Desertion as a ground for Dismissal

The Supreme  Court has already ruled in a number of cases that before a seafarer can be dismissed and discharged from the vessel, it is required that he be given a written notice regarding the charges against him and that he be afforded a formal investigation where he could defend himself personally.

Section 33 of the Philippine Overseas Employment Administration- Standard Employment Contract (POEA-SEC) enumerates  twenty one (21) offenses which are considered valid grounds for dismissal.  One of the grounds of dismissal of Seafarer identified is  Desertion  which includes the (a) commission of desertion, (b) attempting to desert, or (c) advising, assisting persuading another to desert.

Under the POEA-SEC, when a seafarer commits such act(s), he may be penalized by the master of the vessel with dismissal and be made to pay the cost of repatriation and his replacement. Additionally, 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).

In PCL Shipping Philippines, Inc. vs. NLRC[1], the Supreme Court emphasized that Desertion, in maritime law, is the act by which a seafarer deserts and abandons a ship or vessel, in which he had engaged to perform a voyage, before the expiration of his time, and without leave. It is not a mere unauthorized absence from the ship, without leave, but an unauthorized absence from the ship with an intention not to return to her service; or as it is often expressed, animo non revertendi, that is, with an intention to desert.

Hence, for the seafarer to be considered as guilty of desertion, the employer has the  burden to prove, with substantial evidence, that the seafarer left the ship or vessel in which he had engaged to perform a voyage, with clear intention of abandoning his duty and of not returning to the ship or vessel. The fact alone that he left the ship without permission, does not constitute desertion.

The Supreme Court ruled that the company failed to present clear and convincing proof to show that when  the seafarer jumped ship, he no longer had the intention of returning. The fact alone that he jumped off the ship where he was stationed, swam to shore and sought medical assistance for the injury he sustained is not a sufficient basis for petitioners to conclude that he had the intention of deserting his post.

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[1], G.R. No. 153031, December 14, 2006

SONA 2015 and Filipino seafarers

  

President Benigno S. Aquino III used his last State of the Nation Address (SONA) on Monday (July 27) to outline the priority legislation he wants Congress to pass until the end of his term, blame much of his problems on the legacy of his predecessor, and thank his Cabinet for their good work in helping him fulfill the promises of Daang Matuwid the past five years.

As expected, the president discussed the mistakes of the past administration and the achievements of his. He also tackled his administration’s anti-corruption reforms and the economic gains of his 'Daang Matuwid' platform.

Aquino also boasted that his administration's creation of jobs had cushioned the impact of the declining number of overseas Filipino workers, which had gone down from 9.51 million to 9.07 million in December 2014. He said it was likely that the 400,000 former OFWs "returned to the country and found jobs."

And he made reference (for the first time perhaps since the 2010 SONA?)   to the seafaring industry in the following manner: 

Tagalog version: 

"Sa seafaring: 2006 pa lang po, kinuwestiyon na ng European Maritime Safety Agency o EMSA ang ating pagsunod sa Standards of Training, Certification and Watchkeeping for Seafarers. Dahil dito, nagkaroon ng bantang hindi kilalanin ng EU ang ating maritime education certificates. Kung hindi tayo umaksiyon, may potensiyal na mawalan ng trabaho ang tinatayang 80,000 marinong Pilipinong naglalayag sa mga barkong Europeo.  Agad na kumilos ang MARINA at DOTC para iayon ito sa mga pandaigdigang pamantayan. Hanggang ngayon, kinikilala pa rin ng EU ang ating mga sertipikasyon. Sa susunod na audit ng EMSA na magsisimula ngayong Oktubre, ang garantiya ng MARINA sa atin: Tiyak, papasa na po tayo."

English translation:

"In seafaring: in 2006, the European Maritime Safety Agency (EMSA) was already questioning our compliance to the Standards of Training, Certification, and Watchkeeping for Seafarers (STCW) Convention . Because of this, there was a threat that the EU would no longer recognize our maritime education certificates. If we did not act, there would have been the chance that an estimated 80,000 Filipino seafarers working on European boats would be out of jobs. MARINA and the DOTC went to work quickly in order to match our maritime education certificates to global standards. To this day, the EU continues to recognize our certifications. Come EMSA’s next audit, which will begin in October, MARINA guarantees: We will definitely pass." [Applause]

      The EMSA audit of the Philippines’ compliance to the 1978 International Convention on STCW dates back in 2006. The result of the EMSA audit will be the basis of the European Commission in deciding whether or not to continue recognition of Filipino seafarers’ STCW certificates. 

     What is at stake at the EMSA audit findings is the Filipinos’ opportunities to work for European shipping lines. Based on government records, at least 80,000 Filipino seafarers are currently working under European Union-flagged vessels, aside from some 14,000 Filipino officers.A non-favorable EMSA audit could put at least 100,000 Filipino seafarers out of work and could likewise leave European ships with serious crew shortage.

