LAB REL 3
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Transcript of LAB REL 3
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LABOR RELATIONS
GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION
Article. 260. Grievance machinery and voluntary arbitration. - The
parties to a Collective Bargaining Agreement shall include therein
provisions that will ensure the mutual observance of its terms and
conditions. They shall establish a machinery for the adjustment and
resolution of grievances arising from the interpretation or
implementation of their Collective Bargaining Agreement and thosearising from the interpretation or enforcement of company personnel
policies.
All grievances submitted to the grievance machinery which are not
settled within seven (7) calendar days from the date of its submission
shall automatically be referred to voluntary arbitration prescribed in
the Collective Bargaining Agreement.
For this purpose, parties to a Collective Bargaining Agreement shall
name and designate in advance a Voluntary Arbitrator or panel of
Voluntary Arbitrators, or include in the agreement a procedure for the
selection of such Voluntary Arbitrator or panel of Voluntary
Arbitrators, preferably from the listing of qualified Voluntary
Arbitrators duly accredited by the Board. In case the parties fail to
select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the
Board shall designate the Voluntary Arbitrator or panel of Voluntary
Arbitrators, as may be necessary, pursuant to the selection procedure
agreed upon in the Collective Bargaining Agreement, which shall act
with the same force and effect as if the Arbitrator or panel of
Arbitrators has been selected by the parties as described above.
Grievance refers to any question by either the employer or the unionregarding the interpretation or implementation of any provision of the
collective bargaining agreement or interpretation or enforcement of
company rules and regulations or personnel policies.
Grievance machinery refers to the mechanism for the adjustment and
resolution of grievances arising from the interpretation or
implementation of a CBA and those arising from the interpretation or
enforcement of company personnel policies. It is part of the continuing
process of collective bargaining.
Grievance Procedures refer to the internal rules of procedures
established by the parties in their collective bargaining agreement with
voluntary arbitration as the terminal step, which are intended to
resolve all issues arising from the implementation and interpretation of
their collective agreement. It provides the parties a first crack in
addressing problems in the CBA administration and its use is an
essential requisite before a voluntary arbitrator can take cognizance of
the unresolved grievance. Legally speaking, it is an appeal procedure
and is a must provision in every collective agreement. It is the part of
the agreement which provides for a peaceful way of settling differences
and misunderstanding between the parties.
Legal requirements in the establishment of grievance procedure:(1) Should be sufficient to ensure mutual observance of the terms and
conditions of the CBA;
(2) Should include in the CBA a procedure for the selection of the VAor name and designate in advance a VA.
Mandatory provision in CBA A grievance procedure is a mandatory
provision in the CBA. In the event that a CBA without such provision is
submitted for registration, the registrar should advise the parties to
include a grievance procedure therein before it is considered duly
registered.
Provisions of the CBA subject to grievance machinery:
(1) Economic provisions have direct and measurable monetary costand consequences such as wage rates, paid vacations, pensions,
health and welfare plans, and other fringe benefits.
(2) Non-economic provisions monetary costs cannot be directlycomputed such as the no-strike-no-lockout, union security,
management security, check-off clauses, or grievance procedures.
Establishment of Grievance Committee In the absence of applicable
provision in the CBA, a grievance committee shall be created within 10
days from signing of the collective bargaining agreement. The
committee shall be composed of at least two representatives each from
the members of the bargaining unit and the employer, unless otherwise
agreed upon by the parties. The representatives from among the
members of the bargaining unit shall be designated by the union.
Initiation of grievance:
(1) Grievances are ordinarily brought by the aggrieved employeesusually with the union representative called the shop steward or
grievance officer, to the foreman either orally or in writing. However,
this does not mean that an individual employee or group of employees
cannot present a grievance directly to their employer. Whoever isaggrieved may bring his grievance to the grievance machinery.
(2) Generally, employers cannot initiate grievance. However, the rightgranting the employer to initiate grievance may be included in the CBA
to resolve a question over a vague or indefinite provision of the CBA.
Procedure in handling grievances In the absence of a specific
provision in the CBA or existing company practice prescribing for the
procedures in handling grievance, the following shall apply:
(a) An employee shall present this grievance or complaint orally or inwriting to the shop steward. Upon receipt thereof, the shop
steward shall verify the facts and determine whether or not the
grievance is valid.
(b) If the grievance is valid, the shop steward shall immediately bringthe complaint to the employee's immediate supervisor. The shop
steward, the employee and his immediate supervisor shall exert
efforts to settle the grievance at their level.
(c) If no settlement is reached, the grievance shall be referred to thegrievance committee which shall have 10 days to decide the case.
Where the issue involves or arises from the interpretation or
implementation of a provision in the collective bargaining agreement,
or from any order, memorandum, circular or assignment issued by the
appropriate authority in the establishment, and such issue cannot beresolved at the level of the shop steward or the supervisor, the same
may be referred immediately to the grievance committee.
Submission to Voluntary Arbitration Unresolved grievances will be
referred to voluntary arbitration; and for this purpose, either party may
serve notice upon the other of its decision to submit the issue to
voluntary arbitration. The notice shall state the issue or issues to be
arbitrated, copy thereof furnished the board or the voluntary arbitrator
or panel of VAs named or designated in the CBA. If the party upon
whom the notice is served fails or refuses to respond favorably within 7
days from receipt thereof, the VA or panel of VAs designated in the CBA
shall commence voluntary arbitration proceedings. Where the CBA does
not so designate, the NCMB shall call the parties and appoint a VA or
panel of VAs, who shall thereafter commence arbitration proceedings
VOLUNTARY ARBITRATION
Voluntary Arbitration refers to the mode of settling labor-
management disputes by which the parties select a competent, trained
and impartial persons who shall decide on the merits of the case and
whose decisions in final, executory and unappealable.
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Voluntary Arbitrator refers to any person accredited by the Board as
such, or any person named or designated in the CBA by the parties to
act as their voluntary arbitrator, or one chosen by the parties, with or
without the assistance of the Board, pursuant to a selection procedure
agreed upon in the CBA, or one appointed by the NCMB in case either
parties to the CBA refuses to submit to voluntary arbitration. The term
includes panel of voluntary arbitrators.
Two Kinds of Voluntary Arbitrators:
(1) Permanent Arbitrator specifically named or designated in theCBA by the parties as their VA for a period of time, usually during
the lifetime of the CBA rather than for just one case or a specific
group of cases.
(2) Ad Hoc Arbitrator chosen by the parties in accordance with theestablished procedure in the CBA or the one appointed by the
NCMB in case there is failure in the selection or in the case of the
parties to the CBA refuses to submit to voluntary arbitration. He is
named to arbitrate a specific dispute and there is no commitment
to select him again on another set of disputes.
Types of labor disputes to be summated to voluntary arbitration:
(1) Rights disputes include:(a) Unresolved grievances arising from CBA interpretation and
implementation, including violations of the CBA which are not
gross in character;
(b) Unresolved grievances arising from personnel policyenforcement and interpretation, including disciplinary cases.
(2) Interest disputes covers all other labor disputes including ULPsand bargaining deadlocks.
Rights disputes vs. Interest disputes The former contemplate the
existence of a CBA already concluded or a situation in which no effort is
made to bring about a formal change in its terms or to create a new
one. The dispute relates either to the meaning or proper application of
a particular provision therein with reference to a specific situation or to
an omitted case. The claim pertains to rights which have already
accrued and not merely to new ones created for the future. The latter,
on the other hand, relate to disputes over the formation of CBAs or
efforts to secure them. They arise in no such agreement or where it is
sought to change the terms of one and, therefore, the issue is not
whether an existing agreement controls the controversy. They look to
the acquisition of rights for the future, not to assertion of rights claimed
to have vested in the past.
In right disputes, the role of the VA is similar to a court construing acontract, which is to adjudicate rather than legislate. In interest
disputes, the VA is that of a legislator or a bargainer for the parties. He
supplements the collective bargaining process by doing the bargaining
for both parties after they have failed to reach an agreement through
their own bargaining efforts.
Arbitration clause provision in the CBA requiring that grievances, if
unsettled, shall be finally resolved by a VA.
