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NLRC Proceedings: What is an appeal in compulsory arbitration?

When an aggrieved party is not satisfied with the decision, order or award of
the Labor Arbiter, POEA Administrator or DOLE Regional Director or his duly
authorized hearing officer, the decision, award or order may be elevated to the
Commission Proper upon grounds provided by law.

NLRC Proceedings: When to submit position papers/ memorandum


If, during the conferences, the parties fail to agree upon an amicable
settlement, either in whole or in part, the Labor Arbiter shall issue an order
directing the parties to simultaneously file their respective verified position
papers, with the supporting documents and affidavits within fifteen (15)
calendar days from the date of the last conference, with proof of having
furnished each other with the copies thereof.
The verified position papers shall cover only those claims and causes of action
raised in the complaint excluding those that may have been amicably settled.
The Labor Arbiter determines the necessity of a hearing
As soon as the parties have submitted their position papers/memorandum, the
Labor Arbiter shall, motu propio, determine whether there is a need for a formal
trial or hearing. The Labor Arbiter may, at his discretion, ask clarificatory
questions to further elicit facts or information, including but not limited to the
subpoena of relevant documentary evidence from any party or witness.

NLRC Proceedings: How many copies of the appeal must be submitted


and where does one file an appeal?
The appeal, in five (5) legibly typewritten copies, may be filed with the
respective Regional Arbitration Branch, the DOLE Regional Office or the POEA,
where the case was heard and decided.

NLRC Proceedings: When will the Labor Arbiter render decision?


The Arbiter shall render his decision within thirty (30) calendar days, without
extension, after the submission of the case by the parties for resolution, even
in the absence of stenographic notes, provided however that cases involving
Overseas Filipino Workers shall be decided within ninety (90) calendar days
after the filing of the complaint which shall be deemed perfected upon
acquisition by the labor arbiter of jurisdiction over the respondent/s. (Sec. 5,
Rule 5, NLRC Rules as Amended)

NLRC Proceedings: May the Labor Arbiter conciliate disputes?


Yes. At any stage of the proceedings in all cases, the Arbiter shall exert all
efforts and take positive steps toward resolving the dispute through
conciliation.

NLRC Proceedings: Conference


The Labor Arbiter shall summon the parties to a conference within two days
from receipt of an assigned case.The purpose of the conference is either to:
amicably settle the dispute;
determine the real parties in interest;
define and simplify the issues of the case;
enter into admissions and/or stipulations of facts; and
thresh out preliminary matters. (Sec. 2, Rule 5, NLRC Rules as Amended)

NLRC Proceedings: When is a hearing necessary or not?


If there is a need for a hearing, the Labor Arbiter shall issue an order setting
the date or dates for said hearing which shall be terminated within ninety (90)
days from initial hearing. However, if he finds no necessity for further hearing
after the parties have submitted their position papers and supporting
documents, he shall issue an Order to that effect and inform the parties. The
Arbiter shall render his decision in the case within ninety (90) days.

NLRC Proceedings: What is the period of appeal?


Within ten (10) calendar days from receipt of such decisions, awards or orders
of the Labor Arbiter or of the POEA Administrator. In case of a decision of the
Regional Director or his duly authorized hearing officer, the appeal may be filed
within five (5) calendar days from receipt of such decisions, awards or orders.

NLRC Proceedings: What are certified labor disputes?


Certified labor disputes are cases certified to the Commission for compulsory
arbitration by the Secretary of Labor and Employment if 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. (Sec. 2, Rule 9, NLRC Rules as
Amended)
What are the effects of certification?
Upon certification, the intended or impending strike or lockout is automatically
prohibited even if there is a motion for reconsideration of the certification order
in the Office of the Secretary.
If a work stoppage has already taken place at the time of the Certification, all
striking or locked-out employees are to immediately return to work and the
employer shall immediately resume operations and readmit all workers under
the same terms existing before the strike or lockout. (Sec. 5, Rule 9, NLRC
Rules as Amended)
When will the Commission resolve a certified case?
The Commission, sitting in the appropriate Division shall decide or resolve the
certified dispute within thirty (30) calendar days from the date of submission of
the dispute for resolution. (Sec. 4, Rule 9, NLRC Rules as Amended)