         MARINA is now  designated as the single maritime administrative agency empowered to enforce the STCW Convention and to carry out an effective regulatory framework conducive to the efficiency, transparency, and competitiveness of the Philippine seafaring industry.    Such functions had been previously exercised by the Professional Regulation Commission (PRC), Commission on Higher Education (CHED), Technical Education and Skills Development Authority (TESDA), National Telecommunications Commission (NTC), and the Department of Health (DOH).

      MARINA has released early this year a list that identified schools with recognized merchant marine programs in a bid to guide students on where to enroll to obtain quality education.Only 23 out of 90 schools across the country were accredited for their Bachelor of Science in Marine Engineering program for school year 2015-2016 as well as 23 out of 90 schools nationwide for their Bachelor of Science in Marine Transportation program.

         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.  Recent  Philippine Overseas Employment Administration (POEA) data showed that there are 367,166  Filipino seafarers with POEA approved contract deployed in 2013. In 2014, the deployed seafarers  brought in US$5,575,722,000 as dollar remittances. The seabased sector’s remittance comprise at least 22% of the total dollar remittances of Overseas Filipino Workers (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 (30^th) 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.

Territorial Disputes over West Philippine Sea forum

"Territorial Disputes over West Philippine Sea" forum set on Friday, 31 July 2015, 1:30pm at the AIMS Maritime College, in Pasay City with Supreme Court Senior Associate Justice Antonio T. Carpio as the guest speaker. , It is a joint project of the Maritime Law Association of the Philippines (MARLAW), AIMS and Maritime Forum, Inc.

The forum is in line with the  Cartographic Exhibit on “Historical Truths and Lies: Scarborough Shoal in Ancient Maps,” This exhibit provides a compelling argument against China’s claim of indisputable sovereignty over nearly the entire South China Sea, as represented by its nine-dash line position, an excessive and expansive claim, that is in gross violation of international law, particularly the 1982 United Nations Convention on the Law of the Sea or UNCLOS.Under UNCLOS, a state cannot claim any “historical title” to the Exclusive Economic Zone or Extended Continental Shelf of another state.

 Based on the numerous ancient maps made by Westerners, and later by Philippine authorities, from 1636 to 1940, the exhibit corroborates the following:

• That Bajo de Masinloc, contrary to China’s assertions, has never been Chinese territory;
• That Bajo de Masinloc is part of the Philippines; and
• That Chinese maps failed to demonstrate the so-called “historic rights” claim by China over the waters, seabed and subsoil in the South China Sea.

 The forum supports our principled foreign policy position of defending what is rightfully and legitimately ours.

20th National Seafarers Day (NSD)

 

Seafarers and their families are invited to participate in the nationwide activities for the 20th National Seafarers Day (NSD)  on September 27, 2015 which include the Memorial at Sea, High Mass, Grand Parade, Oratorical/ Art/ Photo Contest, and Karaoke challenge.

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.

Labor/ Seafarers' claims to be delayed by ANGKLA bill placing NLRC/NCMB awards in Escrow

An anti-labor/seafarer bill might be refiled by ANGKLA Partylist during the next Congress if it will be reelected in office, a bill that  is clearly a mere dilatory tactic to stop the labor/  seafarers   from getting what is rightfully due them.

With  House Bill  No. 5430, the worker, or seafarer in this case,  will wait for longer years before they receive the award by the National Labor Relations Commission (NLRC) and the National Conciliation and Mediation Board (NCMB), mostly  for cases involving monetary claims involving disability and death benefits, illegal dismissal as well as unpaid or underpayment of salaries and wages. 

Through HB 5430, ANGKLA  aimed to amend the labor code that will have significant impact on labor claims governing the immediately “final and executory” nature of decisions issued by NLRC/NCMB.  

ANGKLA proposes that to ensure the restitution of monetary awards in case the appropriate appellate court annuls or partially or totally reverses the monetary judgment, the proceeds of execution shall be deposited in an escrow account with an escrow agent designated by the NLRC  or the NCMB. The proceeds shall remain in escrow until such time the finality of the decision issued by the appropriate appellate court is obtained.. The proceeds shall only be released after issuance of an entry of judgment by the appropriate appellate court and upon issuance by the NLRC or the NCMB, after motion of the proper party, of an order authorizing the release of proceeds of execution. The order authorizing the release of the amount deposited in escrow shall be deemed final.

ANGKLA pointed out that the amendment is proper as the problem of the immediately “final and executory” nature of decisions gains greater relevance considering the following factors: (a) the complainant will insist on the execution of the NLRC or NCMB decision despite the appeal; (b) even if the appellate courts overturn or modify the NLRC or NCMB decision, there is little hope of recovering anything through restitution; (c) more legal costs and expenses will be incurred in pursuing the case through the appellate courts and in applying for restitution of the judgment award. 

