Assumption of liability not a defense

The  original manning agency cannot  claim that it will  be exempted from liability because it is no longer the manning agency responsible to the dismissed seafarers since  the new manning agencies  had executed Affidavits of Assumption of Responsibility.

In Section 1 of Rule II of the POEA Rules and Regulations, it states that:

Section 1. Requirements for Issuance of License. Every applicant for license to operate a private employment agency or manning agency shall submit a written application together with the following requirements:

x x x

             f. A verified undertaking stating that the applicant:

x x x

(3) Shall assume joint and solidary liability with the employer for all claims and liabilities which may arise in connection with the implementation of the contract; including but not limited to payment of wages, death and disability compensation and repatriation.

Accordingly, despite the execution of the Affidavits of Assumption of Responsibility by other manning agencies, the original manning agency  cannot exempt itself from all the claims and liabilities arising from the implementation of the contract executed between the said original manning agency  and the seafarers. It is very clear from the above-cited provisions of the Rules and Regulations of the POEA that the manning agency shall assume joint and solidary liability with the employer.Joint and solidary liability is meant to assure aggrieved workers of immediate and sufficient payment of what is due them. The reason for this ruling was given by this Court in the 1988 case of Catan v. National Labor Relations Commission ( 160 SCRA 691, 695)  which is reproduced in part below:

This must be so, because the obligations covenanted in the recruitment [manning] agreement entered into by and between the local agent and its foreign principal are not coterminus with the term of such agreement so that if either or both of the parties decide to end the agreement, the responsibilities of such parties towards the contracted employees under the agreement do not at all end, but the same extends up to and until the expiration of the employment contracts of the employees recruited and employed pursuant to the said recruitment agreement. Otherwise, this will render nugatory the very purpose for which the law governing the employment of workers for foreign jobs abroad was enacted.

Also, according to Section 10, paragraph 2 of Republic Act No. 8042, the agency which deployed the employees whose employment contract were adjudged illegally terminated, shall be jointly and solidarily liable with the principal for the money claims awarded to the aforesaid employees. 

The Affidavits of Assumption of Responsibility, though valid as between  the original manning agency and the other two manning agencies, are not enforceable as against the respondents because the latter were not parties to those agreements. The provisions of the POEA Rules and Regulations are clear enough that the manning agreement extends up to and until the expiration of the employment contracts of the employees recruited and employed pursuant to the said recruitment agreement. Hence, despite the execution of the aforementioned affidavits,  the original manning agency  cannot exempt itself from the liabilities and responsibilities towards the seafarers.

( SKIPPERS UNITED PACIFIC, INC., and J.P. SAMARTZSISMARITIME ENTERPRISES CO., S.A., vs. JERRY MAGUAD and PORFERIO CEUDADANO,  G.R. No. 166363,  August 15, 2006) 

POEA rules on seafarer's fees

The  Revised POEA Rules and Regulations  2016 states how chargeable fees and costs  are considered in relation to the  recruitment and employment of Filipino seafarers. The revised rules was passed in accordance with the policy of the Philippine Overseas Employment Administration (POEA)  policy,   among others, to uphold the dignity and fundamental human rights of Filipino seafarers navigating foreign seas, and promote full employment and equality of employment opportunities for all;

A. Fees Chargeable to Principal/Employer: 

       1. Manning Fees - Licensed manning agencies shall charge from their principal/employer a            manning fee to cover services rendered in the recruitment and deployment of seafarers. 

               2. Processing Fees - All processing fees required for deployment. However, in case of seafarer’s failure or unjustified refusal to join ship after all processing fees have been incurred by the principal/employer, the said fees shall be refunded by the seafarer within thirty (30) days from demand.  These include:
       a. pre-employment  medical examination in the principal’s/employer’s designated clinic,         b. POEA and OWWA fees, 
        c.visas, 
        d.principal’s/employer’s flag State ship requirements, 
        e. principal’s/employer’s required trainings and other requirements

B. Costs Chargeable to the Seafarer. 

Documentation costs of all statutory requirements such as, but not limited to, passport, seafarer’s identification and record book (SIRB), NBI/police/barangay clearance, Seafarer’s Registration Certificate (SRC) and birth certificate.

No other charges in whatever form, manner or purpose, shall be imposed on and be paid by the seafarer, unless otherwise provided by law. 

Administrative offenses involving collection of fees   are classified into serious, less serious and light, depending on their gravity.  The POEA  shall impose the appropriate administrative penalties for every recruitment violation. in view of the  

A. SERIOUS OFFENSES are those    that by their nature and effect are punishable by immediate  cancellation of license, plus refund of fee or bond collected or excess processing or documentation costs (if applicable).  Permanent Disqualification and delisting from the roster of accredited principals/employers may also be imposed. 

1. Charging or accepting directly or indirectly any amount of money, goods or services, or any fee or bond for any purpose from an applicant seafarer.  