NLRC Proceedings: Number of conferences allowed


The number of conferences shall not exceed three (3) settings and shall be
terminated within thirty (30) calendar days from the date of the first
conference.
No motion for postponement shall be entertained. Non-appearance of the
complainant/s during the scheduled hearings for mediation/conciliation
conference shall be a ground for the dismissal of the case without prejudice.
In case of non-appearance of the respondent/s during the first conference, a
second conference shall proceed. Non-appearance of the respondent/s during
the second conference shall immediately terminate the mandatory
conciliation/mediation conference. The complainant/s shall thereupon be
allowed to file his position paper as well as submit evidence in support of his
cause or causes of action after which, the labor arbiter shall render his decision
on the basis of the evidence on record. (Sec. 2, Rule 5, NLRC Rules as
Amended)

NLRC Proceedings: What are the other requisites for the perfection of
an appeal?
The appeal should be under oath.
Proof of payment of appeal fee.
Proof of posting of a cash or surety bond.
Must be accompanied by a memorandum of appeal which shall state the
grounds relied upon and the supporting arguments.
A statement of the date when the appellant received the appealed
decision or award.
Proof of service on the other party of such appeal.

NLRC Proceedings: How much is the appeal fee?


An appeal fee of one hundred and ten (P110.00) pesos must be paid by the
appellant to the Regional Arbitration Branch, DOLE Regional Office or the POEA.

NLRC Proceedings: When is a bond required in an appeal?


In case the decision of the Labor Arbiter, POEA Administrator and DOLE
Regional Director or his duly authorized hearing officer involves monetary
award.

NLRC Proceedings: Can an appeal for decisions involving monetary


award be perfected without posting a bond?
An appeal by the employer shall be perfected only upon posting of a cash or
surety bond issued by a reputable bonding company duly accredited by the
Commission or the Supreme Court in an amount equivalent to the monetary
award.

NLRC Proceedings: What is the period to resolve the appeal?


The appeal from the decision, order or reward of the Labor Arbiter and POEA
Administrator shall be resolved by the Commission within 20 calendar days
from receipt of the answer of the appellee or upon the filing of the last pleading
or memorandum.
In case of an appeal from the decision of the DOLE Regional Director or his duly
authorized hearing officer, it shall be resolved within 10 calendar days.

What is the constitutional provision on protection to labor?

The State shall afford full protection to labor, local and overseas, organized
and unorganized, and promote full employment and equality of employment
opportunities for all. It shall guarantee the rights of all workers to self-
organization, collective bargaining and negotiations, and peaceful concerted
activities, including the right to strike in accordance with law. They shall be
entitled to security of tenure, humane conditions of work, and a living wage.
They shall also participate in policy and decision-making processes affecting
their rights and benefits as may be provided by law.

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

The State shall regulate the relations between workers and employers,
recognizing the right of labor to its just share in the fruits of production and the
right of enterprises to reasonable returns on investments, and to expansion
and growth.

What rules govern the proceedings before the Labor Arbiters and
the NLRC?

The proceedings before the Labor Arbiters and the NLRC are governed by the
Labor Code, as amended, the 2011 NLRC Rules of Procedure, and suppletorily,
the Rules of Court.

What is the nature of the proceedings before the Labor Arbiter?

The NLRC Rules describe the proceedings before the Labor Arbiter as non-
litigious. Subject to the requirements of due process, the technicalities of law
and procedure in the regular courts do not apply in the labor arbitration
proceedings.

What are the cases falling under the jurisdiction of the Labor
Arbiters?

