(Question XIII, Labor Law, 2017 Bar Exam)
Given that the liability for an illegal strike is individual, not collective, state when the participating union officers and members may be terminated from employment because of the illegal strike. Explain your answer. (4%)
A sympathetic strike is stoppage of work to make common cause with other strikers in another establishment or business. Is the sympathetic strike valid? Explain your answer. (1%)
Due to business recession, Ballistic Company retrenched a part of its workforce. Opposing the retrenchment, some of the affected employees staged a strike. Eventually, the retrenchment was found to be justified, and the strike was declared illegal; hence, the leaders of the strike, including the retrenched employees, were declared to have lost their employment status.
Are the striking retrenched employees still entitled to separation pay under Sec. 298 (283) of the Labor Code despite the illegality of their strike? Explain your answer. (2%)
A. Any union officer who knowingly participates in an illegal strike or who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status.
Any union member who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status.
B. No. Answer
Under the Labor Code, a strike may be declared only in the following cases:
1) Bargaining deadlocks;
2) Unfair labor practices; and
3) Violations of collective bargaining agreements, except flagrant and/or malicious refusal to comply with its economic provisions. Rule
In the case of a sympathetic strike, neither of the above grounds is present. Apply
Thus, a sympathetic strike is not valid. Conclusion
C. Yes. Answer
Under the Labor Code, retrenched employees are entitled to separation pay. Rule
In the case at bar, retrenchment was already implemented prior to the strike and later on illegal strike. Meaning, the employees were already entitled to the separation pay even before they staged a strike. On the other hand, the employer was already obligated to pay the separation pay before the strike. The declaration of strike as illegal later on has no effect on the entitlement of the employees to the separation pay. Apply
Thus, the striking retrenched employees are still entitled to separation despite the illegality of the strike. Conclusion
(Notice: The suggested answers simulate those that a bar examinee may provide, and thus specific citations are not provided. Notwithstanding, in the reviewers, the bar exam question is answered under the appropriate topic which discusses the concepts and principles, as well as provide for specific citations. Accordingly, please refer to it on the reviewer or in the Library.)
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