Blame-shifting in Seafarer’s labor cases

Pinoy Seafarers’ Rights

Atty. Dennis R. Gorecho

“Aanhin pa ang damo kung patay na ang kabayo.”  Never mind if the seafarer dies before he receives compensation. A popular Filipino saying that applies directly to the possible  legal effect of ANGKLA’s  bill (House Bill No.  5430) that seeks to delay the execution of  the favorable judgment from the National Labor Relations Commission (NLRC) and the National Conciliation and Mediation Board (NCMB).

 In most cases for disability compensation, some incur huge debts to sustain their medication while others die before the decision by the Supreme Court is released. And yet ANGKLA insists that the aim of the bill is “to balance the interest” of  the seafarer and the employer as  “there is little hope of recovering anything through restitution.” In reality,  employers  have the legal remedies to recover the amount, but one cannot reclaim the life of the deceased seafarer.

Worse, ANGKLA has employed the art of deception in sanitizing the real picture  that the seafarers are victims of the employers’ abuses  when it authored the  Republic Act 10706 , or the  Seafarers’ Protection Act. Call it the game of “blameshifting”, ANGKLA has diverted  attention on labor cases   by discrediting the lawyers who ANGKLA   accused of having considerable interest in the seafarer’s  monetary benefits.

Lest we   forget, seafarers are forced to go to court because the employers  violated their legal rights first. Every  labor dispute is a David and Goliath battle as  it  involves two opposing parties:  the worker on one side and the management on the other, for  monetary claims for  disability and death benefits, illegal dismissal as well as unpaid or underpayment of salaries and wages

In illegal dismissal cases,  the POEA contract requires compliance with  two basic requirements for a lawful dismissal: a just or authorized case as prescribed by law (substantive requirement), and observance of due process. Many are sent home due to unfounded accusations and without the proper notices given.

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 due to company’s  legal maneuverings by  using  the POEA  contract  that contains terms and conditions formulated more favorable to his employer and is littered with ambiguous provisions, generalizations, technicalities that he does not understand.

In many instances, he signs Receipt and Quitclaim documents thereby  releasing his employers from all claims, demands and causes of action without even understanding their contents. Oftentimes, he is misled into accepting an ex-gratia, miniscule amount, in the guise that his condition is either not work-connected, or for any other reason for which he does not comprehend. Compensation claims are either denied or downgraded   due to the biased medical opinion of the company designated  physician.

More often than not, he knows that he is being cheated of his rights, but how can he question his employer in these instances, without the assistance of competent lawyer of his own choosing?

Instead of addressing the above issues by giving seafarers more access in compensation benefits, R.A. No. 10706 will   restricts  his option of an avenue to avail of legal services of competent lawyers, which he can voluntarily enter into, are therefore,  antagonistic to his interests, rendering him defenseless against the abuses of his employers.  They will, in effect, obstruct the effective and efficient administration of justice.

Seafarers should not be deceived by the misleading projection of the  law which employed the “scare tactic” to discourage seafarers from engaging the legal services of lawyers by depicting the latter as vultures. By charging even eleven percent (11%) of the amount recoverable, or one percent higher than the ten percent (10%) limit,  is not “abusive” per legal practice standard. Yet, ANGKLA used as “papogi” points its deceptive concern towards the seafarers. In the end, the legislative act intends to protect business interest from the cases filed by seafarers deprived of their rights under contract and the law rather than give more access to the seafarers for rightful compensation.

When a seafarer is forced to go to engage the services of a lawyer, employers   do not hesitate to harness its immense resources to  escape from  or limit its liability. However, when he wins, the employer, in order give a semblance of sympathy, will use the Seafarer’s Protection Act to say “I care for you. Your lawyer should get only ten percent.”  Ironically,  ANGKLA’s escrow bill  is anti-seafarer since it is a  dilatory tactic wherein he  will not immediately get what is rightfully due to him. Never mind if the seafarer dies before the decision, as long as the employer’s interest is also protected by ANGKLA’s  escrow bill.

Without any leverage in prosecuting his monetary claims, chances are, he bows to the demand of his employer to either drop his claim or accept a small settlement.  If he has enough pride and heart, and there are only a few who fall in this category, his only recourse is the exercise of his right, guaranteed by the due process clause of our Constitution, to engage the legal services of attorneys of his choice.  With good, experienced, professional lawyers, he will be able to prosecute his monetary claim in a level playing field.

It is election time again. Be critical of the real colors. 

