides, in case of the absence or
incapacity of the voluntary arbitrator or panel of voluntary
arbitrators for any reason, may issue a writ of execution
requiring either the sheriff of the Commission or regular
courts or any public official whom the parties may designate
in the submission agreement to execute the final decision,
order or award. (As added by RA 6715)
Article 262-B. Cost of voluntary arbitration and voluntary
arbitrator's fee. The parties to a collective bargaining
agreement shall provide therein a proportionate sharing
scheme on the cost of voluntary arbitration including the
voluntary arbitrator's fee. The fixing of fee of voluntary
arbitrators or panel of voluntary arbitrators, whether
shouldered wholly by the parties or subsidized by the Special
Voluntary Arbitration Fund, shall take into account the
following factors:
(a) Nature of the case;
(b) Time consumed in hearing the case;
(c) Professional standing of the voluntary arbitrator;
(d) Capacity to pay of the parties; and
(e) Fees provided for in the Revised Rules of Court. (As
added by RA 6715)
DO 40-03 AMENDING THE IMPLEMENTING RULES OF BOOK
V OF THE LABOR CODE OF THE PHILIPPINES
RULE XIX
Page 12 of 20
GRIEVANCE MACHINERY ANC VOLUNTARY ARBITRATION
Section 1. Establishment of Grievance machinery. The
parties to a collective bargaining agreement shall establish a
machinery for the expeditious resolution of grievances arising
from the interpretation or implementation of the CBA and
those arising from the interpretation or enforcement of
company personnel policies. Unresolved grievances will be
referred to voluntary arbitration and for this purpose, parties
to a CBA shall name and designate in advance a VA or panel
of voluntary arbitrators, or include in the agreement
procedure for the selection of such voluntary arbitrator or
panel of voluntary arbitrators, preferably from the listing of
qualified voluntary arbitrators duly accredited by the Board.
In the absence of applicable provision in the CBA, a grievance
committee shall be created within 10 calendar days from
signing of the CBA. The committee shall be composed of at
least 2 representatives from among the members of the
bargaining unit shall be designated by the union.
Section 2. Procedure in handling grievances. In the absence
of a specific provision in the CBA or existing company practice
prescribing for the procedures in handling grievance, the
following shall apply:
(a) An employee shall present this grievance or complain
orally or in writing to the shop steward. Upon receipt
thereof, the shop steward shall verify the facts and
determine whether or not the grievance is valid.
(b) If the grievance is valid, the shop steward shall
immediately bring the complaint to the employee’s
immediate supervisor. The shop steward, the
employee and his immediate supervisor shall exert
efforts to settle the grievance at their level.
(c) If no settlement is reached, the grievance shall be
referred to the grievance committee which shall have
10 days to decide the case.
Where the issue involves or arises from the interpretation
or implementation of a provision in the CBA, or from any
order, memorandum, circular or assignment issued by the
appropriate authority in the establishment, and such issue
cannot be resolved at the level of the shop steward or the
supervisor, the same may be referred immediately to the
grievance committee.
Section 3. Submission to voluntary arbitration. Where
grievance remains unresolved, either party may serve notice
upon the other of its decision to submit the issue to voluntary
arbitration. The notice shall state the issue or issues to be
arbitrated, copy thereof furnished the board or the voluntary
arbitrator or panel of voluntary arbitrators named or
designated in the CBA.
If the party upon whom the notice is served fails or refuses to
respond favorably within 7 days from receipt thereof, the VA
or panel of Vas designated in the CBA shall commence
voluntary arbitration proceedings. Where the CBA does not
designate, the board shall call the parties and appoint a
voluntary arbitrator or panel of voluntary arbitrators, who
shall thereafter commence arbitration proceedings in
accordance with the preceding paragraph.
In instances where parties fail to select a voluntary or panel
of voluntary arbitrators, the regional branch of the Board
shall designate the voluntary arbitrator or panel of voluntary
arbitrators, as may be necessary, which shall have the same
force and effect as if the parties have selected the arbitrator.
Section 4. Jurisdiction of voluntary arbitrator or panel of
voluntary arbitrators. The VA or panel of Vas shall have
exclusive and original jurisdiction to hear and decide all
grievances arising from the implementation or interpretation
of the CBA and those arising from the interpretation or
enforcement of company personnel policies which remain
unresolved after exhaustion of the grievance procedure.