Under Article 217 of the Labor Code, Labor Arbiters have jurisdiction over the
following cases:

1. Unfair labor practice (ULP) cases;


2. Termination disputes (or illegal dismissal cases);
3. If accompanied with a claim for reinstatement, those cases that workers
may file involving wages, rates of pay, hours of work and other terms and
conditions of employment;
4. Claims for actual, moral, exemplary and other forms of damages arising
from employer-employee relations;
5. Cases arising from any violation of Article 264 of the Labor Code, including
questions involving the legality of strikes and lockouts;
6. Except claims for employees compensation not included in the next
succeeding paragraph, social security, medicare and maternity benefits, all
other claims arising from employer-employee relations, including those of
persons in domestic or household service, involving an amount exceeding Five
Thousand Pesos (P5,000.00), whether or not accompanied with a claim for
reinstatement;
7. Wage distortion disputes in unorganized establishments not voluntarily
settled by the parties pursuant to Republic Act No. 6627;
8. Enforcement of compromise agreements when there is non-compliance by
any of the parties pursuant to Article 227 of the Labor Code, as amended;
9. Money claims arising out of employer-employee relationship or by virtue of
any law or contract, involving Filipino workers for overseas employment,
including claims for actual, moral, exemplary and other forms of damages as
provided by Section 10 of R.A. No. 8042, as amended by R.A. No. 10022;
10.Contested cases under the exception clause of Article 128(b) of the Labor
Code, as amended by R.A. 7730; and
11.Other cases as may be provided by law.

May a non-lawyer appear in any of the proceedings before the


Labor Arbiter or Commission?

Yes. A non-lawyer may appear in any of the proceedings before the Labor
Arbiter or Commission only under the following conditions:

1. he/she represents himself/herself as party to the case;


2. he/she represents a legitimate labor organization, as defined under Article
212 and 242 of the Labor Code, as amended, which is a party to the case:
Provided, that he/she presents to the Commission or Labor Arbiter during the
mandatory conference or initial hearing: (i) a certification from the Bureau of
Labor Relations (BLR) or Regional Office of the Department of Labor and
Employment attesting that the organization he/she represents is duly
registered and listed in the roster of legitimate labor organizations; (ii) a
verified certification issued by the secretary and attested to by the president of
the said organization stating that he/she is authorized to represent the said
organization in the said case; and (iii) a copy of the resolution of the board of
directors of the said organization granting him such authority;
3. he/she represents a member or members of a legitimate labor organization
that is existing within the employers establishment, who are parties to the
case: Provided, that he/she presents: (i) a verified certification attesting that
he/she is authorized by such member or members to represent them in the
case; and (ii) a verified certification issued by the secretary and attested to by
the president of the said organization stating that the person or persons he/she
is representing are members of their organization which is existing in the
employers establishment;
4. he/she is a duly-accredited member of any legal aid office recognized by
the Department of Justice or Integrated Bar of the Philippines: Provided, that
he/she (i) presents proof of his/her accreditation; and (ii) represents a party to
the case;
5. he/she is the owner or president of a corporation or establishment which is
a party to the case: Provided, that he/she presents: (i) a verified certification
attesting that he/she is authorized to represent said corporation or
establishment; and (ii) a copy of the resolution of the board of directors of said
corporation, or other similar resolution or instrument issued by said
establishment, granting him/her such authority.

Does the counsel or authorized representatives have the


authority to bind their clients?

Yes. Counsel or other authorized representatives of parties shall have authority


to bind their clients in all matter of procedure. However, they cannot, without a
special power of attorney or express consent, enter into a compromise
agreement with the opposing party in full or partial discharge of a clients
claim.

What is the purpose of mandatory conciliation and mediation


conference?

The mandatory conciliation and mediation conference shall be called for the
purpose of (1) amicably settling the case upon a fair compromise; (2)
determining the real parties in interest; (3) determining the necessity of
amending the complaint and including all causes of action; (4) defining and
simplifying the issues in the case; (5) entering into admissions or stipulations of
facts; and (6) threshing out all other preliminary matters.

What is the effect of non-appearance of the parties in the


mandatory conciliation and mediation conference?

