F. Peaceful concerted activities

Frequency: ★★★★☆

1. Strikes

Strike – means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. (Article 219[o], Labor Code)

To strike is to withhold or to stop work by the concerted action of employees as a result of an industrial or labor dispute. The work stoppage may be accompanied by picketing by the striking employees outside of the company compound. While a strike focuses on stoppage of work, picketing focuses on publicizing the labor dispute and its incidents to inform the public of what is happening in the company struck against. (PHIMCO Industries, Inc. v. PHIMCO Industries Labor Association [PILA], G.R. No. 170830, 11 August 2010)

A strike is the most powerful weapon of workers in their struggle with management in the course of setting their terms and conditions of employment. Because it is premised on the concept of economic war between labor and management, it is a weapon that can either breathe life to or destroy the union and its members, and one that must also necessarily affect management and its members. (PHIMCO Industries, Inc. v. PHIMCO Industries Labor Association [PILA], G.R. No. 170830, 11 August 2010)

Strike-breaker – means any person who obstructs, impedes, or interferes with by force, violence, coercion, threats, or intimidation any peaceful picketing affecting wages, hours or conditions of work or in the exercise of the right of self-organization or collective bargaining. (Article 219[r], Ibid.)

Strike area – means the establishment, warehouses, depots, plants or offices, including the sites or premises used as runaway shops, of the employer struck against, as well as the immediate vicinity actually used by picketing strikers in moving to and fro before all points of entrance to and exit from said establishment. (Article 219[s], Ibid.)

Notice of Strike – refers to the notification filed by a registered labor union with the appropriate Regional Branch informing the latter of its intention to go on strike due to alleged commission by the employer of unfair labor practice act/s or a deadlock in collective bargaining negotiations. (No. 26, Rule III, The Revised National Conciliation and Mediation Board Manual of Procedures for Conciliation and Prevention Mediation Cases, 2017 edition)

Sympathetic strike – refers to one where the striking employees have no demands or grievances of their own, but they strike for the purpose of directly or indirectly aiding others, without direct relation to the advancement of the interest of the strikers. (G & S Transport Corporation v. Infante, G.R. No. 160303, 13 September 2007)

a. Grounds for strike

Grounds for strike and lockout:
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. (Section 1, Rule XIII, Book V, Omnibus Rules Implementing the Labor Code)

Inter-union and internal union disputes or on issues – not a ground. 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. (Ibid.)

b. Mandatory procedural requirements

Procedural requisites for a valid strike:
1) A notice of strike be filed with the Department of Labor and Employment (DOLE) 30 days before the intended date thereof, or 15 days in case of unfair labor practice;
2) A strike vote be approved by a majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in a meeting called for that purpose; and
3) A notice be given to the DOLE of the results of the voting at least seven days before the intended strike. (PHIMCO Industries, Inc. v. PHIMCO Industries Labor Association, G.R. No. 170830, 11 August 2010, citing Article 278 [263], Labor Code)

1) Who may declare a strike

Who may declare a strike:
1) Certified or duly recognized bargaining representative. Any certified or duly recognized bargaining representative may declare a strike in cases of bargaining deadlocks and unfair labor practices. (Section 2, Rule XIII, Ibid.)
2) Legitimate labor organization. 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. (Section 2, Rule XIII, Ibid.)

2) Notice of strike or lockout

In cases of bargaining deadlocks, a notice of strike… shall be filed with the regional branch of the Board at least thirty (30) days before the intended date thereof, a copy of said notice having been served on the other party concerned. In cases of unfair labor practices, the period of notice shall be fifteen (15) days. However, in case of unfair labor practice involving the 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 fifteen-day cooling-off period shall not apply and the union may take action immediately after the strike vote is conducted and the results thereof submitted to the Department of Labor and Employment. (Section 3, Rule XIII, Ibid.)

a) 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. (Section 4, Rule XIII, Ibid.)

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. (Paragraph 2, Section 4, Rule XIII, Ibid.)

Any notice which does not conform with the requirements of this and the foregoing sections shall be deemed as not having been filed and the party concerned shall be so informed by the regional branch of the Board. (Paragraph 3, Section 4, Rule XIII, Ibid.)

