Extension of the seafarer's contract

Seafarers are considered contractual employees. Their employment 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 when the contract expires.

Their employment is contractually fixed for a certain period of time. For the seafarers mental and physical health, they need a break after “long periods away from home, limited communication and consistently high work loads.”

As a general rule, the period of employment shall be for a period mutually agreed upon by the seafarer and the employer but not to exceed 12 months. The Maritime Labor Convention 0f 2006 (MLC2006)  prescribes that the seafarer has the right to be repatriated within a contract period of less than 12 months.

The commencement of the contract is from the time when the contracted seafarer actually departs from Philippine, either airport or seaport, for employment. It 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. 

The POEA contract requires 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.

 There are instances that the employment is not terminated as set in  the contract but becomes a subject of extension.

Usually extension of contract period are not encouraged due to factors such as fatigue, complacency and other health reasons and same may not be accepted if relief is already lined up.  Extension request must always be  documented duly signed.

Any extension of the contract can be voluntary or compulsory

1. Voluntary if the extension is with the  mutual consent of both parties. 

2.  Compulsory   until the ship’s arrival at a convenient port and/ or    after arrival of the replacement crew provided that, in any case, the continuance of such service shall not exceed three months.

In the absence of a new document or POEA contract, as long as the seafarer has not yet arrived at the point of hire,  it is legally presumed that the original contract is still subsisting. If a seafarer keeps working for the same employer for a period longer than the agreed period,  any subsequent working period that exceeds this period of time is to be considered  extension of the  contract.

The seafarer is entitled to be paid his wages and other benefits  after the expiration of his contract and during the extended period until the vessel's arrival at a convenient port.  The obligations and liabilities of the local agency and its foreign principal do not end upon the expiration of the contracted period as they were duty bound to repatriate the seaman to the point of hire to effectively terminate the contract of employment. (Interorient Maritime Enterprises, Inc. v. NLRC,330 Phil. 493)

If he suffers from an illness or accident or he dies during the extended period, the same benefits from his original contract will be applicable.

However, there was no implied renewal of contract if the seafarer was allowed to stay after the termination of his contract. The extension was due to the fact that the ship was still at sea and the  late disembarkation was not without valid reason. The company could not have disembarked the seafarer on the date of the termination of his employment contract, because the vessel was still in the middle of the sea (Unica vs. Anscor Swire Ship Management Corporation ;  G.R. No. 184318; February 12, 2014)

(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)

Mutiny as ground for dismissal

IN SOME instances, Filipino seafarers who aggressively assert their rights are wrongfully accused of mutiny, leading to the early termination of their contract by dismissal.

Mutiny is conspiracy of overt act of defiance, oppose or attack upon ship authority by two or more seafarers subject to such authority. The term is occasionally used to describe nonmilitary instances of defiance or attack — such as mutiny on board a merchant ship.

Mutiny comes from an old verb, “mutine”, which means “revolt”, and a mutiny is still like a revolt. But mutiny should be distinguished from revolt or rebellion, which involves a more widespread defiance and which generally have a political objective.

Mutiny is regarded as a most serious offense, especially aboard ships at sea. Because the safety of the ship was thought to depend upon the submission of all persons on board to the will of the captain, wide disciplinary powers are given to the commanding officer.

Seafarers are not usually adamant in standing for their rights for fear of retaliation from the company or its officers on board, including dismissal based on fabricated grounds. Their concerted action to question in some cases are viewed as insubordination, desertion, mutiny or attempt to desert the vessel or refusal to sail with the vessel

The Maritime Labor Convention of 2006 (MLC 2006) recognizes the seafarers’ rights to decent conditions of work on almost every aspect of their working and living conditions including, among others, hours of work or rest, payment of wages, paid annual leave, repatriation at the end of contract, onboard medical care, accommodation, food and catering, health and safety protection and accident prevention.