Issues of Arbitrability:
(1) That the case does not involve any of the disputes that are coveredby the arbitration clause;
(2) That while covered by the arbitration clause, some conditionsprecedent such as the exhaustion of the grievance procedure, or
timely notice of intent to arbitrate, have not been met.
Joint submission to arbitration by the parties no problem; but when
only one initiates arbitration by filing a notice of intent to arbitrate
under the arbitration clause of the CBA the other party may raise
issues of arbitrability.
Compulsory Arbitration a system whereby the parties to a dispute are
compelled by the government to forego their right to strike and are
compelled to accept the resolution of their dispute through arbitration
by a third party. It is a mode of resolving a dispute whereby the consent
of one of the parties is enforced by virtue of the law and following
certain procedure laid down by law. The resolution of the dispute is
arrived at by resort to a disinterested third party whose decision is final
and binding on the parties. But in compulsory arbitration, such a third
party is normally appointed by the government.
Authority of Voluntary Arbitrators Under the Labor Code, the
authority to conduct compulsory arbitration is principally vested upon
Labor Arbiters. But cases over which the Labor Arbiter have original and
exclusive jurisdiction may also be taken cognizance of by the VAs who
shall have original and exclusive jurisdiction to hear and decide all
unresolved grievances arising from interpretation or implementation of
the CBA and personnel policies. Likewise, the VA, by virtue of an
agreement of the parties to a controversy, may also hear and decide all
other labor disputes, including unfair labor practices and bargaining
deadlocks. The authority to the VAs of said power is also vested upon
Labor Arbiters. However, there are limitations on the power of the
Labor Arbiters or the NLRC to hear and decide certain cases. Althoughcases arising from the interpretation and implementation of CBAs and
personnel policies may have been filed with the Labor Arbiters under
all-embracing jurisdictional provisions of the Labor Code, however, the
law requires that the same be disposed of by the Labor Arbiters through
no other manner except by referring them to the grievance machinery
and voluntary arbitration as may be provided in said agreements.
Authority of the NLRC The exercise of the NLRC of its appellate
jurisdiction cannot be considered part of the compulsory arbitration
process. When a Labor Arbiter renders his decision, compulsory
arbitration is deemed terminated because with the issuance of his
decision, the hearing and determination of the issues in a case are
terminated. The NLRCs act is merely confined to the review of the
decision of the Labor Arbiter to determine any possible error in his
findings of fact or law. However, the NLRCs exercise of its original
jurisdiction is part of the compulsory arbitration. The NLRC is said to
engage in compulsory arbitration when it hears and decides petitions
for injunction and national interest cases certified to it for compulsory
arbitration by the DOLE Secretary.
Execution of VAs Decision The VA has a power to issue writs of
execution. The moment he issues a decision and there is no appeal, the
decision of the VA becomes final and executory after 10 days fromreceipt of such decision. The winner will now file a motion for
execution. The VA will issue a writ of execution just like a Labor Arbiter.
Appeal Decision of VA One can appeal the decision of the VA by
appealing to the CA within 15 days from the decision (Sec. 1, Rule 43).
The decision of the VA becomes final after 10 days but you have 15 days
to appeal to the CA, which is why you have to give notice to the VA that
you are appealing in order to stay the execution of the decision.
Unionized Establishment Only Article 260 has exclusive application
only to situations where there is a CBA involved embodying provisions
on grievance machinery and voluntary arbitration. The existence of a
CBA presupposes that the establishment is organized or unionized or
that the employees therein are being represented by a duly certified
bargaining union. Where there is no CBA or bargaining union
representing the employees, Article 260 is silent on the particular
procedure. Absent any particular procedure in law mandating the
creation of grievance machinery in unorganized or non-unionized
establishments, there is no legal compulsion on the part of the
employer and employees to create one or resort to this effective
alternative mode of resolving their disputes.
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Compulsory Arbitration vs. Voluntary Arbitration
Compulsory arbitration is a system whereby the parties to a dispute are
compelled by the government to forego their right to strike and are
compelled to accept the resolution of their dispute through arbitration
by a third party. The essence of arbitration remains since a resolution of
a dispute is arrived at by resort to a disinterested third party whose
decision is final and binding on the parties, but in compulsory
arbitration, such a third party is normally appointed by the government.
Under voluntary arbitration, on the other hand, referral of a dispute by
the parties is made, pursuant to a voluntary arbitration clause in their
collective agreement, to an impartial third person for a final and binding
resolution. Ideally, arbitration awards are supposed to be complied with
by both parties without delay, such that once an award has been
rendered by an arbitrator, nothing is left to be done by both parties but
to comply with the same. After all, they are presumed to have freely
chosen arbitration as the mode of settlement for that particular
dispute. Pursuant thereto, they have chosen a mutually acceptable
arbitrator who shall hear and decide their case. Above all, they have
mutually agreed to de bound by said arbitrator's decision.
Article. 261. Jurisdiction of Voluntary Arbitrators or panel of Voluntary
Arbitrators. - The Voluntary Arbitrator or panel of Voluntary
Arbitrators shall have original and exclusive jurisdiction to hear and
decide all unresolved grievances arising from the interpretation or
implementation of the Collective Bargaining Agreement and those
arising from the interpretation or enforcement of company personnel
policies referred to in the immediately preceding article. Accordingly,
violations of a Collective Bargaining Agreement, except those which
are gross in character, shall no longer be treated as unfair labor
practice and shall be resolved as grievances under the Collective
Bargaining Agreement. For purposes of this article, gross violations of
Collective Bargaining Agreement shall mean flagrant and/or malicious
refusal to comply with the economic provisions of such agreement.
The Commission, its Regional Offices and the Regional Directors of the
Department of Labor and Employment shall not entertain disputes,
grievances or matters under the exclusive and original jurisdiction of
the Voluntary Arbitrator or panel of Voluntary Arbitrators and shall
immediately dispose and refer the same to the Grievance Machinery
or Voluntary Arbitration provided in the Collective Bargaining
Agreement.
Original and Exclusive Jurisdiction of Voluntary Arbitrators:(1) Unresolved grievances arising from the interpretation or
implementation of the CBA;
(2) Unresolved grievances arising from the interpretation of companypersonnel policies;
(3) Wage distortion issues arising from the application of any wrongwage orders in organized establishments;
(4) Other labor disputes, including ULP and bargaining deadlocks, uponagreement of the parties;
(5) Unresolved grievances arising from the interpretation andimplementation of the Productivity Incentive Programs under RA
6971.
Voluntary arbitration from grievance machinery is actually a mode of
appeal as may be gleaned from the Article 260, in relation to Article
261, that all grievances which are not settled or resolved within 7
calendar days from the date of their submission for resolution to the
last step of the grievance machinery shall automatically be referred to
voluntary arbitration prescribed by the CBA.
Only grievances that are unresolved by the grievance machinery fall
within the original and exclusive jurisdiction of the VA. If a grievance
has not been submitted at the first instance to the grievance machinery,
the VA do not have jurisdiction to decide it. It is actually the grievance
machinery which is exercising the original and exclusive jurisdiction over
the same and not the VAs, who may only validly acquire jurisdiction
over them if they are not settled or resolved within 7 calendar days
from the date of submission for resolution to the last step of the
grievance machinery.
Unresolved grievances
(1) A decision or resolution was rendered thereon through the varioussteps of the grievance machinery and either or both of the parties
is/are not satisfied therewith;
(2) No action at all was taken thereon within the period of 7 days fromits submission for resolution to the last step of the grievance
machinery. (Not from the date of the issuance of any decision or
resolution on the grievance.)
Note: If no action or resolution is made by the grievance machinery
within said period, what is brought before the VA is not a decision or
resolution but the very raw issues presented as grievance before the
grievance machinery.
Cases cognizable by VA but filed with the Labor Arbiteror the regularcourts In case of conflict in jurisdiction, the law provides that the
NLRC, its Regional Offices and the Regional Directors of the DOLE are
not allowed to entertain disputes and grievances under the exclusive
and original jurisdiction of the VA and are required to refer the same to
the grievance machinery or voluntary arbitration under the CBA.
When jurisdiction is exercised:
(1) Upon receipt of a Submission Agreement duly signed by bothparties.
(2) Upon receipt of the notice to arbitrate when there is refusal fromone party.