             

Atty. Dennis R. Gorecho  is a graduate of UP College of Law (1998)  and  is currently a junior partner of Sapalo Velez Bundang Bulilan (SVBB) law offices  who heads the seafarers’ division. He is a  speaker on  nationwide paralegal seminars on  seafarers rights.  He is presently the executive vice president of the Maritime Law Association of the Philippines (MARLAW),  and an active  member of the Maritime Forum Inc. , the National Seafarers Day (NSD) committee and International Pro Bono Network. The SVBB law works hand in hand with various seafarers welfare  organizations such as the Apostleship of the Seas (AOS) Philippines, Luneta Seafarers Welfare Foundation (LUSWELF) and United Filipino Seafarers (UFS) . He is a legal commentator on maritime issues on print, radio and TV. A co-anchor of the radio program Bantay OCW Usapang Marino aired over Radio Inquirer/ DZIQ every Wednesday 10:30am to 12noon. For comments, please send  email  at info@sapalovelez.com or call  09175025808/ 09088665786. 

The imbalanced legal battle on seafarers claims

“Aanhin pa ang damo kung patay na ang kabayo.”  Never mind if the seafarer dies before he receives compensation. Through legislative fiat, ANGKLA partylist is  throwing off-balance  the already imbalanced legal battle on seafarers claims. 

ANGKLA  has consistently  used  the phrase “ balancing  the interest of the seafarer and the company”  when it filed the   proposed  bill (House Bill No.  5430)  that aimed to delay the execution of the monetary judgment award  issued by the National Labor Relations Commission (NLRC) and the National Conciliation and Mediation Board (NCMB)   in favor of a  seafarer. It  is the twin bill of the new law, the so-called “Seafarers’ Protection Act”.

Every labor dispute is a David and Goliath battle as  it  involves two opposing parties:  the worker on one side and the management on the other, for  monetary claims for  disability and death benefits, illegal dismissal as well as unpaid or underpayment of salaries and wages. 

 By placing   the proceeds  in escrow until such time the finality of the decision issued by the appropriate appellate court (Supreme Court or Court of Appeals), in the end, the “balance of scale” will tilt more to capital as this  will protect the business interest of the manning agencies and their principal rather than the seafarers themselves.

  

In order to discourage seafarers in pursuing legal actions against the companies when it authored the new law , the Seafarers’ Protection Act,  , ANGKLA deliberately and  sweepingly   depicted   seafarers’ lawyers as “unscrupulous” in an attempt to deflect the real issues why cases are being filed.  They blamed the lawyers , most of them  they described as “ambulance chasers” , who  go to lengths to push seafarers to file labor cases against their foreign employers, claiming for benefits even beyond the claims they are actually entitled to.

In essence, ANGKLA echoed  the employer’s phrase “ benefits even beyond the claims they are actually entitled ”  to sanitize the problematic  legal battle for seafarer’s compensation.

Valid claims,  employers  argue, necessarily must  follow what the POEA contract dictates: a contract  that contains terms and conditions formulated more favorable to his employer and is littered with ambiguous provisions, generalizations, technicalities that he does not understand.

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.

Under  the 1996 POEA Standard Employment Contract (SEC),  for disability or death to be compensable,  it was sufficient that the seafarer suffered injury or illness during the term of his employment.  The cause of illness or death is immaterial.

However, through the lobbying of the principals and their  manning agencies, the restrictive clause “work-related”  was added under Section 20 (B) of the 2000 POEA SEC to limit their liabilities.   The 2000 POEA SEC defined "work-related injury" as "injury(ies) resulting in disability or death arising out of and in the course of employment" and "work-related illness" as "any sickness resulting to disability or death as a result of an occupational disease listed under Section 32-A of the contract”.  Being included in the list is not enough, since  all of the following conditions must be satisfied: (a) the seafarer’s   work must involve the risks described; (b) the disease was contracted as a result of the seafarer's exposure to the described risks; (c). the disease was contracted within a period of exposure and under such other factors necessary to contract it;  and (d) there was no notorious negligence on the part of the seafarer.  These same definitions were reiterated in the 2010 POEA SEC.

Two elements must concur for an injury or illness to be compensable. First, that the injury or illness must be work-related; and second, that the work-related injury or illness must have existed during the term of the seafarer's employment contract. The first requirement  appeared in the 2000 and 2010 POEA SEC but is  absent in the 1996 version.

Through such restrictive provisions of the POEA SEC, claims for disability compensation  became a legal battleground, especially in instances   when seafarers do not  receive full compensation that are legally entitled to have. Such emergence of cases is attributable to the fact that  the seafarer’s  employer does not hesitate to harness its immense resources to limit its liability.

