I.

LABOR RELATIONS
-The interaction and relationship of employee and employer, and also on how the
employer deals with the employees

A. Right to Self-Organization
“Right to self-organization” – includes the right to form, join or assist labor organizations
for the purpose of collective bargaining through representatives of their own choosing and
to engage in lawful concerted activities for the same purpose for their mutual aid and
protection. This is in line with the policy of the State to foster the free and voluntary
organization of a strong and united labor movement as well as to make sure that workers
participate in policy and decision-making processes affecting their rights, duties and
welfare. (Samahan ng Manggagawa sa Hanjin Shipyard v. Bureau of Labor Relations, G.
R. No. 211145, 14 October 2015)

D. LABOR RELATIONS
1. Right to Self-Organization
a. Coverage
Scope of Self-Organization
Under the Labor Code
1. Forming, joining, or assisting labor organizations for the purpose of collective bargaining
through representatives of their own choosing.
2. To engage in lawful concerted activities for the purpose of collective bargaining or for their
mutual aid and protection.
(Labor Code, Art. 257) The right to form, join, assist a union is specifically protected by Art.
XIII, Section 3 of the Constitution and Art 257 of the Labor Code, and shall not be abridged. (SS
Ventures Intl. v. SS Ventures Labor Union, G.R. No. 161690)
What the Constitution guarantees is the right to form or join organizations. It is the employee who
should decide for himself whether he should join or not in an association. The right to join a union
includes the right to abstain from joining any union. (Victoriano v. Elizalde Rope Workers’ Union,
G.R. L-25246)

“Labor Organization” – refers to any union or association of employees in the private sector which
exists in whole or in part for the purpose of collective bargaining, mutual aid, interest,
cooperation, protection, or other lawful purposes. (Section 1[dd], Rule I, DOLE Department Order
No. 40, Series of 2003, as amended by A-I)

UNION VS. WORKER’S ASSOCATION

The two general kinds of labor organizations:

Labor UNION
Any labor organization in the private sector organized for collective bargaining and for other
legitimate purpose

WORKERS’ ASSOCIATION
Organization of workers formed for the mutual aid and protection of its members or for any
legitimate purpose other than collective bargaining

NOTE: Workers have the right to choose whether to form or join a union or workers’ association.

“Collective bargaining agreement” – refers to the contract entered by the employer and the
workers’ sole and exclusive bargaining agent on the wages, hours of work and all other terms and
conditions of employment including proposals for adjusting any grievances or questions arising
under such agreement and executing a contract incorporating such agreements if requested by
either party. (See Article 263, P.D. 442, Labor Code)

A collective bargaining agreement refers to the negotiated contract between a legitimate labor
organization and the employer concerning wages, hours of work and all other terms and conditions
of employment in a bargaining unit. (Honda Phils., Inc. v. Samahan ng Malayang Manggagawa sa
Honda, G.R. No. 145561, 15 June 2005)

a. Legal basis
1) 1987 Constitution
Expressed in the highest law of the land is the right of all workers to self-organization. (Samahan
ng Manggagawa sa Hanjin Shipyard v. Bureau of Labor Relations, G. R. No. 211145, 14 October
2015)
Section 3. 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. x x x (Article XIII, 1987 Constitution)

Section 8. The right of the people, including those employed in the public and private sectors,
to form unions, associations, or societies for purposes not contrary to law shall not be abridged.
(Article XIII, 1987 Constitution)

2) ILO Convention No. 87

As a member of the International Labor Organization (ILO), the Philippines is bound to
comply with Conventions, particularly if they are ratified as these become binding laws.
(See Azucena, CA. The Labor Code with Comments and Cases, Volume II-A, p 16.)

1. Coverage and Eligibility for Membership;

Eligibility for Membership
GENERAL RULE:
ALL EMPLOYEES
As to who may form, join or assist a union:
ALL persons employed in: Commercial, industrial, agricultural enterprises, religious, charitable,
medical or educational institutions, whether or not operated for profit.

Purpose: Collective bargaining, engaging in lawful concerted activities for collective bargaining,
and mutual aid and protection (Labor Code, Art. 253).

As to who may form, join and a ssist a union or a workers’ association: Ambulant, intermittent
and itinerant and rural workers, the self-employed and those with no definite employers may
form labor organizations.
Purpose: Mutual aid and protection (Labor Code, Art. 253).

Who can join a workers’ association?

The last sentence of Art. 253 broadens the coverage of workers who can form or join a workers’
association and is not exclusive to ambulant, intermittent and itinerant workers.
• Unlike in a labor union, Employee-Employer relationship is not necessary to join a workers’
association. (Samahan ng mga Manggagawa sa Hanjin, G.R. 211145, 2015).
Note: Employees of non-profit organizations are now permitted to form, organize, or join labor
unions of their choice for purposes of collective bargaining (FEU-Dr. Nicanor Reyes Medical
Foundation v. Trajano, G.R. No. 76273)

Exceptions (Labor Code, Arts. 253-255;

Art. 253. Coverage and Employees’ Right to Self-Organization. – All persons employed in
commercial, industrial and agricultural enterprises and in religious, charitable, medical, or
educational institutions, whether operating for profit or not, shall have the right to self-
organization and to form, join, or assist labor organizations of their own choosing for purposes
of collective bargaining. Ambulant, intermittent and itinerant workers, self-employed people,
rural workers and those without any definite employers may form labor organizations for their
mutual aid and protection. (P.D. 442, Labor Code)

Art. 254. Right of Employees in the Public Service (P.D. 442, Labor Code)

ART. 255. Ineligibility of Managerial Employees to Join any Labor Organization;

Right of Supervisory Employees. Managerial employees are not eligible to join, assist
or form any labor organization. Supervisory employees shall not be eligible for
membership in the collective bargaining unit of the rank-and-file employees but may
join, assist or form separate collective bargaining units and/or legitimate labor
organizations of their own. The rank-and-file union and the supervisors’ union
operating within the same establishment may join the same federation or national union.
(P.D. 442, Labor Code)

DOLE D.O. No. 40-03, Rule II, Secs. 1-2,)

Section 1. Policy. – It is the policy of the State to promote the free and responsible
exercise of the right to self-organization through the establishment of a simplified
mechanism for the speedy registration of labor unions and workers associations,
determination of representation status and resolution of inter/intra-union and other related
labor relations disputes. Only legitimate or registered labor unions shall have the right to
represent their members for collective bargaining and other purposes. Workers’
associations shall have the right to represent their members for purposes other than
collective bargaining.

Section 2. Who may join labor unions and workers’ associations. – All persons employed
in commercial, industrial and agricultural enterprises, including employees of
government owned or controlled corporations without original charters established under
the Corporation Code, as well as employees of religious, charitable, medical or
educational institutions whether operating for profit or not, shall have the right to self-
organization and to form, join or assist labor unions for purposes of collective
bargaining: provided, however, that supervisory employees shall not be eligible for
membership in a labor union of the rank-and-file employees but may form, join or assist
separate labor unions of their own. Managerial employees shall not be eligible to form,
join or assist any labor unions for purposes of collective bargaining. Alien employees
with valid working permits issued by the Department may exercise the right to self-
organization and join or assist labor unions for purposes of collective bargaining if they
are nationals of a country which grants the same or similar rights to Filipino workers, as
certified by the Department of Foreign Affairs.

