CONCILIATION-MEDIATION

Perform conciliation and mediation functions;

Provide Technical Assistance in the Preparation and Administration of Collective
Bargaining Agreements and and in Drawing Up Joint Agreements;
Provide training on Alternative Dispute Resolution;
Supervise/observe conduct of strike balloting and improved/reduced offer balloting;
Provide counseling services on labor relations related issues;
Provide training on effective negotiations and collective bargaining;
Provide speakership services on labor relations related topics during seminars,
symposia, and orientation;
Provide Free Legal Aid and Voluntary Arbitration Services (FLAVAS).

FREQUENTLY ASKED QUESTIONS

WHAT IS CONCILIATION AND MEDIATION?

Conciliation – is conceived of as a mild form of intervention by a neutral third party, the

Conciliator-Mediator, relying on his persuasive expertise, who takes an active role in
assisting parties by trying to keep disputants talking, facilitating other procedural
niceties, carrying messages back and forth between the parties, and generally being a
good fellow who tires to keep things calm and forward-looking in a tense situation.

Mediation – is a mild intervention by a neutral third party, the Conciliator-Mediator,

whereby he starts advising the parties or offering solutions or alternatives to the
problems with the end in view of assisting them towards voluntarily reaching their own
mutually acceptable settlement of the dispute.

WHO CAN AVAIL OF CONCILIATION AND MEDIATION SERVICES OF THE NCMB?

Any party to a labor dispute, either the union or management, may seek the assistance
of NCMB or any of its Regional Branches by means of formal request for conciliation
and preventive mediation. Depending on the nature of the problem, a request may be
filed in the form of consultation, notice of preventive mediation or notice of
strike/lockout.

WHERE CAN A REQUEST FOR CONCILIATION AND MEDIATION BE FILED?

An informal or formal request for conciliation and mediation service can be filed at the
NCMB Central Office or any of its Regional Branches. There are at present fourteen
(14) regional offices of the NCMB which are strategically located all over the country for
the convenient use of prospective clients.

WHAT ARE THE VALID ISSUES FOR A NOTICE OF STRIKE/LOCKOUT OR

PREVENTIVE MEDIATION CASE?

A notice of strike or lockout maybe filed on ground of unfair labor practice acts, gross
violation of the CBA, or deadlock in collective bargaining. A complaint on any of the
above ground must be specified in the NCMB Form or the proper form used in the filing
of complaint.

In case of preventive mediation, any issue may be brought before the NCMB Central
Office or its regional offices for conciliation and possible settlement through a letter. This
method is more preferable than a notice of strike/lockout because of the non-adversarial
atmosphere that pervades during the conciliation conferences.
WHAT ADVANTAGE CAN BE DERIVED FROM CONCILIATION AND MEDIATION
SERVICES?

Conciliation and mediation is non-litigious/non-adversarial, less expensive, and

expeditious. Under this informal set-up, the parties find it more expedient to fully
ventilate their respective positions without running around with legal technicalities and,
in the course thereof, afford them a wider latitude of possible approaches to the
problem.

ARE THE PARTIES BOUND BY THE AGREEMENT ENTERED INTO BY THEM?

Certainly, the parties are bound to honor any agreement entered into by them. It must
be pointed out that such an agreement came into existence as a result of painstaking
efforts among the union, management, and the Conciliator-Mediator. Therefore, it is
only logical to assume that the Conciliator assigned to the case has to follow up and
monitor the implementation of the agreement.

IS CONCILIATION AND MEDIATION SERVICE STILL POSSIBLE DURING ACTUAL

STRIKE OR ACTUAL LOCKOUT?

Definitely, it is possible to subject an actual strike or actual lockout to continuing

conciliation and mediation services. In fact, it is at this critical stage that such
conciliation and mediation services by fully given a chance to work out possible solution
to the labor dispute. With the ability of the Conciliator-Mediator to put the parties at ease
and place them at a cooperative mood, the final solutions of all the issues involved may
yet be effected and settled.

WHEN THE DISPUTE HAS ALREADY BEEN ASSUMED OR CERTIFIED TO THE

NLRC, IS IT ALSO POSSIBLE TO REMAND THE SAME TO CONCILIATION AND
MEDIATION SERVICES?

Yes, the parties are not precluded from availing the services of an NCMB Conciliator-
Mediator as the duty to bargain collectively subsists until the final resolution of all issues
involved in the dispute. Conciliation is so pervasive in application that, prior to a
compulsory arbitration award, the parties are encouraged to continue to exhaust all
possible avenues of mutually resolving their dispute, especially through conciliation and
mediation services.

WHAT PARLIAMENTARY NORM OF CONDUCT SHOULD ESSENTIALLY BE

OBSERVED DURING CONFERENCES?

Be on time for each meeting. Concentrate on the merits and stick to the issue.
Be sure you are duly authorized to speak and decide for your principal. Bargain in good
faith.
Listen actively, be open to options and suggestions. Do not negotiate with inflexible
position.
Be cordial in language at all times and respect the other fellow’s opinion. Remember,
we are all concerned in resolving a dispute.
WHAT IS THE ROLE OF THE CONCILIATOR-MEDIATOR?

The essential role of the Conciliator/Mediator is mainly to facilitate the negotiation of the
conflicting parties in order

WHAT IS STRIKE, PICKETING AND LOCKOUT?

