“No Strike, No Lockout” Clause

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Published — June 1, 2022

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Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.

Related article: “No employer-employee relationship” as defense in labor cases

The Philippine Constitution recognizes strike and lockout as fundamental rights of employees and employers respectively (Article 13, Section 3 of the 1987 Constitution). The right to strike is essential for the protection of employee’s rights under the Constitution and other labor laws. Right to lockout, on the other hand, bears the same importance on the part of the employer inasmuch as it serves as a protection for the unscrupulous acts of its employees. The conduct of a valid strike or lockout is considered as an effective exercise of one’s freedom of speech and of expression (Article 3, Section 4 of the 1987 Constitution).

Strike and Lockout

Strike means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. Lockout, on the other hand, means temporary refusal of an employer to furnish work as a result of industrial or labor dispute. (Article 219, Paragraphs (o) & (p) of the Labor Code of the Philippines).

How Exercised

Strike

A strike is a powerful weapon of the working class but, like a sensitive explosive, it must be handled carefully, lest it blows up in the workers’ own hands. Thus, the right to strike has to be pursued within the bounds of law (Samahang Manggagawa sa Sulpicio Lines, Inc.-NAFLU vs. Sulpicio Lines, Inc. 426 SCRA 319, March 25, 2004). A strike is considered valid if the following mandatory requisites are complied with:

1. It must be based on a valid and factual ground;
2. A notice of strike must be filed with the NCMB-DOLE;
3. A notice must be served to the NCMB-DOLE at least twenty-four (24) hours prior to the taking of the strike vote by secret balloting, informing said office of the decision to conduct a strike vote, and the date, place, and time thereof;
4. A strike vote must be taken where a majority of the members of the union obtained by secret ballot in a meeting called for the purpose, must approve it;
5. A strike vote report should be submitted to the NCMB-DOLE at least seven (7) days before the intended date of the strike;
6. Except in cases of union-busting, the cooling-off period of 15 days, in case of unfair labor practices of the employer, or 30 days, in case of collective bargaining deadlock, should be fully observed; and
7. The 7-day waiting period/strike ban reckoned after the submission of the strike vote report to the NCMB-DOLE should also be fully observed in all cases.

(Joselito Guianan Chan, Bar Reviewer on Labor Law, Pages 607-613, 3rd Revised edition, ChanRobles Publishing Company (2017)

Lockout

The requisites for a valid lockout are substantially similar with the requisites for a valid strike. The only difference is that, instead of approval from a majority of the union obtained by secret ballot in a meeting for a conduct of strike vote, an approval from the majority of the Board of Directors of the corporation or association or of the partners in partnership is needed for the proper conduct of a lockout vote (Id at 627).

“No Strike, No Lockout” Clause

“No Strike, No Lockout” Clause in the Collective Bargaining Agreement (CBA) is an expression of the firm commitment of the parties thereto that, on the part of the union, it will not conduct a strike during the effectivity of the CBA, and on the part of the employer, it will not a stage a lockout during the lifetime thereof (Id at 557).

The term “No Strike, No Lockout” may be a misnomer since it does not really bar the conduct of strike or lockout on all occasions or grounds. “No Strike, No Lockout” clause may only be invoked in case the strike or lockout involves issues that are economic in nature. Economic, in the sense that the basis for staging of strike or lockout is force wage or other concessions from the employer that are not mandated or granted by any law (Panay Electric Company, Inc. vs. National Labor Relations Commission 248 SCRA 688, October 04, 1995). The “No Strike, No Lockout” clause is inapplicable to prevent a strike or lockout which is grounded on unfair labor practice (ULP) (Master Iron Labor Union vs. NLRC 219 SCRA 47, February 17, 1993).

In strikes involving ULP, it is not essential that the ULP act has, in fact, been committed. It suffices that the striking workers are shown to have acted honestly on an impression that the company has committed such unfair labor practice and the surrounding circumstances could warrant such a belief in good faith (People’s Industrial and Commercial Employees and Workers Organization (FFW) vs. People’s Industrial and Commercial Corporation, 112 SCRA 430, 440).

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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.

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