Damages due to unauthorized substitution of employment contract

 

Licensed recruitment agencies  will be liable for damages due to the unauthorized substitution of  the government-approved employment contracts.

The Supreme Court stressed this principle  in the case of recent case of  Marcelo M. Corpuz vs. Gerwil Crewing Philippines, Inc. (G.R. No. 205725 January 18, 2021) in awarding the damages due to the agency’s   carelessness and wanton disregard of its continuing liability to ensure the welfare of the Filipino workers they deployed abroad.

Corpuz was hired and deployed  as an Able Seaman   by Gerwil Crewing Philippines to work for vessel MT Azarakhsh of Echo Cargo & Shipping LLC. for a 12-month contract as approved by the Philippine Overseas Employment Administration (POEA).

Unfortunately, he was repatriated due to severe headache and vomiting after he allegedly sustained a fall while lifting heavy motor parts. 

The seafarer’s request for medical assistance was denied on the ground that the illness was not work-related.  He then consulted a private doctor who issued a certification that he was suffering from “Severe Complex Cerebral Function Disturbance or Post Traumatic Psychoneurosis.” He  later filed a case for disability benefits.

The Labor Arbiter ruled in favor of the seafarer that his injury was related to his exposure to toxic and hazardous materials.

The National Labor Relations Commission (NLRC), however, reversed the  due to his failure to comply with the mandatory three-day reporting requirement. This was affirmed both by the Court of Appeals and the Supreme Court. 

While the seafarer may have forfeited his right to claim disability benefits, the Supreme Court found   it proper to award him with moral damages (Pl00,000.00), exemplary damages (P100,000.00), due to the agency’s wanton behavior and by way of example for the public good; and attorney's fees equal to ten percent (10%) of the total monetary award.

The award for damages   was based on the Court’s observation that the salient terms of the employment contract were altered or changed without the approval of the Department of Labor and Employment (DOLE) through   the POEA.

The Sea Service Certificate indicated that the seafarer worked with Al Mansoori Production Services Co. (LLC) as an Oiler on board M V Alshaheen MPS (DPS2), a production well testing and supply vessel, from August 6, 2008 to August 10, 2009.

But the entries in the certificate were completely different from those in the POEA-approved employment contract executed on May 28, 2008.

The agency's omission resulted in the change of the seafarer's foreign employer on board a different vessel, and service in a totally different capacity which working conditions may have led to his medical repatriation.

The Court stressed that the substitution or alteration of the POEA-approved contract had relegated the seafarer to the unfavorable situation which R.A. No. 8042,  or the  "Migrant Workers and Overseas Filipinos Act of 1995” as amended, specifically seeks to avoid.

The agency  entered into a covenant with the State to promote the safety and welfare of Filipino workers. They have undertaken to ensure that the "contracts of employment are in accordance with the standard employment contract and other applicable laws, regulations and collective bargaining agreements."

The agency's inaction or omission was against existing law and public policy as it perpetrated the illegal and pernicious practice of substituting the POEA-approved contract to the detriment of the Filipino worker.

The agency  had been complacent with the fact that it was able to deploy the seafarer  abroad without ensuring his status and his whereabouts despite the non-accreditation of the foreign principal Echo Cargo.

The law did not limit the responsibility of  agencies to the recruitment and deployment of Filipino workers to foreign countries. They are obliged to extend assistance to migrant workers, especially those who are in distress, a responsibility that exists during the lifetime of the employment contract and shall continue despite substitution, amendment or modification of the agreement.

The law also provides for the solidary and continuing liability of recruitment agencies against monetary claims of migrant workers.

The Supreme Court ruled in the earlier case of Chavez v. Bonto-Perez (312 Phil. 88)
that a subsequently executed side agreement which reduced one’s salary below the amount approved by the POEA is void because it is against existing laws, morals and public policy.

The  side agreement cannot supersede the POEA-approved  standard employment contract, the Court said  adding that is a scheme all too frequently resorted to by unscrupulous employers against helpless OFWs who are compelled to agree to satisfy their basic economic needs.