3) Disclosure of information

In collective bargaining, the parties shall, at the request of either of them, make available such up-to-date financial information on the economic situation of the undertaking, which is normally submitted to relevant government agencies, as is material and necessary for meaningful negotiations. Where the disclosure of some of this information could be prejudicial to the undertaking, its communication may be made conditioned upon a commitment that it would be regarded as confidential to the extent required. The information to be made available may be agreed upon between the parties to collective bargaining. (Section 5, Rule XIII, Ibid.)

4) Conciliation

Upon 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 shall also encourage the parties to submit the dispute to voluntary arbitration. (Section 6, Rule XIII, Ibid.)

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, to participate fully and promptly in the conciliation meetings called by the regional branch of the Board. The regional branch of the Board shall have the power to issue subpoenas requiring the attendance of the parties to the meetings. (Paragraph 2, Section 6, Rule XIII, Ibid.)

a) Privileged communication

Information and statements given at conciliation proceedings shall be treated as privileged communications. Conciliators and similar officials shall not testify in any court or body regarding any matter taken up at conciliation proceedings conducted by them. (Section 6, Rule XIII, Ibid.)

5) Strike or lockout vote

Majority vote by secret ballot. 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 the purpose. (Section 7, Rule XIII, Ibid.)

The regional branch of the Board 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 regional branch of the Board the notice of meetings referred to in the preceding paragraph at least twenty-four (24) hours before such meetings as well as the results of the voting at least seven (7) days before the intended strike or lockout, subject to the cooling-off period provided in this Rule. (Paragraph 2, Section 7, Rule XIII, Ibid.)

9) Declaration of strike or lockout

Should the dispute remain unsettled after the lapse of the requisite number of days from the filing of the notice of strike… and of the results of the election required in the preceding section, the labor union may strike… The regional branch of the Board shall continue mediating and conciliating. (Section 8, Rule XIII, Ibid.)

10) Improved offer balloting

Improved offer balloting – refers to a referendum by secret balloting conducting by the NCMB on the improved offer of the employer. (No. 20, Rule III, The Revised National Conciliation and Mediation Board Manual of Procedures for Conciliation and Prevention Mediation Cases, 2017 edition)

In case of a strike, the regional branch of the Board shall, at its own initiative or upon the request of any affected party, 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. (Section 8-a, Rule XIII, Ibid.)

11) Hiring of replacements

The 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. (Section 9, Rule XIII, Ibid.)

But 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. (Ibid.)

12) Prohibition regarding the employment of replacements

a) AFP or PNP

No public official employee, including officers and personnel of the Armed Forces of the Philippines or the Philippine National Police, or any armed person shall:

1) 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

2) Work in place of the strikers. (Section 10, Rule XIII, Ibid.)

b) Maintain peace and order, and/or protect life and property

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 protect life and property. (Section 10, Rule XIII, Ibid.)

c. Legal strike vs. illegal strike

Procedurally, for a strike to be valid, it must comply with Article 278 of the Labor Code, which requires that:

1) a notice of strike be filed with the NCMB 30 days before the intended date thereof, or 15 days in case of unfair labor practice;

2) a strike vote be approved by a majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in a meeting called for that purpose; and

3) a notice be given to the NCMB of the results of the voting at least seven days before the intended strike. (Ergonomic Systems Philippines, Inc. v. Enaje, G.R. No. 195163, 13 December 2017)

These requirements are mandatory, and the union’s failure to comply renders the strike illegal. The 15 to 30-day cooling-off period is designed to afford the parties the opportunity to amicably resolve the dispute with the assistance of the NCMB conciliator/mediator, while the seven-day strike ban is intended to give the DOLE an opportunity to verify whether the projected strike really carries the imprimatur of the majority of the union members. (PHIMCO Industries, Inc. v. PHIMCO Industries Labor Association [PILA], supra.)