(3) Upon receipt of an appointment/designation as VA by the board ineither of the following circumstances:
(a) In the event that parties fail to select an arbitrator; or(b) In the absence of a named arbitrator in the CBA and the party
upon whom the notice to arbitrate is served does not
favorably reply within 7 days from the receipt of such notice.
Initiation of Arbitration:
(1) By Submission Agreement(2) By Demand or Notice to Arbitrate invoking the arbitration clause in
the CBA
(3) An appointment from the NCMB(1) Submission Agreement refers to a written agreement by theparties submitting their case for arbitration, containing a statement of
the issues, the name of their chosen VA and a stipulation and an
undertaking to abide by and comply with the resolution that may be
rendered therein, including the cost of arbitration.
Contents of Submission Agreement:
(a) An agreement to submit to arbitration;(b) The specific issue/s to be arbitrated;(c) The name of the arbitrator;(d) The names, addresses and contact numbers of the parties;(e) The agreement to perform or abide by the decision.(2) Notice to Arbitrate refers to a formal demand made by one partytothe other for the arbitration of a particular dispute in case of refusal
of one party in a CBA to submit the same to arbitration.
Submission to arbitration through Notice to Arbitrate After
exhaustion of the grievance procedure but the grievance remains
unresolved and there is refusal from one party to submit to voluntary
arbitration, the following procedure shall be observed:
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(a) A notice to arbitrate shall be served upon the unwilling party, copyfurnished the permanent arbitrator and the NCMB Regional Branch
having jurisdiction over the workplace;
(b) Upon receipt of a notice to arbitrate after the lapse of the seventh-day period within which to respond, the permanent arbitrator/s
shall immediately commence arbitration proceedings;
(c) In the absence of a permanent arbitrator in the CBA, the NCMBappoints a voluntary arbitrator who shall immediately commence
arbitration proceedings upon receipt of such appointment.
Contents of a Notice to Arbitrate:
(a) The names, addresses and contact numbers of the party uponwhom the notice is made;
(b) The arbitration clause of the CBA;(c) The specific issue/s or dispute/s to be arbitrated;(d) The relief sought;(e) The name, address and contact numbers of the initiating party
requesting arbitration.
Submission Agreement vs. Notice to Arbitrate The former is
sometimes called a stipulation or an agreement to arbitrate. It is
used where there is no previous agreement to arbitrate. It describes anexisting dispute. It is more appropriate in interest disputes since CBAs
generally do not provide for the arbitration of such disputes that may
arise in the future. The latter, on the other hand, is more applicable to
rights disputes because CBAs are required to provide for a grievance
procedure and a voluntary arbitration clause with respect to disputes
arising from the application or interpretation of CBAs or company
personnel policies. If a dispute is covered by such an arbitration clause,
arbitration may be initiated by one party by serving upon the other a
written demand or notice of intent to arbitrate.
(3) Appointment from the NCMBContents of an appointment from the NCMB:
(a) The name of the arbitrator;(b) The names, addresses and contact numbers of the parties;(c) The issues to be arbitrated;(d) The basis of appointment;(e) The arbitrator's fee;(f) The signature of appointing NCMB Director.Jurisdiction over ULP practices, bargaining deadlocks and other labor
issues The VAs, upon agreement of the parties, are also empowered
to hear and decide the same issue of ULP, bargaining deadlocks andother labor disputes. The parties may opt to file any of those cases
either before the Labor Arbiter or VAs, both of whom may validly
exercise original and exclusive jurisdiction. The important requirement
here is that the parties must mutually agree to submit them to the VA.
Jurisdiction over termination cases Termination cases fall under the
original and exclusive jurisdiction of the Labor Arbiters and not of VAs,
unless there is an express agreement between the parties to submit the
termination dispute to voluntary arbitration.
Jurisdiction over money claims The law precludes the Labor Arbiter
from enforcing money claims arising from the implementation of a CBA
if the CBA complementarily recognizes that it is the VA who has the
jurisdiction to hear the claim. The jurisdiction of the VA must be
voluntarily conferred upon by the parties to the dispute.
Jurisdiction over strike and lockout cases The VA may hear and
decide such cases as long as the parties mutually agree to submit it to
voluntary arbitration. As far as national interest cases are concerned,
the parties may opt to submit their disputes to voluntary arbitration,
before or at any stage of the compulsory arbitration process therein.
Jurisdiction over cases involving violations of the CBA Generally,
violation of a CBA is no longer treated as an ULP. It should be resolved
as a ordinary grievance properly cognizable under the grievance
machinery and general arbitration provisions of the CBA. However, if
the violation of the CBA is gross in character (refusal to comply with
economic provisions is flagrant or malicious), it should be treated as
ULP and may be taken cognizance of by the Labor Arbiter or by the VA,
upon agreement of the parties.
Jurisdiction over wage distortion
(1) In organized establishments Any dispute arising from such wagedistortion should be resolved through the grievance procedure under
the CBA and if it remains unresolved, through voluntary arbitration.
Unless agree upon by the parties in writing, such dispute shall be
decided by the VA within 10 calendar days from the time said dispute
was referred to voluntary arbitration.
(2) In unorganized establishments the employers and workers shouldendeavor to correct such distortion among themselves. Any dispute
arising therefrom should be settled through the NCMB and if it remains
unresolved after 10 calendar days of conciliation, it should be referred
to the Labor Arbiter in the appropriate branch of the NLRC. The LaborArbiter shall decide the dispute within 20 calendar days from the time
said dispute is submitted for compulsory arbitration.
Wage distortion a situation where an increase in prescribed wage
rates results in the elimination or severe contraction of intentional
quantitative differences in wage or salary rates between and among
employee groups in an establishment as to effectively obliterate the
distinctions embodied in such wage structure based on skills, length of
service or other logical bases of differentiation. Whether a wage
distortion exists is a question of fact that is within the jurisdiction of the
quasi-judicial tribunals. Their actual findings are accorded respect and
even finality by the SC if they are supported by substantial evidence.
Jurisdiction over disputes involving the Productivity Incentives
Program Disputes and grievances must first be submitted to the
Labor-Management Committee for resolution. If they remain
unresolved within 20 calendar days from the time of their submission to
said Committee, the same should be submitted for voluntary
arbitration, in line with the pertinent provisions of the Labor Code.
Jurisdiction over cases of teaching and non-teaching personnel in
private schools Disputes fall under the jurisdiction of the DOLE. In
view of the special employment status of teaching and academic non-teaching personnel and their special roles in the advancement of
knowledge, standards set or promulgated jointly by the DepEd and by
the DOLE should be applied by the latter. Every private school is
required to establish and implement an appropriate system within the
school for the prompt and orderly settlement of personnel disputes at
the school level, subject to the provisions of Article 260 and 261.
Selection and Accreditation of Voluntary Arbitrators
General considerations:
(1) field of choice, or the problem of availability of desired persons;(2) legal qualification;(3) legal disqualification; and(4) criteria and attributes of a suitable arbitrator.Attributes that a voluntary arbitrator should possess:
(1) he must be without prejudice or bias(2) he must be intelligent(3) he must be capable of exercising sound judgment(4) he must be immune to pressures from the parties and from others(5) he must be experienced in the field of labor relations.
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Indicators of the acceptability of a VA:
(1) highly knowledgeable and has had significant experience in thefield of labor law, labor relations, personnel management and
union problems;
(2) has the capacity to run a hearing fairly and competently andcommand respect in his role;
(3) is sensitive to and understands the needs of the parties insofar as adecision is concerned and the articulation of the reasons upon
which it is based;
(4) has a reputation in the industrial and union community for fairnessand impartiality; and
(5) because of character, can be depended upon not to depart fromthe ethical standards which arbitrators impose upon themselves.
Accreditation all qualifications prescribed by the NCMB must be met
Period of effectivity of accreditation 5 years
Minimum criteria for accreditation as a VA:
(1) He/she must be a Filipino citizen residing in the Philippines;(2) He/she must be a holder of at least a Bachelors degree preferably
relevant to Labor and Social Relations, Economics and related fieldsof study;
(3) He/she must have at least five (5) years experience in the field ofLabor-Management relations.;
(4) He/she has no pending criminal case involving moral turpitude;(5) Must have completed a training course on voluntary arbitration
conducted by the Board;
(6) Must be a person of good moral character, noted for impartiality,probity, and has not been civilly, criminally and administratively
adjudged guilty of any offense involving moral turpitude as
evidenced by a duly sworn affidavit.