They shall also have exclusive and original jurisdiction, to hear
and decide wage distortion issues arising from the application
of any wage orders in organized establishments, as well as
unresolved grievances arising from the interpretation and
implementation of the productivity incentive programs under
RA 6971.
THE NLRC, its regional branches and RDs of the dole shall not
entertain disputes, grievances or matters under the exclusive
and original jurisdiction of the VA or POVA and shall
immediately dispose and refer the same to the appropriate
grievance machinery or voluntary arbitration provided in the
CBA.
Upon agreement by the parties, any other labor dispute may
be submitted to a VA or POVA. Before or at any stage of the
compulsory arbitration process, the parties may opt to
submit their dispute to VA.
Section 5. Powers of voluntary arbitrator or panel of
voluntary arbitrators. The VA or POVA shall have the power
to hold hearings, receive evidence and take whatever action
is necessary to resolve the issue/s subject ot the dispute.
The VA or POVA may conciliate or mediate to aid the parties
in reaching a voluntary settlement of the dispute.
Page 13 of 20
Section 6. Procedure. All parties to the dispute shall be
entitled to attend the arbitration proceedings. The
attendance of any third party or the exclusion of any witness
from the proceedings shall be determined by the VA or POVA.
Hearing may be adjourned for cause or upon agreement by
the parties.
Unless the parties agree or otherwise, it shall be mandatory
for the VA or POVA to render an award or decision within 20
calendar days from the date of submission for resolution.
Failure on the part of the voluntary arbitrator to render a
decision, resolution, order or award within the prescribed
period, shall upon complaint of a party, be sufficient ground
for the Board to discipline the said VA, pursuant to the
guidelines issued by the Secretary. Incases that the
recommended sanction is de-listing, it shall be unlawful for
the VA to refuse or fail to turn over to the board, for its
further disposition, the records of the case within 10 calendar
days from demand thereof.
Section 7. Finality of Award/Decision. The decision, order,
resolution or award of the VA or POVA shall be final and
executor after 10 calendar days from receipt of the copy of
the award or decision by the parties and it shall not be
subject of a motion for reconsideration.
Section 8. Execution of award/decision. Upon motion of any
interested party, the VA or POVA or the LA in the region
where the movant resides, in case of the absence or
incapacity for any reason of the VA or POVA who issued the
award or decision, may issue a writ of execution requiring
either the Sheriff of the Commission or regular courts or any
public official whom the parties may designate in the
submission agreement to execute the final decision, order, or
award.
Section 9. Cost of Voluntary Arbitration and VA’s fee. The
parties to a CBA shall provide therein a proportionate sharing
scheme on the cost of Voluntary arbitration including the
VA’s fee. The fixing of fee of voluntary arbitrators or POVA,
whether shouldered wholly by the parties or subsidized by
the Special Voluntary Arbitration Fund, shall take into
account the following factors:
(1) Nature of the case
(2) Time consumed in hearing the case
(3) Professional standing of the voluntary arbitrator
(4) Capacity to pay of the parties
(5) Fees provided for in the revised rules of court
Unless the parties agree otherwise, the cost of voluntary
arbitration proceedings and VA’s fee shall be shared equally
by the parties.
Parties are encouraged to set aside funds to answer for the
cost of voluntary arbitration proceedings including voluntary
arbitrator’s fee. In the event the said funds are not sufficient
to cover such expenses, an amount by way of subsidy taken
out of the Special Voluntary Arbitration Fund may be availed
of by either or both parties subject to the guidelines on
voluntary arbitration to be issued by the secretary.
Section 10. Maintenance of case records by the Board. The
Board shall maintain all records pertaining to a voluntary
arbitration case. In all cases, the Board shall be furnished a
copy of all pleadings and submitted to the VA as well as the
orders, awards, and decision issued by the VA.
The records of a case shall be turned over by the VA or POVA
to the concerned regional branch of the Board within 10 days
upon satisfaction of the final arbitral award/order/decision.
r. Strike, notice of strike & strike area
Article 263. Strikes, picketing and lockouts.