In the determination of the consequences of illegal strikes, the law makes a distinction between union members and union officers. The services of an ordinary union member cannot be terminated for mere participation in an illegal strike; proof must be adduced showing that he or she committed illegal acts during the strike. A union officer, on the other hand, may be dismissed, not only when he actually commits an illegal act during a strike, but also if he knowingly participates in an illegal strike. (Ergonomic Systems Philippines, Inc. v. Enaje, supra.)

•••••

BAR EXAM QUESTION

(Question XIII[A], 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%)

SUGGESTED ANSWER:

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.

•••••

BAR EXAM QUESTION

(Question XIII[C], Labor Law, 2017 Bar Exam)

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%)

SUGGESTED ANSWER:

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

•••••

d. Prohibited acts during strike

e. Liability of union officers and members for illegal strike and illegal acts during strike

2. Picketing

Picketing – refers to the right of workers to march to and fro before an establishment involved in a labor dispute generally accompanied by the carrying and displaying of signs, placards, and banners intended to inform the public about the dispute. (No. 27, Rule III, The Revised National Conciliation and Mediation Board Manual of Procedures for Conciliation and Prevention Mediation Cases, 2017 edition)

A picket simply means to march to and from the employer’s premises, usually accompanied by the display of placards and other signs making known the facts involved in a labor dispute. (PHIMCO Industries, Inc. v. PHIMCO Industries Labor Association [PILA], supra.)

Picket is a strike activity separate and different from the actual stoppage of work. (Ibid.)

a. Right to peaceful picketing

Workers shall have the right to peaceful picketing. (Section 11, Rule XIII, Ibid.)

b. No acts of violence, coercion, or intimidation or obstruction

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. (Ibid.)

c. No interference against peaceful picketing

No person shall obstruct, impede or interfere with, by force, violence, coercion, threats or intimidation, any peaceful picketing by workers during any labor controversy or in the exercise of the right to self-organization or collective bargaining or shall aid or abet such obstruction or interference. No employer shall use or employ any person to commit such acts nor shall any person be employed for such purpose. (Paragraph 2, Section 11, Rule XIII, Ibid.)

3. Lockouts

Lockout – refers to the temporary refusal of an employer to furnish work as a result of a labor or industrial dispute. (No. 20, Rule III, The Revised National Conciliation and Mediation Board Manual of Procedures for Conciliation and Prevention Mediation Cases, 2017 edition)

Lockout vote – refers to the majority vote of the members of the Board of Directors/Trustees of the corporation or association or of the partners in a partnership obtained by secret ballot in a meeting called for that purpose. (No. 21, Ibid.)

Notice of lockout – refers to the notification filed by a registered labor union with the appropriate Regional Branch informing the latter of its intention to go on strike due to alleged commission by the employer of unfair labor practice act/s or a deadlock in collective bargaining negotiations. (No. 26, Ibid.)

a. Grounds for lockout

Grounds for strike and lockout:
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. (Section 1, Rule XIII, Book V, Omnibus Rules Implementing the Labor Code)

b. Mandatory procedural requirements

1) Who may declare a lockout

The employer may declare a lockout in the same cases. (Section 2, Rule XIII, Ibid.)

2) Notice of strike or lockout

In cases of bargaining deadlocks, a notice of… lockout shall be filed with the regional branch of the Board at least thirty (30) days before the intended date thereof, a copy of said notice having been served on the other party concerned. In cases of unfair labor practices, the period of notice shall be fifteen (15) days. (Section 3, Rule XIII, Ibid.)

NB: The contents of the notice of lockout is similar to the notice of strike.

3) Disclosure of information

In collective bargaining, the parties shall, at the request of either of them, make available such up-to-date financial information on the economic situation of the undertaking, which is normally submitted to relevant government agencies, as is material and necessary for meaningful negotiations. Where the disclosure of some of this information could be prejudicial to the undertaking, its communication may be made conditioned upon a commitment that it would be regarded as confidential to the extent required. The information to be made available may be agreed upon between the parties to collective bargaining. (Section 5, Rule XIII, Ibid.)

4) Conciliation

Upon 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 shall also encourage the parties to submit the dispute to voluntary arbitration. (Section 6, Rule XIII, Ibid.)

