Blacklisting as an industry retaliatory practice

Many Filipino seafarers are reluctant to file complaints against their manning agents due to the so called “blacklisting”, a practice used by manning agents to prevent certain seafarers being employed.

There is both “legal” and “illegal” blacklisting of seafarers.  

The Philippine Overseas Employment Administration (POEA) comes up with a blacklist (also called watchlist)  of seafarers as a form of legal sanction if a complaint of breach of discipline is filed against the  seafarer with the Adjudication Office or Regional Office.

 Seafarers who face penalties after final judgment are blacklisted. Included in the list are those disqualified from overseas employment until cleared by the POEA or until their suspension is served or lifted.

However, illegal blacklisting became a hidden industry practice where manning agencies make  statements or communications  that tend to influence or prejudice the mind of any employer against the person  seeking employment.

Blacklisting is the nefarious practice of blocking future employment of seafarers who complain about unjust treatment, safety standards, poor working conditions or unpaid wages, among others.  

Manning agencies in the Philippines will blacklist seafarers for speaking out against their employers preventing them from being hired in the industry again. Manning agents secretly circulate among themselves derogatory remarks and pictures as a retaliatory act against critical seafarers who  they consider as “troublemakers”.

Those who assert their rights are more often than not  labeled as 'troublemakers.' Their names are put on the 'blacklists' held by manning agencies and 'watchlists' held by the POEA. The practice usually destroys the future not only of seafarers but of their dependents as well.

Blacklisting can throw seafarers and whole dependent families unjustly into a sea of uncertainty and unemployment, affecting them for a lifetime.

 ILO’s Convention 179 “prohibits recruitment and placement services from using means, mechanisms or lists intended to prevent or deter seafarers from gaining employment.”

Under the Maritime Labour Convention, 2006 (which came into force in 2013, and has been ratified by 81 countries covering more than 90% of the world’s merchant fleet) empowers seafarers to report violations directly to their flag state authorities while remaining under the protection of the convention. Those flag state authorities must then investigate complaints, and they also must protect seafarers from retaliation. Alternatively, seafarers can report violations to port state authorities, who similarly must conduct an initial investigation and protect the seafarers’ confidentiality 

However, many seafarers remain skeptical of whether their unions, organizations or flag states will protect them from retaliation for reporting offences. 

Under POEA rules, the seafarer  may face sanctions by  the commission of any of the following  offenses which shall be a ground for disciplinary action:

A. Pre-Employment Offenses

1. Using, providing, or submitting false information or documents for purposes of job application or employment.

2. Unjustified refusal to depart for the worksite after all employment and travel documents have been duly approved by the appropriate government agency/ies.

B. Offenses during Employment

1. Commission of a felony or crime punishable by Philippine Laws or by the laws of the host
country;

2. Unjustified breach of employment contract;

3. Embezzlement of company funds or monies and/or properties of a fellow worker entrusted 
for delivery to kin or relatives in the Philippines; and

4. Violation/s of the sacred practices of the host country.

An administrative complaint or disciplinary action against the seafarer may be filed before the  POEA, who,  after due investigation, may  impose penalties ranging from suspension  to  delisting, depending on the gravity of the offense and the frequency of the violation(s).

When seafarers rightfully complain, they should not be punished for life. Yet if a seafarer appears on a blacklist their maritime career, often the only job open to them, is over.

 Atty. Gorecho heads the seafarers’ division of the  Sapalo Velez Bundang Bulilan  law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786)

Seafarer’s loans and prohibited recruitment acts

Despite the perceived high income they receive, it becomes difficult for some Filipino  seafarers  to make the earnings last for the period of vacation and examinations, which in recent times can be inordinately long.

Not all seafarers have the privilege of getting redeployed  immediately after their disembarkation making it  problematic to have any cash reserves.

Difficult times and immediate need for money will lead  seafarers to people known as loan sharks to be able to finance certain expenses.

                   

Loan sharks can be a person or entity that allows you to borrow a certain amount of money and charge with higher interest rate, usually above established legal rates. They are also illegal financing companies that usually targets people who are in desperate need of money

Taking advantage of such situation,  there are  employers or manning agencies that  impose  a compulsory and exclusive arrangement whereby a seafarer is required to avail of a loan from a specifically designated institution, entity, or person.

Such act is  considered as one of the prohibited acts    under the Amended Migrant Workers and Overseas Filipinos Act (AMWA) or  R.A.  No. 10022 and the  POEA rules  in relation to the  recruitment and employment of Filipino seafarers wherein the company or person   can be held criminally or administratively  liable.

