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.

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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)