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, to participate fully and promptly in the conciliation meetings called by the regional branch of the Board. The regional branch of the Board shall have the power to issue subpoenas requiring the attendance of the parties to the meetings. (Paragraph 2, Section 6, Rule XIII, Ibid.)

a) Privileged communication

Information and statements given at conciliation proceedings shall be treated as privileged communications. Conciliators and similar officials shall not testify in any court or body regarding any matter taken up at conciliation proceedings conducted by them. (Section 6, Rule XIII, Ibid.)

5) Strike or lockout vote

a) Majority vote

A decision to declare a lockout must be approved by a majority of the board of directors of the employer corporation or association or the partners in a partnership obtained by a secret ballot in a meeting called for the purpose. (Section 7, Rule XIII, Ibid.)

6) Declaration of strike or lockout

Should the dispute remain unsettled after the lapse of the requisite number of days from the filing of the notice of… lockout, … the employer may lock out its workers. The regional branch of the Board shall continue mediating and conciliating. (Section 8, Rule XIII, Ibid.)

7) Improved offer balloting

In case of a lockout, the regional branch of the Board 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. (Paragraph 2, Section 8-a, Rule XIII, Ibid.)

Reduced offer balloting – refers to a referendum by secret balloting conducted by the Regional Branch on the reduced offer of the union. (No. 29, Rule III, The Revised National Conciliation and Mediation Board Manual of Procedures for Conciliation and Prevention Mediation Cases, 2017 edition)

8) Injunctions

No court or entity shall enjoin any picketing, strike or lockout, except as provided in Articles 218 and 264 of the Code. (Section 12, Rule XIII, Ibid.)

•••••

BAR EXAM QUESTION

(Question A.1[c], Part I, Labor Law, 2019 Bar Exam)

Define, explain or distinguish the following terms:

(c) Strikes and lockouts (2%)

SUGGESTED ANSWER:

Strike – means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute.

Lockout – refers to the temporary refusal of an employer to furnish work as a result of a labor or industrial dispute.

•••••

4. Assumption of jurisdiction by the DOLE Secretary

a. Assumption of jurisdiction

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. (Article 278 [263] (g), Labor Code)

b. Police power

After martial law was lifted and democracy was restored, the assumption of jurisdiction in Art. 263(g) has now been viewed as an exercise of the police power of the State with the aim of promoting the common good. (YSS Employees Union – Philippine Transport and General Workers Organization v. YSS Laboratories, Inc., G.R. No.155125, 04 December 2009)

The powers given to the DOLE Secretary under Article 263 (g) is an exercise of police power with the aim of promoting public good. In fact, the scope of the powers is limited to an industry indispensable to the national interest as determined by the DOLE Secretary. (San Fernando Coca-Cola Rank-and-File Union (SACURO) v. Coca-Cola Bottlers Philippines, Inc. [CCBPI], G.R. No. 200499, 04 October 2017)

The grant of these plenary powers to the Secretary of Labor makes it incumbent upon him to bring about soonest, a fair and just solution to the differences between the employer and the employees, so that the damage such labor dispute might cause upon the national interest may be minimized as much as possible, if not totally averted, by avoiding stoppage of work or any lag in the activities of the industry or the possibility of those contingencies that might cause detriment to the national interest. (YSS Employees Union – Philippine Transport and General Workers Organization v. YSS Laboratories, Inc., supra.)

c. Full authority

The DOLE Secretary’s power to assume jurisdiction is a full authority to resolve all matters within the dispute that gave rise to or which arose out of the strike or lockout; it includes and extends to all questions and controversies arising from or related to the dispute, including cases over which the labor arbiter has exclusive jurisdiction. (Bagong Pagkakaisa ng Manggagawa ng Triumph International v. Secretary of the Department of Labor and Employment, G.R. Nos. 167401, 167407, 05 July 2010)

This includes the authority to resolve dismissal issues, even if within the exclusive jurisdiction of the labor arbiter. (Ibid.)