(d) In cases of bargaining deadlock, the duly certified or
recognized bargaining agent may file a notice of
strike or the employer may file a notice of lockout
with the Department at least thirty (30) days before
the intended date thereof. In cases of unfair labor
practice, the period of notice shall be fifteen (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.
s. Where to file and who may file
WHERE TO FILE – Regional Branch of the NCMB having
jurisdiction over the workplace of the union members
WHO MAY FILE –
(1) Any certified or fully recognized bargaining
representative
(2) If there is none, any legitimate labor organization
(for ULP only)
Page 14 of 20
 Section 6. Who may declare a strike or lockout. Any
certified or duly recognized bargaining representative
may declare a strike in cases of bargaining deadlocks and
unfair labor practices. The employer may declare a
lockout in the same cases. In the absence of a certified or
duly recognized bargaining representative, any legitimate
labor organization in the establishment may declare a
strike but only on grounds of unfair labor practices.
t. Grounds for strike & lock out
(a) Bargaining deadlocks;
(b) ULP
(c) Flagrant &/malicious refusal to comply with the
economic provisions of the CBA (still considered
ULP)
Sec. 5. Grounds for strike or lockout. A strike or lockout may
be declared in cases of bargaining deadlocks and ULP.
Violations of CBAs, except flagrant and/or malicious refusal to
comply with its economic provisions, shall not be considered
ULP and shall not be strikeable. No strike or lockout may be
declared on grounds involving inter-union and intra-union
disputes without first having filed a notice of strike or lockout
or without the necessary strike or lockout vote having been
obtained and reported to the Board. Neither will a strike be
declared after assumption of jurisdiction by the Secretary
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.
REQUISITES FOR A LAWFUL STRIKE:
(1) The ground must be due to bargaining deadlock
and/or ULP
(2) Notice of strike must be filed
(3) There must be observance of the corresponding
cooling off period
(4) There must be a conduct of strike vote
(5) Strike or lockout must be conducted in a lawful
manner.
u. Validity of “no strike” clause
A no strike/no lockout clause in the CBA is VALID because
parties may freely stipulate as long as such stipulation is not
contrary to law, morals, and public policy. It is applicable only
to economic strikes. If the strike is founded on an ULP of the
employer, a strike declared by the union cannot be
considered a violation of the no strike clause.
v. Strikeable issue & non-strikeable issue
STRIKEABLE ISSUES
(1) Bargaining deadlock
(2) Unfair labor practice
NON-STRIKEABLE ISSUES
(1) Intra-union disputes
(2) Inter-union disputes
(3) Issues submitted to arbitration
(4) Political provisions of the CBA
(5) Wage distortion
(6) Interpretation and implementation of the
provisions of the CBA
Preventive mediation case- refers to labor disputes which are
the subject of a formal or informal request for conciliation
and mediation assistance sought by either of both parties or
upon the initiative of the board.
w. Form of notice and contents
CONTENTS
Section 8. Contents of notice. The notice shall state,
among others, the names and addresses of the employer
and the union involved, the nature of the industry to
which the employer belongs, the number of union
members and of the workers in the bargaining unit, and
such other relevant data as may facilitate the settlement
of the dispute, such as a brief statement or enumeration
of all pending labor disputes involving the same parties.
In cases of bargaining deadlocks, the notice shall, as far
as practicable, further state the unresolved issues in the
bargaining negotiations and be accompanied by the
written proposals of the union, in the counter-proposals
of the employer and the proof of a request for
conference to settle the differences. In cases of ULP, the
notice shall, as far as practicable, state the acts
complained of and the efforts taken to resolve the
dispute amicably.
In case a notice does not conform with the requirements
of this and the foregoing sections/s, the regional branch
of the Board shall inform the concerned party of such
fact.
(d) The names and the addresses of the
employer and the union involved
Page 15 of 20
 (e) The nature of the industry to which the
employer belongs
(f) The number of union members in the
bargaining unit
(g) The number of workers in the bargaining unit
(h) Such other relevant data as may facilitate the
settlement of the dispute;
(i) The unresolved issues in the bargaining
negotiations accompanied by the written
proposals of the union, the counter-
proposals of the employer and the proof of a
request for conference to settle the
differences
(j) Acts complained of and the efforts taken to
resolve the dispute amicably
x. Prohibited activities (Art. 264); assumption of
jurisdiction by Sec. of labor
Article 264. 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 Department.
No strike or lockout shall be declared after assumption of
jurisdiction by the President or the Secretary 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 backwages. Any union officer who
knowingly participates in the commission of illegal acts during
a strike may be declared to have lost his employment right:
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.
(c) No employer shall use or employ any strike-
breaker nor shall any person be employed as a strike-breaker.
(d) No public official or employee, including officers
and personnel of the New Armed Forces of the Philippines or
the Integrated National Police, or armed persons, shall bring
in, introduce or escort in any 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. 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 maintain peace and order,
protect life and property, and/or enforce the law and legal
order.