STRIKE – means any temporary stoppage of work by the concerted action of the
employees as a result of an industrial or labor dispute. (Art. 212 (0), Labor Code, as
amended by Sec. 4, R. A. 6715.)
PEACEFUL PICKETING – the right of workers during strikes consisting of the marching
to and from before the premises of an establishment involved in a labor dispute,
generally accompanied by the carrying and display of signs, placards or banners with
statements relating to the b dispute. (GUIDELINES GOVERNING LABOR RELATIONS,
October 19,1987)
LOCKOUT – means the temporary refusal of an employer to furnish work as a result of
an industrial or labor dispute. (Article 212 (p) Labor Code, as amended by Section 4,
R.A. 6715).

WHAT ARE THE DIFFERENT FORMS OF STRIKES?

LEGAL STRIKE one called for a valid purpose and conducted through means allowed
by law.
ILLEGAL STRIKE – one staged for a purpose not recognized by law, or if for a valid
purpose, conducted through means not sanctioned by law.
ECONOMIC STRIKE – one staged by workers to force wage or other economic
concessions from the employer which he is not required by law to grant (Consolidated
Labor Association of the Phil. vs. Marsman and Company, 11 SCRA 589)
ULP STRIKE one called to protest against the employer’s acts of unfair practice
enumerated in Article 248 of the Labor Code, as amended, including gross violation of
the collective bargaining agreement (CBA) and union busting.
SLOW DOWN STRIKE one staged without the workers quitting their work but by merely
slackening or by reducing their normal work output.
WILD-CAT STRIKE one declared and staged without filing the required notice of strike
and without the majority approval of the recognized bargaining agent.
SIT DOWN STRIKE one where the workers stop working but do not leave their place of
work.

WHAT IS AN INDUSTRIAL DISPUTE?

An industrial or labor dispute includes any controversy or matter concerning terms or

conditions of employment or the association or representation of persons in negotiating,
fixing, maintaining, changing or arranging the terms and conditions of employment
regardless of whether the disputants stand in the proximate relation of employer and
employee. (Article 212 (1) Labor Code, as amended by Section 4, R.A. 6715)

WHAT IS THE NATURE OF THE RIGHT TO STRIKE AND LOCKOUT?

The right to strike is a constitutional and legal right of the workers as the employers
have the inherent and statutory right to lockout, all within the context of labor relations
and collective bargaining. It is a means of last resort and presupposes that the duty to
bargain in good faith has been fulfilled and other voluntary modes of dispute settlement
have been tried and exhausted. (Guidelines Governing Labor Relations).

WHO MAY DECLARE A STRIKE OR LOCKOUT?

Any certified or duly recognized bargaining representative may declare a strike in cases
of bargaining deadlock and unfair labor practice. Likewise, 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 the
ground of unfair labor practice. (Section 2, Rule XIII Book V, Omnibus Rules
Implementing The Labor Code, as amended).

WHAT ARE THE REQUISITES OF A LAWFUL STRIKE/LOCKOUT?

The requirements for a valid strike or lockout are as follows:

It must be based on a valid and factual ground;

A strike or lockout NOTICE shall be filed with the National Conciliation and Mediation
Board (NCMB) at least 15 days before the intended date of the strike or lockout if the
issues raised are unfair labor practices, or at least 30 days before the intended date
thereof if the issue involves bargaining deadlock.
In cases 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 after the strike vote is conducted and the result
thereof submitted to the Department of Labor and Employment.

A strike must be approved by a majority vote of the members of the Union and a lockout
must be approved by a majority vote of the members 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 .

A strike or lockout VOTE shall be reported to the NCMB-DOLE Regional Branch at least
7 days before the intended strike or lockout subject to the cooling-off period.

In the event the result of the strike/lockout ballot is filed within the cooling-off period, the
7-day requirement shall be counted from the day following the expiration of the cooling-
off period. (NSFW vs. Ovejera, G.R. No. 59743, May 31, 1982) In case of dismissal
from employment of union officers which may constitute union busting, the time
requirement for the filing of the Notice of Strike shall be dispensed with but the strike
vote requirement, being mandatory in character, shall “in every case” be complied with.

The dispute must not be the subject of an assumption of jurisdiction by the President or
the Secretary of Labor and Employment, a certification for compulsory arbitration, or
submission to compulsory or voluntary arbitration nor a subject of a pending case
involving the same grounds for the strike or lockout.

WHAT ARE THE VALID GROUNDS FOR DECLARING A STRIKE OR LOCKOUT?

The law recognizes 2 grounds for the valid exercise of the right to strike or lockout,
namely:Collective Bargaining Deadlock (CBD) and/or Unfair Labor Practice (ULP).

MAY A UNION FILE A NOTICE OF STRIKE OR THE EMPLOYER FILE A NOTICE OF

LOCKOUT IF THE LABOR DISPUTE IS BASED ON A GROUND OTHER THAN ULP
AND CBD?

No. The union/employer may not file a notice based on grounds other than ULP and
CBD. Violations of Collective Bargaining Agreements, except flagrant and/or malicious
refusal to comply with its economic provisions, shall not be considered unfair labor
practice and shall not be strikeable and no strike or lockout may be declared on grounds
involving inter-union and internal union disputes or on issues brought to voluntary or
compulsory arbitration including legislated wage orders and labor standard cases.