.

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

 

Saving the seas from plastic pollution

The video of a marine biologist removing a plastic straw stuck in a sea turtle’s nose in August 2015 catalyzed a larger movement  to eliminate single use plastics, like plastic straws,  from our day-to-day lives.

                                                                                                                    

Marine litter, specifically plastic pollution, was discussed as part of Earth Day celebration during the recent episodes of Amigos Marino weekly  online show by Von Hernandez of Break Free From Plastic movement and Chief Mate Aries Damian of Mariners Polytechnic Colleges of Bicol.

 

Marine litter is any persistent, manufactured or processed solid material discarded  directly or indirectly into the sea,  rivers or on beaches.

 

Marine litter poses threats to human health, food security, economy and environment including degradation of marine and coastal habitats, ecosystems and biodiversity.

 

A major source of pollution are single-use disposable plastics which come in various forms such as straws, sachet packs, bags, cutleries, cups, and plastic bottles which are meant to be used only once, before being thrown away.

 If there are no drastic interventions, by 2050 there will be more plastics than fish in the ocean.

 Plastic bags take 10-20 years to decompose, while plastic bottles take 450 years.

These items tend to shrink into smaller pieces (called microplastics), which never achieve full decomposition and return to the food cycle through ingestion by fish and other animals as “false food”, causing digestive failure, suffocation, starvation, drowning and eventually death. Some animals become   fatalities due to entanglement.

The Philippines, which disposes 2.7 million tons of plastics per year, is considered the third largest global contributor to the 8 million tons of plastics that are estimated to flood our oceans each year.

More than 163 million plastic sachet packets, as well as 48 million shopping bags and 45 million thin-film bags are used and disposed of daily in the country.

 

The more visible manifestations of problem due single-use plastics  include the clogging up of waterways, drainage systems, and therefore contributing to floods.

 

Hernandez echoed the call of environmental groups for the passage of a comprehensive Single-Use Plastic Ban as an essential policy tool to stop plastic pollution by shifting corporate dependence on throwaway packaging models to more sustainable reuse and refill systems.

 

They seek to apply pressure throughout each step along the plastic supply chain, from production to disposal.

 

Single-use plastic is not a clean-up problem but a pollution problem, Hernandez stressed, adding that the only way to prevent it is to stop its production and avoid using them in the first place.

 

This means looking at plastic at the different stages of the life-cycle, and not just treating it as a waste management or consumer responsibility issue, which is what the plastic industry wants.

 

Looking at it that way, Hernandez added, takes the industry off the hook and allows it to continue producing even more plastics.

 

On the other hand, CM Damian noted that the Annex V regulations of the International Convention for the Prevention of Pollution from Ships (MARPOL), as first drafted in 1973 and amended in 1978, address marine pollution including handling of garbage from ships.

 

MARPOL seeks to ensure that the marine environment is preserved by the elimination of pollution by all harmful substance which can be discharged from the ship.

Annex V, which came into force on 31 December 1988, expressly prohibits all ships from discharging garbage, which includes all kinds of food, domestic and operational waste, all plastics, cargo residues, incinerator ashes, cooking oil, fishing gear, and animal carcasses generated during the normal operation of the ship and liable to be disposed of continuously or periodically.

The most important feature of the Annex is the complete ban imposed on the disposal into the sea of all forms of plastics, including but not limited to synthetic ropes, synthetic fishing nets, plastic garbage bags and incinerator ashes from plastic products which may contain toxic or heavy metal residues. 

It specifies the distances from land in which materials may be disposed of and subdivides different types of garbage and marine debris.

The requirements are much stricter in a number of "special areas".

There must be a garbage management plan which is a complete guideline that  comprises of a written procedure for collecting, storing, processing, and disposing of garbage generated onboard ship.

Vessels are obliged to deposit plastic waste at reception facilities ashore as port state signatories are required to provide adequate and appropriate reception facilities.