For purposes of this section, any employee, whether employed for a definite period or
not, shall beginning on the first day of his/her service, be eligible for membership in any
labor organization.
 All other workers, including ambulant, intermittent and other workers, the self-employed,
rural workers and those without any definite employers may form labor organizations for
their mutual aid and protection and other legitimate purposes except collective
bargaining. (DOLE Department Order (D. 0.) No. 40-03, Series of 2003)

2. Doctrine of Necessary Implication (Confidential Employees)

Doctrine of necessary implication
While Art. 255 of the Labor Code singles out managerial employees as ineligible to join, assist or
form any labor organization, under the doctrine of necessary implication, confidential employees
are similarly disqualified. This doctrine states that what is implied in a statute is as much a part
thereof as that which is expressed. (NATU v. Republic Planters Bank, G.R. No. 93468; United
Pepsi Cola v. Laguesma, G.R. No. 9663)
Note: Confidentiality may attach to a managerial or non-managerial position. Confidentiality is
not determined by rank, but by the nature of the job.
Note: Confidential employees are excluded from joining labor organization under the doctrine of
necessary implication. If confidential employees could unionize in order to bargain for advantages
for themselves, then they could be governed by their own motives rather than the interest of the
employers. They may become the source of undue advantage. Said employees may act as spy or
spies of either party to a collective bargaining agreement. (Pepsi-Cola Products, Inc. v. Secretary of
Labor, G.R. 96663)

Exclusion via doctrine of necessary implication - One of the rules of statutory construction used
to fill in the gap is the doctrine of necessary implication. The doctrine states that what is
implied in a statute is as much a part thereof as that which is expressed.

Art. 245 of the Labor Code11 does not directly prohibit confidential employees from engaging in
union activities. However, under the doctrine of necessary implication, the disqualification of
managerial employees equally applies to confidential employees. The confidential-employee rule
justifies exclusion of confidential employees because in the normal course of their duties they
become aware of management policies relating to labor relations. (Sugbuanon Rural Bank, Inc. v.
Laguesma, G.R. No. 116194, 02 February 2000)

Exclusion via doctrine of necessary implication

Art. 245 of the Labor Code does not directly prohibit confidential employees from engaging in
union activities. However, under the doctrine of necessary implication, the disqualification of
managerial employees equally applies to confidential employees. The confidential-employee rule
justifies exclusion of confidential employees because in the normal course of their duties they
become aware of management policies relating to labor relations. (Sugbuanon Rural Bank, Inc. v.
Laguesma, G.R. No. 116194, 02 February 2000)
Corollarily, although the Labor Code limits the ineligibility to join, form and assist any labor
organization to managerial employees, jurisprudence has extended this prohibition to confidential
employees or those who by reason of their positions or nature of work are required to assist or act
in a fiduciary manner to managerial employees and, hence, are likewise privy to sensitive and
highly confidential records. Confidential employees are thus excluded from the rank-and-file
bargaining unit. (San Miguel Foods, Incorporated v. San Miguel Corporation Supervisors, G.R.
No. 146206, 01 August 2011)

Confidential employees, by the very nature of their functions, assist and act in a confidential
capacity to, or have access to confidential matters of, persons who exercise managerial functions in
the field of labor relations. Therefore, the rationale behind the ineligibility of managerial
employees to form, assist or join a labor union was held equally applicable to them. (San Miguel
Corporation Supervisors and Exempt Union v. Laguesma, G.R. No. 110399, 15 August 1997)

Rationale
The rationale for their separate category and disqualification to join any labor organization is
similar to the inhibition for managerial employees, because if allowed to be affiliated with a union,
the latter might not be assured of their loyalty in view of evident conflict of interests and the union
can also become company-denominated with the presence of managerial employees in the union
membership. Having access to confidential information, confidential employees may also become
the source of undue advantage. Said employees may act as a spy or spies of either party to a
collective bargaining agreement. (San Miguel Foods, Incorporated v. San Miguel Corporation
Supervisors, supra.)

3) Confidential employee rule

The exclusion from bargaining units of employees who, in the normal course of their duties,
become aware of management policies relating to labor relations is a principal objective sought to
be accomplished by the “confidential employee rule.” The broad rationale behind this rule is that
employees should not be placed in a position involving a potential conflict of interests.
“Management should not be required to handle labor relations matters through employees who
are represented by the union with which the company is required to deal and who in the normal
performance of their duties may obtain advance information of the company’s position with
regard to contract negotiations, the disposition of grievances, or other labor relations matters.”
(San Miguel Corporation Supervisors and Exempt Union v. Laguesma, supra.)

4) Need to use labor relations information

An important element of the “confidential employee rule” is the employee’s need to use labor
relations information. Thus, in determining the confidentiality of certain employees, a key
question frequently considered is the employee’s necessary access to confidential labor relations
information. (Ibid.)
It must be stressed, however, that when the employee does not have access to confidential labor
relations information, there is no legal prohibition against confidential employees from forming,
assisting, or joining a union. (Sugbuanon Rural Bank, Inc. v. Laguesma, G.R. No. 116194, 02
February 2000)

3. Bargaining Unit (DOLE D.O. No. 40-03, Rule I, Sec. 1(e))

(d "Bargaining Unit" refers to a group of employees sharing mutual

) interests within a given employer unit, comprised of all or less than
all of the entire body of employees in the employer unit or any
specific occupational or geographical grouping within such employer
unit.
(e "Board" refers to the National Conciliation and Mediation Board
) established under Executive Order No. 126.

Bargaining Unit
A group of employees sharing mutual interests within a given employer unit, comprised of all or
less than all of the entire body of employees in the employer unit or any specific occupational or
geographical grouping within such employer unit. (D.O. No. 40-03, Sec. 1[d], Rule I, Book V)

Appropriate Bargaining Unit (ABU)

A group of employees of a given employer comprised of all or less than all of the entire body of
employees, which the collective interests of the employees, consistent with the equity of the
employer, indicate to be best suited to serve reciprocal rights and duties of the parties. (Belyca
Corp. v. Calleja, G.R. No. 77395, 1988

a. Commingling or Mixed Membership

Commingling or Mixed Membership Commingling or Mixture of Membership Effect of Inclusion
of Employees Outside the Bargaining Unit or Commingling

General Rule: It shall not be a ground for the cancellation of the registration of the union. Said
employees are automatically deemed removed from the list of membership of said union. [Art.
256]

Exception: Unless such mingling was brought about by misrepresentation, false statement or
fraud under Art. 247 (Grounds for cancellation of Union Registration) of the Labor Code. [SMCC-
Super v. Charter Chemical and Coating Corporation, G.R. No. 169717 (2011)]

b.Inclusion as Members of Employees Outside the Bargaining Unit

Effects of Inclusion as Members of Employees Outside of the Bargaining Unit The inclusion as
union members outside the bargaining unit shall render said employees automatically
removed from the list of membership of said union. (Labor Code, Art. 256)

4. Registration of Unions, Chartering, Cancellation of Registration

(Labor Code, Arts. 240, 241, 245 and 247)

ART. 240. [234] Requirements of Registration. 201 – A federation, national

union or industry or trade union center or an independent union shall
acquire legal personality and shall be entitled to the rights and privileges
granted by law to legitimate labor organizations upon issuance of the
certificate of registration based on the following requirements:

(a) Fifty pesos (P50.00) registration fee;

(b) The names of its officers, their addresses, the principal address of the
labor organization, the minutes of the organizational meetings and the list of
the workers who participated in such meetings;
(c) In case the applicant is an independent union, the names of all its
members comprising at least twenty percent (20%) of all the employees in
the bargaining unit where it seeks to operate;
(d) If the applicant union has been in existence for one or more years, copies
of its annual financial reports; and
(e) Four copies of the constitution and by-laws of the applicant union,
minutes of its adoption or ratification, and the list of the members who
participated in it.