However, if improvidently filed and it appears on the face of the notice that the issues
raised are non-strikeable or the real issues discovered during conciliation proceedings
are not proper subjects of a Notice of Strike or Lockout, the NCMB Regional Branch
shall dismiss motu propio the notice without prejudice to further conciliation, or upon the
request of either or both parties, in which case, the Notice of Strike or Lockout is treated
as a Preventive Mediation Case. (See Definition of Preventive Mediation Case under
Appendix 3, Definition of Terms).

WHAT ARE THE CONTENTS OF A NOTICE OF STRIKE OR LOCKOUT?

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, the counter-proposals of the employer and the proof of a request
for conference to settle the differences.

In cases of unfair labor practices, the notice shall, as far as practicable, state the acts
complained of and the efforts taken to resolve the dispute amicably.

WHAT IS THE ROLE OF THE NCMB IN CASE A NOTICE OF STRIKE OR LOCKOUT

IS FILED?

Upon receipt of a valid notice of strike or lockout, the NCMB, through its Conciliator-
Mediators, shall call the parties to a conference the soonest possible time in order to
actively assist them to explore all possibilities for amicable settlement. To this end, the
Conciliator-Mediator may suggest/offer proposals as an alternative avenue for the
resolution of their disagreement/conflict which may not necessarily bind the parties. In
the event of failure in conciliation/mediation the parties shall be encouraged to submit
their dispute for voluntary arbitration.

WHAT IS THE LEGAL IMPLICATION IF THE CONTENT- REQUIREMENT OF THE

NOTICE OF STRIKE OR LOCKOUT HAS NOT BEEN COMPLIED WITH?

Any notice which does not conform with the foregoing requirements shall be deemed as
not having been filed.

WHAT IS THE PURPOSE OF THE STRIKE VOTE?

To ensure that the decision to strike broadly rests with the majority of the Union
members in general and not with a mere minority, at the same time, discourage wildcat
strikes, union bossism and even corruption.

WHAT IS THE PURPOSE OF THE STRIKE VOTE REPORT?

To ensure that a strike vote was indeed taken and in the event that the report is false, to
afford the members an opportunity to take the appropriate remedy before it is too late.

WHAT IS THE PURPOSE OF THE TIME REQUIREMENT IN THE NOTICE OF

STRIKE/LOCKOUT?

The 15 and 30 days requirement is known as the Cooling-0ff Period designed to afford
parties the opportunity to amicably resolve the dispute with the assistance of the NCMB
Conciliator/Mediator. Should the dispute remain unsettled until the lapse of the required
number of days from the mandatory filing of the notice, the labor union may strike or the
employer may commence a lockout after having complied with the 7-day requirement
for the filing of the strike or lockout vote, as the case may be.

WHAT ARE THE PROHIBITED ACTS AND PRACTICES?

Declaring a strike or lockout on grounds involving inter-union and intra-union disputes or

on issues brought to voluntary or compulsory arbitration.

Declaring a strike or lockout without first having bargained collectively or without first
having filed the required notice or without the necessary strike or lockout vote first
having been obtained and reported to the Regional Branch of the NCMB.

Declaring a strike or lockout in defiance of a cease-and-desist order, or an order for the

striking employees to return to work and for the employer accept the workers after
assumption of jurisdiction by the President or Secretary of Labor and Employment, or
after certification or submission of the dispute to compulsory or voluntary arbitration, or
during the pendency of a case involving the authorized grounds for the strike or lockout.
Obstructing, impending or interfering with by force, violence, coercion, threats or
intimidation any peaceful picketing by employees during any labor controversy or in the
exercise of their right to self-organization or collective bargaining, or aiding or abetting
such obstruction or interference.

Employing any strike breaker or being employed as a strike-breaker.

No public official or employee, including officers and personnel of the Armed Forces of
the Philippines, of the Philippine National Police, or any armed person 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 strikers.
Nothing herein shall be interpreted to prevent the aforementioned officials, employees
or peace officers from taking any measure necessary to maintain peace and order
and/or to protect life and property.

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

Any act of violence, coercion or intimidation by any picketer.

The obstruction of the free ingress to or egress from the employer’s premises for lawful
purposes.

Obstruction of public thoroughfares while engaged in picketing.

WHAT ARE THE LEGAL IMPLICATIONS FOR NON-COMPLIANCE WITH THE

REQUIREMENTS FOR A VALID STRIKE OR LOCKOUT?

The requirements for a valid strike or lockout are mandatory in character and non-
compliance therewith is sufficient ground to declare the strike or lockout illegal.

If a strike is declared illegal, the employer may be authorized to terminate the

employment of union officials who knowingly participated in the illegal strike and/or any
worker or union officer who knowingly participated in the commission of other illegal
acts during the strike.

In case the lockout is declared illegal, any worker whose employment has been
terminated as a consequence thereof may be entitled to re-instatement including
payment of full backwages and other benefits.

WHEN A DISPUTE SUBJECT OF A NOTICE OF STRIKE IS FORTHWITH TREATED

AS A PREVENTIVE MEDIATION CASE, MAY THE UNION LATER ON STAGE A
STRIKE ON ACCOUNT OF THE SAME DISPUTE?

No. 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 vs. Sec. of Labor).

