San Pedro Calungsod, Pinoy Seafarers, and the path to sainthood.

The Filipino seafarers are not only major contributors to the country’s economic growth, they are also ‘saint potentials’, thus said  Manila Archbishop Luis Antonio Tagle during the 17th National Seafarers' Day (NSD) last  September 30, 2012 .   

 The archbishop was referring to Saint Lorenzo Ruiz and Blessed Pedro Calungsod, the soon-to-be second Filipino saint as he noted that  these Philippine Catholic Church’s two martyrs were seafarers and missionaries at the same time before they became saints. He added that Ruiz and Calungsod sailed to other countries and died for a mission: “to teach the Good News.”

 “You should be instruments for what is good work and not of temptations,” he added. “The Filipinos today are sailing everywhere. Bring with you the best of the Filipinos.”

President Benigno Aquino III  approved Proclamation 481 declaring October 21 as the   national day of celebration on the canonization of Blessed Pedro Calungsod to honor his “life and martyrdom”.  “The life and martyrdom of Blessed Calungsod shall serve as an inspiration to Filipinos, particularly the youth to live a life anchored on values and principles,” part of the proclamation reads.

Calungsod was a teenage catechist from Visayas who accompanied Blessed Diego Luis de San Vitores in Tumhon village in Guan, Marianas, where they were killed on April 2, 1672. Blessed Pope John Paul II beatified him in March 2000.

The Philippines is considered as the major supplier of maritime labor globally. Philippine Overseas Employment Administration (POEA) data showed that the deployed Filipino seafarers in 2006 (274,497), 2007 (266,553), 2008 (261,614), 2009 (330,424),  2010 (347,150),  and  2011 (400,000) brought in  the dollar remittances that have also  been constantly increasing from US$1.9B in 2006, US$2.2B in 2007 , US$3B in 2008, US$3.4B in 2009, US$3.8B in 2010 to S$4.3B in 2011. On the other hand, the Philippines as a flag State has a registered fleet comprising around 1.4% of total world tonnage.

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.

Due Process on dismissal

HOW does due process apply to the employment relationship of Filipino seafarers with their employers?

The POEA Standard Employment Contract and Implementing Rules of Book V of the Labor Code prescribe the standards of due process that must be substantially observed in cases of termination of employment on just causes, i.e., the serving of the first written notice on the employee, which states the ground(s) for termination and which gives the employee the opportunity to explain, the holding of a hearing where the employee may present his evidence, and the serving of the notice of termination, indicating the grounds established to justify the dismissal.

In the case of Philippine Transmarine Carriers, Inc. vs. Felicisimo Carilla (G.R. No. 157975, June 26, 2007), the seafarer filed a complaint for illegal dismissal after he was summarily repatriated to the Philippines while the vessel he embarked on was in India. His employer presented mere unauthenticated and unsigned papers and reports to enumerate his alleged acts of incompetence. The Supreme Court found that the said documents have no probative value and that the seafarer was dismissed without due process hence, his claim for the unexpired portion of his contract partially granted.
 
In the case of Joel B. de Jesus vs. NLRC (G.R. No. 151158, Aug. 17, 2007), just barely 3 months from the day he departed from the Philippines and embarked on his vessel, the seafarer was repatriated after he was diagnosed to be suffering from gastric ulcer. After his request for financial assistance and medical treatment was disallowed, he filed a claim for payment of his unpaid salary, sickness allowance, and reimbursement of medical expenses against his employer before the National Labor Relations Commission on the ground that he was illegally discharged.

The Court observed that since the employer did not present proof that: (a) the seafarer breached his employment contract and (b) that the prescribed disciplinary procedures on notice and hearing provided under Section 17 of the POEA SEC were followed, the employer failed to establish its defense of the seafarer’s valid dismissal. As such, the seafarer’s claims for payment were accordingly granted.

FAQs - NLRC Proceedings

Here is the Frequently Asked Questions for cases filed before the National Labor Relations Commission (NLRC) 

 Conference

The Labor Arbiter shall summon the parties to a conference within two days from receipt of an assigned case.The purpose of the conference is either to:

·                                 amicably settle the dispute;

·                                 determine the real parties in interest;

·                                 define and simplify the issues of the case;

·                                 enter into admissions and/or stipulations of facts; and

thresh out preliminary matters. (Sec. 2, Rule 5, NLRC Rules as Amended)

 Number of conferences allowed

The number of conferences shall not exceed three (3) settings and shall be terminated within thirty (30) calendar days from the date of the first conference.

