The right to strike and the
return-to-work order

THE VIOLENT DISPERSAL of the striking sugarcane workers at the Hacienda Luisita, which is owned by the family of former President Corazon Cojuangco Aquino, brings to fore the worker’s Right to Strike and the Secretary of Labor’s Return-to-Work Order. Depending on which side you are in, the return to work order appears to clash with the right to strike.

In simple terms, from the worker’s point of view, the right to strike is a remedy that he could use to compel management to give in to his demands, while the order clams down on the right to strike and consequently takes away a powerful weapon. For management, the right to strike may be likened to the proverbial Sword of Damocles that hangs in suspension over management’s head threatening the economic viability of the enterprise. On the other hand, the order is a reprieve, albeit transitory, from the dire repercussions attendant with a strike.

The right to strike is now guaranteed and protected under the 1987 Constitution. It did not use to be. Prior to 1987, this right was merely statutory, that is, it emanated only from a law - the Industrial Peace Act of 1953. As such, it could be taken away just as easily as it was given. This travesty did happen when Pres. Marcos snatched it from the workers and prohibited its exercise when he declared Martial Law. The only good thing that resulted from the right to strike being given a constitutional stature is that Congress could not easily deprive the workers of it without amending the Constitution itself.

As do other rights enshrined in the Constitution, the right to strike is replete with limitations provided by law. One of these is the Labor Secretary’s Return-to-Work Order, which is found in Article 263 (g) of the Labor Code.
When an industry indispensable to national interests is being threatened by a labor dispute, the Secretary of Labor and Employment may assume jurisdiction over it. When it does, the contending parties – the management and the workers – are enjoined from doing any act that may exacerbate the already volatile atmosphere. For the workers, they are prohibited from going on strike; for management, it is not allowed to go on a lock-out or the temporary refusal to furnish work as a result of a labor dispute. Indeed, the assumption of jurisdiction by the Secretary is an automatic injunction on the parties to desist from inflammatory actions.

In the event that the workers had already gone on strike, the Secretary of Labor’s Return-to-Work Order strictly requires them to go back to work while management is mandated to readmit them under the same terms and conditions. Refusal by workers to comply with the same is punishable by the severest penalty of dismissal, while for the management, the payment of backwages and damages, among others.

What constitutes an industry indispensable to national interests is subject to determination by the President or the Secretary of Labor. They have unlimited discretion in ascertaining what industries are indispensable to national interests. Be that as it may, that discretion is still subject to judicial review by the Supreme Court for the latter could reject a supposed national interest case when it is clearly not.

Comments and/or suggestions may be sent to Bragais Law Office, Paz St., San Francisco, Naga City