WHO HAS THE DUTY TO DECLARE THAT THE NOTICE OF STRIKE/LOCKOUT

HAS BEEN CONVERTED INTO A PREVENTIVE MEDIATION CASE?

Upon the recommendation of the Conciliator/Mediator handling the labor dispute, the
Director of the Regional Branch of the NCMB which has jurisdiction over the labor
dispute has the duty to declare and inform the parties that the issues raised or the
actual issues involved are not proper subjects of a Notice of Strike or Lockout and that
the Notice of Strike or Lockout has been converted into a Preventive Mediation Case
without prejudice to further conciliation or upon the request of either or both parties.
MAY A LABOR DISPUTE, SUBJECT OF A NOTICE OF STRIKE OR LOCKOUT,
MATURE INTO A VOLUNTARY ARBITRATION CASE?

Yes. By mutual agreement, the parties may decide to bring the matter for resolution
before an accredited voluntary arbitrator of their own choice, in which case the Notice is
deemed automatically withdrawn and dropped from the dockets.

WHEN MAY A STRIKE OR LOCKOUT BE DECLARED ILLEGAL?

A strike or lockout may be declared illegal if any of the requirements for a valid strike or
lockout is not complied with. It may also be declared illegal if it is based on non-
strikeable issues or if the issues involved are already the subject of arbitration. During a
strike or lockout, when either of the parties commit prohibited acts or practices, the
strike or lockout may be declared illegal.

WHO HAS JURISDICTION TO DETERMINE THE LEGALITY OF STRIKE AND

LOCKOUT?

In general, the Labor Arbiter in the appropriate Arbitration Branch of the National Labor
Relations Commission has the power to determine questions involving the legality or
illegality of a strike or lockout upon the filing of a proper complaint and after due
hearing.

Where the matter of legality or illegality of strike is raised in the dispute over which the
Secretary assumed jurisdiction or in disputes certified by the Secretary to the
Commission for compulsory arbitration, the same may be resolved by the Secretary or
the Commission, respectively. (International Pharmaceuticals, Inc. vs. Secretary of
Labor and Associated Labor Union, GR. No. 92981-83, January 9, 1992.)

MAY A VOLUNTARY ARBITRATOR DETERMINE THE LEGALITY OF A STRIKE?

If the issue is voluntarily and jointly submitted by the parties to voluntary arbitration, the
question may be resolved by the voluntary arbitrator or panel of voluntary arbitrators.

CAN ANY PERSON PERFORMING ANY OF THE PROHIBITED ACTIVITIES

MENTIONED IN THE PROCEEDING PARAGRAPH BE CHARGED BEFORE THE
COURT?

Yes. They may be charged before the appropriate civil and criminal court.

WHAT IS THE PENALTY IMPOSABLE?

Any person violating any of the provisions of Article 265 of the Labor Code (performing
any of the above prohibited activities) shall be punished by a fine of not exceeding
P500.00 and/or imprisonment for not less than one (1) day nor more than six (6)
months.

If the person so convicted is a foreigner, he shall be subjected to immediate and

summary deportation and will be permanently barred from re-entering the country
without the special permission of the President.

If the act is at the same time a violation of the Revised Penal Code (RPC), a
prosecution under the Labor Code will preclude prosecution for the same act under the
RPC or vice-versa.
IS AN EMPLOYEE WHO PARTICIPATES IN A LAWFUL STRIKE DEEMED TO HAVE
ABANDONED HIS EMPLOYMENT?

No. An employee who goes on strike is not deemed to have abandoned his employment
but is merely exercising his right to self-organization precisely to protect his rights as an
employee and/or to obtain better working conditions.

IS PARTICIPATION BY AN EMPLOYEE IN STRIKE SUFFICIENT GROUND FOR AN

EMPLOYER TO TERMINATE HIS EMPLOYMENT?

No. The mere participation of a worker in lawful strike shall not constitute sufficient
ground for the termination of his employment even if a replacement has been hired by
the employer during such lawful strike. However, any union officer who knowingly
participates in an illegal strike and any worker or union officer who knowingly
participates in the commission of illegal acts during a strike may be declared to have
lost his employment status.

ARE THE STRIKERS ENTITLED TO PAYMENT OF WAGES DURING THE PERIOD

OF A LAWFUL STRIKE?

As a general rule, striking employees are not entitled to the payment of wages for
unworked days during the period of the strike pursuant to the principle of “No work – No
pay”. However, this does not preclude the parties from entering into an agreement to
the contrary.

On the other hand, when strikers abandon the strike and apply for reinstatement despite
the existence of valid grounds but the employer either refuses to reinstate them or
imposes upon their reinstatement new conditions that constitute unfair labor practices,
the strikers, who refuse to accept the new conditions and are consequently refused
reinstatement, are entitled to the losses of pay they may have suffered by reason of the
employer’s discriminatory acts from the time they were refused reinstatement.

MAY A STRIKE/LOCKOUT BE ENJOINED/PREVENTED BY LEGAL PROCESS?

As a general rule, strikes and lockouts validly declared enjoy the protection of law and
cannot be enjoined unless illegal acts are committed or threatened to be committed in
the course of such strikes or lockouts. Ordinarily, the law vests in the NLRC the
authority to issue injunctions to restrain the commission of illegal acts during strikes and
pickets.