Pre-accreditation Training Program An applicant who possesses the
minimum qualifications will be required to undergo a pre-accreditation
training program to equip him with the basic knowledge, skills and
value orientation necessary to perform the responsibilities and
functions of an accredited voluntary arbitrator. Exception: For
prospective arbitrators who have adequate experience and exposure in
the field of arbitration and labor-management relations, they shall be
required only to attend a briefing/orientation in lieu of a pre-
accreditation training.
Renewal of Accreditation Before the expiration of the fifth year of
accreditation, the NCMB will send advice/notice to the voluntaryarbitrator requiring him/her to comply with certain requirements
including submission of updated bio-data, new affidavit stating that he
has no pending criminal case involving moral turpitude.
After a thorough review of the new credentials submitted, the records
and performance of the voluntary arbitrator concerned as to case
disposition and participation to NCMB programs and activities and
voluntary arbitration, the NCMB shall decide whether to issue or not a
certificate renewing the accreditation for another five (5) years.
Article. 262. Jurisdiction over other labor disputes. - The Voluntary
Arbitrator or panel of Voluntary Arbitrators, upon agreement of the
parties, shall also hear and decide all other labor disputes including
unfair labor practices and bargaining deadlocks.
Jurisdiction conferred by mutual agreement of parties The
jurisdiction of the VA to hear and decide all other labor disputes,
including ULP and bargaining deadlocks, is conferred by the parties and
such conferment is recognized by law.
Nature of Jurisdiction
General Rule: Jurisdiction over the subject matter of a suit must find
support in the law and cannot be conferred by consent or acquiescence
of any or all parties or by erroneous belief of the court that it exists.
Exception: Parties to a contract may submit to arbitration whatever
controversy may arise therefrom. Jurisdiction over labor disputes is
allowed by law to be conferred by the parties upon the VA.
Article. 262-A. Procedures. - The Voluntary Arbitrator or panel of
Voluntary Arbitrators shall have the power to hold hearings, receive
evidences and take whatever action is necessary to resolve the issue
or issues subject of the dispute, including efforts to effect a voluntary
settlement between parties.
All parties to the dispute shall be entitled to attend the arbitration
proceedings. The attendance of any third party or the exclusion of any
witness from the proceedings shall be determined by the Voluntary
Arbitrator or panel of Voluntary Arbitrators. Hearing may be
adjourned for cause or upon agreement by the parties.
Unless the parties agree otherwise, it shall be mandatory for the
Voluntary Arbitrator or panel of Voluntary Arbitrators to render anaward or decision within twenty (20) calendar days from the date of
submission of the dispute to voluntary arbitration.
The award or decision of the Voluntary Arbitrator or panel of
Voluntary Arbitrators shall contain the facts and the law on which it is
based. It shall be final and executory after ten (10) calendar days from
receipt of the copy of the award or decision by the parties.
Upon motion of any interested party, the Voluntary Arbitrator or
panel of Voluntary Arbitrators or the Labor Arbiter in the region
where the movant resides, in case of the absence or incapacity of the
Voluntary Arbitrator or panel of Voluntary Arbitrators, for any reason,
may issue a writ of execution requiring either the sheriff of the
Commission or regular courts or any public official whom the parties
may designate in the submission agreement to execute the final
decision, order or award.
Powers of the VA:
(1) Require any person to attend hearing/s;(2) Subpoena witnesses and receive documents when the relevancy of
the testimony and the materiality thereof has been demonstrated
to the arbitrator;
(3) To take whatever action is necessary to resolve the issue/s subjectof the dispute;
(4) To issue a writ of execution to enforce final decisions and inconnection therewith, it shall be his duty to:
(a) See to it that his/her decision is fully satisfied;(b) Inquire into the correctness of the execution of his/her final
decision;
(c) Consider whatever supervening event that may transpireduring such execution;
(d) Determine every question of fact and law which may beinvolved in the execution.
Adjudicatory Power The VA has the power to hold hearings, receive
evidence and take whatever action is necessary to resolve the issues of
the dispute. Arbitrators must feel free to participate personally in the
hearing by asking questions, seeking information and exploring all
angles which he deems necessary for a full understanding of the case.
Compulsory Power VAs have the power to require any person to
attend hearings as a witness. They have the power to subpoena
witnesses and documents when the relevance of the testimony and the
materiality thereof has been demonstrated to them. However, even
assuming its legality, the use of subpoena is not to be encouraged.
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Demands for relevant information by either party should be honored
without the formality of a subpoena.
Duty to conciliate and mediate The VA must exert best efforts to
conciliate or mediate to aid the parties in reaching a voluntary
settlement of the dispute before proceeding with arbitration.
Conciliation or mediation should be made even after arbitration has
been initiated and an arbitration hearing has already been commenced.
Duty to encourage parties to enter into stipulation of facts The VA
should encourage the parties to enter into a stipulation of facts which
should be reduced in writing and signed by the parties. The same shall
form part of the records of the case.
Pleadings and appearances in Voluntary Arbitration
Where to file directly to the chosen VA at his designated business or
professional office, copy furnished the Regional Branch of the NCMB
having jurisdiction of the workplace of the complainant.
Service of copies of pleadings, notices and awards:
(1) By personal service;(2) By registered mail.Representations The parties may personally appear in their own
behalf or by their respective representatives. In the latter case, a partys
representative must be duly authorized to appear in writing or he
should be a practicing attorney-in-law. Attorneys or representatives
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 or principals claim.
PROCEEDINGS BEFORE A VOLUNTARY ARBITRATOR
Nature of proceedings non-litigious; they are not governed by
technical rules applicable to court or judicial proceedings but they must,
at all times, comply with the requirements of due process.
Setting of initial conferenceWithin 2 days from receipt of the parties
Submission Agreement, Notice to Arbitrate or Appointment from the
NCMB, the VA is required to set the date, time and place of the initial
conference, with due notice to the parties.
Initial Conference parties are encouraged to explore possible means
of effecting a voluntary settlement of the dispute between them. If theyarrived to an agreement, the same shall be reduced in writing and
signed by the parties before the VA and shall form part of the decision.
Stipulation of facts In the absence of settlement, the VA should
require the parties to stipulate on facts which are no longer disputed,
leaving the presentation and examination of evidence only to such facts
that are still in dispute.
Effect of non-appearance of parties In case of non-appearance for 2
consecutive conferences despite due notice, the VA shall terminate the
conference and issue an order requiring the parties to submit their
respective position papers within 10 calendar days from the receipt of
the said order; otherwise, the case should be deemed submitted for
decision based on the available records on file.
Clarificatory conference or ocular inspection held after the
submission of the position papers and other pleadings.
Recording of the proceedings need not be recorded, but the VA
should make a written summary of the proceedings, including the
substance of the evidence presented.
Exhibits evidence presented and presented in written form; the party
offering must be prepared to use a witness to identify the exhibit and to
show its accuracy if the other party does not accept the same for what
it purports to be.
Due process VAs should observe the requirements of procedural due
process by providing the parties to a case, adequate opportunities to be
heard. Employers are likewise entitled to due process.
Ex parte proceedings and default awards Only an unexplained failure
to appear due notice, not a delay in appearance, can justify an ex parte
proceeding. The Arbitrator must proceed to hear the testimony and
receive all the evidences submitted by the other party including those
that he may require for the making of an award.
Re-opening of hearing Under accepted practice the arbitrator on his
own initiative, or upon request of a party for good cause shown, may
reopen the hearing at any time before the award is rendered. If
reopening would prevent the issuance of the award within the
mandatory time limit, the hearing may not be reopened unless the
parties agree to extend the time limit.
Withdrawal of cases from arbitration Parties may withdraw a case
through agreement. The complainant usually may withdraw the case at
any point prior to arbitration hearing, but after the hearing has
commenced, he may not withdraw the case over the objection of the
other party unless permitted by the arbitrator. Agreement provision
usually allows withdrawal of the case after arbitration hearing only by
mutual consent of the parties.