(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.
Article 263. Strikes, picketing and lockouts. (a) It is the policy
of the State to encourage free trade unionism and free
collective bargaining.
(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
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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 labor dispute in such industries
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 or panel of voluntary arbitrators
shall decide or resolve the dispute within thirty (30) calendar
days from the date of the assumption of jurisdiction or the
certification or submission of the dispute, as the case may be.
The decision of the President, the Secretary of Labor and
Employment, the Commission or the voluntary arbitrator or
panel of voluntary arbitrators shall be final and executory ten
(10) calendar days after receipt thereof by the parties. (As
amended by RA 6715)
y. Improved offer balloting (Art. 265)
Article 265. Improved offer balloting. In an effort to settle a
strike, the Department of Labor and Employment 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. (As amended by RA 6715)
z. Consequences of legal and illegal strike; arrest and
detention of union members (Art. 266)
Article 266. Requirement for arrest and detention.
Except on grounds of national security and public peace,
no union members or union organizers may be arrested
or detained for union activities without previous
consultations with the Secretary of Labor and
Employment.
(a) For union members:
a. Mere participation in a lawful strike does
NOT constitute sufficient ground for
termination of employment. Even
participation in a strike which turned out to
be illegal does not necessarily result in loss
of job
b. But anyone who commits an illegal act
during a strike may be dismissed from
employment, regardless of whether the
strike itself was legal or not
(b) For union officers:
a. Any union officer who knowingly
participates in an illegal strike or in the
commission of illegal acts during a strike,
even if it is legal, may be declared to have
lost his employment status. This is because
the responsibility of union officers is greater
than that of the members.
b. Illegal strike and members participated –
members cannot be terminated
c. If they are dismissed from employment
because of such participation in an illegal
strike – entitled to reinstatement and
backwages from date of dismissal.
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 aa. Legal remedies by employer & union in case of
strike/lock-out; labor dispute (Art. 212); jurisdiction
& procedure before labor arbiter and SOL
LEGAL REMEDIES OF EMPLOYER & UNION IN CASE OF
STRIKE/LOCKOUT
-The parties may resort to preventive mediation or
alternative modes of dispute resolution including
voluntary arbitration
- The regional branch of the NCMB shall exert all efforts
at mediation and conciliation to enable the parties to
settle amicably. The regional branch of the board may,
upon agreement of the parties, treat a notice as a
preventive mediation case. It shall also encourage the
parties to submit the dispute to voluntary arbitration.
- at any stage of a compulsory arbitration process, the
parties may opt to submit their dispute to voluntary
arbitration.
Section 9. Action on Notice. Upon a receipt of the notice,
the regional branch of the board shall exert all efforts at
mediation and conciliation to enable the parties to settle
the dispute amicably. The regional branch of the board
may, upon agreement of the parties, treat a notice as a
preventive mediation case.
It shall also encourage the parties to submit the dispute
to voluntary arbitration.
During the proceedings, the parties shall not do any act
which may disrupt or impede the early settlement of the
dispute. They are obliged, as part of their duty to bargain
collectively in good faith and to participate fully and
promptly in the conciliation meetings called by the
regional branch of the Board.
A notice, upon agreement of the parties, may be referred
to alternative modes of dispute resolution, including
voluntary arbitration.
JURISDICTION & PROCEDURE BEFORE THE LABOR ARBITER
AND THE SOL
- The SOLE, the NLRC (LA) or the VA shall decide or
resolve the dispute within 30 calendar days from the
assumption of jurisdiction or the certification or
submission of the dispute, as the case may be. The
decision of the President, the SOLE, the Commission
or the VA shall be final and executor 10 calendar
days after receipt thereof by the parties.
- The SOLE’s jurisdiction over national interest labor
disputes extends to all questions arising from the
dispute. However, excepted from this rule is the
situation where their CBA, the parties categorically
agreed that disputes between them shall be referred
to the grievance machinery which ends in VA.
bb. Innocent bystander rule
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 persons or innocent bystanders.
According to Marquez, third parties cannot be disrupted by a
labor dispute and they have a right to file for injunction.
cc. Anti-injunction ban (Art. 264); “Freedom at the
workplace”
GENERAL RULE: No temporary or permanent injunction or
restraining order in any case involving or growing out of labor
disputes shall be issued by any court or other entity.
This is to protect the freedom of labor and management to
bargain and settle disputes in the workplace on their own
accord.