 

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

 

A seafarer’s legal battle for disability benefits for knee, leg or foot injuries

Seafarers work in a hostile environment and no matter how many precautionary measures  are taken, accidents are bound to happen resulting to injuries ranging from minor to the most gruesome types; some even leading to fatalities.

A knee, leg or foot injury can affect a seafarer’s life physically, financially and emotionally.

These types of injuries are very painful as a seafarer may not be able to walk without assistance   for many months while undergoing extensive physical therapy to help him recover to his pre-injury state.

Losing the use of one’s lower extremities can mean losing any ability to financially support oneself and his family since the injury can also prevent a seafarer from returning to work.

Seafarers can be  injured while performing  of daily  work functions in a moving ship, due to   slipping and falling down on deck, ladders, gangways and stairs, tripping over a hose or rope, getting caught in machines and  equipment malfunctions.

A seafarer must present evidence or report that he suffered the injury while working on board the vessel during the term of his contract. This is to give the company the basis for evaluating whether the personal injury in question can be recognized as an occupational injury or disease.

The Philippine Law Dictionary defines “accident” as that which happens by chance or fortuitously, without intention and design, and which is unexpected, unusual and unforeseen.

Under the POEA–contract, the employer is liable for a seafarer’s disability, resulting from a work–connected injury or illness, only after the degree of disability has been established by the company–designated physician within the 120/240 day period.

The seafarer may be declared  fit to work or disabled either partially (Grade 2 to 14) or total permanent (Grade 1).

There are only  three situations where the company doctor will issue a Grade 1 assessment  under the  POEA contract:  (a) paralysis of both lower extremities (b) loss of both feet at ankle joint or above  and (c) failure of fracture of both hips to unite.

The lowest assessment, or Grade 14, will be given to loss of a toe other than the big one and scar the size of a palm or larger left on an extremity.

One contentious issue in disability cases is the grading system assessment under the POEA contract which is not really 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). 

The list includes  paralysis of one lower extremity (Grade 3); loss of ten (10) digits of both feet (Grade 5);  loss of one foot at ankle joint or above (Grade 6); total loss of a leg or amputation at or above the knee (Grade 3); failure of fracture of a hip to unite ( Grade 3); complete immobility of a knee joint in full extension (Grade 10) or  in strong flexion ( Grade 7); complete immobility of a hip joint in flexion of the thigh (Grade 5 ) or  in full extension of the thigh (Grade 9).

Employers will never hire a seafarer who have suffered from these medical conditions due to mobility issues.

Fit-To Work certifications are  even given to seafarers who are still not cured or in essence can no longer be employed.

The  findings cannot be taken as “gospel truth” due to the proliferation of obviously biased company doctors. (Wallem vs. NLRC 318 SCRA 623)

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.

Disability is intimately related to one’s earning capacity. The test to determine its gravity is the impairment or loss of one’s capacity to earn and not its mere medical significance. In disability compensation, it is not the injury per se which is compensated but the incapacity to work. (Seagull Maritime Corp., vs. Jaycee Dee, 520 SCRA 109).

The Supreme Court consistently ruled that "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 Corp., 659 SCRA 642)  

 

In the case of Alpha Ship Mgt. vs. Calo (G.R. No. 192034 January 13, 2014), the Supreme Court notes that while the seafarer was given an Impediment Grade 10 by his physician, he was nevertheless deemed unfit to work as seafarer in any capacity and not expected to land gainful employment given his medical background.

 

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

VAWC hanging over seafarers' heads like the “Sword of Damocles”

The Anti-Violence Against Women and  their Children Act (VAWC) , or R.A.  No.9262,  in some instances,  can be considered  a ‘Sword of Damocles” hanging over a seafarer’s  head, specially in support issues.

 The “Sword of Damocles" is an allusion to the imminent and ever-present peril faced by those in positions of power who always labor under the specter of anxiety and death, and that “there can be no happiness for one who is under constant apprehensions.”