The employer has the burden to prove that the dismissal of a seafarer is based on a valid cause. To discharge this burden, the employer must present substantial evidence – or such amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion – that the cause of the seafarer’s dismissal was valid. Specifically, the employer must comply with the following requisites:(1) the dismissal must be for a just or authorized cause; and (2) the employee to be dismissed must have been afforded due process of law

In a case, the Supreme Court downplayed the company’s argument of “mutiny” as ground for dismissal since there is no record in the logbook or journal of the ship to indicate that the Filipino seafarers, who were terminated from their employment, threatened to cease and desist from working and to abandon their vessel as a result of the misunderstanding that happened between the Ship Master and a Filipino crew member. (NFD vs. Ilagan etc. G.R. No. 165389, October 17, 2008)

When a seafarer commits such violations, 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 Philippine Overseas Employment Administration (POEA) that, after due investigation, may  impose penalties ranging from suspension to delisting, depending on the frequency of the violation(s).

Under the “two-notice rule”, an erring seafarer is given a written notice of the charge against him and is afforded an opportunity to explain or defend himself. Should sanctions be imposed, then a written notice of penalty (including dismissal from service) and the reasons for it shall be furnished the erring seafarer. It is only in the exceptional case of clear and existing danger to the safety of the crew or vessel that the required notices are dispensed with; but just the same, a complete report should be sent to the manning agency, supported by substantial evidence of the findings.

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 months for every year of the unexpired term.

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

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.

Two Decades of National Seafarers’ Day celebrations

Now on its twentieth  (20^th) year,  Filipino seafarers are given tribute in the nationwide activities for the National Seafarers Day (NSD) celebrated every last Sunday of September with this year's them "MARINONG PILIPINO: ISULONG ANG EDUKASYON AT PAGSASANAY!"

Former president Fidel V. Ramos earlier issued on July 9, 1996 Proclamation No. 828 declaring August 18 as National Seafarers Day wherein  the Apostleship of the Sea (AOS) was tasked to coordinate with the public and private sector in   activities related to the celebration of said event. The purpose of the Proclamation is to give due recognition to the vital role of Filipino seafarers towards the development of the Philippines as a maritime country. Later,  Proclamation No.1094 was issued in 1997 by President Ramos which moved NSD    during the last Sunday of September every year. 

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 2012   NSD celebration. The archbishop was referring to Saint Lorenzo Ruiz and San Pedro Calungsod as he noted that  these two martyrs of the Philippine Catholic Church  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.”

This year’s NSD fell on September 27, 2015 wherein activities are conducted  nationwide. In Manila,  the celebration  include the following events led by the AOS Manila:

September 20, 7am Ecumenical Memorial at Sea for the deceased seafarers at the Phil. Coast Guard grounds; AMOSUP kickoff activites, Seafarer's statue, Baywalk,  Roxas Boulevard

September 25 -  Boses ng Marino  Karaoke challenge at the Luneta Seafarer Welfare Foundation (LUSWELF) in Kalaw.

September 26 1pm  Oratorical and  Art Contest, AMOSUP Convention Hall

September 27 , 7am Grand Parade, High Mass, awards program Cuneta Astrodome (Pasay)

The Grand Parade  is usually  be participated in by more than 4000 stakeholders from maritime schools, government agencies, manning agencies, training centers, maritime organizations, unions, families and private institutions

Another highlight is the awarding of the winners in the different NSD contests including the Ten Outstanding Maritime Students of the Philippines (TOMSP) honoured by   Western Union . The search started in 2010 and  gave recognition to students for  being academically excellent, highly competent in practice, in good moral standing and active in their respective communities.  The chosen students are  seen as the embodiment of the "ideal seafarer," displaying "integrity, passion, assertiveness, dependability and camaraderie" that will allow them to become globally competitive Filipino seafarer.