The POEA’s revised rules was passed in accordance with the government’s policy,   among others, to uphold the dignity and fundamental human rights of Filipino seafarers navigating foreign seas, and promote full employment and equality of employment opportunities for all.

Other prohibited acts that involve loans  include (a)  withholding or denying travel or other pertinent documents from an applicant seafarer for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code; (b)   withholding of seafarer’s salaries or remittances, SSS contributions and loan amortization or shortchanging/reduction thereof without justifiable reasons ; (c)  granting a loan to a seafarer with interest exceeding eight percent (8%) per annum which will be used for payment of legal and allowable fees and making the seafarer issue, either personally or through a guarantor or accommodation party, post-dated checks in relation to the said loan; and (d) refusing to condone or renegotiate a loan incurred by the seafarer after the latter’s employment contract has been prematurely terminated through no fault of his/her own.

Under  the AMWA,  any person found guilty of any of the prohibited acts shall suffer the penalty of imprisonment of not less than six (6) years and one (1) day but not more than twelve (12) years and a fine of not less than Five hundred thousand pesos (P500,000.00) nor more than One million pesos (P1,000,000.00).

Under the 2016 Revised POEA Rules and Regulations, penalties for  the  offenses may vary based on the frequency of violations from  suspension of license ( two months to two years)  to its cancellation on the fourth offense.

         

Money claims arising from recruitment violation may be awarded in addition to the administrative penalties imposed. In lieu of the penalty of suspension of license, the POEA may impose the penalty of fine which shall be computed at Fifty Thousand Pesos (P50,000.00) for every month of suspension. 

The penalty of cancellation of license shall be imposed by the POEA upon a respondent  found liable for committing an offense, regardless of the number or nature of charges, against five (5) or more workers in a single case.

All cases  shall be barred if not commenced or filed within three (3) years after such cause of action accrued.

(Atty. Gorecho heads the seafarers’ division of the  Sapalo Velez Bundang Bulilan  law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786)

Visa cost payment as illegal recruitment

Seafarers are not required to pay for the expenses incurred in the visa processing as part of  deployment fees. Otherwise, the company may be liable for illegal recruitment per POEA rules. 

Under POEA rules, all processing fees required for deployment are chargeable to the principal/employer such as pre-employment medical examination (PEME) in their designated clinic, POEA and OWWA fees, visas, principal’s/employer’s flag State ship requirements, principal’s/employer’s required trainings and other requirements. 

The only incident where refund is allowed is  in case of the seafarer’s failure or unjustified refusal to join ship after all processing fees have been incurred by the principal/employer. 

As a general rule, transit visa requirements for seafarers  are administrative entry restrictions imposed by countries during transit or turnaround. The validity of transit visas are usually limited to short terms such as several hours to  days depending on the size of the country and the circumstances.  The transit visa usually covers seafarer who   intend to: a) join a ship that is (or will be) in a foreign   port, b) land with the aim of join another ship that is (or will arrive) in a foreign  port. 

On the other hand, costs chargeable to the seafarer include  documentation costs of all statutory requirements such as, but not limited to, passport, seafarer’s identification and record book (SIRB), NBI/police/barangay clearance, Seafarer’s Registration Certificate (SRC) and birth certificate.

In some cases of  non-deployment, there are   seafarers who  are  forced to refund the visa expenses  in exchange for the release of their travel documents  such as passports and SIRB. 

Legally speaking, the unauthorized withholding of  the  travel documents    is a form of coercion that  is penalized as Illegal Recruitment under Republic Act. No. 8042, as amended  by R.A. 10022, otherwise known as "Migrant Workers and Overseas Filipinos Act of 1995.. "

The law specifically states that is   unlawful “to withhold or deny travel documents from applicant workers before departure for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing rules and regulations. ”

Agencies and foreign principals found violating POEA rules will be blacklisted or penalized in accordance with R.A.  10022. POEA rules likewise provide that disciplinary actions will be meted against foreign principals and employers of OFWs found violating Philippine laws, rules, and regulations on overseas employment.

The persons criminally liable for the said  offense are the principals, accomplices and accessories. In case of juridical persons, the officers having ownership, control, management or direction of their business and the responsible for the commission of the offense and the responsible employees/agents thereof shall be liable.