ART. 241. [234-A] Chartering and Creation of a Local Chapter. 202 – A duly
registered federation or national union may directly create a local chapter by
issuing a charter certificate indicating the establishment of the local chapter.
The chapter shall acquire legal personality only for purposes of filing a
petition for certification election from the date it was issued a charter
certificate. The chapter shall be entitled to all other rights and privileges of a
legitimate labor organization only upon the submission of the following
documents in addition to its charter certificate:
 (a) The names of the chapter's officers, their addresses, and the principal
office of the chapter; and (b) The chapter's constitution and by-laws:
Provided, That where the chapter's constitution and by-laws are the same as
that of the federation or the national union, this fact shall be indicated
accordingly. The additional supporting requirements shall be certified under
oath by the secretary or treasurer of the chapter and attested by its president.

ART. 245. [238] Cancellation of Registration. 204 – The certificate of

registration of any legitimate labor organization, whether national or local,
may be cancelled by the Bureau, after due hearing, only on the grounds
specified in Article 239 hereof.

ART. 247. [239] Grounds for Cancellation of Union Registration. 207 – The
following may constitute grounds for cancellation of union registration:
(a) Misrepresentation, false statement or fraud in connection with the
adoption or ratification of the constitution and by-laws or amendments
thereto, the minutes of ratification, and the list of members who took part in
the ratification;
(b) Misrepresentation, false statements or fraud in connection with the
election of officers, minutes of the election of officers, and the list of voters;
(c) Voluntary dissolution by the members

5. Sole and Exclusive Bargaining Agent (SEBA) (DOLE D.O. No. 40-03,
Rule I, Sec. 1(u));

"Exclusive Bargaining Representative” refers to a legitimate labor

union duly recognized or certified as the sole and exclusive
bargaining representative or agent of all the employees in a
bargaining unit.”

Any legitimate labor organization may file a request for SEBA

certification.

1. Concept

Any legitimate labor organization may file a request for SEBA certification. (Section 1,
Rule VII, DOLE Department Order No. 40, Series of 2003, as amended by A-I

a. Where to file

[The SEBA request may be filed] in the Regional Office which issued its certificate of
registration or certificate of creation of chartered local. (Ibid.)

Modes to Acquire Status (DOLE D.O. No. 40-I-15)

SECTION 1. WHERE TO FILE. - ANY LEGITIMATE LABOR ORGANIZATION

MAY FILE A
REQUEST FOR SEBA CERTIFICATION IN THE REGIONAL OFFICE
WHICH ISSUED ITS CERTIFICATE OF REGISTRATION OR
CERTIFICATE OF CREATION OF CHARTERED LOCAL,

SECTION 2. REQUIREMENTS FOR REQUEST OF SEBA

CERTIFICATION. THE REQUEST FOR CERTIFICATION SHALL
INDICATE:
a. THE NAME AND ADDRESS OF THE REQUESTING LEGITIMATE
LABOR ORGANIZATION; b, THE NAME AND ADDRESS OF THE
COMPANY WHERE IT OPERATES;
c. THE BARGAINING UNIT SOUGHT TO BE REPRESENTED;
d. THE APPROXIMATE NUMBER OF EMPLOYEES IN THE BARGAINING
UNIT; AND
THE STATEMENT OF THE EXISTENCE/NON-EXISTENCE OF OTHER LABOR
ORGANIZATION/CBA.

THE CERTIFICATE OF REGISTRATION AS DULY CERTIFIED

BY THE PRESIDENT OF THE REQUESTING UNION OR
CERTIFICATE OF CREATION OF CHARTERED LOCAL AS DULY
CERTIFIED BY THE PRESIDENT OF THE FEDERATION OF THE
LOCAL SHALL BE ATTACHED TO THE REQUEST.

SECTION 3. ACTION ON THE REQUEST. - WITHIN ONE (1) DAY

FROM THE SUBMISSION OF THE REQUEST, THE REGIONAL
DIRECTOR SHALL:

a. DETERMINE WHETHER THE REQUEST IS COMPLIANT WITH THE

PRECEDING SECTION AND WHETHER THE BARGAINING UNIT
SOUGHT TO BE REPRESENTED IS ORGANIZED OR NOT; AND
b. REQUEST A COPY OF THE PAYROLL FOR PURPOSES OF SEBA
CERTIFICATION PURSUANT TO SECTION 4 OF THIS RULE.

IF HE/SHE FINDS IT DEFICIENT, THE REGIONAL DRECTOR SHALL

ADVISE THE REQUESTING UNION OR LOCAL TO COMPLY WITHIN TEN
(10) DAYS FROM NOTICE. FAILURE TO COMPLY WITHIN THE
PRESCRIBED PERIOD SHALL BE DEEMED WITHDRAWAL OF THE
REQUEST FOR SEBA CERTIFICATION.

SECTION 4. REQUEST FOR CERTIFICATION IN UNORGANIZED

ESTABLISHMENT WITH ONLY ONE (1) LEGITIMATE LABOR
ORGANIZATION; VALIDATION PROCEEDINGS. - IF THE REGIONAL
DIRECTOR FINDS THE ESTABLISHMENT UNORGANIZED WITH ONLY
ONE LEGITIMATE LABOR ORGANIZATION: HE/SHE SHALL CALL A
CONFERENCE WITHIN FIVE (5) WORK DAYS FOR THE SUBMISSION OF
THE FOLLOWING:

a. THE NAMES OF EMPLOYEES IN THE COVERED BARGAINING UNIT

WHO SIGNIFY THEIR SUPPORT FOR THE CERTIFICATION, PROVIDED
THAT SAID EMPLOYEES COMPRISE AT LEAST MAJORITY OF THE
NUMBER OF EMPLOYEES IN THE COVERED BARGAINING UNIT; AND
b, CERTIFICATION UNDER OATH BY THE PRESIDENT OF THE
REQUESTING UNION OR LOCAL THAT ALL DOCUMENTS SUBMITTED
ARE TRUE AND CORRECT BASED ON HIS/HER PERSONAL
KNOWLEDGE.
THE SUBMISSION SHALL BE PRESUMED TO BE TRUE AND CORRECT
UNLESS CONTESTED UNDER OATH BY ANY MEMBER OF THE
BARGAINING UNIT DURING THE
 VALIDATION CONFERENCE. FOR THIS PURPOSE, THE EMPLOYER
OR ANY REPRESENTATIVE OF THE EMPLOYER SHALL NOT BE
DEEMED A PARTY-IN-INTEREST BUT ONLY AS A BY-STANDER TO
THE PROCESS OF CERTIFICATION.

IF THE REQUESTING UNION OR LOCAL FAILS TO

COMPLETE THE REQUIREMENTS FOR SEBA CERTIFICATION
DURING THE CONFERENCE, THE REQUEST FOR SEBA
CERTIFICATION SHALL BE REFERRED TO THE ELECTION
OFFICER FOR THE CONDUCT OF ELECTION PURSUANT TO RULE
OF THIS RULES.