The non-appearance of the complainant or petitioner during the two (2)


settings for mandatory conciliation and mediation conference scheduled in the
summons, despite due notice thereof, shall be a ground for the dismissal of the
case without prejudice.

In case of non-appearance by the respondent during the first scheduled


conference, the second conference as scheduled in the summons shall
proceed. If the respondent still fails to appear at the second conference despite
being duly served with summons, he/she shall be considered to have waived
his/her right to file position paper. The Labor Arbiter shall immediately
terminate the mandatory conciliation and mediation conference and direct the
complainant or petitioner to file a verified position paper and submit evidence
in support of his/her causes of action and thereupon render his/her decision on
the basis of the evidence on record.
What is the role of the Labor Arbiter in hearing and clarificatory
conference?

The Labor Arbiter shall take full control and personally conduct the hearing or
clarificatory conference and may ask questions for the purpose of clarifying
points of law or facts involved in the case. The Labor Arbiter may allow the
presentation of testimonial evidence with right of cross-examination by the
opposing party and shall limit the presentation of evidence to matters relevant
to the issue before him/her and necessary for a just and speedy disposition of
the case.

The Labor Arbiter shall make a written summary of the proceedings, including
the substance of the evidence presented, in consultation with the parties. The
written summary shall be signed by the parties and shall form part of the
records.

What is the period within which to conduct clarificatory


conference?

The parties and their counsels appearing before the Labor Arbiter shall be
prepared for continuous hearing or clarificatory conference. No postponement
or continuance shall be allowed by the Labor Arbiter, except upon meritorious
grounds and subject to the requirement of expeditious disposition of cases. The
hearing or clarificatory conference shall be terminated within thirty (30)
calendar days from the date of the initial clarificatory conference. In cases
involving overseas Filipino workers, the aggregate period for conducting the
mandatory conciliation and mediation conference, including hearing on the
merits or clarificatory conference, shall not exceed sixty (60) days, which will
be reckoned from the date of acquisition of jurisdiction by the Labor Arbiter
over the person of the respondents.

What is the effect of non-appearance of the parties during


clarificatory conference?

In case of non-appearance of any of the parties during the hearing or


clarificatory conference despite due notice, proceedings shall be conducted ex
parte. Thereafter, the case shall be deemed submitted for decision.

What is the period within which to file a motion for


postponement?

No motion for postponement shall be entertained except on meritorious


grounds and when filed at least three (3) days before the scheduled hearing.

1 What is the period within which to cause an amendment of the


complaint or petition?
2
No amendment of the complaint or petition shall be allowed after the filing of
position papers, unless with leave of the Labor Arbiter.
What are the prohibited pleadings and motions?

The following pleadings and motions shall not be allowed and acted upon nor
elevated to the Commission: (a) Motion to dismiss the complaint except on the
ground of lack of jurisdiction over the subject matter, improper venue, res
judicata, prescription and forum shopping; (b) Motion for a bill of particulars; (c)
Motion for new trial; (d) Petition for Relief from Judgment; (e) Motion to declare
respondent in default; (f) Motion for reconsideration of any decision or any
order of the Labor Arbiter; (g) Appeal from any interlocutory order of the Labor
Arbiter, such as but not limited to, an order: denying a motion to dismiss,
denying a motion to inhibit; denying a motion for issuance of writ of execution,
or denying a motion to quash writ of execution; (h) Appeal from the issuance of
a certificate of finality of decision by the Labor Arbiter; (i) Appeal from orders
issued by the Labor Arbiter in the course of execution proceedings; and (j) Such
other pleadings, motions and petitions of similar nature intended to circumvent
above provisions.

May the Commission blacklist bonding companies?

Yes. The Commission through the Chairman may on justifiable grounds blacklist
a bonding company, notwithstanding its accreditation by the Supreme Court.
Upon verification by the Commission that the bond is irregular or not genuine,
the Commission shall cause the immediate dismissal of the appeal, and
censure the responsible parties and their counsels, or subject them to
reasonable fine or penalty, and the bonding company may be blacklisted.

