Benefits for seafarers sailing into war-like and-high risk areas

Guidelines on computation of applicable benefits for seafarers sailing into war-like and-high risk areas (GB Resolution No. 5, Series of 2016 ) issued by the
Governing Board of the Philippine Overseas Employment Administration (POEA):    issues


, adopting the definition of “basic wage” based on guidelines, which “basic wage” shall be used in the computation of applicable benefits for seafarers whose vessels are transiting through areas with war-like and high-risk designations.


As defined under  International Labour Organization (ILO) Maritime Labor Convention, 2006 (MLC 2006), basic pay or wages means the pay, however composed, for normal hours of work. It does not, however, include payments for overtime work, bonuses, allowances, paid leaves, or any additional remuneration,

. In the resolution, the Governing Board, also adopted the updated list of War-like and High-Risk Designations and applicable benefits issued by the social partners of the International Bargaining Forum (IBF) on 15 December 2015

 The IBF list is as follows:

1. Designation 1-IBF War-like Operations Area: 12 nautical miles off Somali North Coast. This War-like Operations Area includes the territorial waters of Somalia extending up to the 12 nautical miles limit from due north of the north-western border of Somalia with Djibouti to due north of Cape Gardafui.

1.a. Designation 1a-IBF War-like Operation Area: All Ports of Yemen This area includes all ports within the country of Yemen and applies to all vessels from the time they are berthed ‘all fast’ along side. As a vessel departs at berth within Yemen and the last line is let go for departure on passage, the status of being within a war-like operations area shall end.

Seafarers sailing in these areas are entitled to the following: a. Bonus equal to basic wage, payable for 5 days minimum + per day if longer; b. Doubled compensations for death and disability; and c. Right to refuse sailing, with repatriation at company’s cost and compensation equal to 2 months basic wage.

2. Designation 2-IBF High-Risk Area: Gulf of Aden + 400 nautical miles off Somali East Coast. The Western Border of this High-Risk Area runs from the coastline at the border of Djibouti and Somalia to position 11 48 N, 45 E; from 12 00 N, 45 E to Mayyun Island in the Bab El Mandeh Straits. The Eastern Border runs from Rhy di-Irisal on Suqutra Island to position 14 18 N, 53 E; from 14 30 N, 53E to the coastline at the border between Yemen and Oman, together with a 400 mile zone off the eastern coast of Somalia, i.e. from Suqutra Island down to the Kenian border in the South.

 Seafarers sailing in these areas are entitled to the following: a. Bonus equal to basic pay, payable for the actual duration of stay/transit; b. Doubled compensation for death and disability; c. Right to refuse sailing, with repatriation at company’s cost; and d. Increase Best Management Practice (BMP) level

3. Designation 3-IBF Extended Risk Zone: West Indian Ocean and the Red Sea, with the addition of the Internationally Recognized Transit Corridor (IRTC) excluding Yemeni ports. The coordinates of this area comprised of and stretch further than the IBF High Risk Area as outlined in item number 2 (above).
Seafarers sailing in these areas are entitled to the following: a. Bonus equal to basic wage, payable only on the day the vessel is attacked; b. Double compensation for death and disability if occurred on the day the vessel is attacked; and c. Increase Best Management Practice (BMP) level NOTE: In Areas in item numbers 2 and 3, bonuses and compensation are not payable when the vessel is anchored or berthed in secure ports, except in Somalia.


 4. Designation 4-IBF High Risk Area: Gulf of Guinea-territorial waters (12 nautical miles) ports and inland waterways of Nigeria and Benin, including ports, terminals and roads, anchorage, the delta of the Niger River, other inland waterways and port facilities, except only when the vessel is attached securely to a berth or SBM facility in a guarded port area.

Seafarers sailing in these areas are entitled to the following: a. Bonus equal to basic wage, payable for the actual duration/transit; b. Doubled compensations for death and disability; c. Right to refuse sailing, with repatriation at company’s cost (by submitting respective notice); and d. Increased security requirements

Baldoz said the updated IBF list shall apply to all Filipino seafarers effective 16 December 2015. However, she clarified that the payment of war-like operations area and of high-risk operations area bonuses and additional compensation not covered by the list is not affected by the Resolution.

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;

 

 

Sleeping on post while on duty as ground for dismissal

Seafaring is a job with  an inherently stressful environment.  As the technical and specialized nature of the maritime  industry requires constant alertness and intense concentration from its workers,  sleeping on post while on duty can be detrimental, which  may even lead to a maritime disaster.