 Enacted in 2004, R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against women and their children  perpetrated by women's intimate partners, i.e., husband, former husband, or any person who has or had a sexual or dating relationship, or with whom the woman has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in, among others, economic abuse.

The said law defined “economic abuse” as any act that makes or attempts to make a woman financially dependent which includes the  following: (1) withdrawal of financial support or preventing the victim from engaging in any legitimate profession, occupation, business or activity, except in cases wherein the other spouse/partner objects on valid, serious and moral grounds; and (2) deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the conjugal, community or property owned in common.

Economic abuse is a deliberate pattern of control in which individuals interfere with their partner’s ability to acquire, use, and maintain economic resources. It may decimate a victim’s financial well-being and result in psychological and physical ailments as a result of ensuing stress and poverty.

 Some Filipino seafarers are confronted with warrants of arrest or hold departure orders (HDOs) due to criminal complaints filed under R.A.9262 where they are accused of abandoning their   financial obligation to persons to which they are   obliged by law to support.

 The Filipino seafarer is required to make a monthly allotment of at least eighty percent (80%) of his  monthly basic salary which shall be payable to his designated allottee, or the  person named as the recipient of his remittances to the Philippines.

 A common problem in connection with remittance is the issue on who will be the seafarer’s allottee.  

The mandatory remittance required by law does not divest the right of a seafarer over his hard-earned money or earnings.

Like any personal property, the seafarer can freely dispose or give to anybody without limitations other than those provided by law. His right to dispose his wage remains in his discretion, including the manner or as to how he will divide nor dispose it.

 Under R.A.9262, the deprivation or denial of financial support to the woman or the child is considered a crime which may include the deprivation of support of a common child of the man-accused and the woman-victim, whether such common child is legitimate or not.

Married couples are legally obliged to support members of the family, including the spouse and not just the kids.   However, the offending spouse as well as one who is guilty of abandonment (leaves the conjugal home without justifiable reasons) is not  eligible for support.

The law puts pressure on a father to provide for his child by threatening him with criminal action if he does not provide support. The act of denying support to a child is considered a continuing offense (Del Socorro v. Van Wilsem, 749 Phil. 823, 839, 2014).

Child support is for “indispensable” needs of the child, which include food, shelter, clothes, medical care, education and transportation. In the Philippines, child support continues until the child turns 18.

Generally, the rate of child support is dependent on the child’s needs and the parent’s means.

Parents-in-laws may  also be held liable for  violation of  the law under the principle of conspiracy under the Revised Penal Code.

 The Supreme Court held in the case of Go-Tan v. Spouses Tan  (567 SCRA 231) that the parents-in-law are  proper respondents in a  case filed by the victim  upon the allegation that they and their son (victim’s husband) had community of design and purpose in tormenting her by giving her insufficient financial support; harassing and pressuring her to be ejected from the family home; and in repeatedly abusing her verbally, emotionally, mentally and physically.

 

If convicted under R.A.9262, the accused shall be punished by prision mayor, or imprisonment of a minimum of  six years  and one day to a maximum of twelve years. He shall also shall pay a fine in the amount of not less than One hundred thousand pesos (P100,000.00) but not more than three hundred thousand pesos (300,000.00).

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

A Filipina's tale of Mt.Everest, the seven summits and the Balangay

 

Take the risk : “the danger of an adventure is worth a thousand days of ease and comfort” says writer  Paulo Coelho.

Philippine Coast Guard’s Carina Dayondon agrees in relation to  her journey  as  the first Filipina to finish the task of climbing the Seven Summits, or the seven highest mountains in seven continents, including Mount Everest.

Carina  narrated during her recent guesting in our  online show Amigos Marino  her   fourteen-year endeavor to summit the world’s tallest mountains  that started in 2004 when she was invited to join the  Everest Team.