No motion for postponement shall be entertained. Non-appearance of the complainant/s during the scheduled hearings for mediation/conciliation conference shall be a ground for the dismissal of the case without prejudice.

In case of non-appearance of the respondent/s during the first conference, a second conference shall proceed. Non-appearance of the respondent/s during the second conference shall immediately terminate the mandatory conciliation/mediation conference. The complainant/s shall thereupon be allowed to file his position paper as well as submit evidence in support of his cause or causes of action after which, the labor arbiter shall render his decision on the basis of the evidence on record. (Sec. 2, Rule 5, NLRC Rules as Amended)

When to submit position papers/ memorandum

If, during the conferences, the parties fail to agree upon an amicable settlement, either in whole or in part, the Labor Arbiter shall issue an order directing the parties to simultaneously file their respective verified position papers, with the supporting documents and affidavits within fifteen (15) calendar days from the date of the last conference, with proof of having furnished each other with the copies thereof.

The verified position papers shall cover only those claims and causes of action raised in the complaint excluding those that may have been amicably settled.

When is a hearing necessary or not?

If there is a need for a hearing, the Labor Arbiter shall issue an order setting the date or dates for said hearing which shall be terminated within ninety (90) days from initial hearing. However, if he finds no necessity for further hearing after the parties have submitted their position papers and supporting documents, he shall issue an Order to that effect and inform the parties. The Arbiter shall render his decision in the case within ninety (90) days.

The Labor Arbiter determines the necessity of a hearing

As soon as the parties have submitted their position papers/memorandum, the Labor Arbiter shall, motu propio, determine whether there is a need for a formal trial or hearing. The Labor Arbiter may, at his discretion, ask clarificatory questions to further elicit facts or information, including but not limited to the subpoena of relevant documentary evidence from any party or witness.

 When will the Labor Arbiter render decision?

The Arbiter shall render his decision within thirty (30) calendar days, without extension, after the submission of the case by the parties for resolution, even in the absence of stenographic notes, provided however that cases involving Overseas Filipino Workers shall be decided within ninety (90) calendar days after the filing of the complaint which shall be deemed perfected upon acquisition by the labor arbiter of jurisdiction over the respondent/s. (Sec. 5, Rule 5, NLRC Rules as Amended)

May the Labor Arbiter conciliate disputes?

Yes. At any stage of the proceedings in all cases, the Arbiter shall exert all efforts and take positive steps toward resolving the dispute through conciliation.

 What is an appeal in compulsory arbitration?

When an aggrieved party is not satisfied with the decision, order or award of the Labor Arbiter, POEA Administrator or DOLE Regional Director or his duly authorized hearing officer, the decision, award or order may be elevated to the Commission Proper upon grounds provided by law.

 What is the period of appeal?

Within ten (10) calendar days from receipt of such decisions, awards or orders of the Labor Arbiter or of the POEA Administrator. In case of a decision of the Regional Director or his duly authorized hearing officer, the appeal may be filed within five (5) calendar days from receipt of such decisions, awards or orders.

What are the other requisites for the perfection of an appeal?

·                                 The appeal should be under oath.

·                                 Proof of payment of appeal fee.

·                                 Proof of posting of a cash or surety bond.

·                                 Must be accompanied by a memorandum of appeal which shall state the grounds relied upon and the supporting arguments.

·                                 A statement of the date when the appellant received the appealed decision or award.

Proof of service on the other party of such appeal.

 When is a bond required in an appeal?

In case the decision of the Labor Arbiter, POEA Administrator and DOLE Regional Director or his duly authorized hearing officer involves monetary award.

How many copies of the appeal must be submitted and where does one file an appeal?

The appeal, in five (5) legibly typewritten copies, may be filed with the respective Regional Arbitration Branch, the DOLE Regional Office or the POEA, where the case was heard and decided.

Can an appeal for decisions involving monetary award be perfected without posting a bond?