In national interest cases, the certification or assumption of jurisdiction by the Secretary

of Labor over the dispute under Article 263 (g) of the Labor Code, as amended, has the
effect of automatically enjoining the intended strike or lockout whether or not a
corresponding return to work order has been issued. The workers shall immediately
return to work and the employer shall immediately resume operations and re-admit all
workers under the same terms and conditions of employment prevailing before the
strike.

WHAT IS THE EXTENT OF THE POWER OF THE PRESIDENT OR THE

SECRETARY OF LABOR AND EMPLOYMENT TO ISSUE ASSUMPTION AND
CERTIFICATION ORDERS?

The power to issue assumption and certification orders is an extraordinary authority

strictly limited to national interest cases and granted to the President or to the Secretary
of Labor, “which can justifiably rest on his own consideration of the exigency of the
situation in relation to the national interest.”

Pursuant to the provisions of Article 263 (g) of the Labor Code, as amended, the
Secretary of Labor is vested with the discretionary power to decide not only the question
of whether to assume jurisdiction over a given labor dispute or certify the same to the
NLRC, but also the determination of the industry indispensable to national interest.”
The President of the Philippines shall not be precluded from intervening at any time and
assuming jurisdiction over any labor dispute involving industries indispensable to
national interest in order to settle or terminate the same.”

Under Article 277 (b) of the Labor Code, as amended, the Secretary of the Department
of Labor and Employment 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
the Department of Labor and Employment before whom such dispute is pending that
the termination may cause a serious labor dispute or is in the implementation of a mass
lay-off.

WHEN A DISPUTE IS ASSUMED BY THE PRESIDENT OR THE SECRETARY OF

LABOR, OR CERTIFIED TO THE NLRC FOR COMPULSORY ARBITRATION, MAY A
STRIKE OR LOCKOUT BE DECLARED ON ACCOUNT OF THE SAME DISPUTE?

No. The assumption or certification shall have the effect of automatically enjoining the
intended or impending strike or lockout

WHAT IS THE NATURE OF THE RETURN-TO-WORK ORDER?

The return-to-work-order is a valid statutory part and parcel of the assumption and
certification orders given the predictable prejudice the strike could cause not only to the
parties but more especially to the national interest. Stated otherwise, the assumption of
jurisdiction and the certification to the NLRC has the effect of automatically enjoining the
strike or lockout, whether actual or intended, even if the same has not been
categorically stated or does not appear in the assumption or certification order. It is not
a matter of option or voluntariness but of obligation. It must be discharged as a duty
even against the worker’s will. The worker must return to his job together with his co-
workers so that the operation of the company can be resumed and it can continue
serving the public and promoting its interest. x x x. It is executory in character and shall
be strictly complied with by the parties even during the pendency of any petition
questioning their validity x x x precisely to maintain the status quo while the
determination is being made. (Union of Filipro Employees vs. Nestle Philippines, Inc.,
GR No. 88710-13, December 19, 1990).

WHAT ARE THE LEGAL CONSEQUENCES IN CASES OF DEFIANCE OF THE

RETURN-TO-WORK ORDER BY THE EMPLOYER AND BY THE EMPLOYEES?

In case of non-compliance with the return-to-work order in connection with the

certification or assumption of jurisdiction by the Secretary of Labor, the employees
concerned may be subjected to immediate disciplinary action, including dismissal or
loss of employment status or payment by the locking-out employer of back-wages,
damages and other affirmative relief, even criminal prosecution against either or both of
them.

The Secretary of Labor may cite the defiant party in contempt pursuant to the power
vested in him under the provisions of the Labor Code.

CAN THE PHILIPPINE NATIONAL POLICE (PNP) BE DEPUTIZED TO ENFORCE

ORDERS FROM THE DEPARTMENT OF LABOR?

Yes. The Secretary of Labor and Employment, the National Labor Relations
Commission (NLRC) or any Labor Arbiter may deputize the PNP to enforce any of its
order, award or decision.

IN CASE THE PNP IS DEPUTIZED TO ENFORCE ORDERS FROM THE

DEPARTMENT OF LABOR, WHAT WILL BE ITS ROLE?

In such a case, the role of the PNP is merely to assist the sheriff or the appropriate
DOLE Officers in enforcing the decision, award or order.
It shall maintain peace and order and public safety in the area where the decision,
award or order is to be enforced. It shall also give security to the officers enforcing the
decision, award or order. (Please see also Article 264 (d), Article 266 of the Labor Code
as amended, and guidelines for the conduct of PNP During Strikes, Lockouts and Labor
Disputes in General, Oct. 22, 1987).

WHAT IS A STRIKE AREA?

A strike area includes: (a) the establishment of the employer struck against including
run-away shops, factories or warehouses and other premises where members of the
bargaining unit carry out the operations and business of the employer, and (b) the area
immediately before points of entrance and exit of establishment struck against.

IS THE INGRESS AND EGRESS OF THE ESTABLISHMENT PART OF THE STRIKE

AREA?

No. Since it is not part of the strike area the same could not be blocked or picketed.

WHO IS A STRIKE-BREAKER?

A strike-breaker means any person who obstructs, impedes or interferes with by force,
violence, coercion, threats or intimidation any peaceful picket by employees during any
labor controversy.

