Thursday, October 30, 2014

Illegal Dismissal Benefits



In case of illegal dismissal, how much is a seafarer entitled to receive from his employers? His salaries for the unexpired portion of his employment contract or his salaries for three (3) months for every year of the unexpired term, whichever is less?

The r ruling of the Supreme Court in the case of Antonio M. Serrano vs. Gallant Maritime Services, Inc. and Marlow Navigation Co., Inc. (G.R. No. 167614, March 24, 2009) has brought clarity and definitiveness to the issue of entitlement to benefits of a seafarer in case he is illegallydismissed. It made certain that the seafarer should receive his salaries for the entire unexpired portion of his contract, and not just for three months.

In the said Serrano case, the petitioner-seafarer was hired as Chief Officer for a period of 12 months. On the date of his departure however, he accepted the downgraded post of Second Officer upon the assurance of his employers that he would be made Chief Officer in less than two months. His employers however, reneged on their commitment, resulting to petitioner-seafarer’s refusal to stay on as Second Officer. He was then repatriated to the Philippines after less than three months of work. Formally complaining to the Labor Arbiter, the latter, among others, declared his dismissal as illegal but only awarded petitioner-seafarer a lump sum amount based on his salary for three months of the unexpired portion of his contract.

On appeal, the petitioner-seafarer eventually questioned the constitutionality of the 5th paragraph of Section 10, Republic Act No. 8042 (otherwise known as the “Migrant Workers and Overseas Filipinos Act of 1995”) which took effect on July 15, 1995. It reads: “Sec.10. Money Claims.-xxx In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or FOR THREE (3) MONTHS FOR EVERY YEAR OF THE UNEXPIRED TERM, WHICHEVER IS LESS” (underscoring supplied)The National Labor Relations Commission (NLRC) sustained in principle the Labor Arbiter’s decision although it modified the computation of the award.

The Court of Appeals likewise affirmed the NLRC decision. The Supreme Court took the side of the petitioner-seafarer by affirming the illegality of his dismissal and awarded him his salaries for the entire unexpired portion of his employment contract covering nine months and 23 days.

Moreover, in an unparalleled initiative, exercising its power of judicial review of the acts of Congress, the Supreme Court declared the 5th paragraph of Section 10 of RA 8042 as violative of Section 1, Article III (right to due process and equal protection), Section 18, Article II and Section 3, Article XIII (protection of rights of all Filipino workers, whether deployed locally or overseas) of the Constitution. The High Court observed that the questioned clause has a discriminatory intent against overseas Filipino workers (OFWs) at two levels, i.e., OFWs with employment contracts of LESS THAN 1 YEAR vis-à-vis OFWs with contracts of ONE YEAR OR MORE, and OFWs vis-a-vis local workers with fixed-period employment. The clause only limits the monetary awards of OFWs, whose contracts have an unexpired portion of one year or more, to their salaries for three months or for the unexpired portion thereof, whichever is less, but does not bother OFWs with unexpired contracts short of one year.

The Court concluded “….the subject clause contains a suspect classification in that, in the computation of the monetary benefits of fixed-term employees who are illegally dismissed, it imposes a three-month cap on the claim of OFWs with an unexpired portion of one year or more in their contracts, but none on the claims of other OFWs or local workers with fixed-term employment. The subject clause singles out one classification of OFWs and burdens it with a peculiar disadvantage” (underscoring supplied). The Court likewise added that the clause violates the petitioner-seafarer’s right to substantive due process for it deprives him of property, consisting of monetary benefits without any existing valid governmental purpose. With the above ruling, the Supreme Court has reverted to the old, simple, and logical manner by which claims of illegally dismissed OFWs are computed, i.e., their basic salaries multiplied by the entire unexpired portions of their contracts, and accordingly disregarded any distinction relating to the OFWs’ contract periods or the unexpired portions thereof.
Article of Atty. Augusto R. Bundang originally published in the May-June 2009 issue of Tinig ng Marino

Wednesday, October 29, 2014

SVBB- LUSWELF paralegal lecture

Aristotle once said: ”Those that know do. Those that understand, teach”. Our law firm Sapalo Velez Bundang Bulilan ( SVBB) believes that the best way to afford legal protection to seafarers is for them to be properly educated of their legal rights. As part of our law firm's advocacy for seafarers' right, we conduct weekly paralegal lectures in coordination with organizations like Luneta Seafarers Welfare Foundation (LUSWELF). 

The paralegal lecture  is  divided into the following  parts:
Part I. Situationer of the seafaring industry, both in the national and international level  using statistics from POEA, CHED, BSP.
       Part II. Basic legal issues:  
(a)   sources of legal rights i.e. Phil. Constitution; R.A. 8042 as amended; Labor   laws; POEA Contract/ CBA; Civil Code  and
 b. kinds of cases: illegal recruitment, illegal dismissal, underpayment/ nonpayment of salaries/wages, disability benefits for illness and injury and death benefits
(c)       means how to protect these legal rights  

 Part III. Open forum
April 10, 2014
October 28, 2014
  


 
october 9, 2014
september 11, 2014

October 2, 2014
october 17, 2014

March 11, 2014




Sunday, October 12, 2014

Bantay Ocw - Radio Inquirer DZIQ


Usapang marino tayo muna..Bantay Ocw Radio Inquirer DZIQ 990am every wednesday 1030am to 12noon..Aristotle once said: ”Those that know do. Those that understand, teach”. Our law firm Sapalo Velez Bundang Bulilan ( SVBB) believes that the best way to afford legal protection to seafarers is for them to be properly educated of their legal rights. Hear me, See me as we discuss today Legal matters on seafarers' rights .http://www.ustream.tv/channel/dziq