Any person found guilty of illegal recruitment shall suffer the penalty of imprisonment of not less than twelve (12) years and one (1) day but not more than twenty (20) years and a fine of not less than P1,000,000.00 nor more than P2,000,000.00.

The penalty of life imprisonment and a fine of not less than P2,000,000.00 nor more than P5,000,000.00 shall be imposed if illegal recruitment constitutes economic sabotage as defined therein. 

If the offender is an alien, he or she shall also be deported without further proceedings.

In every case, conviction shall cause and carry the automatic revocation of the license or registration of the recruitment/manning agency, lending institutions, training school or medical clinic. 

Pre -Employment Medical Examination (PEME) rules

In some instances, seafarers are made to pay the expenses for the  Pre -Employment Medical Examination (PEME) once he failed the exam or his deployment did not push through. 

POEA rules states  that seafarer  applicant  shall be required  to undergo medical/health examination with a DOH-accredited medical clinic only (a)  after the licensed manning agency has interviewed the seafarer, and  (b) and that there is a reasonable certainty that the seafarer shall be hired and deployed to a ship of its principal/employer. (Section 68 of the 2016 .Revised POEA Rules and Regulations  governing  the  recruitment and employment of Filipino seafarers). 

Seafarers are not required to pay for the PEME expenses since these are considered as processing fees required for deployment.chargeable to principal/employer.  However, in case of seafarer’s failure or unjustified refusal to join ship after all processing fees have been incurred by the principal/employer, the said fees shall be refunded by the seafarer within thirty (30) days from demand. 

Under pertinent  rules and laws,  some of the recruitment offenses related to PEME  include (a) charging or accepting directly or indirectly any amount of money, goods or services, or any fee or bond for any purpose from an applicant seafarer; 

(b) Collecting any amount as payment for processing, or documentation costs not prescribed by the rules, or an amount greater than the actual documentation costs, as covered by official receipts issued by entities where payments were made; 

(c) Failure to reimburse expenses incurred by the seafarer in connection with his documentation and processing for purposes of deployment, where deployment does not take place without the seafarer's fault and

(d) withholding or denying travel or other pertinent documents from an applicant seafarer for monetary or financial considerations, or for any other reasons, other than those authorized.

For offenses (a) and (b),   the penalty include cancellation of License plus refund of fee or bond collected. On the other hand, penalties for  the  less serious offenses in  letter (c) and (d) may vary based on the frequency of violations:

              1st Offense — Suspension of License (2 to 6 Months) 

              2nd Offense — Suspension of License (6 Months and 1 day to 1 year) 

              3rd Offense — Suspension of License (1 year and 1 day to 2  years) 

              4th Offense — Cancellation of License 

Money claims arising from recruitment violation may be awarded in addition to the administrative penalties imposed. In lieu of the penalty of suspension of license, the POEA may impose the penalty of fine which shall be computed at Fifty Thousand Pesos (P50,000.00) for every month of suspension. 

 

The penalty of cancellation of license shall be imposed by the POEA upon a respondent found liable for committing an offense, regardless of the number or nature of charges, against five (5) or more workers in a single case. This provision shall not apply to consolidated cases unless there are five (5) or more complainants in any of the consolidated cases. 

 

Prescription: All cases  shall be barred if not commenced or filed within three (3) years after such cause of action accrued.

The revised rules was passed in accordance with the POEA's policy,   among others, to uphold the dignity and fundamental human rights of Filipino seafarers navigating foreign seas, and promote full employment and equality of employment opportunities for all;

 

 

Illegal Seafarer's Loans

Appropriate criminal and administrative penalties will be imposed  on persons or entities involved in loan  transactions which are considered  violations under the Amended Migrant Workers and Overseas Filipinos Act (AMWA) R.A.  No. 10022 and the  Revised POEA Rules and Regulations  2016   in relation to the  recruitment and employment of Filipino seafarers: 

1. Withholding or denying travel or other pertinent documents from an applicant seafarer for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing Rules and Regulations

 

2.  Withholding of seafarer’s salaries or remittances, SSS contributions and loan amortization or shortchanging/reduction thereof without justifiable reasons.The penalty shall include the release of the salaries or remittances being claimed

 

3. Impose a compulsory and exclusive arrangement whereby a seafarer is required to avail of a loan from a specifically designated institution, entity, or person.