1) Doctrine of great breadth of discretion

The powers of the Secretary in “national interest” cases are not set by metes and bounds. Rather, the Secretary is given wide latitude to adopt appropriate means to finally resolve the labor dispute. The doctrine of “great breadth of discretion” possessed by the Secretary dates back to our earlier rulings which recognized the broad powers of the former Court of Industrial Relations (CIR), which had jurisdiction over national interest cases prior to the enactment of the Labor Code. (University of the Immaculate Conception v. Office of the Secretary of Labor and Employment, G.R. Nos. 178085, 178086, 14 September 2015)

Judicial authorities defining the scope of the former CIR’s power in respect of national interest cases apply mutatis mutandis in cases involving the Secretary’s assumption of jurisdiction under Article 263(g). In the Secretary’s exercise of such broad discretion, the prevailing rule is that we will not interfere or substitute the Secretary’s judgment with our own, unless grave abuse is cogently shown. And in determining whether the acts of the Secretary constitute grave abuse of discretion, the standard we apply is that of reasonableness. (University of the Immaculate Conception v. Office of the Secretary of Labor and Employment, supra.)

2) Plenary and discretionary power, not subject of appeal

The authority of the Secretary of Labor to assume jurisdiction over a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to national interest includes and extends to all questions and controversies arising therefrom. The power is plenary and discretionary in nature to enable him to effectively and efficiently dispose of the primary dispute. This wide latitude of discretion given to the Secretary of Labor may not be the subject of appeal. (PHILTRANCO Service Enterprises, Inc. v. Philtranco Workers Union-Association of Genuine Labor Organizations [PWU-AGLO], G.R. No. 180962, 26 February 2014)

Bagong Pagkakaisa ng Manggagawa ng Triumph International v. Secretary of the Department of Labor and Employment

When the DOLE Secretary assumed jurisdiction to resolve a strike case, the decision did not include any resolution on the dismissal of the union officers.

We agree with the CA’s conclusion that the Labor Secretary erred, to the point of abusing his discretion, when he did not resolve the dismissal issue on the mistaken reading that this issue falls within the jurisdiction of the labor arbiter. This was an egregious error and an abdication of authority on the matter of strikes – the ultimate weapon in labor disputes that the law specifically singled out under Article 263 of the Labor Code by granting the Labor Secretary assumption of jurisdiction powers. Article 263(g) is both an extraordinary and a preemptive power to address an extraordinary situation – a strike or lockout in an industry indispensable to the national interest. This grant is not limited to the grounds cited in the notice of strike or lockout that may have preceded the strike or lockout; nor is it limited to the incidents of the strike or lockout that in the meanwhile may have taken place. As the term “assume jurisdiction” connotes, the intent of the law is to give the Labor Secretary full authority to resolve all matters within the dispute that gave rise to or which arose out of the strike or lockout; it includes and extends to all questions and controversies arising from or related to the dispute, including cases over which the labor arbiter has exclusive jurisdiction.

In the present case, what the Labor Secretary refused to rule upon was the dismissal from employment that resulted from the strike. Article 264 significantly dwells on this exact subject matter by defining the circumstances when a union officer or member may be declared to have lost his employment. We find from the records that this was an issue that arose from the strike and was, in fact, submitted to the Labor Secretary, through the union’s motion for the issuance of an order for immediate reinstatement of the dismissed officers and the company’s opposition to the motion. Thus, the dismissal issue was properly brought before the Labor Secretary and this development in fact gave rise to his mistaken ruling that the matter is legally within the jurisdiction of the labor arbiter to decide. /end

•••••

BAR EXAM QUESTION

(Question XIV, Labor Law, 2017 Bar Exam)

Pursuant to his power under Sec. 278(g) (263(g)) of the Labor Code, the Secretary of Labor assumed jurisdiction over the 3-day old strike in Armor Steel Plates, Inc., one of the country’s bigger manufacturers of steel plates, and ordered all the striking employees to return to work. The striking employees ignored the order to return to work.

(a) What conditions may justify the Secretary of Labor to assume jurisdiction? (2.5%)

SUGGESTED ANSWER:

To justify the assumption of jurisdiction by the DOLE Secretary, the following conditions are required:

1) There exists a labor dispute; and

2) It is causing or likely to cause a strike or lockout in an industry indispensable to the national interest.