The Supreme Court ruled that sleeping on the job as a valid ground for dismissal for jobs whose duty necessitates that they be awake and watchful at all times inasmuch as their functions  is "to protect the company from pilferage or loss ( Luzon Stevedoring Corp. v. Court of Industrial Relations (15 SCRA 660, 674(1965) Sleeping on the job  reflect a regrettable lack of concern for the employer. (Tomada vs. RFM Corp. G.R. No. 163270, September 11, 2009)  or an evidence of lack of cooperation and  lack of interest in the job. (Electroluck Asia vs. Meris et al G.R. No. 147031. July 27, 2004)

Sleeping on post while on duty  is one of  the twenty one (21) offenses which are considered valid grounds for dismissal under the Philippine Overseas Employment Administration- Standard Employment Contract (POEA-SEC)

When a seafarer commits such act, 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 frequency of the violation(s).

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. In case of an  illegal dismissal,  a seafarer is  entitled to receive from his employers His salaries for the unexpired portion of his employment contract not merely  his salaries for three (3) months for every year of the unexpired term.

The effects of fatigue are particularly dangerous in the shipping industry as the technical and specialized nature of this industry requires constant alertness and intense concentration from its workers (International Maritime Organization, 2001). The human element, in particular fatigue, is widely perceived as a contributing factor in marine casualties

When working at sea, sleep disruption is inevitable due to the 24-hour nature of the job. Seafarers usually complain about the fact that they lack proper sleep which makes them feel tired, more stressful and unable to concentrate. Not getting enough sleep leads to (a) feeling sleepier (b) difficulty staying alert (c) getting irritable (d) slower reaction (e) poorer co-ordination (f) slower thinking (g) getting fixated on part of a problem and losing the big picture (h) less creative problem-solving (i) lower standard of performance becoming acceptable and (j) performance becoming increasingly inconsistent.

To address this issue of proper rest hours, the   Maritime Labor Convention 2006 (MLC2006)   of the International Labor Organization (ILO) states that, number of ship working hours should be:

·      Eight hours a day, under normal circumstances, with one day as rest day

·      A maximum of 14 hours in any 24 hour period

·      A maximum of 72 hours in any seven day period

·      Provided with a minimum of 10 hours of rest in any 24 hours period

 The minimum hours of rest, as per the ILO maritime convention should be:

·      A minimum of ten hours in any 24 hour period

·      A minimum of 77 hours in any seven day period

The hours of rest can be divided in a maximum of two periods, one of which should be at least six hours in length. Two such consecutive periods should not be separated by more than 14 hours. A seafarer must be granted a compensatory rest period in case he/she is required to be on call during rest hours.

Operations like lifeboat drills, fire fighting drills, and drills prescribed by national laws and regulations should be conducted in a manner to ensure minimum disruption of rest period. However, an exception can be made to all the above mentioned clauses in case the master of the ship deems it necessary to require services of a seafarer in lieu of maintain safety of ship, especially on emergency basis.

Voluntary Repatriation

The  employment of Filipino seafarers  is governed by the Standard Employment Contract (SEC) they sign  and  duly approved by the Philippine Overseas Employment Administration (POEA) every time they are rehired and their employment is terminated upon its completion. 

As a general rule, the employment of the seafarer shall cease when the seafarer completes his period of contractual service aboard the ship, signs-off from the ship and arrives at the point of hire. 

Similarly, a seafarer’s employment contract is terminated even before the contract expires as soon as he arrives at the point of hire, one of the reasons included voluntary repatriation.

A seafarer who requests for early termination of his contract shall be liable for his repatriation cost as well as the transportation cost of his replacement. The employer may, in case of compassionate grounds, assume the transportation cost of the seafarer’s replacement.

Resignation is defined as the voluntary act of an employee who finds himself in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service and he has no other choice but to disassociate himself from his employment. (Valdez v. NLRC, 286 SCRA 87, 94.)

In cases of  illegal dismissal, companies  usually raise as an issue the request for voluntary repatriation.

The Supreme Court ruled in a case  that it is highly illogical for an employee to voluntarily request for repatriation and then file a suit for illegal dismissal. As voluntary repatriation is synonymous to resignation, it is proper to conclude that repatriation is inconsistent with the filing of a complaint for illegal dismissal. (Oriental Shipmgt Co., Inc. v. Court of Appeals, 480 SCRA 100, 110 )

The Court likewise noted that the seafarers did  voluntarily pre-terminated their contracts akin to resignation and no illegal dismissal.  It said that the telex message is a biased and self-serving document that does not satisfy the requirement of substantial evidence. In the absence of a written resignation, it is safe to presume that the employer terminated the seafarers.  As  the dismissal was illegal, their repatriation expenses were for the account of company  and could not be offset with the home allotment pay. (SKIPPERS  United Inc. vs. Nathaniel Doza et al G.R. No. 175558, February 8, 2012)

The entries in the seaman's book   cannot, by any stretch of the imagination, be considered as substantial evidence to prove voluntary repatriation and lawful dismissal. The Supreme Court  cannot rule otherwise for to do so may prove dangerous as all employers of seafarers will now be complacent in perpetrating indiscriminate acts of termination with the seaman's book as their shield against culpability  (Barros vs. TransOriient Maritime Services,  G.R. No. 123901 September 22, 1999)

The same defense is likewise normally  raised in cases of  claims for disability or death compensation.