WORKPLACE RELATIONS AND ENHANCEMENT (formerly Labor-Management

Cooperation) Program)

Conduct plant-level orientation seminars and skills training on LMC;

Facilitate the setting up, re-activation and strengthening of plant-level LMCs;
Establish and maintain linkages with LMC Practitioners’ Associations nationwide.
FREQUENTLY ASKED QUESTIONS

WHAT IS LABOR-MANAGEMENT COOPERATION?

Labor-management cooperation is a state of relations where labor and management

work handing-hand to accomplish certain goals using mutually acceptable means.

It is the outcome of a continuing process of enhancing mutual trust and respect through:

information sharing
discussion
consultation
negotiations
as schemes of workers’ participation in decision making process on matters not covered
by collective bargaining agreements.

WHY IS THERE A NEED FOR LABOR AND MANAGEMENT TO COOPERATE?

Primary, because labor and management are social partners sharing a common interest
in the success and growth of the enterprise and the economy Specifically,

to promote workers’ participation in decision-making processes

to create a labor relations climate conducive to productivity improvement
to improve the quality of working life
to achieve and sustain economic growth
WHAT ARE THE MECHANISMS TO PROMOTE LABOR – MANAGEMENT
COOPERATION?

Direct participation mechanisms through small group activities like quality control circles
or productivity improvement circles
Indirect participation mechanisms through joint consultative bodies like labor-
management councils or committees
Combination of direct and indirect participation mechanisms like joint bodies and small
group activities

WHAT FACTORS ARE NECESSARY FOR THE SUCCESS OF LABOR

MANAGEMENT COOPERATION?

Attitudes

sincerity – mutual support

mutual trust – openness

WHAT FACTORS ARE NECESSARY FOR THE SUCCESS OF LABOR

MANAGEMENT COOPERATION?

commitment – teamwork
mutual respect – objectivity
Appropriate skills

leadership – facilitation
communication – team building
problem-solving – planning
Suitable structure

addresses identified needs and concerns

can be formal, informal or both
assures adequate representation of labor and management
ensures attainment of decisions through consensus
provides feedback mechanism at all levels of the organization

WHAT FACTORS ARE NECESSARY FOR THE SUCCESS OF LABOR

MANAGEMENT COOPERATION?

personnel policies
production plans
business expansion programs
productivity improvement programs
productivity gain-sharing programs
job security
improvement of quality of worklife
occupational health and safety programs
introduction of new technology and machinery
retrenchment programs
business mergers or closure
workers’ welfare and livelihood programs
sports, recreation and social activities

WHAT BENEFITS CAN WORKERS DERIVE FROM LABOR-MANAGEMENT

COOPERATION PROGRAMS?

Opportunity to participate in policy and decision-making process

A channel of communication to top management
Means to make inputs in solving operational problems and management plans affecting
workers in the workplace.
Avenues for employees to air complaints that cannot be appropriately addressed in the
grievance procedure
Opportunity to demonstrate that the union is a responsible organization with a
constructive role to play beyond the traditional contract negotiations and grievance
settlement
Opportunity for self-improvement and on-the- job leadership training

WHAT BENEFITS CAN MANAGEMENT DERIVE FROM LABOR-MANAGEMENT

COOPERATION PROGRAMS?

A forum to share information about business conditions, quality problems, product

development and other matters that demonstrate the role of employees in the success
of the enterprise.

An opportunity for advanced discussions of operational problems and plans, particularly

those affecting employee work schedules, overtime, lay-offs, transfers etc.

A means to relate with the union without being bogged down in labor relations issues.

Opportunity to demonstrate responsiveness to constructive suggestions and valid

complaints of employees in improving the workplace.

Means to tap the large reservoir of know-how and creativeness of employees.

A channel of communication with employees.
Enhancement of human factor in organizational effectiveness.

STEPS IN THE FORMULATION OF LABOR-MANAGEMENT COOPERATION

PROGRAMS

Orientation on labor-management cooperation

Recognition of common objectives and problems and the need to cooperate and agree
on mutually acceptable solution
Determination of appropriate organizational structure
Adoption of operating guidelines to govern the cooperation program
Setting-up of the operating structure
Training of persons involved in the cooperation program
Identification and prioritization of problems
Formulation and development of plans and projects
Implementation of plans and projects
Monitoring and evaluation of projects

GUIDELINES IN SETTING UP APPROPRIATE ORGANIZATIONAL STRUCTURE

Under R.A. 6715, the operating mechanism for labor-management cooperation program
in organized establishments is called Labor-Management Council. In unorganized
establishment, the mechanism is called Labor-Management Committees.

To ensure the orderly operations of the Council or the Committee, it is desirable that the
parties agree on basic guidelines or principles which may include:

The objectives of the committee/council

Coverage of committee’s/council’s activities
Structure and size of the committee/council
Time, place, duration and frequency of meeting
Procedure for the timing and exchange of agenda
Recording, maintenance and dissemination of minutes of meetings
Other matters the parties may wish to include
ORGANIZATION AND STRUCTURE OF A LABOR-MANAGEMENT COUNCIL OR
COMMITTEE

While there are no set rules, ‘a typical committee/ council has the following
organizational features:

Composed of an adequate number of representatives from labor and management.

