Filipino seafarers are not probationary employees

Filipino seafarers are  not probationary employees in connection with dismissal cases.  

In  Dante de la Cruz vs. Maersk Filipinas Crewing, Inc.  (G.R. No. 172038 April 14, 2008)  the company insisted that the dismissal of the seafarer is proper as he  was then still on probationary status. This  entitled them to dismiss him in accordance with the provisions of Collective Bargaining Agreement (CBA) which allows the master to terminate the contract of one under probation by merely serving a written notice 14 days prior to the contemplated discharge.  

       The Supreme Court explained that seafarers are not covered by the term regular employment, as defined under Article 280 of the Labor Code (Coyoca v. National Labor Relations Commission. 312 Phil 1137)

 Instead, they are considered contractual employees whose rights and obligations are governed primarily by the POEA Standard Employment Contract for Filipino Seamen (POEA Standard Employment Contract), the Rules and Regulations Governing Overseas Employment, and, more importantly, by Republic Act No. 8042, otherwise known as The Migrant Workers and Overseas Filipinos Act of 1995.

 Even the POEA Standard Employment Contract itself mandates that in no case shall a contract of employment concerning seafarer exceed 12 months.

        It is an accepted maritime industry practice that the employment of seafarers is for a fixed period only. The Court acknowledges this to be for the mutual interest of both the seafarer and the employer. Seafarers cannot stay for a long and indefinite period of time at sea as limited access to shore activity during their employment has been shown to adversely affect them. Furthermore, the diversity in nationality, culture and language among the crew necessitates the limitation of the period of employment.

The Court noted that the CBA cannot override the provisions of the POEA Standard Employment Contract. The law is read into, and forms part of, contracts. And provisions in a contract are valid only if they are not contrary to law, morals, good customs, public order or public policy.

In Millares v. NLRC (434 Phil 524),   the  Court had occasion to rule on the use of the terms “permanent and probationary masters and employees” vis-à-vis contracts of enlistment of seafarers. In that case, petitioners made much of the fact that they were continually re-hired for 20 years by  the company . By such circumstances, they claimed to have acquired regular status with all the rights and benefits appurtenant thereto.  The reference to permanent and probationary masters and employees was a misnomer. It did not change the fact that the contract for employment was for a definite period of time. In using the terms “probationary” and “permanent” vis-à-vis seafarers, what was really meant was “eligible for re-hire.”

(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)

Seafarers as contractual employees

Seafarers are not entitled to the benefits given to a regular or permanent  employee such as 13^th month pay, reinstatement, separation or termination pay or 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 ( G.R. No. 110524 July 29, 2002)  that  became the landmark jurisprudence  defining the nature of employment of Filipino seafarers and the applicable law.

Seafarers are considered contractual employees. Their employment is governed by the contracts they sign every time they are re[-]hired 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.

A Filipino seafarer is governed by the Rules and Regulations of the POEA. The Standard employment Contract governing the employment of All Filipino Seamen on Board Ocean-Going Vessels of the POEA, particularly in Part I, Sec. C specifically provides that the contract of seamen shall be for a fixed period.

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. In a nutshell, there are three (3) requirements necessary for the complete termination of the employment contract: 1. termination due to expiration or other reasons/causes; 2.signing off from the vessel; and 3. arrival at the point of hire.

The Millares  doctrine was reiterated in the latest case of  NICANOR CERIOLA vs. NAESS SHIPPING PHILIPPINES, INC (G.R. No. 193101               April 20, 2015) where the Supreme Court noted that it is an accepted maritime industry practice that employment of seafarers are for a fixed period only. Constrained by the nature of their employment which is quite peculiar and unique in itself, 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.

Seafarers spend most of their time at sea and understandably, they can not stay for a long and an indefinite period of time at sea. Limited access to shore society during the employment will have an adverse impact on the seafarer. The national, cultural and lingual diversity among the crew during the contract  is a reality that necessitates the limitation of its period.

The circumstance of continuous re-hiring is normally  dictated by practical considerations that experienced crew members are more preferred. Current crew  are  only given priority or preference because of their experience and qualifications but this does not detract the fact that  seafarers are contractual employees.