The Philippines is considered as the major supplier of maritime labor globally as there is an estimated one Filipino seafarer for every four complements  on board a vessel.  Recent  Philippine Overseas Employment Administration (POEA) data showed that there are 367,166  Filipino seafarers with POEA approved contract deployed in 2013. In 2014, the deployed seafarers  brought in US$5,575,722,000 as dollar remittances. The seabased sector’s remittance comprise at least 22% of the total dollar remittances of Overseas Filipino Workers (OFWs). Remittances help spur domestic consumption in the Philippines and a key ingredient in the country’s drive to achieve higher but sustainable growth.

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.

Ironically, the Philippines almost lost its slot on the historical first thirty ratifying countries of the Maritime Labour Convention of 2006 (MLC2006).  It took the Philippines six years to ratify MLC2006 on August 13, 2012 after it became a signatory of the so called international magna carta for seafarers rights. The convention sets out minimum standards and fair working conditions for seafarers worldwide. Philippines is the thirtieth (30^th) country to ratify MLC 2006 out of the 314 signatories and one of the first thirty ratifying countries required for the convention to take effect.

NSD coincides with the National Maritime Week. Presidential Proclamation No. 866 dated Sept. 6, 1996 declared Sept. 27, 1996 and the last Friday of September every year, as National Maritime Day (NMD) spearheaded alternatively by the government agencies , to wit Maritime Industry Authority (MARINA), Philippine Coast Guard (PCG), and  Philippine Ports Authority (PPA). This was later amended by another issuance making the last week of September as National Maritime Week.

the hardworking NSD committee

Winners and participants of the 2014 NSD oratorical contest

Winners of the 2014 Ten Outstanding Maritime Students of the Philippines

SVBB law , LUSWELF, and Radio inquirer

Hear me, See me as we discuss legal matters on seafarers' rights through the combined forces of Sapalo Velez Bundang Bulilan (SVBB) law offices, Luneta Seafarers Welfare Foundation (LUSWELF) Bantay OCW Radio Inquirer and United Filipino Seafarers (UFS) . Regular weekly paralegal lecture at LUSWELF and Usapang Marino on Radyo Inquirer every wednesday. 10:30 a.m. to 12:00noon DZIQ 990AM. http//www.ustream.tv/channel/dziq #pinoyseafarer #pinoymarino #marinongpinoy #seafarersrights #DZIQ #Radioinquirer #LUSWELF #Luneta #filipinoseafarer #svbb #sapalovelez #paralegallecture #seamanlawyer #seafarerlawyer ##knowyourrights #protectyourrights #labor #marino #UFS #unitedfilipinoseafarers

December 9, 2016 

November 3, 2016 

October 13, 2016

October 13, 2016

                                                                September 13, 2016

September 8, 2016 

june 30, 2016

june 2, 2016

june 23, 2016

june 16, 2016

19th National Seafarers’ Day

Filipino seafarers are the living saints – they travel the high seas with a vocation and purpose. These were the words of Cubao Bishop Honesto Ongtioko during the high mass last Sunday, September 28, 2014,   at the Ninoy Aquino Stadium  in celebration of the  19th National Seafarers’ Day (NSD). This year’s theme is “Marinong Pilipino: Haligi ng Pagbabago”.

Bishop Ongtioko compared Filipino Seafarers to two Filipino saints – San Lorenzo Ruiz and San Pedro Calungsod. With faith as a weapon, the saints and he Filipino seafarers  sailed with a mission – to be the soldier of change not only in the Philippines but also to the whole world.

“Treasure your faith wherever you are. Translate your faith into actions – be the pillars of love of god,” he said. “Kung walang haligi, babagsak ang bahay. Marami mamamatay. Bawat isa ay may mission sa pagbuo ng matibay  na simbahan.”

Seafarers and their families  participated in the nationwide activities for the 19th National Seafarers which included the Memorial at Sea, High Mass, Grand Parade, Oratorical/ Art/ Photo Contest, Karaoke challenge,

The Grand Parade from Rajah Sulayman park in Malate to Ninoy Aquino Stadium  was participated in by more than 4000 stakeholders from maritime schools, government agencies, manning agencies, training centers, maritime organizations, unions, families and private institutions.