ARBITRATION DECISIONS AND AWARDS
Decision in arbitration case The final arbitration disposition of issues
submitted to voluntary arbitration is the decision which may take the
form of a dismissal of a claim or grant of a specific remedy, either by
way of prohibition of the commission of particular acts or the specific
performance of particular acts. It has the same legal effect as a
judgment of a court. A decision on matters of fact and law is conclusive
and all matters in the award are res judicata.
Mandatory period to render award or decision Unless the parties
agree otherwise, it shall be mandatory for the VA to render an award or
decision within 20 calendar days from the date of submission of the
case for resolution.
In case of labor disputes causing or likely to cause a strike or lockout in
an industry indispensable to the national interest which has been
submitted for voluntary arbitration, the same should be resolved by the
VA within 30 calendar days from the date of submission thereof for
resolution. The decision of the VA shall be final and executory 10
calendar days after receipt thereof by the parties. Failure on the part of
the VA to render such decision, resolution, order or award, within the
prescribed period shall, upon complaint of a party, be a sufficient
ground for the NCMB to discipline said VA, pursuant to the guidelines
issued by the DOLE Secretary.
Full and complete settlement of issues during pendency of arbitration
proceedings the terms of the settlement must be reduced in writing
and adopted as the decision of the arbitrator.
Monetary award the amount granted and the formula used in the
computation, if any, should be specified.
Finality of award and decision The decision or award of the VA shall
be final and executory after 10 calendar days from receipt of the copies
thereof by the parties.
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Motion for reconsideration of VA decision
TENG vs. PAHAGAC
Facts: Teng engaged in a deep sea fishing business. Teng claims that he
customarily enters into JVAs with master fishermen (maestros) who are
experts in deep sea fishing. The maestros hired respondents as checkers
to determine the volume of the fish caught in every fishing voyage.
Respondents filed a complaint for illegal dismissal against Teng before
the NCMB. In his defense, Teng maintained that he did not have any
hand in hiring respondents; the maestros invited them to join the
venture. The VA rendered a decision in Tengs favor and declared that
no ER-EE relationship existed. The respondents received the VAs
decision on June 12, 2003. They filed an MR, which was denied in an
order, which they received on July 8, 2003. On July 21, 2003, the
respondents elevated the case to the CA, which reversed the VA's
decision. On appeal, Teng contends that the VAs decision is not subject
to an MR in the absence of any specific provision allowing this recourse.
Held: Article 262-A provides that the decision of the VA shall be final
and executory after 10 calendar days from receipt of the copy of the
award or decision by the parties. Presumably, the decision may still bereconsidered by the VA on the basis of an MR duly filed during that
period. The seasonable filing of an MR is a mandatory requirement to
forestall the finality of such decision. The absence of a categorical
language in Article 262-A does not preclude the filing of an MR of the
VAs decision within the 10-day period. Tengs allegation that the VAs
decision had become final and executory by the time the respondents
filed an appeal with the CA thus fails. The respondents seasonably filed
an MR of the VAs judgment, and the VA erred in denying the motion.
A contrary provision can be found in DO 40-03, providing that the
decision of the VA is not subject of an MR. Neither the VA nor Teng
cited DO 40-03 as authorities for their cause, considering that these
were the governing rules while the case was pending and these directly
and fully supported their theory. Had they done so, their reliance on the
provisions would have nevertheless been unavailing. By allowing a 10-
day period, the obvious intent of Congress in amending Article 263 to
Article 262-A is to provide an opportunity for the party adversely
affected by the VAs decision to seek recourse via an MR or a petition
for review under Rule 43. Indeed, an MR is the more appropriate
remedy in line with the doctrine of exhaustion of administrative
remedies. For this reason, an appeal from administrative agencies to
the CA via Rule 43 requires exhaustion of available remedies as a
condition precedent. By disallowing reconsideration of the VAsdecision, DO 40-03 denies the VA the chance to correct himself and
compel the courts of justice to prematurely intervene with the action of
an administrative agency entrusted with the adjudication of
controversies coming under its special knowledge, training and specific
field of expertise. Relief must first be obtained in an administrative
proceeding before a remedy will be supplied by the courts even though
the matter is within the proper jurisdiction of a court.
Modification of award and decision by motion or motu proprio An
award should be regarded as the judgment of a court of last resort so
that all reasonable presumption should be ascertained in its favor and
easy mode of obtaining justice, would be merely an unnecessary step in
the course of litigation, causing delay and expenses, but not finally
settling anything. In the interest of justice and industrial peace,
however, the consistent stand of the NCMB has been that voluntary
arbitrator may modify their original awards or decisions but only to
correct typographical or harmless errors that are patently obvious on
the face of the award or decision. They may not, however, introduce a
substantial amendment to their award or decision in the guise of
correcting a harmless or typographical error.
JUDICIAL REVIEW OF DECISIONS OF VOLUNTARY ARBITRATORS
Decisions are final and executory As a general rule, decision and
awards of VAs are final, unappealable and executory within 10 calendar
days from receipt of a copy thereof by the parties. It is well-settled rule,
however, that the findings of fact and law made by the VA may be
reviewed by the court.
Grounds for contesting the VAs decision:
(1) Lack or want of jurisdiction;(2) Grave abuse of discretion;(3) Violation of due process;(4) Denial of substantive justice;(5) Erroneous interpretation of the law.Factual findings of VA Findings of facts of VAs are accorded not only
respect but even finality if they are supported by substantial evidence,
even if not overwhelming or preponderant.
APPEAL FROM DECISIONS OF VOLUNTARY ARBITRATORS
Ordinary appeal under Rule 43 A VA enjoys in law the status of aquasi-judicial agency; hence, his decisions and awards are appealable by
way of a petition for review to the CA.
LDB vs. ALDBE
Facts: From a submission agreement of the LDB and the ALDBE arose an
arbitration case to resolve whether or not the company has violated the
CBA provision and the MOA on promotion. At a conference, the parties
agreed on the submission of their respective position papers. Atty.
Garcia, in her capacity as VA, received ALDBE's position paper. LDB, on
the other hand, failed to submit its position paper despite a letter from
the VA reminding them to do so. Without LDB's position paper, the VA
rendered a decision.
Held: The jurisdiction conferred by law on a VA is quite limited
compared to the original jurisdiction of the labor arbiter and the
appellate jurisdiction of the NLRC. The award or decision of the VA shall
be final and executory after 10 calendar days from receipt of the copy
of the award or decision by the parties, while the decision, awards, or
orders of the Labor Arbiter are final and executory unless appealed to
the NLRC by any or both parties within 10 calendar days from receipt of
such decisions, awards, or orders. Hence, while there is an express
mode of appeal from the decision of a labor arbiter, RA 6715 is silentwith respect to an appeal from the decision of a VA. The awards of VAs
determine the rights of parties; hence, their decisions have the same
legal effect as judgments of a court. It follows that the VA, whether
acting solely or in a panel, enjoys in law the status of a quasi-judicial
agency but independent of, and apart from, the NLRC since his
decisions are not appealable to the latter.
Assuming arguendo that the VA may not strictly be considered as a
quasi-judicial agency, board or commission, still both he and the panel
are comprehended within the concept of a "quasi-judicial
instrumentality." An "instrumentality" is anything used as a means of
agency. Thus, the terms governmental "agency" or "instrumentality"
are synonymous in the sense that either of them is a means by which a
government acts, or by which a certain government act or function is
performed. The VA no less performs a state function pursuant to a
governmental power delegated to him under the provisions in the
Labor Code and he falls, therefore, within the contemplation of the
term "instrumentality." In effect, this equates the award or decision of
the voluntary arbitrator with that of the RTC. Consequently, in a
petition for certiorari from that award or decision, the CA must be
deemed to have concurrent jurisdiction with the SC.
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Period of appeal within 15 days from notice of the award, judgment
or final order or resolution of the VA.
Use of Rule 65 instead of Rule 43 as mode of appeal Use of an
erroneous mode of appeal is a valid cause for dismissal of a petition for
certiorari. The independent action of certiorari under Rule 65 cannot be
availed of as a substitute for the lost remedy of an ordinary appeal,
including that provided under Rule 43, especially if such loss or lapse
was occasioned by ones own neglect or error in the choice of remedies.
