Title VII-A

GRIEVANCE MACHINERY

AND VOLUNTARY ARBITRATION

Art. 273

Grievance arbitration defined and explained

Grievance arbitration refers to arbitration that involves the violation or interpretation of an existing
contract. Article 273, Labor Code provides that “The parties to a Collective Bargaining Agreement shall
include therein provisions that will ensure the mutual observance of its terms and conditions. It
anticipates the possibility of conflict in interpretation of stipulations in therein. The establishment of a
grievance machinery and voluntary arbitration procedures.

Grievance procedure defined and explained

Grievance procedure is a process consisting of several steps or the resolution of an employee’s complaint.
The grievance machinery is the first step to resolve the grievance. If not so resolved, within seven (7)
calendar days from date of submission, there shall be voluntary arbitration as set forth in Art. 273, Labor
Code.

Voluntary arbitration is an alternative form of dispute resolution where both parties agree to arbitration
and the procedures. Compulsory arbitration has been defined both as “the process of settlement of labor
disputes by a government agency which has the authority to investigate and make an award which is
binding on all the parties, and as a mode of arbitration, where the parties are compelled to accept the
resolution of their dispute through arbitration by a third party. While the arbitrator is expected to decide
only those questions expressly delineated by the submission agreement, he can assume that he hast the
necessary power to make a final settlement since arbitration is the final resort for adjudication of disputes.
Even if the submission agreement mentioned only the determination of the date of regularization, law
and jurisprudence give the voluntary arbitrator enough leeway to accomplish the reason for which the
law on voluntary arbitration was created. Speedy labor justice, and to settle once and for all, the ultimate
question of whether the employees are entitled to higher benefits must be resolved.

The jurisdiction of Labor Arbiter and Voluntary or Panel of Arbitration include

The jurisdiction of the Labor Arbiter and Voluntary or Panel of Voluntary Arbitrators over the cases
mentioned in Article 224, 274 and 275 of the Labor Code can possibly include money claims in one form
or another.

Art. 274

Jurisdiction of voluntary arbitrators or panel of voluntary arbitrators explained and correlated with
other laws.

The voluntary arbitrators or panel of voluntary arbitrators shall have original exclusive jurisdiction to hear
and decide: (1) all unresolved grievances arising from the interpreatation or implementation of Collective
Bargaining Agreement; and (2) those arising from the interpretation or enforcement of company
personnel policies referred to in Article 273 of the Labor Code. Violations of a Collective Bargaining
Agreement shall not be treated as unfair labor practice and shall be resolved as grievances under the
Collective Bargaining Agreement.

Arbitration of construction disputes

The arbitration of construction disputes shall be governed by Executive Order No. 1008, otherwise known
as the Construction Arbitration Law. Construction disputes which fall within the exclusive original
jurisdiction of the Construction Industry Arbitration Commission shall include those between or among
the parties too or who are otherwise bound by, an arbitration parties are design professional, consultant,
quantity surveyor bondsman or issuer of an insurance policy in a construction project.

Art. 276

Compulsory arbitration defined. The process of settlement of labor disputes by a government agency
which has the authority to investigate and to make an award which is binding on all the parties, and as a
mode of arbitration where the parties are compelled to accept the resolution of their dispute through
arbitration by a third party. The Voluntary Arbitrator or Panel of Arbitrators has original and exclusive
jurisdiction over the controversy in Art. 275 of the Labor Code.

Essence of voluntary arbitration

The essence of voluntary arbitration is that it is by agreement of the parties, rather than compulsion of
law, that a matter is submitted for arbitration. There is nothing in the law which prohibits labor arbiters
as long as the parties agree to the arbitration.

Art. 277

Proportionate cost of voluntary arbitration

The cost of voluntary arbitration, including the voluntary arbitrator’s fee, shall be proportionately
shouldered by the parties. The factors to be considerate are: (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 Rules of Court.
 Title VIII

STRIKES AND LOCKOUTS AND FOREIGN

INVOLVEMENT IN TRADE UNION ACTIVITIES

Chapte 1

Strikes and Lockouts

Art. 278

Strike defined and explained. A strike is defined as any temporary stoppage of work by the concerted
action of the employees as a result of an industrial or labor dispute. A strike is a weapon that can either
breathe life to or destroy the union and its members in their struggle with management for more
equitable due to their labors- the decision to wield the weapon of strike must, therefore, rest on a rational
basis. Tit is the most effective weapon in protecting the rights of employees to improve the terms and
conditions of their employment.