May a party file a motion to revive and re-open a case dismissed


without prejudice?

Yes. A party may file a motion to revive or re-open a case dismissed without
prejudice, within ten (10) calendar days from receipt of notice of the order
dismissing the same; otherwise, the only remedy shall be to re-file the case. A
party declared to have waived his/her right to file position paper may, at any
time after notice thereof and before the case is submitted for decision, file a
motion under oath to set aside the order of waiver upon proper showing that
his/her failure to appear was due to justifiable and meritorious grounds.

What is the effect of rehabilitation receivership on monetary


claims of workers?

Rehabilitation receivership of a company has the effect of suspending all


proceedings at whatever stage it may be found - in all judicial or quasi-judicial
bodies. The NLRC may not proceed with hearing of monetary claims. If already
decided, the monetary awards cannot be executed. If due for execution, no
such execution may be had. Only when there is liquidation that the monetary
claims may be asserted. The suspension of the proceedings is necessary to
enable the rehabilitation receiver to effectively exercise its powers free from
any judicial or extra-judicial interference that might unduly hinder the rescue of
the distressed company. Once the receivership proceedings have ceased and
the receiver/liquidator is given the imprimatur to proceed with corporate
liquidation, the SEC order becomes functus officio. Thus, there is no legal
impediment for the execution of the decision of the Labor Arbiter for the
payment of separation pay by presenting it with the rehabilitation receiver and
liquidator, subject to the rules on preference of credits.

What are the two kinds of jurisdiction of the NLRC?

The National Labor Relations Commission exercises two (2) kinds of jurisdiction:
(1) Original jurisdiction; and (2) Exclusive appellate jurisdiction.

1. Original jurisdiction:

1 Injunction in ordinary labor disputes to enjoin or restrain any actual or


threatened commission of any or all prohibited or unlawful acts or to
require the performance of a particular act in any labor dispute which, if
not restrained or performed forthwith, may cause grave or irreparable
damage to any party;
2 Injunction in strikes or lockouts under Article 264 of the Labor Code; and
3 Certified labor disputes causing or likely to cause a strike or lockout in an
industry indispensable to the national interest, certified to it by the
Secretary of Labor and Employment for compulsory arbitration.

2. Exclusive appellate jurisdiction:

1 All cases decided by the Labor Arbiters including contempt cases; and
2 Cases decided by the DOLE Regional Directors or his duly authorized
Hearing Officers (under Article 129) involving recovery of wages, simple
money claims and other benefits not exceeding P5,000 and not
accompanied by claim for reinstatement.

What is the power to assume jurisdiction or certify national


interest labor disputes to NLRC?

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.

In case of conflict, who has jurisdiction over termination


disputes, Labor Arbiter or Voluntary Arbitrator?

Jurisdiction over termination disputes belongs to Labor Arbiters and not with
the grievance machinery or Voluntary Arbitrator. Under Article 262, the
Voluntary Arbitrator may assume jurisdiction only when agreed upon by the
parties. Policy Instructions No. 56 issued by DOLE Secretary Confesor clarifying
the jurisdiction of Labor Arbiters and Voluntary Arbitrations does not apply. It
reiterated the ruling that dismissal is not a grievable issue.

What is the mode of appeal from the decision of the Labor


Arbiters?
Appeal from the decision of the Labor Arbiter is brought by ordinary appeal to
the NLRC within ten (10) calendar days from receipt by the party of the
decision. From the decision of the NLRC, there is no appeal. The only way to
elevate the case to the Court of Appeals is by way of the special civil action of
certiorari under Rule 65 of the Rules of Civil Procedure. From the ruling of the
Court of the Appeals, it may be elevated to the Supreme Court by way of
ordinary appeal under Rule 45 of the Rules of Civil Procedure.

What are the grounds for appeal?

There are four (4) grounds, to wit:

(a) If there is prima facie evidence of abuse of discretion on the part of the
Labor Arbiter;
(b) If the decision, order or award was secured through fraud or coercion,
including graft and corruption;
(c) If made purely on questions of law; and
(d) If serious errors in the findings of facts are raised which would cause grave
or irreparable damage or injury to the appellant.