It must be noted that Rule 65 lies only where there is no appeal and
no plain, speedy and adequate remedy in the ordinary course of law.
Exceptions when Rule 65 is given due course despite availability of
remedy of appeal:
(1) When public welfare and advancement of public policy dictates;(2) When the broader interest of justice so requires;(3) When the writs issued are null and void; or(4) When the questioned order amounts to an oppressive exercise of
judicial authority.
SAMAHAN NG MGA MANGGAGAWA SA HYATT vs. BACUNGAN
Facts: In 1995 and 1996, Dacles and Valencia respectively assumed their
duties as glass cleaners at Hyatt, pursuant to the cleaning service
contract executed between Hyatt and CSC. Meanwhile, Hyatt hired
Dalmacio and Dazo on a casual basis as florist/sales clerk and
helper/driver, respectively. After their contracts expired, the two signed
another employment contract with Hyatt. During a meeting, petitioner
union questioned the status of Dacles, et al. Petitioner union and Hyatt
agreed to submit the matter for resolution through the grievance
machinery as provided for in their CBA. Petitioner union claimed that
Dacles, et al. were regular employees. On the other hand, Hyatt
maintained that they were mere project employees. Thereafter, Hyatt
dismissed Dacles and Valencia on the ground that the service contract
between Hyatt and CSC had been terminated. Petitioner union and
Hyatt were unable to settle the dispute through the grievance
procedure and agreed to elevate the issue for voluntary arbitration.
Held: Petitioner union argues that the proper remedy to assail a
decision of a VA is certiorari under Rule 65. The SC disagrees. The
decision of the VA should be appealable to the CA under Rule 43, just
like those of the quasi-judicial agencies, boards and commissions, and
consistent with the original purpose to provide a uniform procedure for
the appellate review of adjudications of all quasi-judicial entities. In the
case, the petition was filed beyond the reglementary period for filing apetition for review under Rule 43. It is elementary in remedial law that
the use of an erroneous mode of appeal is a cause for dismissal of the
petition for certiorari and it has been repeatedly stressed that a petition
for certiorari is not a substitute for a lost appeal. In any event, the VA
did not err in ruling that Dacles and Valencia were employees of CSC,
whose services may be terminated upon the expiration of the contract
between Hyatt and CSC. Well-settled is the rule that findings of fact of
administrative agencies and quasi-judicial bodies which have acquired
expertise because their jurisdiction is confined to specific matters, are
generally accorded not only great respect but even finality. They are
binding upon this Court unless there is a showing of grave abuse of
discretion or where it is clearly shown that they were arrived at
arbitrarily or in utter disregard of the evidence on record.
EXECUTION PROCEEDINGS IN VOLUNTARY ARBITRATION CASES
Compliance with decision Both parties to a voluntary arbitration
proceeding are required to comply voluntarily and faithfully with the
decision rendered therein. Such compliance must be made without
delay. After all, the parties are presumed to have freely chosen
arbitration as the mode of settlement for that particular dispute.
Enforcement of decision In case of non-compliance of the decision by
either or both parties, a motion to enforce/execute may be filed with
the VA who may issue a writ of execution requiring either the sheriff of
the NLRC or the regular courts or any public official whom the parties
may have designated in their Submission Agreement, to execute the
final decision. In the absence of the VA or, in case of his incapacity, the
motion should be field with the Labor Arbiter in the region having
jurisdiction over the workplace. The filing of the motion is without
prejudice to any other action which the aggrieved party may take
against the non-complying party such as a motion for contempt or
imposition of fines and penalties.
Pre-execution conference Within 2 working days from receipt of the
motion for the issuance of a writ of execution, the VA, or in case of his
incapacity, the Labor Arbiter before whom the motion is filed, is
required to schedule a pre-execution conference to thresh out matters
relevant to the execution.
Issuance of writ of execution Execution must be issued, as a matter of
course, upon a decision that finality dispose of the action or proceeding.
Effect of filing a petition for certiorari on the execution process Filingof a petition for certiorari with the CA or SC does not stay the execution
of the assailed decision of a VA, unless a TRO or injunction is issued by
the CA or SC pending resolution of such petition.
Article. 262-B. Cost of voluntary arbitration and Voluntary Arbitrators
fee. - The parties to a Collective Bargaining Agreement shall provide
therein a proportionate sharing scheme on the cost of voluntary
arbitration including the Voluntary Arbitrators fee. The fixing of fee of
Voluntary Arbitrators, whether shouldered wholly by the parties or
subsidized by the Special Voluntary Arbitration Fund, shall take into
account the following factors:
(a) Nature of the case;(b) Time consumed in hearing the case;(c) Professional standing of the Voluntary Arbitrator;(d) Capacity to pay of the parties; and(e) Fees provided for in the Revised Rules of Court.
Cost of Arbitration and VAs fee The parties shall provide a
proportionate sharing scheme on the cost of voluntary arbitration.
Unless the parties agree otherwise, the cost should be shared equally
by the parties. The VA is permitted to charge not only per diem fee but
also other fees like cancellation, postponement, rescheduling or
administrative fees. The parties are encouraged to set aside funds forsuch costs. In the event that said funds are not sufficient, an amount by
way of subsidy taken out of the Special Voluntary Arbitration Fund
(SVAF) may be availed of by either or both parties subject to the
guidelines issued by the DOLE Secretary.
SVAF A Special Voluntary Arbitration Fund has been established in the
NCMB to subsidize the cost of voluntary arbitration in cases involving
the interpretation and implementation of the CBA, including the
Arbitrators fees, and for such other related purposes to p romote and
develop voluntary arbitration. The NCMB shall administer the SVAF in
accordance with the guidelines it may adopt upon the recommendation
of the Tripartite Voluntary Arbitration Advisory Council, which
guidelines shall be subject to the approval of the DOLE Secretary.
Continuing funds needed for this purpose in the initial yearly amount of
P15M shall be provided in the 1989 annual general appropriations acts.
The amount of subsidy in appropriate cases shall be determined by the
NCMB in accordance with established guidelines issued by it upon the
recommendation of the Council. The Fund shall also be utilized for the
operation of the Council, the training and education of VAs, and the
Voluntary Arbitration Program.
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LUDO vs. SAORNIDO
Facts: LUDO engaged the arrastre services of CLAS for the loading and
unloading of its products. Several arrastre workers were deployed by
CLAS to perform the services. These arrastre workers were
subsequently hired as regular rank-and-file employees of LUDO every
time the latter needed additional manpower services. Said employees
thereafter joined LUDO EMPLOYEES UNION, which acted as the
exclusive bargaining agent. The LEU entered into a CBA with LUDO.
Thereafter, the union requested LUDO to include in its members period
of service the time during which they rendered arrastre services to
LUDO through the CLAS so that they could get higher benefits. LUDO
failed to act on the request. Thus, the matter was submitted for
voluntary arbitration. The parties accordingly executed a submission
agreement raising the sole issue of the date of regularization of the
workers for resolution by the VA. In its decision, the VA ruled that: (1)
the employees were engaged in activities necessary and desirable to
the business of petitioner, and (2) CLAS is a labor-only contractor of
petitioner, and declaring that the complainants shall be considered
regular employees.
Held: LUDO contends that the award of benefits which were beyond theterms of submission agreement was not proper. The SC did not agree.
The jurisdiction of the Labor Arbiter and the VA over the cases
enumerated in the Labor Code can possibly include money claims in one
form or another. Compulsory arbitration has been defined both as "the
process of settlement of labor disputes by a government agency which
has the authority to investigate and to make an award which is binding
on all the parties, and as a mode of arbitration where the parties are
compelled to accept the resolution of their dispute through arbitration
by a third party." While a VA is not part of the governmental unit or
labor departments personnel, said VA renders arbitration services
provided for under labor laws. Generally, the arbitrator is expected to
decide only those questions expressly delineated by the submission
agreement. Nevertheless, the arbitrator can assume that he has the
necessary power to make a final settlement since arbitration is the final
resort for the adjudication of disputes.
As regards the issue on prescription, the determination whether the
claim is barred by prescription is a question of fact which must be
ascertained based on the evidence, both oral and documentary,
presented by the parties before the VA. In this case, the VA found that
prescription has not as yet set in to bar the respondents claims for the
monetary benefits awarded to them. Basic is the rule that findings of
fact of administrative and quasi-judicial bodies, which have acquiredexpertise because their jurisdiction is confined to specific matters, are
generally accorded not only great respect but even finality.