 Her amazing report card   for the  seven summits started with Mt. Denali (6190 meters) in North America in 2006,  followed by  Mt. Everest (8850m) in Asia in 2007, Mt. Elbrus (5642 meters) in Europe in 2013,  Mt. Kosciuszko (2,228 meters) in Australia in 2014,  Mt Kilimanjaro (5895 meters) in Africa in 2015,  Mt. Aconcagua (6962 meters) in South America in 2018 and finally Mt. Vinson Massif (4892 meters) in Antarctica in 2018.

Along with two other Filipinas, Carina’s team  were the first Southeast Asian women team  to climb Everest and  first  to scale Everest in traverse. Instead of the usual route, they ascended via Tibet and went down through Nepal.

Being an outdoor person  myself,  I can relate to  her experiences in mountaineering  that entails a  lot of mental, physical and financial preparations, though I only scaled local mountains like Pulag, Guiting-guiting, and Banahaw, and portion of Mount Fuji, among others.  

Each mountain has its own set of challenges.

Alpine mountains, in particular, were unfamiliar to the typical Filipino body temperature with hazards including inclement weather conditions like  extreme cold, dangerous terrain, hidden crevices, extreme heights,  altitude sickness while enduring  thin air,  daily avalanches,   loss of appetite, mental disturbances and  disorientation.

Sports and outdoor activities, including climbing, were already a part of Carina’s  life as  she grew up in the sleepy mountainous town  of Don Carlos in Bukidnon, the fourth eldest of fourteen children.

She  has one principle: treat nature with reverence and do not be overconfident by recognizing the limitations.

If one’s  body or the weather will not permit it, then better  back out of a summit attempt.

“It’s not just mountains. It’s even the sea. You submit to it. If the mountain  will not allow you up, then you wait. There’s always another time to go up,” Carina said in an interview.

What’ is more important, Carina added,   is they  showed to the Filipinas, the young ones, there’s nothing impossible if one is  determined, focused, and if she  believes in her dreams.

The sea is also part of Carina’s life as one of the focal  person behind Diwata ng Lahi (spirit of lineage),  the very first balangay boat replica.

 The Balangay is a18-meter by 3-meter wide wooden  boat built by joining planks edge-to-edge using pins, dowels, and fiber lashings.

 It was first mentioned  as balangai or balanghai in the 16th century chronicles of Italian scholar Antonio Pigafetta who joined the expedition to the Spice Islands led by explorer Ferdinand Magellan.

 Known as the oldest watercraft found in the Philippines, it is  evidence of early Filipino craftsmanship and their seamanship skills during pre-colonial times.

 The Balangays navigated without the use of modern instruments, and only through the skills and traditional methods of celestial navigation of the ancient Filipino mariners – steering by the sun, the stars, the wind, cloud formations, wave patterns and bird migrations.

Diwata was later joined by two more Balangay boats namely Masawa Hong Butuan (bright light of Butuan) and Sama Tawi Tawi ( original inhabitants of Tawi-Tawi).

The Balangay boats initially journeyed from Manila Bay to the southern tip of Sulu, stopping off at numerous Philippine cities along the way that covered a distance of 2,108 nautical miles or 3,908 kilometers.

 On their second major voyage, the Balangay boats sailed to trace Filipino  ancestors’ trade and migration routes, throughout Southeast Asia in 2010.

 It then sailed to Micronesia and Madagascar the following year then across the Pacific to the Atlantic and all the way around the world, returning to the Philippines in 2012 to 2013.

Similar to scaling the seven summits, the Balangay team encountered challenges like  big waves and inclement weather,  specifically 12 low-pressure areas,  in navigating an ancient boat to take them  to the different  ports.

The journey of the Balangay boats has proven the Filipino seafaring prowess.

The  23^rd  National Seafarers Day in 2018 , with the theme “Marinong Filipino: Kayamanan ng Lahi!”,  placed emphasis on the voyages of the Balangays that epitomize the strong-willed Filipino mariners.

 

Carina’s journey is proof that embracing  earth’s wonders is  in the Filipinos’ DNA – we are naturally attuned to the mountains and waters.