What are the requisites for perfection of appeal?

The appeal shall be: (1) filed within the reglementary period provided in
Section 1 of the Rule; (2) verified by the appellant himself/herself in accordance
with Section 4, Rule 7 of the Rules of Court, as amended; (3) in the form of a
memorandum of appeal which shall state the grounds relied upon and the
arguments in support thereof, the relief prayed for, and with a statement of the
date the appellant received the appealed decision, award or order; (4) in three
(3) legibly typewritten or printed copies; and (5) accompanied by proof of
payment of the required appeal fee and legal research fee, posting of a cash or
surety bond as provided in Section 6 of this Rule, and proof of service upon the
other parties.

What is the reinstatement aspect of the Labor Arbiters decision?

If reinstatement is ordered by the Labor Arbiter in an illegal dismissal case, it is


immediately executory even pending appeal. Such award does not require a
writ of execution.

Is posting a bond stay the execution of immediate


reinstatement?

No. The posting of a bond by the employer does not have the effect of staying
the execution of the reinstatement aspect of the decision of the Labor Arbiter.

Can the Labor Arbiter issue a partial writ pending appeal?


Yes. In case the decision includes an order of reinstatement and the employer
disobeys it or refuses to reinstate the dismissed employee, the Labor Arbiter
should immediately issue a writ of execution, even pending appeal, directing
the employer to immediately reinstate the dismissed employee either
physically or in the payroll, and to pay the accrued salaries as a consequence
of such reinstatement at the rate specified in the decision. The Sheriff should
serve the writ of execution upon the employer or any other person required by
law to obey the same. If he disobeys the writ, such employer or person may be
cited for contempt. While the perfection of appeal will stay the execution of the
decision of a Labor Arbiter, the partial execution for reinstatement pending
appeal is not affected by such perfection.

Is the award of reinstatement pending appeal by the Labor


Arbiter self-executory?

Yes. An award or order of reinstatement is self-executory and, therefore, does


not require a writ of execution to implement and enforce it. To require the
application for and issuance of a writ of execution as pre-requisite for the
execution of a reinstatement award would certainly betray and run counter to
the very object and intent of Article 223, i.e., the immediate execution of a
reinstatement order. The reason is simple. An application for a writ of execution
and its issuance could be delayed for numerous reasons. A mere continuance
or postponement of a scheduled hearing, for instance, or an inaction on the
part of the Labor Arbiter or the NLRC, could easily delay the issuance of the
writ thereby setting at naught the strict mandate and noble purpose envisioned
by Article 223.

What is the period within which to conduct pre-execution


conference?
Within two (2) working days from receipt of a motion for the issuance of a writ
of execution which shall be accompanied by a computation of a judgment
award, if necessary, the Commission or the Labor Arbiter may schedule a pre-
execution conference to thresh out matters relevant to execution including the
final computation of monetary award. The pre-execution conference shall not
exceed fifteen (15) calendar days from the initial schedule, unless the parties
agreed to an extension. Any order issued by the Labor Arbiter in the pre-
execution conference is not appealable, subject to the remedies available
under Rule XII (Extraordinary Remedies).
Is writ of execution necessary in case reinstatement is ordered
by the NLRC on appeal?

Yes. While it is now well-settled that a writ of execution is not necessary to


implement the reinstatement order issued by a Labor Arbiter upon a finding of
illegality of dismissal since it is self-executory, however, if the reinstatement
order is issued by the NLRC on appeal, there is a need to secure a writ of
execution from the Labor Arbiter a quo to enforce the reinstatement of the
employee.

What is the lifetime or effectivity of the writ of execution?


Five (5) years. In case of partial satisfaction of judgment during the lifetime of
the writ, the Labor Arbiter shall motu proprio issue an updated writ reflecting
the amount collected and the remaining balance.

What is the effect of refusal of the bonding company or bank


holding the cash deposit of the losing party to release the
garnished amount?