 

4. Granting a loan to a seafarer with interest exceeding eight percent (8%) per annum which will be used for payment of legal and allowable fees and making the seafarer issue, either personally or through a guarantor or accommodation party, post-dated checks in relation to the said loan

 

5. Refuse to condone or renegotiate a loan incurred by the seafarer after the latter’s employment contract has been prematurely terminated through no fault of his/her own.

 

Under  the AMWA,  any person found guilty of any of the prohibited acts shall suffer the penalty of imprisonment of not less than six (6) years and one (1) day but not more than twelve (12) years and a fine of not less than Five hundred thousand pesos (P500,000.00) nor more than One million pesos (P1,000,000.00).

Under the 2016 Revised POEA Rules and Regulations, penalties for  the aforesaid less serious offenses may vary based on the frequency of violations:

              1st Offense — Suspension of License (2 to 6 Months) 

              2nd Offense — Suspension of License (6 Months and 1 day to 1 year) 

              3rd Offense — Suspension of License (1 year and 1 day to 2  years) 

              4th Offense — Cancellation of License 

 

Money claims arising from recruitment violation may be awarded in addition to the administrative penalties imposed. In lieu of the penalty of suspension of license, the POEA may impose the penalty of fine which shall be computed at Fifty Thousand Pesos (P50,000.00) for every month of suspension. 

 

The penalty of cancellation of license shall be imposed by the POEA upon a respondent found liable for committing an offense, regardless of the number or nature of charges, against five (5) or more workers in a single case. This provision shall not apply to consolidated cases unless there are five (5) or more complainants in any of the consolidated cases. 

 

Prescription: All cases  shall be barred if not commenced or filed within three (3) years after such cause of action accrued.

The revised rules was passed in accordance with the POEA's policy,   among others, to uphold the dignity and fundamental human rights of Filipino seafarers navigating foreign seas, and promote full employment and equality of employment opportunities for all;

 

 

substitution or alteration of POEA contract as illegal recruitment

As with all other kinds of worker, the terms and conditions of a seafarer’s employment is governed by the provisions of the contract he signs at the time he is hired. But unlike that of others, deemed written in the seafarer’s contract is a set of standard provisions set and implemented by the POEA, called the Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean-Going Vessels, which are considered to be the minimum requirements acceptable to the government for the employment of Filipino seafarers on board foreign ocean-going vessels

 It is crafted for the sole purpose of ensuring that the seafarers are not put at a disadvantage in their desire of seeking greater economic benefit abroad. (Philippine Transmarine Carriers, Inc. Vs. Cristino, G.R. No. 188638. December 9, 2015)

At the outset, it bears stressing that the employment of seafarers  is governed by the contracts they sign at the time of their engagement. As long as the stipulations therein are not contrary to law, morals, public order, or public policy, they have the force of law between the parties . The parties to the contract may therefore improve on the minimum terms and conditions provided that such improvements shall be made in writing and appended to the contract for employment.

Nonetheless, employment contracts of seafarers on board foreign ocean-going vessels are not ordinary contracts. They are regulated and an imprimatur by the State is necessary. While the seafarer and his employer are governed by their mutual agreement, the POEA Rules and Regulations require that the POEA-SEC be integrated in every seafarer’s contract . (Inter-Orient Maritime, Inc. vs. Candava,  700 SCRA 174) 

The standard employment contract for seafarers was formulated by the POEA pursuant to its mandate under E.O. No. 247 to "secure the best terms and conditions of employment of Filipino contract workers and ensure compliance therewith" and to "promote and protect the well-being of Filipino workers overseas." 

 The Migrant Workers and Overseas Filipinos Act of 1995 ( R.A. No. 8042, as amended by R.A. 10022)  explicitly prohibits the substitution or alteration to the prejudice of the worker, of employment contracts already approved and verified by the Department of Labor and Employment (DOLE) from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the DOLE. 

Thus, the Supreme Court  held in Chavez v. Bonto-Perez (312 Phil. 88 (1995) that the subsequently executed side agreement of an overseas Filipino  worker with her   foreign employer which reduced her salary below the amount approved by the POEA is void because it is against existing laws, morals and public policy. The said side agreement cannot supersede her standard employment contract approved by the POEA..This side agreement is a scheme all too frequently resorted to by unscrupulous employers against  helpless OFWs who are compelled to agree to satisfy their basic economic needs.Such practice is known as contract substitution for which the recruitment agency may be held accountable. 