Friday, October 10, 2014

19th National Seafarers’ Day




Filipino seafarers are the living saints – they travel the high seas with a vocation and purpose. These were the words of Cubao Bishop Honesto Ongtioko during the high mass last Sunday, September 28, 2014,   at the Ninoy Aquino Stadium  in celebration of the  19th National Seafarers’ Day (NSD). This year’s theme is “Marinong Pilipino: Haligi ng Pagbabago”.
Bishop Ongtioko compared Filipino Seafarers to two Filipino saints – San Lorenzo Ruiz and San Pedro Calungsod. With faith as a weapon, the saints and he Filipino seafarers  sailed with a mission – to be the soldier of change not only in the Philippines but also to the whole world.
“Treasure your faith wherever you are. Translate your faith into actions – be the pillars of love of god,” he said. “Kung walang haligi, babagsak ang bahay. Marami mamamatay. Bawat isa ay may mission sa pagbuo ng matibay  na simbahan.”
Seafarers and their families  participated in the nationwide activities for the 19th National Seafarers which included the Memorial at Sea, High Mass, Grand Parade, Oratorical/ Art/ Photo Contest, Karaoke challenge,
The Grand Parade from Rajah Sulayman park in Malate to Ninoy Aquino Stadium  was participated in by more than 4000 stakeholders from maritime schools, government agencies, manning agencies, training centers, maritime organizations, unions, families and private institutions.




The high mass was celebrated by  Cubao Bishop Honesto Ongsioko while Vice-President Jejomar Binay was the keynote speaker.
Another highlight is the awarding of the winners in the different NSD contests including the Ten Outstanding Maritime Students of the Philippines (TOMSP): Elijah Jose C. Barrios (John B. Lacson Foundation Maritime University (Arevalo) Inc.) Boy George R. Benavente, John B.Lacson Colleges Foundation-Bacolod Inc; Niño C. Copones ( Mariner’s Polytechnic Colleges Foundation-Canaman Campus); Shiela May M. Diaz  (Maritime Academy of Asia and the Pacific CGSO Campus);  Emmanuel D. Dotillos Jr. (University of Cebu LapuLapu and Mandaue); Christian John B. Fajarito ( Manuel S. Enverga University Foundation Inc.); Frank Stevens O. Mendoza (Asian Institute of Maritime Studies); Roger Roland S. Roullo (Philippine Merchant Marine Academy); Joseph Ryan S. Sanchez (DMMA College of Southern Philippines); and John Lawrence G. Tabanao (Maritime Academy of Asia and the Pacific CGSO Campus).
SVBB actively participated in the nationwide activities. Atty. Neptali L. Bulilan is one of the judges in the oratorical contest, Atty. Augusto R. Bundang is one of the reader during the mass, and Atty. Dennis R. Gorecho is one of the judges of the Ten Outstanding Maritime Students and head of the NSD parade commitee.
Former president Fidel V. Ramos earlier issued on July 9, 1996 Proclamation No. 828 declaring August 18 as National Seafarers’ Day (NSD) wherein  the Apostleship of the Sea (AOS) was tasked to coordinate with the public and private sector in   activities related to the celebration of said event. The purpose of the Proclamation is to give due recognition to the vital role of Filipino seafarers towards the development of the Philippines as a maritime country. Later,  Proclamation No.1094 was issued in 1997 by President Ramos which moved NSD    during the last Sunday of September every year. The International Maritime Organization (IMO) on the other hand, in its Circular No. 1884 dated July 11, 1996, requested all member nations to “celebrate’ World Maritime Day (WMD )during the last week of every September (maritime week) of each year. Consequently, Presidential Proclamation No. 866 dated Sept. 6, 1996 declared Sept. 27, 1996 and the last Friday of September every year, as National Maritime Day (NMD) spearheaded alternatively by the government agencies , to wit Maritime Industry Authority (MARINA), Philippine Coast Guard (PCG), and  Philippine Ports Authority (PPA). This was later amended by another issuance making the last week of September as National Maritime Week.
The Philippines is considered as the major supplier of maritime labor globally as there is an estimated one Filipino seafarer for every four complements  on board a vessel.  Per Philippine Overseas Employment Administration (POEA) data,. Philippine Overseas Employment Administration (POEA) data showed that there are 367,166  Filipino seafarers with POEA approved contract deployed in 2013 brought in US$5,215,378,000 as dollar remittances. As of 2013, the seabased sector’s remittance comprise at least 22% of the total dollar remittances of OFWs. Remittances help spur domestic consumption in the Philippines and a key ingredient in the country’s drive to achieve higher but sustainable growth.
Given the vast Philippine coast line (twice the size of the United States and nearly three times more than China), Filipinos have natural maritime instincts that place them at an advantage over other nationalities. Foreign shipowners are known to prefer Filipino seafarers for equally important qualities: dedication and discipline, industry, flexibility, loyalty, English language fluency, adaptability, positive work attitude, law-abiding, and problem-solving capability.
Ironically, the Philippines almost lost its slot on the historical first thirty ratifying countries of the Maritime Labour Convention of 2006 (MLC2006).  It took the Philippines six years to ratify MLC2006 on August 13, 2012 after it became a signatory of the so called international magna carta for seafarers rights. The convention sets out minimum standards and fair working conditions for seafarers worldwide. Philippines is the thirtieth country to ratify MLC 2006 out of the 314 signatories and one of the first thirty ratifying countries required for the convention to take effect.