EXCEPTIONS:
(1) Article 264. 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
Department.
(2) Article 218 (e). Powers of the Commission.
To enjoin or restrain any actual or threatened commission of
any or all prohibited or unlawful acts or to require the
performance of a particular act in any labor dispute which, if
not restrained or performed forthwith, may cause grave or
irreparable damage to any party: Provided, That no
temporary or permanent injunction in any case involving or
growing out of a labor dispute as defined in this Code shall be
issued except after hearing the testimony of witnesses, with
Page 18 of 20
opportunity for cross-examination, in support of the
allegations of a complaint made under oath, and testimony in
opposition thereto, if offered, and only after a finding of fact
by the Commission, to the effect:
(1) That prohibited or unlawful acts have been
threatened and will be committed unless restrained,
or have been committed and will be continued
unless restrained, but no injunction or temporary
restraining order shall be issued on account of any
threat, prohibited or unlawful act, except against the
person or persons, association or organization
making the threat or committing the prohibited or
unlawful act or actually authorizing or ratifying the
same after actual knowledge thereof;
(2) That substantial and irreparable injury to
complainant's property will follow;
(3) That, as to each item of relief to be granted,
greater injury will be inflicted upon complainant by
the denial of relief than will be inflicted upon
defendants by the granting of relief;
(4) That complainant has no adequate remedy at
law; and
(5) That the public officers charged with the duty to
protect complainant's property are unable or
unwilling to furnish adequate protection.
Such hearing shall be held after due and personal notice
thereof has been served, in such manner as the Commission
shall direct, to all known persons against whom relief is
sought, and also to the Chief Executive and other public
officials of the province or city within which the unlawful acts
have been threatened or committed charged with the duty to
protect complainant's property: Provided, however, That if a
complainant shall also allege that, unless a temporary
restraining order shall be issued without notice, a substantial
and irreparable injury to complainant's property will be
unavoidable, such a temporary restraining order may be
issued upon testimony under oath, sufficient, if sustained, to
justify the Commission in issuing a temporary injunction upon
hearing after notice. Such a temporary restraining order shall
be effective for no longer than twenty (20) days and shall
become void at the expiration of said twenty (20) days. No
such temporary restraining order or temporary injunction
shall be issued except on condition that complainant shall
first file an undertaking with adequate security in an amount
to be fixed by the Commission sufficient to recompense those
enjoined for any loss, expense or damage caused by the
improvident or erroneous issuance of such order or
injunction, including all reasonable costs, together with a
reasonable attorney's fee, and expense of defense against the
order or against the granting of any injunctive relief sought in
the same proceeding and subsequently denied by the
Commission.
The undertaking herein mentioned shall be understood to
constitute an agreement entered into by the complainant and
the surety upon which an order may be rendered in the same
suit or proceeding against said complainant and surety, upon
a hearing to assess damages, of which hearing complainant
and surety shall have reasonable notice, the said complainant
and surety submitting themselves to the jurisdiction of the
Commission for that purpose. But nothing herein contained
shall deprive any party having a claim or cause of action
under or upon such undertaking from electing to pursue his
ordinary remedy by suit at law or in equity: Provided, further,
That the reception of evidence for the application of a writ of
injunction may be delegated by the Commission to any of its
Labor Arbiters who shall conduct such hearings in such places
as he may determine to be accessible to the parties and their
witnesses and shall submit thereafter his recommendation to
the Commission. (As amended by RA 6715)
FREEDOM AT THE WORKPLACE
Besides the anti-injunction policy of the LC, basically, is
freedom at the workplace. It is more appropriate in the
promotion of the primacy of free collective bargaining and
negotiations, including voluntary arbitration, mediation and
conciliation, as modes of settling labor and industrial
disputes.
Generally, an injunction is a preservative remedy for the
protection of a person’s substantive rights or interests. It is
not a cause of action in itself but a mere provisional remedy,
an appendage to the main suit. Pressing necessity requires
that it should be resorted to only to avoid injurious
consequences which cannot be remedied under any measure
of consideration. The application of an injunctive writ rests
upon the presence of an exigency or of an exceptional reason
before the main case can be regularly heard. The
indispensable conditions for granting such temporary
injunctive relief are:
(a) That the complaint alleges facts which appear to be
satisfactory to establish a proper basis for
injunction
(b) That on the entire showing from the contending
parties, the injunction is reasonably necessary
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to protect the legal rights of the plaintiff
pending the litigation

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