If the bonding company refuses to pay or the bank holding the cash deposit of
the losing party refuses to release the garnished amount despite the order or
pertinent processes issued by the Labor Arbiter or the Commission, the
president or the responsible officers or authorized representatives of the said
bonding company or the bank who resisted or caused the non-compliance shall
be either cited for contempt, or held liable for resistance and disobedience to a
person in authority or the agents of such person as provided under the
pertinent provision of the Revised Penal Code. This rule shall likewise apply to
any person or party who unlawfully resists or refuses to comply with the break
open order issued by the Labor Arbiter or the Commission.

What is the power of the DOLE Secretary to assume jurisdiction


over a labor dispute or certify it to the NLRC for compulsory
arbitration?

The DOLE Secretary may assume jurisdiction over a labor dispute, or certify it
to the NLRC for compulsory arbitration, if, in his opinion, it may cause or likely
to cause a strike or lockout in an industry indispensable to the national interest.
The President may also exercise the power to assume jurisdiction over
a labor dispute.

What is the effect of such assumption or certification of labor


dispute to the NLRC?

The following are the effects: (a) on intended or impending strike or


lockout automatically enjoined even if a Motion for Reconsideration is filed;
(b) on actual strike or lockout strikers or locked out employees should
immediately return to work and employer should readmit them back; and (c)
on cases filed or may be filed all shall be subsumed/absorbed by the
assumed or certified case except when the order specified otherwise. The
parties to the case should inform the DOLE Secretary of pendency thereof.

May an injunction be issued in strike or lockout cases?

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 the strikes and pickets. This policy applies even if the strike
appears to be illegal in nature. The rationale for this policy is the protection
extended to the right to strike under the constitution and the law. It is basically
treated as a weapon that the law guarantees to employees for the
advancement of their interest and for their protection.

What is the effect of defiance of assumption or certification order


or return-to-work order?

Non-compliance with the assumption/certification order of the Secretary of


Labor and Employment or a return-to-work order issued pursuant thereto by
either the Secretary or the NLRC to which a labor dispute is certified, is
considered an illegal act committed in the course of the strike or lockout.

What is the prescriptive period for offenses penalized under the


Labor Code?

As a rule, the prescriptive period of all criminal offenses penalized under the
Labor Code and the Rules to Implement the Labor Codeis three (3) years from
the time of commission thereof. However, criminal cases arising from ULP
which prescribe within one (1) year from the time the acts complained of were
committed; otherwise, they shall be forever barred. The running of the 1 year
period, however, is interrupted during the pendency of the labor case.

What is the prescriptive period for money claims?

Prescriptive period is three (3) years from accrual of cause of action.

What is the prescriptive period for claims for allowances and


other benefits?

In cases of nonpayment of allowances and other monetary benefits, if it is


established that the benefits being claimed have been withheld from the
employee for a period longer than three (3) years, the amount pertaining to the
period beyond the three-year prescriptive period is barred by prescription. The
amount that can only be demanded by the aggrieved employee shall be limited
to the amount of the benefits withheld within three (3) years before the filing of
the complaint.

What is the prescriptive period for illegal dismissal?

An action for illegal dismissal prescribes in four (4) years from accrual of cause
of action.

What is the remedy of the party aggrieved by an order or


resolution of the Labor Arbiter?

A party aggrieved by any order or resolution of the Labor Arbiter including


those issued during execution proceedings may file a verified petition to annul
or modify such order or resolution. The petition may be accompanied by an
application for the issuance of a temporary restraining order and/or writ of
preliminary or permanent injunction to enjoin the Labor Arbiter, or any person
acting under his/her authority, to desist from enforcing said resolution or order.
What are the grounds of the petition for extraordinary remedies?

The petition filed under this Rule may be entertained only on any of the
following grounds: (a) if there is prima facie evidence of abuse of discretion on
the part of the Labor Arbiter; (b) if serious errors in the findings of facts are
raised which, if not corrected, would cause grave or irreparable damage or
injury to the petitioner; (c) if a party by fraud, accident, mistake or excusable
negligence has been prevented from taking an appeal; (d) if made purely on
questions of law; or (e) if the order or resolution will cause injustice if not
rectified.