SECTION 4.1. ACTION ON THE SUBMISSION. - IF THE REGIONAL

DIRECTOR FINDS THE REQUIREMENTS COMPLETE, HE/SHE
SHALL ISSUE DURING THE CONFERENCE A CERTIFICATION AS
SOLE AND EXCLUSIVE BARGAINING AGENT ENJOYING THE
RIGHTS AND PRIVILEGES OF AN EXCLUSIVE BARGAINING
AGENT OF ALL THE EMPLOYEES IN THE COVERED BARGAINING
UNIT.

THE REGIONAL DIRECTOR SHALL CAUSE THE POSTING OF

THE SEBA CERTIFICATION FOR FIFTEEN (15) CONSECUTIVE DAYS
IN AT LEAST TWO (2) CONSPICUOUS PLACES IN THE
ESTABLISHMENT OR COVERED BARGAINING UNIT.

SECTION 4.2. EFFECT OF CERTIFICATION. UPON THE ISSUANCE

OF THE CERTIFICATION AS SOLE AND EXCLUSIVE BARGAINING
AGENT, THE CERTIFIED UNION OR LOCAL SHALL ENJOY ALL
THE RIGHTS AND PRIVILEGES OF AN EXCLUSIVE BARGAINING
AGENT OF ALL THE EMPLOYEES IN THE COVERED BARGAINING
UNIT.

THE CERTIFICATION SHALL BAR THE FILING OF A PETITION

FOR CERTIFICATION ELECTION BY ANY LABOR ORGANIZATION
FOR A PERIOD OF ONE (1) YEAR FROM THE DATE OF ITS
ISSUANCE. UPON EXPIRATION OF THIS ONE-YEAR PERIOD, ANY
LEGITIMATE LABOR ORGANIZATION MAY ALE A PETITION FOR
CERTIFICATION ELECTION IN THE SAME BARGAINING UNIT
REPRESENTED BY THE CERTIFIED LABOR ORGANIZATION,
UNLESS A COLLECTIVE BARGAINING AGREEMENT BETWEEN THE
EMPLOYER AND THE CERTIFIED LABOR ORGANIZATION WAS
EXECUTED AND REGISTERED WITH THE REGIONAL OFFICE IN
ACCORDANCE WITH RULE XVII OF THIS RULES.

SECTION 5. REQUEST FOR CERTIFICATION IN UNORGANIZED

ESTABLISHMENT WITH MORE THAN ONE (1) LEGITIMATE LABOR
ORGANIZATION. - IF THE REGIONAL DIRECTOR FINDS THE
ESTABLISHMENT UNORGANIZED WITH MORE THAN ONE LEGITIMATE
LABOR ORGANIZATION, HE/SHE SHALL REFER THE SAME TO THE
ELECTION OFFICER FOR THE CONDUCT OF CERTIFICATION ELECTION.
 THE CERTIFICATION ELECTION SHALL BE CONDUCTED IN
ACCORDANCE WITH RULE rx OF THIS RULES.

SECTION 6. REQUEST FOR CERTIFICATION IN ORGANIZED

ESTABLISHMENT. - IF THE REGIONAL DIRECTOR FINDS THE
ESTABLISHMENT ORGANIZED, HE/SHE SHALL REFER THE SAME TO
THE MEDIATOR-ARBITER FOR THE DETERMINATION OF THE
PROPRIETY OF CONDUCTING A CERTIFICATION ELECTION IN
ACCORDANCE WITH RULES Vill AND IX OF THIS RULES.

SECTION 4. - Section 1 of Rule Vlll, as last amended by D.O. 40+-03, is hereby further
amended, to read as follows

a. SEBA Certification (DOLE D.O. No. 40-03, Rule I, Sec. 1, as amended by DOLE
D.O. No. 40-J-22)

On 01 April 2022, the Department of Labor and Employment (“DOLE”) issued

Department Order No. 40-J, series of 2022 to amend Rule VII of the Implementing
Rules of Book V of the Labor Code of the Philippines. Rule VII pertains to the
requirements for Sole and Exclusive Bargaining Agent (“SEBA”) Certification. The
amendment covers only Section 1 until Section 4.1 of Rule VII.

Under the amendment, any legitimate labor organization may file a request for SEBA
Certification in the Regional Office which issued its certification of registration or
certificate of creation of chartered local. A copy of the certificate of registration or
certificate of creation of chartered local shall be attached to the request which shall
indicate:

a. The name, address, and contact details of the requesting union or local;
b. The name, address, and contact details of the company where it operates;
c. The bargaining unit sought to be represented;
d. The approximate number of employees in the bargaining unit; and
e. The statement of the existence/non-existence of the labor
organization/Collective bargaining agreement.

Within one (1) day from submission, the Regional Director shall:

a. Determine whether the request is compliant with the preceding section and
whether the bargaining unit sought to be represented is organized or not; and
b. Direct the management to submit a certified true copy of the payroll for the
purposes of SEBA Certification pursuant to Section 4 of the Rule. The payroll
shall be submitted by the management on or before the date of the first
validation conference. The payroll shall indicate among others the position of
the employee, date hired, and manner of payment of wages.

If the request is deficient, the Regional Director shall notify the requesting union or
local to comply within ten (10) working days from receipt of notice. Failure to comply
within the prescribed period shall be deemed a withdrawal of the request. If
sufficient, a validation conference shall be called.
If the Regional Director finds the establishment unorganized with only one (1)
legitimate labor organization, he/she shall call a conference within five (5) working
days for the submission of the following:

a. The names of employees in the proposed covered bargaining unit (“CBU”) who
signify their support for the certification, provided that said employees
comprise at least majority of the number of employees in the CBU; and
b. Certification under oath by the President of the requesting union or local that
all documents submitted are true and correct based on his/her personal
knowledge.

The submission shall be presumed to be true and correct unless contested under
oath by any member of the bargaining unit during the validation conference. For this
purpose, the employer or any representative of the employer shall not be deemed a
party-in-interest but only as a by-stander to the process of certification.

Should the management fail or refuse to provide the payroll during the validation
conference, despite the directive by the Regional Director, the list of employees in the
bargaining unit as certified under oath by the union president, or any similar
document provided by the requesting union or local that may aid the Regional
Director, shall be used in the validation conference.

If the requesting union or local fails to complete the requirements without valid
reason, the request shall be referred to the Election Officer for the conduct of
certification election pursuant to Rule IX of the Rules. However, should the failure to
complete the requirements be justifiable, the requesting union or local shall have ten
(10) working days from notice to comply with the same.

The validation proceedings shall not exceed a total of fifteen (15) working days from
the date of the first validation conference.

The Regional Director shall issue the SEBA Certification within three (3) working days
if the documents are complete. The SEBA Certification shall be posted by the Regional
Director and/or the requesting union or local for fifteen (15) consecutive days in at
least two (2) conspicuous places in the establishment or CBU.

All rules, regulations, issuances, circulars, and administrative orders inconsistent with
the above are repealed or modified accordingly.

a. Certification and Consent Election (DOLE D.O. No. 40-03, Rules VII and VIII, as
amended)

CERTIFICATION ELECTION
Section 1. Who May File. - Any legitimate labor organization, including a national
union or federation that has issued a charter certificate to its local/chapter or the
local/chapter itself, may file a petition for certification election.