An appeal by the employer shall be perfected only upon posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Commission or the Supreme Court in an amount equivalent to the monetary award.

What is the period to resolve the appeal?

The appeal from the decision, order or reward of the Labor Arbiter and POEA Administrator shall be resolved by the Commission within 20 calendar days from receipt of the answer of the appellee or upon the filing of the last pleading or memorandum.

In case of an appeal from the decision of the DOLE Regional Director or his duly authorized hearing officer, it shall be resolved within 10 calendar days.

Source: Department of Labor And Employment 

Three separate and distinct benefits of a medically repatriated seafarer.

The Filipino  seafarer is entitled to medical treatment at cost to the employer apart from disability benefits and

sickness allowance.

Away from his family and working on board vessels sailing non-stop for weeks or months the world’s oceans, the Filpino seafarer is physically, 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.

           

The employer  is liable for  three separate and distinct  kinds of liabilities under the  Philippine Overseas Employment Administration Standard Employment Contract (POEA-SEC) for any work-related illness or injury that the seafarer may have suffered during the term of the contract. In other words, employers must: (1) provide   medical treatment to  the seafarer at their cost; (b) pay the seafarer sickness allowance equivalent to his basic wage  and (2) compensate the seafarer for his permanent total or partial disability as finally determined by the company-designated physician.

Section 20-B (2), paragraph 2, of the POEA-SEC entitles the seafarer  medical treatment that is aimed at the speedy recovery of the seafarer and the restoration of his previous healthy working condition. The contract  imposes on the employer the liability to provide, at its cost, for the medical treatment of the repatriated seafarer for the illness or injury that he suffered on board the vessel until the seafarer is declared fit to work or the degree of his disability is finally determined by the company-designated physician. This liability for medical expenses is conditioned upon the seafarer's compliance with his own obligation to report to the company-designated physician within three (3) days from his arrival in the country for diagnosis and treatment.

Since the seafarer is repatriated to the country to undergo treatment, his inability to perform his sea duties would normally result in depriving him of compensation income. To address this contingency, Section 20-B (3), paragraph 1, of the POEA-SEC imposes on the employer the obligation to provide the seafarer with sickness allowance that is equivalent to his basic wage until the seafarer is declared fit to work or the degree of his permanent disability is determined by the company-designated physician. The period for the declaration should be made within the period of 120 days or 240 days, as the case may be.

Once a finding of permanent (total or partial) disability is made either within the 120-day period or the 240-day period, Section 20-B (6) of the POEA-SEC requires the employer to pay the seafarer disability benefits for his permanent total or partial disability caused by the work-related illness or injury. In practical terms, a finding of permanent disability means a permanent reduction of the earning power of a seafarer to perform future sea or on board duties; permanent disability benefits look to the future as a means to alleviate the seafarer's financial condition based on the level of injury or illness he incurred or contracted.

 The Supreme Court emphasized the separate treatment of, and the distinct considerations in, these three kinds of liabilities in the case of Javier v. Philippine Transmarine Carriers, Inc..  (G.R. No. 2014101 July 2, 2014). The evident intent of the POEA-SEC is  to treat these liabilities of the employer separately and distinctly from one another by treating the different items of liability under separate paragraphs. These individual paragraphs, in turn, show the bases of each liability that are unique from the others.

Significantly, too, while Section 20 of the POEA-SEC did not expressly state that the employer's liabilities are cumulative in nature — so as to hold the employer liable for the sickness allowance, medical expenses and disability benefits — it does not also state that the compensation and benefits are alternative or that the grant of one bars the grant of the others.  

It is clear from the above that while a seafarer  is not entitled to total and permanent disability benefits, this does not rule out his right to the other benefits provided for under the POEA-SEC such as reimbursement for medical expenses, sickness allowance and benefit for partial disability caused by a work-related injury.

This formulation is in keeping with the POEA's mandate under Executive Order 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. As a labor contract, the POEA-SEC is imbued with public interest. Accordingly, its provisions must be construed fairly, reasonably and liberally in favor of the seafarer in the pursuit of his employment on board ocean-going vessels. After all, the constitutional policy accords and guarantees full protection to labor, both local and overseas.

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.