A company’s  delay in heeding the a seafarer’s requests for his replacement and immediate repatriation cannot be denied. Its concern for convenience hardly overrides the seafarer’s urgent need for medical attention. Given these circumstances, it was not abandonment when the seafarer signed-off and disembarked for medical reasons without waiting for a reliever. (OSM Shipping Inc., , vs. Antonia dela Cruz G.R. No. 159146. January 28, 2005)

Seafarer was not repatriated for health reasons as he executed a resignation letter.  His allegation that he was forced to execute such letter deserved no merit as “bare allegations of threat or force do not constitute substantial evidence to support a forced resignation”.  Also, seafarer’s record showed that he had also resigned due to domestic reasons during his last contract.  The seafarer is thus charged with awareness of the consequences of pre-termination, this being his second time to so request (Virjen Shipping Corporation, vs. Jesus B. Barraquio; G.R. No. 178127; April 16, 2009)

Pre -Employment Medical Examination (PEME) and pre-existing illnesses

According to the International Labor Organization (ILO),  the aim of the  Pre -Employment Medical Examination (PEME)  is to ensure that the seafarer being examined is medically fit to perform his or her routine and emergency duties at sea and is not suffering from any medical condition likely to be aggravated by service at sea, to render him or her unfit for service or to endanger the health of other persons on board. The medical certificate is neither a certificate of general health nor a certification of the absence of illness. It is a confirmation that the seafarer is expected to be able to meet the minimum requirements for performing the routine and emergency duties specific to their post at sea safely and effectively during the period of validity of the medical certificate. 

The Philippine Overseas Employment Administration (POEA) contract states that a seafarer who knowingly conceals a pre-existing illness or condition in the PEME shall be liable for misrepresentation and shall be disqualified from any compensation and benefits. This is likewise a just cause for termination of employment and imposition of appropriate administrative sanctions..

At the bottom portion of the PEME, one can find the following sentence " I hereby certify that the personal declaration above is true to the best of my knowledge and I fully understand the above results of my medical examination as explained to me by the examining/authorized physician." 

The Supreme Court pointed out that the PEME is not exploratory and does not allow the employer to discover any and all pre-existing medical condition with which the seafarer is suffering and for which he may bepresently taking medication. The PEME is nothing more than a summary examination of the seafarer’s physiological condition (DOHLE-PHILMAN Manning Agency, Inc. v. Cabanban, 702 SCRA 467). it merely determines whether one is "fit to work" at sea or "fit for sea service" and it does not state the real state of health of an applicant. The "fit to work" declaration in the PEME cannot be a conclusive proof to show that he was free from any ailment prior to his deployment.(Magsaysay Maritime Corporation v. NLRC, 616 SCRA 362, 378-379.

Nevertheless, the Supreme Court noted that neither is it necessary, in order to recover compensation, that the seafarer  must have been in perfect condition or health at the time he contracted the disease. Every workingman brings with him to his employment certain infirmities and while the employer is not the insurer of health of the seafarers, he takes them as he finds them and assumes the risk of liability. If the disease is the proximate cause of the seafarer’s death for which compensation is sought, the previous physical condition of the seafarer  is unimportant and recovery may be had therefore independent of any pre-existing disease But even assuming that the ailment was contracted prior to his employment on board the vessel  this is not a drawback to the compensability of the disease. It is not required that the employment be the sole factor in the growth, development or acceleration of the illness to entitle the claimant to the benefits provided therefor. It is enough that the employment had contributed, even in a small degree, to the development of the disease and in bringing about his death(Wallem Maritime Services Inc vs. NLRC, 318 SCRA 623) 

Even so, a seafarer's illnesses  could have been easily detected by standard/routine tests included in the PEME, i.e., blood pressure test, electrocardiogram, chest x-ray, and/or blood chemistry. (C.F. SHARP CREW MANAGEMENT, INC vs. HEIRS OF THE LATE GODOFREDO REPISO, G.R. No. 190534, February 10, 2016)

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 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 

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;