•••••

d. Industry indispensable to the national interest

Industries that are indispensable to the national interest are those essential industries such as the generation or distribution of energy, or those undertaken by banks, hospitals, and export-oriented industries. (San Fernando Coca-Cola Rank-and-File Union (SACURO) v. Coca-Cola Bottlers Philippines, Inc. [CCBPI], G.R. No. 200499, 04 October 2017)

1) Discretionary power of DOLE Secretary

The Labor Code vests in the Secretary of Labor the discretion to determine what industries are indispensable to the national interest. Accordingly, upon the determination by the Secretary of Labor that such industry is indispensable to the national interest, he will assume jurisdiction over the labor dispute in the said industry. This power, however, is not without any limitation. (PHIMCO Industries Inc. v. Brillantes, G.R. No. 120751, G.R. No. 120751, 17 March 1999)

a) Limitation

The coverage of the power is limited to “strikes or lockouts adversely affecting the national interest.” (Ibid.)

PHIMCO Industries Inc. v. Brillantes
In this case at bar, however, the very admission by the public respondent draws the labor dispute in question out of the ambit of the Secretary’s prerogative, to wit. While the case at bar appears on its face not to fall within the strict categorization of cases imbued with “national interest”, this office believes that the obtaining circumstances warrant the exercise of the powers under Article 263 (g) of the Labor Code, as amended.
The private respondent did not even make any effort to touch on the indispensability of the match factory to the national interest. It must have been aware that a match factory, though of value, can scarcely be considered as an industry “indispensable to the national interest” as it cannot be in the same category as “generation and distribution of energy, or those undertaken by banks, hospitals, and export-oriented industries.”
It is thus evident from the foregoing that the Secretary’s assumption of jurisdiction grounded on the alleged “obtaining circumstances” and not on a determination that the industry involved in the labor dispute is one indispensable to the “national interest”, the standard set by the legislature, constitutes grave abuse of discretion amounting to lack of or excess of jurisdiction. To uphold the action of the public respondent under the premises would be stretching too far the power of the Secretary of Labor as every case of a strike or lockout where there are inconveniences in the community, or work disruptions in an industry though not indispensable to the national interest, would then come within the Secretary’s power. It would be practically allowing the Secretary of Labor to intervene in any Labor dispute at his pleasure. This is precisely why the law sets and defines the standard: even in the exercise of his power of compulsory arbitration under Article 263 (g) of the Labor Code, the Secretary must follow the law. For “when an overzealous official by-passes the law on the pretext of retaining a laudable objective, the intendment or purpose of the law will lose its meaning as the law itself is disregarded.”

e. Effects of assumption of jurisdiction

The 2 immediate effects:
1) The enjoining of an impending strike or lockout or its lifting; and
2) An order for the workers to return to work immediately and for the employer to readmit all workers under the same terms and conditions prevailing before the strike or lockout, or the return-to-work order. (San Fernando Coca-Cola Rank-and-File Union (SACURO) v. Coca-Cola Bottlers Philippines, Inc. [CCBPI], supra.)

2) Enjoining of impending strike or lockout

Under the law, the Labor Secretary’s assumption of jurisdiction over the dispute or its certification to the National Labor Relations Commission for compulsory arbitration shall have the effect of automatically enjoining the intended or impending strike or lockout and 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 before the strike or lockout. (Bagong Pagkakaisa ng Manggagawa ng Triumph International v. Secretary of the Department of Labor and Employment, G.R. Nos. 167401, 167407, 05 July 2010.)

a) Non-compliance, illegal strike

The union and its officers, as well as the workers, defied the Labor Secretary’s assumption of jurisdiction, especially the accompanying return-to-work order within twenty-four (24) hours; their defiance made the strike illegal under the law and applicable jurisprudence. (Ibid.)

Union officers. Consequently, it constitutes a valid ground for dismissal. Article 264(a), paragraph 3 of the Labor Code provides that “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.” (Ibid.)