In denying, if not limiting,  the seafarer’s claims, the employer usually raise the misleading argument that the POEA mandated that disability can only be assessed by the company-designated physician based on the disability grading system considering that the latter had the time and the opportunity to constantly monitor the health and physical condition of the seafarer. However, the Supreme Court stressed that their  medical assessment “is not the alpha and the omega of the seafarer's claim for permanent and total disability.” (Elburg Shipmanagement Phils. vs. Quiogue, Jr,  G.R.No.211882 July 29, 2015). The problem can be partly attributed to the Supreme Court's observation on the  proliferation of obviously biased company doctor whose “findings cannot be taken as gospel truth” and  “are palpably self-serving  and certainly could not be considered independent” as their  "loyalty rests completely upon the company they serve" (UPL/HAL  vs  . Beseril, 487 SCRA 249).  Thus, the POEA contract does not preclude the seafarer from getting a second opinion as to his condition for purposes of claiming disability benefits.

In reality, the grading system assessment under the POEA Contract is not  reflective of the benefits that should be given to the seafarer. There are medical conditions that are classified as partial disability (between Grade 2 to 14) but in essence should have been considered as total permanent (Grade 1).  Employers will never hire a seafarer who suffered complete loss of the sense of hearing on both ears (Grade 3), loss of speech due to injury to the vocal cord (Grade 9),   total loss of a leg or amputation at or above the knee (Grade 3),    paralysis of one upper extremity (Grade3) , or  loss of one foot at ankle joint or above (Grade 6),   loss of   ten  fingers of both hands (Grade 3)  or amputation between wrist and elbow joint (Grade 5), or total blindness of one  eye and fifty percent (50%) loss of vision of the other eye will never be employed due to visual impairments. (Grade 5).  Fit-To Work certifications are given even to seafarers who are still not cured or in essence can no longer be employed such as those who suffered from heart attacks, aneurism or stroke.

From the business point of view, it will be risky for the employers  to let the seafarer be re-employed since the harsh working environment might only aggravate his fragile condition and in the end expose the company to more serious insurance liabilities.

Thus, Supreme Court's consistently  ruled  that  "it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one's earning capacity. Disability need not render the seafarer absolutely helpless or feeble to be compensable; it means disablement of an employee to earn wages in the same kind of work, or work of similar nature that [he] was trained for or accustomed to perform, or any kind of work which a person of [his] mentality and attainment could do.  (Valenzona vs. Fair Shipping Corporation, 659 SCRA 642)  

The word “unscrupulous” should likewise be applied to the employers and their people who  harness  their  immense resources to limit  their  liability. In many instances, the seafarer signs Receipt and Quitclaim documents thereby releasing his employers from all claims, demands and causes of action without even understanding their contents. Oftentimes, he is misled into accepting an ex-gratia, miniscule amount, in the guise that his condition is either not work-connected, or for any other reason for which he does not comprehend.

Unless their definition of “valid claims” is changed, through the deletion of the “work-related” clause, and  through the reversion to the  old  1996 POEA Contract , the denials of seafarers’ claims will continue. The compensation scheme should be less restrictive and more realistic, Otherwise, their only recourse is to seek legal assistance from lawyers of their own choosing. Conversely speaking, give the seafarers what they should  receive, and employers will not be hounded by legal cases.  

In essence, such reversion to the 1996 POEA Contract was partially done in the implementation of the Compulsory Insurance Coverage under the Migrant Workers and Overseas Filipinos Act of 1995” or Republic Act 8042 as amended by Republic Acts 9422 and 10022. The seafarer or his beneficiaries  will automatically be given, among others,  the benefits (US$15,000.00 if accidental death, US$10,000.00 if natural death, US$7,500.00 if total permanent disability) with or without fault on the part of the seafarer, as long as the basis of such  claim occurred during the effectivity of the POEA Contract.

And expectedly, ANGKLA will not  pursue the total deletion of the “work related clause” since this will run counter to the business interest of the employers.

In fact, ANGKLA filed  House Bill  No. 5430 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.   The seafarer   will wait for longer years before they receive the award by the NLRC/NCMB,  ANGKLA proposes that the proceeds of execution shall be deposited in an escrow account to ensure the restitution of monetary awards in case the appropriate appellate court annuls or partially or totally reverses the monetary judgment.

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. ANGKLA justifies the Escrow bill to ensure that the seafarer will still receive the award in the future in the event that the manning agency close down. However, ANGKLA disregarded the fact that  in cases of seafarers with medical conditions, some incur huge debts to sustain their medication while others die before the decision by the Supreme Court is released forcing the seafarers into accepting an ex-gratia, miniscule amount  Companies have the legal remedies to recover the amount, but one cannot reclaim the life of the deceased claimant.

It is election time again. Be critical of the real colors. 

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.  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. (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 of  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. Xxx 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, it  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. 

In the end, 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.).