Labor representatives shall be elected by at least the majority of the workers in the
establishment.
Management is represented by top level officials, the personnel or industrial relations
manager, the production manager and other officers including supervisors.
There are two co-chairmen — one from each side who serve concurrently or on a
rotating basis. A secretary is also appointed
A third party facilitator acceptable to tabor and management may assist the committee
particularly in the early stages of its operation
Sub-committees may be formed to consider specific concerns at the shop-floor level.

THE PROBLEM-SOLVING PROCESS

To ensure the non-adversarial character of the labor-management committee, issues

should be addressed using the problem-solving process involving the following steps:

Define the problem

Get all the facts
Find the cause of the problem
Propose solutions
Evaluation proposed solutions
Select the best solution
Implement the corrective action
Evaluate the corrective action undertaken

THE ROLE OF THIRD PARTIES

Parties to a labor-management cooperative effort may require the services of a third

party facilitator. At their invitation, a facilitator can assist in a variety of ways particularly
in the initial stages, to wit:

Help enhance mutual trust between labor and management

Assist the parties in identifying common interests, problems and opportunities
Provide objectivity and encouragement to the committee
Guide the committee in problem-solving techniques
Provide technical assistance to the committee
Assist the parties obtain technical assistance from other agencies and institutions.

NCMB SERVICES ON LABOR-MANAGEMENT COOPERATION

Promotional Activities

Development, production and dissemination of IEC materials (NCMB Briefing Paper,

Primer on Plant-Level LMC Program, posters/ stickers, jingles, sound slides/video)
symposia, seminar-workshop, conference
discussion groups/networking
Technical Assistance

Conduct of orientation seminar on LMC

Conduct of “LMC FACILITATORS’ TRAINING” – Interpersonal Relationship/Group
Dynamic Skills
Communication Skills
Needs Identification and Analysis
Problem-solving Skills
Value Formation
Setting up of labor-management cooperation mechanisms
Publication and Research “LMC AT WORK’
Action researches/studies

VOLUNTARY ARBITRATION AND GRIEVANCE SETTLEMENT

Administer the Voluntary Arbitration Program;

Maintain and update a roster of Accredited Voluntary Arbitrators (AVAs);
Administer a program for the continuing professionalization of AVAs;
Provide technical assistance in the submission of issues to voluntary arbitration and in
the selection of AVA or panel of AVAs;
Process and grant subsidy on voluntary arbitration fees;
Conduct plant-level orientation seminars on grievance machinery and voluntary
arbitration ;
Conduct training programs on effective grievance handling, position paper writing, etc.;
Provide technical assistance in the operationalization and strengthening of grievance
machinery.

PRIMER ON GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION

Frequently Asked Questions

WHAT IS THE PRESENT NATIONAL POLICY ON LABOR DISPUTE SETTLEMENT?

The present national policy on labor dispute settlement is enunciated in the following
instruments:

A. 1987 Constitution

Sec. 3, Article XIII provides:

“The State shall promote the principle of shared responsibility between workers and
employers and the preferential use of voluntary modes in setting disputes, including
conciliation, and shall enforce their mutual compliance therewith to foster industrial
peace.”

B. Labor Code, as amended by Republic Act 6715

Article 211 of the Code provides, among others: (a) “….It is the policy of the State… to
promote and emphasize the primacy of free collective bargaining and negotiations,
including voluntary arbitration, mediation and conciliation, as mode of settling labor or
industrial disputes.”

(b) “ To provide an adequate administrative machinery for the expeditious settlement of

labor or industrial disputes”.

WHAT IS A GRIEVANCE?

A grievance is defined as “any question by either the employer or the union regarding
the interpretation or application of the collective bargaining agreement or company
personnel policies or any claim by either party that the other party is in violation of any
provision of the CBA or company personnel olicies”.

WHAT IS THE GRIEVANCE REFERRED TO IN TITLE VII-A OF THE LABOR CODE?

The grievance referred to in the technical or restricted sense, is a dispute or controversy

between the employer and the collective bargaining agent arising from the interpretation
or implementation of their CBA and/or those arising from the interpretation or
enforcement of company personnel policies, for the adjustment or resolution of which
the parties have agreed to establish a machinery or a series of steps commencing from
the lowest level of decision-making in the management hierarchy (usually between the
shop steward of the employee or

employees aggrieved and the supervisor/foreman/manager which exercises control and

supervision over the grievants or who is responsible for executing the management
action that have given rise to the grievance) and usually terminating at the highest
official of the Company. If such dispute remains unresolved after exhausting the
grievance machinery or procedure, it shall automatically be referred to voluntary
arbitration prescribed in the CBA.

WHY IS THERE A GRIEVANCE?

In the technical or restricted sense, there is a grievance when a dispute or controversy

arises over the implementation or interpretation of a collective bargaining agreement or
from the implementation or enforcement of company personnel policies, and either the
union or the employer invokes the grievance machinery provision for the adjustment or
resolution of such dispute or controversy.

COULD THERE BE A GRIEVANCE WITHOUT A UNION OR A CBA?

If the term grievance is to be applied in the loose or genetic sense, any dispute or
controversy respecting terms and conditions of employment which an employee or
group of employees may present to the employer can be a grievance, even without a
union or CBA. Under this interpretation, any complaint, question or problem that an
employee or group of employees may wish to take up or discuss with the employer
respecting terms and conditions of employment for the purpose of resolving or satisfying
the same, constitutes a grievance. The expansion of the original and exclusive
jurisdiction of voluntary arbitrators to include questions arising from the Interpretation
and enforcement of company personnel policies has the effect of widening the meaning
and interpretation of a grievance to include a situation where there is no collective
bargaining agent and no CBA.