The high mass was celebrated by  Cubao Bishop Honesto Ongsioko while Vice-President Jejomar Binay was the keynote speaker.

Another highlight is the awarding of the winners in the different NSD contests including the Ten Outstanding Maritime Students of the Philippines (TOMSP): Elijah Jose C. Barrios (John B. Lacson Foundation Maritime University (Arevalo) Inc.) Boy George R. Benavente, John B.Lacson Colleges Foundation-Bacolod Inc; Niño C. Copones ( Mariner’s Polytechnic Colleges Foundation-Canaman Campus); Shiela May M. Diaz  (Maritime Academy of Asia and the Pacific CGSO Campus);  Emmanuel D. Dotillos Jr. (University of Cebu LapuLapu and Mandaue); Christian John B. Fajarito ( Manuel S. Enverga University Foundation Inc.); Frank Stevens O. Mendoza (Asian Institute of Maritime Studies); Roger Roland S. Roullo (Philippine Merchant Marine Academy); Joseph Ryan S. Sanchez (DMMA College of Southern Philippines); and John Lawrence G. Tabanao (Maritime Academy of Asia and the Pacific CGSO Campus).

SVBB actively participated in the nationwide activities. Atty. Neptali L. Bulilan is one of the judges in the oratorical contest, Atty. Augusto R. Bundang is one of the reader during the mass, and Atty. Dennis R. Gorecho is one of the judges of the Ten Outstanding Maritime Students and head of the NSD parade commitee.

Former president Fidel V. Ramos earlier issued on July 9, 1996 Proclamation No. 828 declaring August 18 as National Seafarers’ Day (NSD) wherein  the Apostleship of the Sea (AOS) was tasked to coordinate with the public and private sector in   activities related to the celebration of said event. The purpose of the Proclamation is to give due recognition to the vital role of Filipino seafarers towards the development of the Philippines as a maritime country. Later,  Proclamation No.1094 was issued in 1997 by President Ramos which moved NSD    during the last Sunday of September every year. The International Maritime Organization (IMO) on the other hand, in its Circular No. 1884 dated July 11, 1996, requested all member nations to “celebrate’ World Maritime Day (WMD )during the last week of every September (maritime week) of each year. Consequently, Presidential Proclamation No. 866 dated Sept. 6, 1996 declared Sept. 27, 1996 and the last Friday of September every year, as National Maritime Day (NMD) spearheaded alternatively by the government agencies , to wit Maritime Industry Authority (MARINA), Philippine Coast Guard (PCG), and  Philippine Ports Authority (PPA). This was later amended by another issuance making the last week of September as National Maritime Week.

The Philippines is considered as the major supplier of maritime labor globally as there is an estimated one Filipino seafarer for every four complements  on board a vessel.  Per Philippine Overseas Employment Administration (POEA) data,. Philippine Overseas Employment Administration (POEA) data showed that there are 367,166  Filipino seafarers with POEA approved contract deployed in 2013 brought in US$5,215,378,000 as dollar remittances. As of 2013, the seabased sector’s remittance comprise at least 22% of the total dollar remittances of OFWs. Remittances help spur domestic consumption in the Philippines and a key ingredient in the country’s drive to achieve higher but sustainable growth.

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.

Ironically, the Philippines almost lost its slot on the historical first thirty ratifying countries of the Maritime Labour Convention of 2006 (MLC2006).  It took the Philippines six years to ratify MLC2006 on August 13, 2012 after it became a signatory of the so called international magna carta for seafarers rights. The convention sets out minimum standards and fair working conditions for seafarers worldwide. Philippines is the thirtieth country to ratify MLC 2006 out of the 314 signatories and one of the first thirty ratifying countries required for the convention to take effect.