March 4, 2021
Dear Wayne Palmer,
Greetings!
Thank you for your request dated Mar 03, 2021 12:24:14 PM under Executive Order No. 2 (s. 2016) on Freedom of Information in the Executive Branch.
You are asking for the difference between the preventive mediation cases and the notice of strike/lockout cases.
The NCMB's jurisdiction is primarily the settlement of Notice of Strike or Notice of Lockout cases. These cases can only be filed based on the following grounds: 1) deadlock on collective bargaining negotiation (CBA deadlock) and 2) unfair labor practice (ULP) acts or offenses committed by the employer or labor organization which violate the constitutional right of workers and employees to self-organization. Based on these grounds, the union may declare an actual strike or the employer declare an actual lockout should they fail to reach a settlement. Hence, the conciliation-mediation proceeding under the NS/L framework observes periods (we call it cooling-off period) within which the parties need to reach an agreement. For the CBA deadlock, conciliation-mediation period is 30 days while for ULP, conciliation-mediation period is 15 days. The Conciliator-Mediator is duty-bound to exert best efforts to convince parties find a mutually acceptable solution, otherwise, there may be work disruptions as a result of the concerted actions which the union may take or non-provision of work as a result of the concerted action of the company's Board of Directors. There are substantive and procedural requirements though that both parties need to observe before an actual strike or actual lockout is declared.
On this note, not all notices of strike/lockout matured into actual strike/lockout. Many of them are settled or brought to other venues for further proceedings.
Preventive-mediation (PM), on the other hand, is a catch-all conciliation-mediation services provided by the NCMB to unionized and organized companies. Some unions and employers would like to be assisted by a conciliator-mediator in settling their workplace issues without threat of strike or lockout. Hence, this kind of conciliation-mediation service is made available by the NCMB. Parties do not need to resort to notice of strike/lockout if they can talk over the issues with the assistance of a neutral third party. While PM cases do not have cooling-off period, the NCMB committed a self-imposed process cycle time of 35 days within which to settle the case to ensure that the case is moving and necessary actions are being made by the conciliator-mediator.
Some PM cases involve CBA deadlock and/or ULP issues. In some instances, these PM cases materialized or converted into a Notice of Strike/Lockout depending on the result of discussion of the parties.
For CBA deadlock and ULP issues, Union-filers of PM and NS/L need to be the certified or duly recognized bargaining representative of the employees. In the absence of a certified or duly recognized bargaining representative, a legitimate labor organization in the company may file the case, only on grounds of ULP. The employer may also file PM or NS/L cases.
Your FOI request is approved. We hope that you are enlightened with this response.
If you are unhappy with this response to your FOI request, you may ask us to carry out an internal review of the response by writing to Secretary Silvestre H. Bello III with email address,
[email protected],
[email protected]. Your review request should explain why you are dissatisfied with this response, and should be made within 15 calendar days from the date when you received this letter. We will complete the review and tell you the result within 30 calendar days from the date when we receive your review request.
If you are not satisfied with the result of the review, you then have the right to appeal to the Office of the President under Administrative Order No. 22 (s. 2011).
Thank you.
Respectfully,
Deputy Executive Director Teresita Audea
FOI Receiving Officer