Agencies and foreign principals found violating POEA rules will be blacklisted or penalized in accordance with Republic Act. No. 8042, as amended, and R.A. 10022. POEA rules likewise provide that disciplinary actions will be meted against foreign principals and employers of OFWs found violating Philippine laws, rules, and regulations on overseas employment.

The persons criminally liable for the said  offense are the principals, accomplices and accessories. In case of juridical persons, the officers having ownership, control, management or direction of their business and the responsible for the commission of the offense and the responsible employees/agents thereof shall be liable.

Any person found guilty of illegal recruitment shall suffer the penalty of imprisonment of not less than twelve (12) years and one (1) day but not more than twenty (20) years and a fine of not less than One million pesos (P1,000,000.00) nor more than Two Million Pesos (P2,000,000.00).

The penalty of life imprisonment and a fine of not less than Two Million Pesos (P2,000,000.00) nor more than Five Million Pesos (P5,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined therein. Provided, however, That the maximum penalty shall be imposed if the person illegally recruited is less than eighteen (18) years of age or committed by a non-licensee or non-holder of authority.

If the offender is an alien, he or she shall, in addition to the penalties herein prescribed, be deported without further proceedings.

In every case, conviction shall cause and carry the automatic revocation of the license or registration of the recruitment/manning agency, lending institutions, training school or medical clinic. 

Witholding of travel documents as illegal recruitment

Recruitment agencies and foreign principals and employers are prohibited from withholding travel documents of OFWs, including seafarers,  as provided for by rules and regulations governing the recruitment and employment of OFWs.

In many instances of non-deployment, many seafarers complain of withholding of travel documents like the passport and Seafarer’s Identification and Record Book (SIRB) on the condition that they reimburse the manning agencies of the expenses such as the Pre-Employment Medical Examinations (PEME).

Legally speaking, the unauthorized withholding of  these travel documents  is a form of coercion that  is penalized as Illegal Recruitment under Republic Act. No. 8042, as amended  by R.A. 10022, otherwise known as "Migrant Workers and Overseas Filipinos Act of 1995.. "

The law specifically states that is   unlawful “to withhold or deny travel documents from applicant workers before departure for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing rules and regulations. ”

The State  is mandated to protect seafarers  from all threats and coercion done through the confiscation, retention, or withholding of their travel documents such  passports and SIRB , which are  considered the property of the State.

Under Republic Act No. 8239, otherwise known as the "Philippine Passport Act of 1996," a passport is a document issued by the Philippine government to its citizens, the issuance of which is equivalent to a request to other governments to allow Philippine citizens to pass safely and freely, and in case of need, to give them lawful aid and protection. More importantly, a passport is a proclamation of the citizenship of a Filipino, hence, it is a document superior to all other official documents such that the unauthorized withholding or retention of a passport brings untold hardships to its holder whose mobility and capacity to transact are greatly impaired.

On the other hand, SIRB refers to a document issued by the Maritime Industry Authority (MARINA) to all Filipino seafarers and others including cadets who render services on board ships; The SIRB is a seafarer’s identity document issued for the purpose of providing the holder with identity papers for travel to or from an assigned vessel. It also provides the holder with a continuous record of his/her sea service and specify the particular category or rating which the holder is qualified to serve.

Agencies and foreign principals found violating POEA rules will be blacklisted or penalized in accordance with Republic Act. No. 8042, as amended, and R.A. 10022.POEA rules likewise provide that disciplinary actions will be meted against foreign principals and employers of OFWs found violating Philippine laws, rules, and regulations on overseas employment.

The persons criminally liable for the said  offense are the principals, accomplices and accessories. In case of juridical persons, the officers having ownership, control, management or direction of their business and the responsible for the commission of the offense and the responsible employees/agents thereof shall be liable.

Any person found guilty of illegal recruitment shall suffer the penalty of imprisonment of not less than twelve (12) years and one (1) day but not more than twenty (20) years and a fine of not less than One million pesos (P1,000,000.00) nor more than Two Million Pesos (P2,000,000.00).

The penalty of life imprisonment and a fine of not less than Two Million Pesos (P2,000,000.00) nor more than Five Million Pesos (P5,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined therein. Provided, however, That the maximum penalty shall be imposed if the person illegally recruited is less than eighteen (18) years of age or committed by a non-licensee or non-holder of authority.

If the offender is an alien, he or she shall, in addition to the penalties herein prescribed, be deported without further proceedings.

In every case, conviction shall cause and carry the automatic revocation of the license or registration of the recruitment/manning agency, lending institutions, training school or medical clinic.