What are the requisites of the petition for extraordinary


remedies?

The petition for extraordinary remedies shall: (a) be accompanied by a clear


original or certified true copy of the order or resolution assailed, together with
clear copies of documents relevant or related to the said order or resolution for
the proper understanding of the issue/s involved; (b) contain the arbitral docket
number and appeal docket number, if any; (c) state the material date showing
the timeliness of the petition; (d) be verified by the petitioner himself/herself in
accordance with Section 4, Rule 7 of the Rules of Court, as amended; (e) be in
the form of a memorandum which shall state the ground/s relied upon, the
argument/s in support thereof and the reliefs prayed for; (f) be in three (3)
legibly written or printed copies; and (g) be accompanied by certificate of non-
forum shopping, proof of service upon the other party/ies and the Labor Arbiter
who issued the order or resolution being assailed or questioned; and proof of
payment of the required fees.

What is unfair labor practice?

An unfair labor practice act violates the right of workers to self-


organization, is inimical to the legitimate interests of both labor and
management, including their right to bargain collectively and otherwise deal
with each other in an atmosphere of freedom and mutual respect, disrupts
industrial peace and hinders the promotion of healthy and stable labor-
management relations.

May elimination or diminution of benefits constitute demotion?

Yes. The illegal and unjustified elimination or diminution of certain benefits may
result in illegal demotion. Under established jurisprudence, there is demotion
where the act of the employer results in the lowering in position or rank or
reduction in salary of the employee. It involves a situation where an employee
is relegated to a subordinate or less important position constituting a reduction
to a lower grade or rank with a corresponding decrease in duties and
responsibilities and usually accompanied by a decrease in salary.

May elimination or diminution of benefits constitute constructive


dismissal?
Yes. Elimination or diminution of certain benefits may result in the constructive
dismissal of an employee. Constructive dismissal is an involuntary resignation
resorted to when continued employment is rendered impossible, unreasonable
or unlikely; when there is a demotion in rank and/or a diminution in pay; or
when a clear discrimination, insensibility or disdain by an employer becomes
unbearable to the employee that it could foreclose any choice by him except to
forego his continued employment.

-oOo-

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.
WHAT IS THE LEGAL BASIS OF CONCILIATION AND MEDIATION?
Article 13, Section 3, of our New Constitution provides:
The State shall promote xxx the preferential use of voluntary modes
of setting disputes including conciliation and shall ensure mutual
compliance by the parties thereof in order to foster industrial peace.
A similar provision is echoed in the Declaration of Policy under Article
211 (a) of the Labor Code, as amended.
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 BENEFIT CAN THE PARTIES HAVE IN APPEARING DURING
CONCILIATION CONFERENCES?
Generally speaking, any party appearing during scheduled conciliation
conferences has the advantage of presenting its position on the labor
controversy. The issue raised in the complaint can be better ventilated
with the presence of the concerned parties. Moreover, the parties can
observe a norm of conduct usually followed in like forum.
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 fellows
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 to bring about an
amicable settlement. The presence of this neutral third party then
becomes crucial as it can serve to prevent breakdowns in
communication, outburst of hostility between the negotiators and may
even encourage concentration on the substantive issues in the dispute.
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 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 employers 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?
1 The requirements for a valid strike or lockout are as follows:

a It must be based on a valid and factual ground;
b 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.
c 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.
d 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.
e 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.
f 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.
g 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?

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


intra-union disputes or on issues brought to voluntary or compulsory
arbitration.
b 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.
c 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.
d 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.
e Employing any strike breaker or being employed as a strike-breaker.
f 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.
g 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.
h 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.
i Any act of violence, coercion or intimidation by any picketer.
j The obstruction of the free ingress to or egress from the employers
premises for lawful purposes.
k 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 employers 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 workers
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.

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