Every labor dispute involves two opposing parties the worker on one side and the management on the other.  And this bill, definitely, is not in favor of labor, proposed by a partylist that projects itself as a protector of seafarers' interest, and labor as a whole. It is obviously a bill that seeks to protect more the respondent companies rather than the seafarers' themselves. 

Away from his family and working on board vessels sailing non-stop for weeks or months the world’s oceans, he is mentally and emotionally stressed. Constantly exposed to fluctuating temperatures caused by variant weather changes of extreme hot and cold as the ships cross ocean boundaries, not to mention harsh weather conditions, the risks of his getting killed, injured or ill are high. As if working under these difficult conditions are not enough, when he sustains injury, illness or lose his life, seldom does he receive full compensation provided under the law because his employer does not hesitate to harness its immense resources to limit its liability. 

 In most instances, workers run after benefits that are denied to them. Labor litigation takes years before it reaches the supreme court. In most cases, the elevation of the records alone from the NLRC/NCMB to the Court of Appeals or Supreme Court will take several years. The proceedings in the appellate court will entail further delay. 
Under the present NLRC rules, workers can receive the judgement award immediately after the NLRC decision becomes final and executory.


In cases of seafarers with medical conditions, some incur huge debts to sustain their medication. Others die before the decision by the Supreme Court is released. 

The scenario envisioned by ANGKLA will be analogous to situations described by the the Supreme Court where "the judgment becomes illusory.."Corona International, Inc. v. Court of Appeals,343 SCRA 512) 

In one instance, the Supreme Court lamented that   the claimant "has grown old with the case. He fears he may no longer be in this world when the case is finally decided." (Borja vs.  Court of Appeals, 196 SCRA 847)  

The prevailing party might  be unable to enjoy  the judgment award  after the lapse of time, considering the tactics of the adverse party who may have no recourse but to delay. Were the rule otherwise, execution pending appeal may well become a tool of oppression and inequity instead of an instrument of solicitude and justice (Intramuros Tennis Club, Inc. v. Philippine Tourism Authority,341 SCRA 90; Yasuda v. Court of Appeals, 330 SCRA 385)

The reason is simple. An application for a writ of execution and its issuance could be delayed for numerous reasons. A mere continuance or postponement of a scheduled hearing, for instance, or an inaction on the part of the Labor Arbiter or the NLRC could easily delay the issuance of the writ thereby setting at naught the strict mandate and noble purpose envisioned by  the labor code (Pioneer Texturizing Corp. v.  NLRC, 280 SCRA 806, 816.)

In cases of execution pending appeal, the Supreme Court underscored that " the law itself has laid down a compassionate policy which, once more, vivifies and enhances the provisions of the 1987 Constitution on labor and the working man. . . . These duties and responsibilities of the State are imposed not so much to express sympathy for the workingman as to forcefully and meaningfully underscore labor as a primary social and economic force, which the Constitution also expressly affirms with equal intensity. Labor is an indispensable partner for the nation's progress and stability" ( Aris (Phil.) Inc. vs. NLRC, 200 SCRA 246) 

In essence, ANGKLA has consistently echoed the arguments posed by the manning agencies that "labor cases pose a threat to international employment by Filipino seafarers". Such issue was already touched upon by the Supreme Court in the case of Vir-Jen Shipping vs. NLRC  (210 Phil  482), in the following manner:  

"This is not the first time and it will not be the last where the threat of unemployment and loss of jobs would be used to argue against the interests of labor; where efforts by workingmen to better their terms of employment would be characterized as prejudicing the interests of labor as a whole. xxxx The same arguments have greeted every major advance in the rights of the workingman. And they have invariably been proved unfounded and false.
Unionism, employers' liability acts, minimum wages, workmen's compensation, social security and collective bargaining to name a few were all initially opposed by employers and even well meaning leaders of government and society as "killing the hen or goose which lays the golden eggs." The claims of workingmen were described as outrageously injurious not only to the employer but more so to the employees themselves before these claims or demands were established by law and jurisprudence as "rights" and before these were proved beneficial to management, labor, and the nation as a whole beyond reasonable doubt. xxx  If any minor advantages given to Filipino seamen may somehow cut into the profits of local manning agencies and foreign shipowners, that is not sufficient reason why the NSB or the NLRC should not stand by the former instead of listening to unsubstantiated fears that they would be killing the hen which lays the golden eggs."

In the proposed bill that aims to delay in execution becomes a tool of oppression and inequity to the prejudice of labor, and the seafarer to be specific. Due to the longer years that they have to wait, without any leverage in prosecuting his monetary claims, chances are, the employee/ seafarer bows to the demand of his employer to either drop his claim or accept a small settlement. 
 
Such legislative act runs in contradiction to the constitutional provision  that says "The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare." (Art. II, Sec. 18, Constitution, 1987.).