Declare seafarers as regular employees, not merely contractual

The  Makabayan Bloc in Congress, through  House Bill 6588,  is pushing for  job security for seafarers  through  regularization of their employment status.

The HB 6588 filed   on March 11, 2020  is one of the many other bills called the Magna Carta of Filipino Seafarers  proposed in the House and in the Senate  which aim to institute mechanisms to protect our country’s seafarers’ rights, provide them compulsory benefits, and enforce standards set by international laws.

The Magna Carta, which in essence simply enshrines MLC 2006 into Philippine law, states that seafarers have the right to safe and secure workplace that complies with safety standards; decent working and living conditions on board a ship; medical care, welfare measures and other forms of health and social protection,  among others.

But only HB 6588   raised  the issue of job security through the regularization  of seafarers  who have worked for at least one year (cumulative) with one company.

This is similar to the Labor Code provision ( Art. 279) on regularization of employees after working for one year.

The provision under HB 6588 that is absent in all other versions of the Magna Carta provides in Section 47. (c) that “ The termination of employment of a seafarer on board a foreign vessel or foreign registered ships shall be governed by the POEA-SEC or applicable CBA, provided that a seafarer who has worked for the same manning agent or for the same shipowner or both, for a cumulative period of one year shall enjoy the security of tenure of a regular employee as per Art 279 of the Labor Code of the Philippines as amended,  and the employer is obligated to rehire and give the right of first refusal to a regular employee who qualifies, and is willing to work, for the next available vacant position of similar or higher rank.  Once a seafarer has acquired the regular status, he can no longer be refused successive employment unless he resigns in writing, has abandoned his employment, or is dismissed for just cause as provided in Art 282 of the Labor Code of the Philippines as amended.”

The bill seeks to address the issue  of  seafarers   not  being entitled to the benefits given to a regular or permanent employee, such as 13th-month pay, reinstatement, separation or termination pay or in some instances, even retirement benefits, since they are considered merely as contractual employees.

This has been the consistent ruling of the Supreme Court since it issued its decision in the 2002 case of Millares v. NLRC (GR 110524 July 29, 2002) that became the landmark jurisprudence defining the nature of employment of Filipino seafarers and the applicable law as they  are considered contractual employees.

Their employment is governed by the contracts they sign every time they are rehired and their employment is terminated when the contract expires. Their employment is contractually fixed for a certain period of time. They fall under the exception of Article 280 whose employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.

The provisions of the POEA contract require the seafarer to arrive at the point of hire as it signifies the completion of the employment contract, and not merely its expiration. Similarly, a seafarer’s employment contract is terminated even before the contract expires as soon as he arrives at the point of hire and signs off for medical reasons, due to shipwreck, voluntary resignation or for other just causes.

Constrained by the nature of their employment, which is quite peculiar and unique in itself, the Supreme Court noted in Ceriola v. NAESS Shipping (GR 193101 April 20, 2015) that it is for the mutual interest of both the seafarer and the employer why the employment status must be contractual only or for a certain period of time. The exigencies of their work necessitates that they be employed on a contractual basis.

The Philippines is considered as the major supplier of maritime labor globally as it is estimated that there is one Filipino seafarer for every four to five complements on board a vessel at any time.

 The estimated 519,031 deployed Filipino seafarers in 2019 per POEA data  remitted  $6.539 billion or around P326.95 billion. The sea-based sector’s remittance comprise at least 22 percent of the total dollar remittances of Overseas Filipino Workers (OFWs).

 

The country  recently celebrated the  25th National Seafarers Day (NSD) last   Sunday, September 27, 2020,  led by the  Apostleship of the Sea (AOS)  with the theme “Seafarers are keyworkers. You are not alone. You are not forgotten”.

 

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