STRIKES AND LOCKOUTS AND FOREIGN INVOLVEMENT
IN TRADE UNION ACTIVITIES
Article. 263. Strikes, picketing and lockouts. - (a) It is the policy of the
State to encourage free trade unionism and free collective bargaining.
(b) Workers shall have the right to engage in concerted activities for
purposes of collective bargaining or for their mutual benefit and
protection. The right of legitimate labor organizations to strike and
picket and of employers to lockout, consistent with the national
interest, shall continue to be recognized and respected. However, no
labor union may strike and no employer may declare a lockout on
grounds involving inter-union and intra-union disputes.
(c) In case of bargaining deadlocks, the duly certified or recognized
bargaining agent may file a notice of strike or the employer may file a
notice of lockout with the Ministry at least 30 day before the intended
date thereof. In cases of unfair labor practice, the period of notice
shall be 15 days and in the absence of a duly certified or recognized
bargaining agent, the notice of strike may be filed by any legitimate
labor organization in behalf of its members. However, in case 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. (As amended by Executive Order
No. 111, December 24, 1986).
(d) The notice must be in accordance with such implementing rules
and regulations as the Minister of Labor and Employment may
promulgate.
(e) During the cooling-off period, it shall be the duty of the Ministry to
exert all efforts at mediation and conciliation to effect a voluntary
settlement. Should the dispute remain unsettled until the lapse of the
requisite number of days from the mandatory filing of the notice, the
labor union may strike or the employer may declare a lockout.
(f) A decision to declare a strike must be approved by a majority of the
total union membership in the bargaining unit concerned, obtained bysecret ballot in meetings or referenda called for that purpose. A
decision to declare a lockout must be approved by a majority 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. The decision shall be valid for the duration of the dispute
based on substantially the same grounds considered when the strike
or lockout vote was taken. The Ministry 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 Ministry the results of the voting at least seven days before the
intended strike or lockout, subject to the cooling-off period herein
provided. (As amended by Batas Pambansa Bilang 130, August 21,
1981 and further amended by Executive Order No. 111, December 24,
1986).
(g) 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 ofassumption 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.
In line with the national concern for and the highest respect accorded
to the right of patients to life and health, strikes and lockouts in
hospitals, clinics and similar medical institutions shall, to every extent
possible, be avoided, and all serious efforts, not only by labor and
management but government as well, be exhausted to substantially
minimize, if not prevent, their adverse effects on such life and health,
through the exercise, however legitimate, by labor of its right to strike
and by management to lockout. In labor disputes adversely affecting
the continued operation of such hospitals, clinics or medical
institutions, it shall be the duty of the striking union or locking-out
employer to provide and maintain an effective skeletal workforce of
medical and other health personnel, whose movement and services
shall be unhampered and unrestricted, as are necessary to insure the
proper and adequate protection of the life and health of its patients,
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most especially emergency cases, for the duration of the strike or
lockout. In such cases, therefore, the Secretary of Labor and
Employment may immediately assume, within twenty four (24) hours
from knowledge of the occurrence of such a strike or lockout,
jurisdiction over the same or certify it to the Commission for
compulsory arbitration. For this purpose, the contending parties are
strictly enjoined to comply with such orders, prohibitions and/or
injunctions as are issued by the Secretary of Labor and Employment or
the Commission, under pain of immediate disciplinary action,
including dismissal or loss of employment status or payment by the
locking-out employer of backwages, damages and other affirmative
relief, even criminal prosecution against either or both of them.
The foregoing notwithstanding, the President of the Philippines shall
not be precluded from determining the industries that, in his opinion,
are indispensable to the national interest, and from intervening at any
time and assuming jurisdiction over any such labor dispute in order to
settle or terminate the same.
(h) Before or at any stage of the compulsory arbitration process, the
parties may opt to submit their dispute to voluntary arbitration.
(i) The Secretary of Labor and Employment, the Commission or the
voluntary arbitrator shall decide or resolve the dispute, as the case
may be. The decision of the President, the Secretary of Labor and
Employment, the Commission or the voluntary arbitrator shall be final
and executory 10 calendar days after receipt thereof by the parties.
Strike means any temporary stoppage of work by the concerted
action of employees as a result of an industrial or labor dispute; not
only concerted work stoppages but also slowdowns, mass leaves, sit-
downs, attempts to damage, destroy or sabotage plant equipment and
facilities, and similar activities.
Elements:
(1) There is a temporary stoppage of work;(2) By the concerted activity of the employees;(3) There is a labor dispute.Lockout means any temporary refusal of an employer to furnish work
as a result of an industrial or labor dispute. It consists shutdowns, mass
retrenchment and dismissals initiated by the employer. Lockout,
however, may take other forms such as the employers act of excluding
employees who are union members.
Purpose of a strike or lockout:
(1) Strike for collective bargaining and for workers mutual benefitand protection
(2) Lockoutredress employers grievances against the commission bythe certified bargaining union of ULP or to resolve a bargaining
impasse.
Picketing the act of workers in peacefully marching to and fro before
an establishment involved in a labor dispute generally accompanied by
the carrying and display of signs, placards and banners intended to
inform the public about the dispute.
While workers have the right to peaceful picketing, no person engaged
in picketing is allowed to 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. In the same light, no person is permitted to 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 is allowed to use or employ any person to
commit such acts nor shall any person be employed for such purpose.
Right to picket is part of the right guaranteed under the law to engage
in concerted activities for purposes of collective bargaining for their
manual benefit and protection. This right is also duly guaranteed under
the freedom of speech principle in the Constitution. It cannot be
prohibited even in the absence of ER-EE relationship.
Limitations on the right of picketing:
(1) any act of violence, coercion or intimidation is prohibited;(2) stationary picket;(3) use of means like placing objects as permanent blockade or to
effectively close points of entry or exit in company premises;
(4) prevent employees of another company which is not theiremployer, from getting in and out of its rented premises.
Note: If the picketers use foul language during the picketing, such may
not result in, or give rise to, libel or action for damages.
Picket vs. Strike
(1) Right to strike stems out of its right to self-organization. The rightto picket stems from the constitutional right of freedom of speech.
(2) The strike is collective in character. Whether it be concerted groupof employees acting together or an LLO, there is a right to strike
because not one single person can stop work. But freedom of
speech is individual in nature.
(3) Strike requires procedural requisites. In picketing, there are noprocedural preconditions.
(4) Normally, strike cannot be enjoined, although there are exceptions.Freedom of speech may be ordered or scheduled, but it cannot be
enjoined whether by the Secretary of Labor or regular courts.
Determine whether picket or strike consider totality of the
circumstances surrounding the situation
Hospitals, Clinics and Medical Institutions In line with the national
concern for and the highest respect accorded to the right of patients to
life and health, strikes and lockouts in hospitals, clinics and similar
medical institutions shall, to every extent possible, be avoided and all
serious efforts, not only by labor and management but government as
well, be exhausted to substantially minimize, if not prevent, their
adverse effect on such life and health, through the exercise, however
legitimate, by labor of its right to strike and by management to lockout.
Government employees classified into two:
(1) Employees of GOCCs without original charter (Corporation Code) covered by the Labor Code; possess and enjoy the rights to self-
organization and to strike just like any employees in the private sector.
(2) Employees of the government and its political subdivisions andinstrumentalities, including GOCCs with original charter covered by
the Civil Service Law; posses and enjoy only the right to self-
organization, but not the right to strike. If employees of the government
and GOCCs with original charter go to strike, they violate the Civil
Service Law because there is no law granting government employees
the right to strike. The right to strike is not constitutional, it is statutory.
MANILA PUBLIC SCHOOL TEACHERS vs. LAGUIO JR. Teachers left their
work, marched to Malacanang and camped outside for one month.
Their salary adjustment, which is covered by law, and the President
already signed it, was implemented. They are now contending that they
are gathering peacefully in redress or grievance as part of their
constitutional right. The SC held that from the pleaded and submitted
facts, the mass actions were, to all intents and purposes, a strike. They
constituted a concerted and unauthorized stoppage of or absence from
work. Because of their actions, and there is no law allowing to strike,
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the teachers violated the Civil Service Law. The Secretary of Education
was correct in striking them off form the roster of teachers.