Union members. While the employer is authorized to declare a union officer who participated in an illegal strike as having lost his employment, his/its option is not as wide with respect to union members or workers for the law itself draws a line and makes a distinction between union officers and members/ordinary workers. An ordinary striking worker or union member cannot, as a rule, be terminated for mere participation in an illegal strike; there must be proof that he committed illegal acts during the strike. And lest it be forgotten, the law invests the Secretary of Labor and Employment the prerogative of tempering the consequence of the defiance to the assumption order. The Secretary may thus merely suspend rather than dismiss the employee involved. (Nissan Motors Philippines, Inc. v. Secretary of Labor and Employment, G.R. Nos. 158190-1, 158276, and 158283, 21 June 2006)

Any worker who participates in a strike or otherwise engages in any prohibited act in defiance of the assumption order may be meted the penalty of loss of employment status. But the law itself authorizes the graduation of penalties, Article 264 of the Labor Code making, as it were, a distinction between union officers and its members or any other workers, the main differing line contextually being that the latter do not necessarily lose their job by mere participation in an illegal strike absent proof that they committed illegal acts. Thus, the responsibility of union officers, as main players in an illegal strike, is greater than that of the members and, therefore, limiting the penalty of dismissal only for the former for participation in an illegal strike is in order. (Ibid.)

Return to work order. The determination of who among the strikers could be admitted back to work cannot be made to depend upon the discretion of employer, lest we strip the certification or assumption-of-jurisdiction orders of the coercive power that is necessary for attaining their laudable objective. The return-to-work order does not interfere with the management’s prerogative, but merely regulates it when, in the exercise of such right, national interests will be affected. (Bagong Pagkakaisa ng Manggagawa ng Triumph International v. Secretary of the Department of Labor and Employment, supra.)

3) Readmit under same terms and conditions

Actual/physical reinstatement. Under Article 263(g), all workers must immediately return to work and all employers must readmit all of them under the same terms and conditions prevailing before the strike or lockout. This Court must point out that the law uses the precise phrase of “under the same terms and conditions,” revealing that it contemplates only actual reinstatement. (Manila Diamond Hotel Employees’ Union v. CA, Manila Diamond Hotel, G.R. No. 140518, 16 December 2004)

This is in keeping with the rationale that any work stoppage or slowdown in that particular industry can be inimical to the national economy. It is clear that Article 263(g) was not written to protect labor from the excesses of management, nor was it written to ease management from expenses, which it normally incurs during a work stoppage or slowdown. It was an error on the part of the Court of Appeals to view the assumption order of the Secretary as a measure to protect the striking workers from any retaliatory action from the Hotel. This Court reiterates that this law was written as a means to be used by the State to protect itself from an emergency or crisis. It is not for labor, nor is it for management. (Ibid.)

Grave abuse of discretion to order payroll reinstatement. It is, therefore, evident from the foregoing that the Secretary’s subsequent order for mere payroll reinstatement constitutes grave abuse of discretion amounting to lack or excess of jurisdiction. Indeed, this Court has always recognized the “great breadth of discretion” by the Secretary once he assumes jurisdiction over a labor dispute. However, payroll reinstatement in lieu of actual reinstatement is a departure from the rule in these cases and there must be showing of special circumstances rendering actual reinstatement impracticable otherwise not conducive to attaining the purpose of the law in providing for assumption of jurisdiction by the Secretary of Labor and Employment in a labor dispute that affects the national interest. None appears to have been established in this case. Even in the exercise of his discretion under Article 236(g), the Secretary must always keep in mind the purpose of the law. Time and again, this Court has held that when an official by-passes the law on the asserted ground of attaining a laudable objective, the same will not be maintained if the intendment or purpose of the law would be defeated. (Ibid.)

Executory. The assumption and certification orders are executory in character and are to be strictly complied with by the parties, even during the pendency of any petition questioning their validity. (Bagong Pagkakaisa ng Manggagawa ng Triumph International v. Secretary of the Department of Labor and Employment, supra.)