A national union or federation filing a petition in behalf of its local/chapter shall

not be required to disclose the names of the local/chapteds officers and members, but
 shall attach to the petition the charter certificate it issued to its local/chapter.

When requested to bargain collectively in a bargaining unit where no registered

collective bargaining agreement exists, an employer may file a petition for ceftification
election with the Regional Office.

In all cases, whether the petition for certification election is filed by an

employer or a legitimate labor organization, the employer shall not be considered a
party thereto with a concomitant right to oppose a petition for certification election,
The employer's participation in such proceedings shall be limited to: (1) being notified
or informed of petitions of such nature: and (2) submitting the list of employees during
the pre-election conference should the Mediator-Arbiter act favorably on the petition.
HOWEVER, MANIFESTATION OF FACTS THAT WOULD AID THE MEDIATOR-
ARBITER IN EXPEDITIOUSLY RESOLVING THE PETITION SUCH AS EXISTENCE
OF A CONTRACT-BAR, ONE YEAR BAR OR DEADLOCK BAR MAY BE
CONSIDERED.THE CONTRACT-BAR RULE SHALL APPLY IN ANY OF THE
FOLLOWING: (l) WHEN THERE EXISTS AN UNEXPIRED REGISTERED CBA; OR (2)
WHEN THERE IS NO CHALLENGE ON
THE REPRESENTATION STATUS OF THE INCUMBENT UNION DURING THE
FREEDOM
PERIOD,

SECTION 5, - Section 2 of Rule Vlll is hereby amended to read as follows:

Section 2. Where to File. — A petition for certification election shall be filed with the
Regional Office which issued the petitioning union's certificate of registration or
certificate of creation of chartered local.

AT THE OPTION OF THE PETITIONER, A PETITION FOR

CERTIFICATION ELECTION AND ITS SUPPORTING DOCUMENTS MAY
ALSO BE FILED ONLINE.

The petition shall be heard and resolved by the Mediator-Arbiter.

Where two (2) or more petitions involving the same bargaining unit are filed in
one (1) Regional Office, the same shall be automatically consolidated with the
Mediator-Arbiter who first acquired jurisdiction. Where the petitions are filed in
different Regional Offices, the Regional Office in which the petition was first filed shall
exclude all others; in which case, the latter shall indorse the petition to the former for
consolidation.

SECTION 6. • A new provision is hereby inserted as Section 7, to read as follows:

Section 7. POSTING. - THE REGIONAL DIRECTOR OR HIS/HER

AUTHORIZED DOLE PERSONNEL, AND/OR THE PETITIONER
SHALL BE RESPONSIBLE FOR THE POSTING OF THE NOTICE OF
PETITION FOR CERTIFICATION ELECTION.

SECTION 7. Section 17, Release of Order/Decision within Ten (10) Days from the
Last Hearing, is hereby renumbered as Section 18 and amended, to read as follows:

Section 18. Release of Order/Decision within Ten (10) Days from the Last Hearing. —
The MEDIATOR-ARBITER shall release his/her order or decision granting or denying
the petition personally to the parties WITHIN TEN (10) DAYS FROM THE LAST
 HEARING, COPY FURNISHED THE EMPLOYER.

SECTION 8. Sections subsequent to inserted new provisions and/or re-numbered

sections are re-numbered accordingly.

SECTION 9. A new provision is hereby added as Section 1, Rule [X, to read as

follows:

b. Bars to the Holding of Certification Election (DOLE D.O. No. 40- 03, Rule VIII,
Sec. 14, and Rule XVII, Sec. 7, as amended; Omnibus Rules Implementing the
Labor Code, Book V, Rule III, Sec. 14 (e))

DOLE D.O. No. 40- 03

SECTION 14. Denial of the petition; Grounds. — The Med-Arbiter may

dismiss the petition on any of the following grounds:
a) the petitioner is not listed in the Department's registry of legitimate
labor unions or that its legal personality has been revoked or
cancelled with finality in accordance with Rule XIV of these Rules;
b) the petition was filed before or after the freedom period of a duly
registered collective bargaining agreement; provided that the sixty-
day period based on the original collective bargaining agreement
shall not be affected by any amendment, extension or renewal of the
collective bargaining agreement;
c) the petition was filed within one (1) year from entry of voluntary
recognition or a valid certification, consent or run-off election and no
appeal on the results of the certification, consent or run-off election
is pending;
d) a duly certified union has commenced and sustained negotiations
with the employer in accordance with Article 250 of the Labor Code
within the one-year period referred to in Section 14.c of this Rule, or
there exists a bargaining deadlock which had been submitted to
conciliation or arbitration or had become the subject of a valid notice
of strike or lockout to which an incumbent or certified bargaining
agent is a party;
e) in case of an organized establishment, failure to submit the twenty-
five percent (25%) support requirement for the filing of the petition
for certification election.

SECTION 7. Term of representation status; contract bar rule. — The

representation status of the incumbent exclusive bargaining agent
which is a party to a duly registered collective bargaining agreement
shall be for a term of five (5) years from the date of the effectivity of the
collective bargaining agreement. No petition questioning the majority
status of the incumbent exclusive bargaining agent or petition for
certification election filed outside of the sixty-day period immediately
preceding the expiry date of such five-year term shall be entertained by
the Department.
The five-year representation status acquired by an incumbent bargaining
agent either through single enterprise collective bargaining or multi-
employer bargaining shall not be affected by a subsequent collective
bargaining agreement executed between the same bargaining agent and
the employer during the same five-year period.

Omnibus Rules Implementing the Labor Code, Book V, Rule III, Sec. 14 (e))

1. Failure of Election, Run-off Election, Re-run Election (DOLE D.O.

No. 40-03, Rule IX, Secs. 17-19, as amended)

SECTION 17. Failure of election. — Where the number of votes

cast in a certification or consent election is less than the majority
of the number of eligible voters and there are no material
challenged votes, the Election Officer shall declare a failure of
election in the minutes of the election proceedings.

SECTION 18. Effect of failure of election. — A failure of election

shall not bar the filing of a motion for the immediate holding of
another certification or consent election within six (6) months from
date of declaration of failure of election.
SECTION 19. Action on the motion. — Within twenty-four (24)
hours from receipt of the motion, the Election Officer shall
immediately schedule the conduct of another certification or
consent election within fifteen (15) days from receipt of the motion
and cause the posting of the notice of certification election at
least ten (10) days prior to the scheduled date of election in two
(2) most conspicuous places in the establishment. The same
guidelines and list of voters shall be used in the election.

ii. Employer as a mere Bystander Rule (DOLE D.O. No. 40-03, Rule IX,
Sec. 1, as amended)
 b. Rights of Legitimate Labor Organizations
i. Check Off, Assessment, and Agency Fees (Labor Code, Arts. 250 (n)
(o) and 259 (e); DOLE D.O. No. 40-03, Rule XIII, Sec. 1)

(Labor Code, Arts. 250 (n) (o) and 259 (e

(n) No special assessment or other extraordinary fees may be levied upon the members of a
labor organization unless authorized by a written resolution of a majority of all the members in
a general membership meeting duly called for the purpose. The secretary of the organization
shall record the minutes of the meeting including the list of all members present, the votes cast,
the purpose of the special assessment or fees and the recipient of such assessment or fees. The
record shall be attested to by the president.