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

“Personal comfort” doctrine and compensability of injuries during recreational activities

A seafarer’s injury during any recreational activity such as a videoke session is compensable under the “personal comfort” doctrine.

The Supreme Court utilized this legal paradigm in the recent case of John Oscares vs. Magsaysay Maritime Corp (G.R. No. 245858 December 2, 2020)  in awarding disability benefits to the injured seafarer.

While the vessel was anchored in Panama, the seafarer  was singing in front of a  videoke  machine together with another crew member when he slipped and fell out of balance.

As a result, he suffered major knee injuries.   

Upon his repatriation to the Philippines, the seafarer underwent surgery followed by physical rehabilitation wherein he shouldered the cost.

When he claimed for disability benefits, the company denied liability arguing that his knee injuries  are not compensable since the incident  is  not work related. He was not hired to sing on board so it cannot be said that his injury was incidental to his employment. His act of singing while jumping has no relation  to his duties as Second Assistant Engineer. It was  a purely personal  and  social  function.

In order for a seafarer's injury to be compensated, it must be shown that: (1) the injury or illness must be work-related; and (2) the work-related injury or illness must have existed during the term of the seafarer's employment contract.

A work-related injury is defined as  one arising out of and in the course of employment.

 

In the case of Luzon Stevedoring Corporation vs. WCC ( 193 Phil. 91),   the Supreme Court held that "acts reasonably necessary to health and comfort of an employee while at work, such as satisfaction of his thirst, hunger, or other physical demands, or protecting himself from excessive cold, are incidental to the employment and injuries sustained in the performance of such acts are compensable as arising out of and in the course of employment.”

The Supreme Court awarded disability benefits to the seafarer  using the “personal comfort” doctrine where  acts of personal ministration for the comfort or convenience of the employee  or  necessary to his physical well-being is an incident of employment.

The company argued that the personal comfort doctrine is not applicable  since it only covers acts which are related to one's personal comfort for a brief momentary period, such as using the restroom. The seafarer's act of singing while jumping is not included, is a purely personal and social function, and is not incidental to his work.

However, the Supreme Court pointed out that  the seafarer’s act of singing can be considered necessary to his health and comfort while on board the vessel. He incurred his injury while he was performing  this  act.

Music  plays a special role on Filipino seafarers’ life, whether at sea or on land. It is an understatement to say that karaoke is a central part of  pop culture of Filipinos, including seafarers whether on board or in between contracts.

The seafarer  neither willfully  injured himself nor acted with notorious negligence. Notorious negligence is defined as something more than  mere  or  simple  negligence  or  contributory  negligence;  it  signifies  a deliberate act of the employee to disregard his own personal safety.

Jumping while  singing  cannot  be  considered  as  a reckless  or  deliberate  act  that  is unmindful   of  one's  safety.

There  is  nothing   inherently  dangerous  about jumping  while  singing. The company did not  allege that the seafarer intentionally injured himself or was negligent. He simply lost his balance.

Accordingly,  the seafarer's injury is compensable.

While inside the vessel for several months, a seafarer is exposed to extreme weather conditions and rough seas  as well as physical and psychological stress due to his job, lack of sleep, heat stress, emergency works and homesickness for being away from his family.

These can have potentially disastrous consequences   in terms of reduced performance as well as poor physical and mental health.

Recreation is an important consideration for the Maritime Labour Convention 2006 (MLC2006).

Each member  state shall ensure that ships that fly its flag provide and maintain decent recreational facilities,  amenities and services, as adapted to meet the special needs of seafarers who must live and work on ships, consistent with promoting the seafarers’ health and well-being.

 Recreational facilities and services should be reviewed frequently to ensure that they are appropriate in the light of changes in the needs of seafarers resulting from technical, operational and other developments in the shipping industry.

 Some of the  facilities that  should be included  at no cost to the seafarer, where practicable are (a)  sports equipment including exercise equipment, table games and deck games;(b) electronic equipment such as a radio, television, personal computer and cassette recorder/player; and (c) bars on board for seafarers.

 

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