BLTBCO vs. NLRC
Facts: Respondent union filed a Notice of Strike against BLTBCo on the
grounds of ULP and violation of the CBA. BLTBCo asked the Secretary of
Labor to assume jurisdiction over the dispute or to certify it to the NLRC
for compulsory arbitration. BLTBCo also moved to dismiss the notice of
strike. A copy of the certification order was served upon the NAFLU and
on the TLM-BLTBCo-NAFLU. However, it was noted in the notice of
order that union secretary Soriano refused to receive it. The officers
and members of TLM-BLTBCo-NAFLU went on strike and maintained
picket lines blocking the premises of BLTBCo's terminals. The NLRC
issued a resolution ordering the striking employees to lift their picket
and to remove all obstructions and barricades. All striking employees on
payroll were required to return to work. BLTBCo was directed to accept
them back to work. BLTBCo then caused the publication of the
resolution and called on all striking workers to return to work. Of the
some 1,730 employees who went on strike, only 1,116 reported back
for work. 17 others were later re-admitted. Subsequently, about 614,
including those who were allegedly dismissed for causes other than thestrike, filed individual complaints for illegal dismissal. Their ground was
that they were refused admission when they reported back for work.
Held: BLTBCo contends that the 190 union members who participated
in the illegal strike should not have been reinstated because they defied
the return-to-work order. The SC disagreed. The mere fact that the
majority of the strikers were able to return to work does not necessarily
mean that the rest deliberately defied the return-to-work order or that
they had been sufficiently notified thereof. The contention of BLTBCo
that the respondents abandoned their position is also not acceptable.
An employee who forthwith takes steps to protest his lay-off cannot by
any logic be said to have abandoned his work. For abandonment to
constitute a valid cause for termination of employment, there must be a
deliberate, unjustified refusal of the employee to resume his
employment. This refusal must be clearly established. A worker who
joins a strike does so precisely to assert or improve the terms and
conditions of his employment. If his purpose is to abandon his work, he
would not go to the trouble of joining a strike.
BLTBCo's last point is that the NLRC should not have issued the blanket
directive for the "reinstatement of all striking employees of BLTBCo who
have not committed illegal acts." The key clause here is "who have not
committed illegal acts." The directive was not really "blanket," asBLTBCo would call it, but indeed selective. The loss of employment of
striking union members is limited to those "who knowingly participates
in the commission of illegal acts." Evidence must be presented to
substantiate the commission thereof.
The right to strike is one of the rights recognized and guaranteed by the
Constitution as an instrument of labor for its protection against
exploitation by management. By virtue of this right, the workers are
able to press their demands for better terms of employment with more
energy and persuasiveness, poising the threat to strike as their reaction
to the employer's intransigence. The strike is indeed a powerful weapon
of the working class. But precisely because of this, it must be handled
carefully, like a sensitive explosive, lest it blow up in the workers' own
hands. Thus, it must be declared only after the most thoughtful
consultation among them, conducted in the only way allowed, that is,
peacefully, and in every case conformably to reasonable regulation. Any
violation of the legal requirements, such as a defiance of a return-to-
work order in industries affected with public interest, will render the
strike illegal, to the detriment of the workers it is supposed to protect.
Different Forms of Strikes
As to nature:
(a) Legal strike for a valid purpose and conducted through meansallowed by law.
(b) Illegal strike for a purpose not recognized by law or, if for a validpurpose, it is conducted through means not sanctioned by law.
(c) Economic strike one declared to demand higher wages, overtimepay, holiday pay, vacation pay, etc.; it is for the purpose of forcing
wage or other concessions from the employer which he is not
required by law to grant.
(d) ULP or Political strike one called to protest against the employersULP enumerated in Art. 248, including gross violation of the CBA
under Art. 261, and union-busting under Art. 263 (c).
(e) Slowdown strike staged without the workers quitting their workbut by merely slackening or reducing their normal work output.
(f) Wildcat strike one declared and staged without the majorityapproval of the recognized bargaining agent; deemed to aggravate
the illegality of concerted actions for the purpose of applying the
proper penalty to those responsible for illegal work stoppages.
(g) Sit-down strike workers stop working but do not leave their placeof work.
As to coverage:(a) General strike covers and extends over a whole province or
country; the employees of various companies and industries cease
to work in sympathy with striking workers of another company.
(b) Particular strike covers a particular establishment or employer orone industry involving one union or federation.
As to purpose:
(a) Economic strike(b) ULP strikeAs to the nature of the strikers action:
(a) Partial strike unannounced work stoppages such as slowdowns,walkouts or unauthorized extension of rest periods.
(b) Sit-down strike(c) Slowdown strikeAs to the extent of the strikers action:
(a) Primary strike conducted by workers against the employerinvolving a labor dispute directly affecting them.
(b) Secondary strike staged by workers of an employer involving anissue which does not directly concern or affect their relationship
but rather, by some circumstances affecting the workers such as
when the employer persists to deal with a third person againstwhom the workers have an existing grievance.
(c) Sympathy strike strikers have no demands or grievances or labordispute of their own against their employer but nonetheless stage
the strike for the purpose of aiding, directly or indirectly, other
strikers in other establishments or companies, without necessarily
having any direct relation to the advancement of the strikers
interest.
Industrial or labor dispute includes any controversy or matter
concerning the terms and conditions of employment of 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.
REQUIREMENTS OF LEGAL STRIKE
(1) Strike does not violate a law.(2) It is for a lawful purpose (valid and factual grounds).(3) It is conducted strictly in accordance with procedural requirements
of law.
(4) It must be carried out in consonance with the agreement of theparties.
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(5) If carried out with lawful methods, there must be no act ofviolence, coercion or intimidation.
(6) It must not be in violation of any injunction order.(1) STRIKE DOES NOT VIOLATE A LAWBANGALISAN vs. CA Petitioners were among the 800 public school
teachers who staged "mass actions" to dramatize their grievances. The
DepEd Secretary issued a Return-to-Work Order. Petitioners failed to
comply with said order, and charged with violation of Civil Service law.
They were placed under preventive suspension. Despite due notice,
petitioners failed to submit their answer to the complaint. The
petitioners were then found guilty as charged. Petitioners contend that
they were not on strike but were merely exercising their constitutional
right peaceably to assemble. The SC held in the absence of statute,
public employees do not have the right to engage in concerted work
stoppages for any purpose. Further, petitioners are being penalized not
because they exercised their right of peaceable assembly, but because
their actuations constituted conduct prejudicial to the best interest of
the service, punishable under the Civil Service law. It bears stressing
that suspension of public services, however temporary, will inevitably
derail services to the public, which is one of the reasons why the rightto strike is denied government employees. To grant employees of the
public sector the right to strike, there must be a clear and direct
legislative authority therefor.
SSSEA vs. CA The officers and members of SSSEA staged an illegal
strike and barricaded the entrances to the SSS Building, preventing non-
striking employees from reporting for work and SSS members from
transacting business with the SSS. It appears that the SSSEA went on
strike after the SSS failed to act on the union's demands. In recognizing
the right of government employees to organize, the legislators intended
to limit the right to the formation of unions or associations only,
without including the right to strike. Under E.O. No. 180, the employees
in the civil service are denominated as "government employees" and
that the SSS is one such GOCC with an original charter; hence, its
employees are part of the civil service and are covered by the CSC's
memorandum prohibiting strikes. This being the case, the strike staged
by the employees of the SSS was illegal.
(2) IT IS FOR A LAWFUL PURPOSETwo valid and factual grounds in support of a legal strike:
(a) Collective bargaining deadlock (Economic strike) A bargainingdeadlock is a situation where there is a failure in the collectivebargaining negotiations between the bargaining agent and the
employer, resulting in a stalemate. Despite efforts at bargaining in good
faith, the parties have failed to resolve the issues and it appears that
there are no other definite options or plans in sight to break it. There is
deadlock when there is complete blocking or stoppage in the
negotiation resulting from the action of equal and opposing forces. It is
synonymous with the word impasse which presupposes reasonable
effort at good faith bargaining on the part of both parties which,
des