(o) Other than for mandatory activities under the Code, no special assessments, attorney’s fees,
negotiation fees or any other extraordinary fees may be checked off from any amount due to an
employee without an individual written authorization duly signed by the employee. The
authorization should specifically state the amount, purpose and beneficiary of the deduction;
and

ART. 259. [248] Unfair Labor Practices of Employers. 221 – It shall be unlawful for an employer
to commit any of the following unfair labor practices:

(e) To discriminate in regard to wages, hours of work and other terms and conditions of
employment in order to encourage or discourage membership in any labor organization.
Nothing in this Code or in any other law shall stop the parties from requiring membership in a
recognized collective bargaining agent as a condition for employment, except those employees
who are already members of another union at the time of the signing of the collective
bargaining agreement. Employees of an appropriate bargaining unit who are not members of
the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the
dues and other fees paid by members of the recognized collective bargaining agent, if such
non-union members accept the benefits under the collective bargaining agreement: Provided,
That the individual authorization required under Article 242, paragraph (o) of this Code222
shall not apply to the non-members of the recognized collective bargaining agent;

DOLE D.O. No. 40-03, Rule XIII, Sec. 1)

SECTION 1. Right of union to collect dues and agency fees. — The

incumbent bargaining agent shall continue to be entitled
to check-off and collect dues and agency fees despite the
pendency of a representation case, other inter/intra-union
disputes or related labor relations disputes.

i. Collective Bargaining
1. Procedure in Bargaining (Labor Code, Art. 261)

ART. 261. [250] Procedure in Collective Bargaining. 226 – The following procedures shall be
observed in collective bargaining: (a) When a party desires to
negotiate an agreement, it shall serve a written notice upon the other
party with a statement of its proposals. The other party shall make a
reply thereto not later than ten (10) calendar days from receipt of
such notice; (b) Should differences arise on the basis of such notice
and reply, either party may request for a conference which shall
 begin not later than ten (10) calendar days from the date of request;
(c) If the dispute is not settled, the Board shall intervene upon
request of either or both parties or at its own initiative and
immediately call the parties to conciliation meetings. The Board
shall have the power to issue subpoenas requiring the attendance of
the parties to such meetings. It shall be the duty of the parties to
participate fully and promptly in the conciliation meetings the Board
may call; (d) During the conciliation proceedings in the Board, the
parties are prohibited from doing any act which may disrupt or
impede the early settlement of the disputes; and (e) The Board shall
exert all efforts to settle disputes amicably and encourage the parties
to submit their case to a voluntary arbitrator.

2. Duty to bargain collectively (Labor Code, Arts. 262-264)

ART. 262. [251] Duty to Bargain Collectively in the Absence of Collective
Bargaining Agreements. – In the absence of an agreement or other
voluntary arrangement providing for a more expeditious manner of
collective bargaining, it shall be the duty of employer and the
representatives of the employees to bargain collectively in accordance
with the provisions of this Code.

ART. 263. [252] Meaning of Duty to Bargain Collectively. – The duty to

bargain collectively means the performance of a mutual obligation to
meet and convene promptly and expeditiously in good faith for the
purpose of negotiating an agreement with respect to wages, hours of
work and all other terms and conditions of employment including
proposals for adjusting any grievances or questions arising under such
agreement and executing a contract incorporating such agreements if
requested by either party but such duty does not compel any party to
agree to a proposal or to make any concession.

ART. 264. [253] Duty to Bargain Collectively When There Exists a

Collective Bargaining Agreement. – When there is a collective
bargaining agreement, the duty to bargain collectively shall also mean
that neither party shall terminate nor modify such agreement during its
lifetime. However, either party can serve a written notice to terminate or
modify the agreement at least sixty (60) days prior to its expiration date.
It shall be the duty of both parties to keep the status quo and to continue
in full force and effect the terms and conditions of the existing
agreement during the 60-day period and/or until a new agreement is
reached by the parties.

3. Economic Provisions and Conditions

Economic provisions, on the other hand, are those which

have direct and measurable monetary cost consequences
such as wage rates, paid vacations, pensions, health and
welfare plans, penalty premiums and other fringe benefits.
Any violation arising from rights established under
collective agreements, laws, rules and regulations and
 customary practices may constitute as grievance and is
often referred to as rights dispute.

4. Non-Economic Provisions and Conditions

Non-economic provisions are those whose monetary cost

can not be directly computed such as no-strike-no-
lockout, union security, management security, check-off
clauses, grievance procedures, etc.

5. Mandatory provisions in a Collective Bargaining Agreement

Every collective agreement must contain provisions governing the dismissal or discipline
of employees and the final settlement of all disputes by arbitration. Every agreement must
also have a provision prohibiting strikes and lockouts during the life of the collective
agreement. All collective agreements must also provide for a joint consultation process for
the parties to deal with workplace issues that arise during the life of the collective
agreement.

Where the parties do not bargain such provisions into the collective agreement, the code
deems them to be there.

6.Freedom period

No agreement can be effective for less than one year, although the parties are free
to agree to a longer term and frequently do so. Where an agreement purports to be
for a term of less than one year, the code deems it to be for a term of one year
from the date it comes into operation.

It is not uncommon for the term of a collective agreement to expire before a new
agreement is reached between the employer and union. In such cases, the code
provides that the terms of the collective agreement remain in effect after its expiry
date until a new agreement is negotiated, a strike or lockout commences, or the
union is decertified – whichever occurs first.

7. Union security clause

A collective bargaining agreement clause that is used to ensure that employees are
excluded from a bargaining unit if they either:
 Do not support the union.
 Do not wish to pay union dues associated with union membership.
 Do not want to pay fees associated with a union representing the employees'
bargaining unit.
Historically, the three most common types of union security clauses include:
 Closed shop clauses.
 Union shop clauses.
  Agency shop clauses.

A workplace where there is no union security clause requiring membership in, or

payments to, a union as a condition of hiring or continued employment is often
called an open shop.

c. Unfair Labor Practices

Unfair labor practices are those which interfere with the employee’s right to self-
organization and which may be committed either by the employer or a labor organization.

1. Summary

▪ Unfair labor practices are specific offenses against the right to self-organization of
workers or employees.

▪ There are civil and criminal liabilities for those who commit unfair labor practices.

▪ Unfair labor practices may be committed by the employer or a labor organization.