Constitutional and legal bases for the right to strike

The right to strike is guaranteed under Section 3, Article XIII of the 1987 Constitution. But while the right
to strike is constitutionally recognized, it is not without restriction. While as a general rule, the Court is on
the side of labor, it must also take care, that in the contest between labor and capital the results achieved
are fair and in conformity to with the rules. The rights of the employees to engage in concerted activities
in order to attain their legitimate objectives is also guaranteed by the Labor Code. More common of these
activities as employees are concerned strikes, picketing and boycotts.

Kinds of strike explained

Strikes may either be of two kinds, the lawful and the illegal strike. A strike is lawful if it complies with the
following requirements: (1) as to the fifteen (15) days notice; (2) as to the two thirds required vote to
strike by secret ballot; (3) as to submission of the strike vote to the Department of Labor at least seven
dys prior to the strike. A strike is illegal for failure of the striking personnel to observe legal strike
requirements. It is not proper to reinstate workers who staged an illegal strike.

Effect of failure to serve notice of strike

The failure of the union to serve the company a copy of the notice of strike is a clear violation of Section
3, Rule XXII, Book V of the Rules Implementing the Labor Code- the constitutional precepts of due process
mandate that the other party be notified of the adverse action of the opposing party. A strike though valid
may be declared invalid where the means employed were illegal.

Cooling off period defined and explained

Cooling off period is a space of time from the notice of strike until the day when the actual strike begins.
It is a period of fifteen (15) days. It must be stressed that the requirements of a cooling off period must
be complied with as although the labor union may take a strike vote and report the same within the
statutory cooling off period. However, in case of dismissal, from employment of some officers duly elected
in accordance with the 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. In other words, such situation, the cooling off period may be disregarded and the employee
may proceed with the strike. The cooling off period is intended to be mandatory.

Union busting defined and explained

It is committed when the employer interferes with, restrain or coerce employees in the exercise of their
rights to self-organization. It is a form of unfair labor practice and gives rise to a disregard of the 15-day
cooling off period before an actual strike.

The Minister (now Secretary) of Labor can assume jurisdiction in a vital industry labor dispute even
without notice of strike.

The Minister (now Secretary) of Labor is not precluded from assuming jurisdiction over a labor dispute in
a vital industry even if there is no notice of strike or formal complaint.

Picketing defined and explained

Picketing is the demonstration of one or more persons outside a business or organization to protest the
entities activities and policies and to pressure the entity to meet the protester’s demands. It refers to the
activities or strikes whereby patrols at or near the place of employment and these patrols employ
placards, speech and other means of communication to make know the existence of a labor dispute, to
persuade non-striking workers to join the strike, and to persuade other persons to cooperate with the
strikers by not dealing with the employer during the pendency of the strike. The means employed are
communication and persuasion. Picketing may be a nuisance if it constitutes obstruction to the free use
of property, so as to substantially interfere with comfortable employment of life or property, or if it
constitutes an unlawful obstruction of the free passage or use in the customary manner of a street.

No strike clause and economic strike

A no strike clause in CBA is applicable only to economic strikes. An economic strike is defined as one which
is to force wage or other concessions from the employer which is not required by law to grant.

No strike, no lockout provision in CBA valid

A no strike, no lockout provision in the Collective Bargaining Agreement (CBA) is a valid stipulation but
may be invoked only by the employer when the strike is economic in nature or one which is conducted to
force wage or other concessions from the employer that are not mandated or granted by law. It would be
inapplicable to prevent a strike grounded on unfair labor practice.

Lockout defined and explained

Lockout is the temporary refusal of the employer to furnish work. It is an employer’s act of excluding from
his plant union members thereto employed by him. The union members locked out are replaced by non-
union substitutes.

Art. 279
Prohibition on labor organizations. A prohibition is a law or order that forbids a certain action. Art. 251
of the Labor Code enumerates the prohibited activities of a labor organization. First and foremost is it
prohibits strikes or lockouts before having bargained collectively in accordance with law.

Art. 280

Referendum defined. It is vote taken on an issue by the members of a particular body. In case there is an
improved offer from management on or before the 30th day of a strike, a referendum or secret balloting
on the improved offer shall be conducted by the Department of Labor and Employment, If a majority of
the union members vote to accept the improved offer, the striking workers shall immediately return to
work and the employer shall thereupon readmit them upon signing of the agreement.

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 or before the 30th day of the lockout. When at least a majority
of the board of directors, trustees or 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.

Art. 281

Engaging in union activities not a crime. Mere engagement in union activities per se is not a crime. It is a
lawful activity. Art. 281 of the Labor Code provides that no union members or organizers may be arrested
or detained without previous consultation with the Secretary of Labor. It is presumed that the latter can
safeguard lawful union activities.