ARE ALL GRIEVANCE ARISING FROM THE IMPLEMENTATION OR

INTERPRETATION OF THE COLLECTIVE BARGAINING AGREEMENT AND/OR
INTERPRETATION AND ENFORCEMENT OF COMPANY POLICIES COMPULSORY
SUBJECT TP TJE GRIEVANCE MACHINERY?

Yes. This is clear from Article 260 and Art. 261 of the Labor Code, as amended by
Republic Act 6715.

Art. 260 is emphatic on the duty of the parties to a collective bargaining agreement to
establish a machinery for the adjustment and resolution of grievances arising from the
interpretation and enforcement of the CBA and/or company personnel policies, and for
the mandatory use of the said machinery.

Art. 261, on the other hand, directs the NLRC, its Regional Arbitration Branches and the
Regional Directors of the Department of Labor and Employment not to entertain
disputes, grievances or matters under the exclusive and original jurisdiction of the
voluntary arbitrator or panel of voluntary arbitrators and to immediately dispose of and
refer the same t the grievance machinery or voluntary arbitration provided in the
collective bargaining agreement. Moreover, in Rule XI of the Implementing Rules of the
Code, the Regional Branches of the National Conciliation and Mediation Board are
enjoined, in case issues arising from the interpretation or implementation of the
collective bargaining agreements or those arising from the interpretation or enforcement
of Company personnel policies are raised in notices of strikes or lockouts or requests
for preventive mediation, to advise the parties to submit the issue/s to voluntary
arbitration.
WHAT USUAL PROVISIONS OF A COLLECTIVE BARGAINING AGREEMENT
WHOSE VIOLATTION/S ARISING FROM INTERPRETATION AND
IMPLEMENTATION, MAY CONSTITUTE GRIEVANCE/S OR THE SO-CALLED
RIGHTS DISPUTES?

Every collective agreement usually contains non-economic and economic provisions.

Non-economic provisions are those whose monetary cost can not be directly computed
such as no-strike-no-lockout, union security, management security, check-off clauses,
grievance procedures, etc. Economic provisions, on the other hand, are those which
have direct and measurable monetary cost consequences such as wage rates, paid
vacations, pensions, health and welfare plans, penalty premiums and other fringe
benefits. Any violation arising from rights established under collective agreements, laws,
rules and regulations and customary practices may constitute as grievance and is often
referred to as rights dispute.

WHAT ARE PERSONNEL POLICIES AND WHAT ARE THE MATTERS USUALLY
COVERED BY SUCH POLICIES, WHOSE WRONG FROM ENFORCEMENT AND
INTERPRETATION MAY CONSTITUTE GRIEVANCE/S OR OTHER SOURCES OF
RIGHTS DISPUTE

Personnel policies are guiding principles stated in broad, long-range terms that express
the philosophy or beliefs of an organization’s top authority regarding personnel matter.

They deal with matters affecting efficiency and well being of employees and include,
among others, the procedures in the administration of wages, benefits, promotions,
transfers and other personnel movements which are usually not spelled out in the
collective agreement. The usual source of grievances , however, is the rules and
regulations governing disciplinary actions.

WHAT VIOLATIONS OF THE USUAL NORMS OF PERSONNEL OR BEHAVIOR OF

EMPLOYEES MAY CONSTITUTE GRIEVANCES OFTEN REFERRED TO AS
DISCIPLINE CASES?

Rules and regulations governing personnel discipline may contain the following
infractions covering the following subjects:

AGAINST PERSON
PHYSICAL INJURY, ASSAULT, HOMICIDE, MURDER
AGAINST PROPERTY
MIS-USE OF PROPERTY
DAMAGE TO PROPERTY
THEFT AND ROBBERY
NEGLIGENCE IN THE USE OF PROPERTY
ORDERLINESS/GOOD CONDUCT
FIGHTING/QUARRELING
VIOLATION OF RULES
DISCOURTESY/DISRESPECT
INTOXICATION WHILE AT WORK
POSSESSION OF DRUGS/NARCOTICS/ALCOHOL DRINKS
ILLEGAL STRIKE
STRIKE VIOLATIONS/SABOTAGE
FAILURE TO COOPERATE IN INVESTIGATIONS
HYGIENE
SAFETY
UNION ACTIVITY
MOONLIGHTING
DEPORTMENT
FINANCIAL INTEREST
UNAUTHORIZED OUTSIDE WORK
PERSONAL AFFAIRS
ENTERTAINMENT OF VISITORS
DISORDERLINESS, HORSEPLAY
USE OF FOUL LANGUAGE
ATTENDANCE AND PUNCTUALITY
TIMEKEEPING VIOLATIONS
ABSENTEEISM
TARDINESS
AWOL
MORALITY
IMMORALITY
SEXUAL HARASSMENT
CONFLICT OF INTEREST
CONFLICT OF INTEREST
NON-PERFORMANCE
INSUBORDINATION
NEGLIGENCE OF DUTY
INEFFICIENCY
MALINGERING
CARELESSNESS
POOR QUALITY