2. Concepts

“Unfair labor practices” – violate the constitutional right of workers and employees to self-
organization, are 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, disrupt industrial peace and hinder the
promotion of healthy and stable labor-management relations. (Article 258, P.D. 442, Labor
Code)

In essence, [unfair labor practice] relates to the commission of acts that transgress the
workers’ right to organize. [A]ll the prohibited acts constituting unfair labor practice in
essence relate to the workers’ right to self-organization

i. By Employers (Labor Code, Art. 259)

ART. 259. [248] Unfair Labor Practices of Employers. 221 – It shall be

unlawful for an employer to commit any of the following unfair labor
practices: (a) To interfere with, restrain or coerce employees in the exercise of
their right to selforganization;
(b) To require as a condition of employment that a person or an employee
shall not join a labor organization or shall withdraw from one to which he
belongs;
(c) To contract out services or functions being performed by union members
when such will interfere with, restrain or coerce employees in the exercise of
their right to selforganization;

(d) To initiate, dominate, assist or otherwise interfere with the formation or

administration of any labor organization, including the giving of financial or
other support to it or its organizers or supporters;
(e) To discriminate in regard to wages, hours of work and other terms and
conditions of employment in order to encourage or discourage membership
 in any labor organization. Nothing in this Code or in any other law shall stop
the parties from requiring membership in a recognized collective bargaining
agent as a condition for employment, except those employees who are
already members of another union at the time of the signing of the collective
bargaining agreement. Employees of an appropriate bargaining unit who are
not members of the recognized collective bargaining agent may be assessed a
reasonable fee equivalent to the dues and other fees paid by members of the
recognized collective bargaining agent, if such non-union members accept the
benefits under the collective bargaining agreement: Provided, That the
individual authorization required under Article 242, paragraph (o) of this
Code222 shall not apply to the non-members of the recognized collective
bargaining agent;
(f) To dismiss, discharge or otherwise prejudice or discriminate against an
employee for having given or being about to give testimony under this Code;
(g) To violate the duty to bargain collectively as prescribed by this Code;
(h) To pay negotiation or attorney’s fees to the union or its officers or agents
as part of the settlement of any issue in collective bargaining or any other
dispute; or
(i) To violate a collective bargaining agreement. The provisions of the
preceding paragraph notwithstanding, only the officers and agents of
corporations, associations or partnerships who have actually participated in,
authorized or ratified unfair labor practices shall be held criminally liable.

ii. By Labor Organizations (Labor Code, Art. 260)

ART. 260. [249] Unfair Labor Practices of Labor Organizations. 224 – It shall be unfair
labor practice for a labor organization, its officers, agents or representatives: (a) To
restrain or coerce employees in the exercise of their right to self-organization. However, a
labor organization shall have the right to prescribe its own rules with respect to the
acquisition or retention of membership;

(b) To cause or attempt to cause an employer to discriminate against an employee,

including discrimination against an employee with respect to whom membership in such
organization has been denied or to terminate an employee on any ground other than the
usual terms and conditions under which membership or continuation of membership is
made available to other members;
(c) To violate the duty, or refuse to bargain collectively with the employer, provided it is
the representative of the employees;
(d) To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver
any money or other things of value, in the nature of an exaction, for services which are not
performed or not to be performed, including the demand for fee for union negotiations;
(e) To ask for or accept negotiation or attorney’s fees from employers as part of the
settlement of any issue in collective bargaining or any other dispute; or
(f) To violate a collective bargaining agreement.The provisions of the preceding
paragraph notwithstanding, only the officers, members of governing boards,
representatives or agents or members of labor associations or organizations who have
actually participated in, authorized or ratified unfair labor practices shall be held
criminally liable.
d. Peaceful Concerted Activities

i. Strikes, Picketing, and Lockouts (Labor Code, Art. 278; Omnibus

Rules Implementing the Labor Code, Book V, Rule XIII)

ART. 278. [263] Strikes, Picketing, and Lockouts. 238 –

(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 cases 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 days 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.
(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 by secret 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.
(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 of assumption or
certification, all striking or locked out employees shall immediately return to
work and the employer shall immediately resume operations and readmit all
workers under the same terms and conditions prevailing before the strike or
lockout. The Secretary of Labor and Employment or the Commission may seek
the assistance of law enforcement agencies to ensure compliance with this
provision as well as with such orders as he may issue to enforce the same. 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, 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 or panel
of voluntary arbitrators shall decide or resolve the dispute within thirty (30)
calendar days from the date of the assumption of jurisdiction or the
certification or submission of 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 ten (10) calendar days after
receipt thereof by the parties.

Omnibus Rules Implementing the Labor Code, Book V, Rule XIII

Picketing, Strikes and Lockouts

SECTION 1. Grounds for strike and lockout. — A strike or lockout may be

declared in cases of bargaining deadlocks and unfair labor practices. 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. 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.

SECTION 2. Who may declare a strike or lockout. — Any certified or duly

recognized bargaining representative may declare a strike in cases of
bargaining deadlocks and unfair labor practices. 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 grounds of unfair labor
practices.

SECTION 3. Notice of strike or lockout. — In cases of bargaining deadlocks, a

notice of strike or lockout shall be filed with the regional branch of the Board at
least thirty (30) days before the intended date thereof, a copy of said notice
having been served on the other party concerned. In cases of unfair labor
practices, the period of notice shall be fifteen (15) days. However, in case of
unfair labor practice involving the dismissal from employment of union
officers duly elected in accordance with the union constitution and by-laws
which may constitute union-busting where the existence of the union is
threatened, the fifteen-day cooling-off period shall not apply and the union
may take action immediately after the strike vote is conducted and the results
thereof submitted to the Department of Labor and Employment.

SECTION 4. Contents of notice. — The notice shall state, among others, the
names and addresses of the employer and the union involved, the nature of the
industry to which the employer belongs, the number of union members and of
the workers in the bargaining unit, and such other relevant data as may
facilitate the settlement of the dispute, such as a brief statement or enumeration
of all pending labor disputes involving the same parties. 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. Any notice which does not
conform with the requirements of this and the foregoing sections shall be
deemed as not having been filed and the party concerned shall be so informed
by the regional branch of the Board.

SECTION 5. Disclosure of information. — In collective bargaining, the parties

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

SECTION 6. Conciliation. — Upon receipt of the notice, the regional branch of

the Board shall exert all efforts at mediation and conciliation to enable the
parties to settle the dispute amicably. The regional branch of the Board shall
also encourage the parties to submit the dispute to voluntary arbitration.
During the proceedings, the parties shall not do any act which may disrupt or
impede the early settlement of the dispute. They are obliged, as part of their
duty to bargain collectively in good faith, to participate fully and promptly in
the conciliation meetings called by the regional branch of the Board. The
regional branch of the Board shall have the power to issue subpoenas requiring
the attendance of the parties to the meetings. Information and statements given
at conciliation proceedings shall be treated as privileged communications.
Conciliators and similar officials shall not testify in any court or body
regarding any matter taken up at conciliation proceedings conducted by them.

SECTION 7. Strike or lockout vote. — A decision to declare a strike must be

approved by a majority of the total union membership in the bargaining unit
concerned obtained by secret ballot in meetings or referenda called for the
purpose. A decision to declare a lockout must be approved by a majority of the
board of directors of the employer corporation or association or the partners in
a partnership obtained by a secret ballot in a meeting called for the purpose.
The regional branch of the Board may, at its own initiative or upon the request
of any affected party, supervise the conduct of the secret balloting. In every
case, the union or the employer shall furnish the regional branch of the Board
the notice of meetings referred to in the preceding paragraph at least twenty-
four (24) hours before such meetings as well as the results of the voting at least
seven (7) days before the intended strike or lockout, subject to the cooling-off
period provided in this Rule.

SECTION 8. Declaration of strike or lockout. — Should the dispute remain

unsettled after the lapse of the requisite number of days from the filing of the
notice or strike or lockout and of the results of the election required in the
preceding section, the labor union may strike or the employer may lock out its
workers. The regional branch of the Board shall continue mediating and
conciliating.