•••••

BAR EXAM QUESTION

(Question XVII, Labor Law, 2018 Bar Exam)

Upon compliance with the legal requirements on the conduct of a strike, Navarra Union staged a strike against Newfound Corporation on account of a collective bargaining deadlock. During the strike, some members of Navarra Union broke the windows and punctured the tires of the company-owned buses. The Secretary of Labor and Employment assumed jurisdiction over the dispute.

(a) Should all striking employees be admitted back to work upon the assumption of jurisdiction by the Secretary of Labor and Employment? Will these include striking employees who damaged company properties? (2.5%)

(b) May the company readmit strikers only by restoring them to the payroll? (2.5%)

SUGGESTED ANSWER:

(a) Yes, under the Labor Code, the assumption of jurisdiction by the DOLE Secretary comes with an immediate effect, such as the order for the workers to return to work immediately and for the employer to readmit all workers under the same terms and conditions prevailing before the strike or lockout, or the return-to-work order. This includes striking employees who damaged company properties.

(b) No. Answer

Under the Labor Code, all workers must immediately return to work and all employers must readmit all of them under the same terms and conditions prevailing before the strike or lockout. Labor law jurisprudence has defined “under the same terms and conditions” as contemplating only actual reinstatement. Rule

In the case at bar, the DOLE Secretary has assumed jurisdiction, which comes with it a return to work order. The company should thus readmit strikers under the same terms and conditions prevailing before the strike, which is limited only to actual reinstatement. Payroll reinstatement is not an option. Apply

Thus, the company not readmit strikers only by restoring them to the payroll. Conclusion

•••••

BAR EXAM QUESTION

(Question XIV, Labor Law, 2017 Bar Exam)

Pursuant to his power under Sec. 278(g) (263(g)) of the Labor Code, the Secretary of Labor assumed jurisdiction over the 3-day old strike in Armor Steel Plates, Inc., one of the country’s bigger manufacturers of steel plates, and ordered all the striking employees to return to work. The striking employees ignored the order to return to work.

(b) What are the consequences of the assumption of jurisdiction by the Secretary of Labor, and of the disobedience to the return to work? Explain your answer. (2.5%)

SUGGESTED ANSWER:

These are the two (2) immediate effects of assumption of jurisdiction:

1) The enjoining of an impending strike or lockout or its lifting; and

2) An order for the workers to return to work immediately and for the employer to readmit all workers under the same terms and conditions prevailing before the strike or lockout, or the return-to-work order.

Disobedience of the return to work make the strike illegal.  Any union officer who knowingly participates in an illegal strike may be declared to have lost his employment status. On the other hand, an ordinary striking worker or union member cannot, as a rule, be terminated for mere participation in an illegal strike; there must be proof that he committed illegal acts during the strike.

•••••

5. Injunctions

General rule: No court or entity shall enjoin any picketing, strike or lockout, except as provided in Articles 218 and 264 of the Code. (Section 12, Rule XIII, Ibid.)
Exception: NLRC’s ex parte temporary restraining order (TRO)
The Commission shall have the power to issue temporary injunctions in such cases but only after due notice and hearing and in accordance with its rules. The reception of evidence for the application of a writ of injunction may be delegated by the Commission to any Labor Arbiter who shall submit his recommendations to the Commission for its consideration and resolution. Where the parties are not residents of Manila, the Labor Arbiter shall conduct hearings in such places as he may determine to be accessible to the parties and their witnesses. (Paragraph 2, Section 12, Rule XIII, Ibid.)
 

20-day validity. Any ex parte restraining order issued by the Commission, or its Chairman or Vice-Chairman when the Commission is not in session and as prescribed by its rules, shall be valid for a period not exceeding 20 days. (Section 12, Rule XIII, Ibid.)

•••••

BAR EXAM QUESTION

(Question XIII[B], Labor Law, 2017 Bar Exam)

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%)

SUGGESTED ANSWER:

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

•••••

Disclaimer: All information herein is for educational and general information only intended for those preparing for the bar exam. These should not be taken as professional legal advice or opinion. Please consult a competent lawyer to address your specific concerns. Any statements or opinions of the author are solely his own and do not reflect that of any organization he may be connected.

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