SECTION 8-a. Improved offer balloting. — In case of a strike, the regional

branch of the Board shall, at its own initiative or upon the request of any
affected party, conduct a referendum by secret balloting on the improved offer
of the employer on or before the 30th day of the strike. When at least a majority
of the union members vote to accept the improved offer, the striking workers
shall immediately return to work and the employer shall thereupon readmit
them upon the signing of the agreement. In case of a lockout, the regional
branch of the Board shall also conduct a referendum by secret balloting on the
reduced offer of the union on or before the 30th day of the lockout. When at
least a majority of the board of directors or trustees or the partners holding the
controlling interest in the case of a partnership vote to accept the reduced offer,
the workers shall immediately return to work and the employer shall
thereupon readmit them upon the signing of the agreement.

SECTION 9. Hiring of replacements. — The mere participation of a worker in a

lawful strike shall not constitute sufficient ground for termination of his
employment even if a replacement had been hired by the employer during
such lawful strike. But any union officer who knowingly participates in an
illegal strike and any worker or union officer who knowingly participates in
the commission of illegal acts during a strike may be declared to have lost his
employment status.
 SECTION 10. Prohibition regarding the employment of replacements. — No
public official employee, including officers and personnel of the Armed Forces
of the Philippines or the Integrated National Police, or any armed person shall
— (a) 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 (b) Work
in place of the strikers. Nothing herein shall be interpreted to prevent the
aforementioned officials, employees or peace officers from taking any measure
necessary to maintain peace and order and/or protect life and property.

SECTION 11. Peaceful picketing. — Workers shall have the right to peaceful
picketing. No person engaged in picketing shall commit any act of violence,
coercion or intimidation or obstruct the free ingress to or egress from the
employer's premises for lawful purposes, or obstruct public thoroughfares. No
person shall obstruct, impede or interfere with, by force, violence, coercion,
threats or intimidation, any peaceful picketing by workers during any labor
controversy or in the exercise of the right to self-organization or collective
bargaining or shall aid or abet such obstruction or interference. No employer
shall use or employ any person to commit such acts nor shall any person be
employed for such purpose.

SECTION 12. Injunctions. — No court or entity shall enjoin any picketing,

strike or lockout, except as provided in Articles 218 and 264 of the Code. The
Commission shall have the power to issue temporary injunctions in such cases
but only after due notice and hearing and in accordance with its rules. The
reception of evidence for the application of a writ of injunction may be
delegated by the Commission to any Labor Arbiter who shall submit his
recommendations to the Commission for its consideration and resolution.
Where the parties are not residents of Manila, the Labor Arbiter shall conduct
hearings in such places as he may determine to be accessible to the parties and
their witnesses. Any ex parte restraining order issued by the Commission, or
its Chairman or Vice-Chairman when the Commission is not in session and as
prescribed by its rules, shall be valid for a period not exceeding 20 days.

SECTION 13. Criminal prosecution. — The regular courts shall have

jurisdiction over any criminal action under Article 273 of the Code.

SECTION 14. Definition of "export-oriented industries." — For the purpose of

paragraph (g) of Article 264 of the Code, "export-oriented industries" means
firms exporting 50 percent or more of their products worth at least $1 million
or those annually exporting at least $10 million worth of their products or
those exporting manufactured or processed goods with high value or labor
value added as distinguished from traditional exports.

ii. Assumption of Jurisdiction by Secretary of Labor and Employment

(Labor Code, Art. 278 (g); DOLE D.O. No. 40-H-13)

Labor Code, Art. 278 (g)

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 of assumption or
certification, all striking or locked out employees shall immediately return to
work and the employer shall immediately resume operations and readmit all
workers under the same terms and conditions prevailing before the strike or
lockout. The Secretary of Labor and Employment or the Commission may seek
the assistance of law enforcement agencies to ensure compliance with this
provision as well as with such orders as he may issue to enforce the same. 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, 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.

DOLE D.O. No. 40-H-13

Section 15. Assumption by the Secretary of Labor and Employment and Employment. When a
labor dispute causes or is 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 National Labor Relations Commission for
compulsory arbitration, provided, that any of the following conditions is present:
1. Both parties have requested the Secretary of Labor and Employment to assume
jurisdiction over the labor dispute; or

2. After a conference called by the Office of the Secretary of Labor and Employment on
the propriety of its issuance, motu proprio or upon a request or petition by either
parties to the labor dispute.

Such assumption shall have the effect of automatically enjoining an impending strike or lockout.
If a strike/lockout has already taken place at the time of assumption, all striking or locked out
employees and other employees subject of the notice of strike shall immediately return to work
and the employer shall immediately resume operations and readmit all employees under the
same terms and conditions prevailing before the strike or lockout.
Notwithstanding the foregoing, parties to the case may agree at any time to submit the dispute to
the Secretary of Labor or his/her duly authorized representative as Voluntary Arbitrator or to a
duly accredited Voluntary Arbitrator or to a panel of Voluntary Arbitrators.

c. JURISDICTION AND REMEDIES

a. Labor Arbiter
i. Jurisdiction (Labor Code, Arts. 124 and 224; R.A. No. 8042, as
amended by R.A. No. 10022, Sec. 10; 2011 NLRC Rules of
Procedure, as
amended, Rule V, Sec. 1)
ii. Mode of Appeal to the NLRC (2011 NLRC Rules of Procedure,
as amended, Rule VI)
iii. Reinstatement and/or Execution Pending Appeal (Labor Code, Art.
229; 2011 NLRC Rules of Procedure, as amended, Rule IX, Sec. 12)

b. National Labor Relations Commission

i. Jurisdiction
1. Original (Labor Code, Arts. 225 (d) and (e), 278 (g); 2011
NLRC Rules of Procedure, as amended, Rule XII, Sec. 1)
2. Appellate (Labor Code, Art. 129; 2011 NLRC Rules of
Procedure, as amended, Rule VI, Sec. 1)
ii. Mode of Appeal and Requisites

c. Court of Appeals; Requisites (Rules of Court, Rule 65)

d. Supreme Court; Requisites (Rules of Court, Rule 45)

e. Bureau of Labor Relations; Jurisdiction and Procedure (DOLE D.O. No. 40-03,
Rule XI)
 f. National Conciliation and Mediation Board (Executive Order No. 126,
as amended by E.O. No. 251); Conciliation v. Mediation

g. DOLE Regional Directors; Jurisdiction (Labor Code, Arts. 128-129;

Omnibus Rules Implementing the Labor Code, Book III, Rule X, Secs. 2 and
3(a))

h. DOLE Secretary
i. Visitorial and Enforcement Powers (Labor Code, Arts. 128 and 289)
ii. Power to Suspend Effects of Termination (Labor Code, Art. 292 (b))

i. Voluntary Arbitrator; Jurisdiction and Procedure (Labor Code, Arts. 274-

277; Revised Procedural Guidelines in the Conduct of Voluntary Arbitration
Proceedings)

j. Prescription of Actions
i. Money Claims (Labor Code, Art. 306)
ii. Illegal Dismissal (Civil Code, Art. 1146)
iii. Unfair Labor Practices (Labor Code, Art. 305)
iv. Illegal Recruitment (R.A. No. 8042, Sec. 12)

NOTE: All Bar candidates should be guided that only laws, rules, issuances, and
jurisprudence pertinent to the topics in this syllabus as of June 30, 2023 are within the
coverage of the 2024 Bar Examinations.

-NOTHING FOLLOWS-