 2. Charging, imposing or accepting, directly or indirectly, under any guise whatsoever, any amount of money as payment for the insurance premium for compulsory insurance coverage. 

3. Collecting any amount as payment for processing, or documentation costs not prescribed by the rules, or an amount greater than the actual documentation costs, as covered by official receipts issued by entities where payments were made. 

 B. LESS SERIOUS OFFENSES are those that by their nature and effect are punishable by the penalty of suspension to cancellation of license. 

1. Withholding or denying travel or other pertinent documents from an applicant seafarer for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing Rules and Regulations

2.  Failure to reimburse expenses incurred by the seafarer in connection with his documentation and processing for purposes of deployment, where deployment does not take place without the seafarer's fault.The penalty shall include the carry the accessory penalty of immediate refund of expenses incurred by the seafarer.

Unlike serious offenses  which are punishable by immediate  cancellation of license, plus refund of fee or bond collected or excess processing or documentation costs (if applicable).  as well as Permanent Disqualification and delisting, penalties for less serious offenses may vary based on the frequency of violations:

              1st Offense — Suspension of License (2 to 6 Months) 

              2nd Offense — Suspension of License (6 Months and 1 day to 1 year) 

              3rd Offense — Suspension of License (1 year and 1 day to 2  years) 

              4th Offense — Cancellation of License 

Money claims arising from recruitment violation may be awarded in addition to the administrative penalties imposed. In lieu of the penalty of suspension of license, the POEA may impose the penalty of fine which shall be computed at Fifty Thousand Pesos (P50,000.00) for every month of suspension. 

The penalty of cancellation of license shall be imposed upon a respondent found liable for committing an offense, regardless of the number or nature of charges, against five (5) or more workers in a single case. This provision shall not apply to consolidated cases unless there are five (5) or more complainants in any of the consolidated cases. 

Prescription: All cases  shall be barred if not commenced or filed with the POEA within three (3) years after such cause of action accrued

Labor/ Seafarers' claims to be delayed by ANGKLA bill placing NLRC/NCMB awards in Escrow

An anti-labor/seafarer bill might be refiled by ANGKLA Partylist during the next Congress if it will be reelected in office, a bill that  is clearly a mere dilatory tactic to stop the labor/  seafarers   from getting what is rightfully due them.

With  House Bill  No. 5430, the worker, or seafarer in this case,  will wait for longer years before they receive the award by the National Labor Relations Commission (NLRC) and the National Conciliation and Mediation Board (NCMB), mostly  for cases involving monetary claims involving disability and death benefits, illegal dismissal as well as unpaid or underpayment of salaries and wages. 

Through HB 5430, ANGKLA  aimed to amend the labor code that will have significant impact on labor claims governing the immediately “final and executory” nature of decisions issued by NLRC/NCMB.  

ANGKLA proposes that to ensure the restitution of monetary awards in case the appropriate appellate court annuls or partially or totally reverses the monetary judgment, the proceeds of execution shall be deposited in an escrow account with an escrow agent designated by the NLRC  or the NCMB. The proceeds shall remain in escrow until such time the finality of the decision issued by the appropriate appellate court is obtained.. The proceeds shall only be released after issuance of an entry of judgment by the appropriate appellate court and upon issuance by the NLRC or the NCMB, after motion of the proper party, of an order authorizing the release of proceeds of execution. The order authorizing the release of the amount deposited in escrow shall be deemed final.

ANGKLA pointed out that the amendment is proper as the problem of the immediately “final and executory” nature of decisions gains greater relevance considering the following factors: (a) the complainant will insist on the execution of the NLRC or NCMB decision despite the appeal; (b) even if the appellate courts overturn or modify the NLRC or NCMB decision, there is little hope of recovering anything through restitution; (c) more legal costs and expenses will be incurred in pursuing the case through the appellate courts and in applying for restitution of the judgment award. 

Every labor dispute involves two opposing parties:  the worker on one side and the management on the other.  And this bill, definitely, is not in favor of labor, proposed by a partylist that projects itself as a protector of seafarers' interest, and labor as a whole. It is obviously a bill that seeks to protect more the respondent companies rather than the seafarers' themselves. 

Away from his family and working on board vessels sailing non-stop for weeks or months the world’s oceans, he is 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. As if working under these difficult conditions are not enough, when he sustains injury, illness or lose his life, seldom does he receive full compensation provided under the law because his employer does not hesitate to harness its immense resources to limit its liability. 

 In most instances, workers run after benefits that are denied to them. Labor litigation takes years before it reaches the supreme court. In most cases, the elevation of the records alone from the NLRC/NCMB to the Court of Appeals or Supreme Court will take several years. The proceedings in the appellate court will entail further delay.  In cases of seafarers with medical conditions, some incur huge debts to sustain their medication. Others die before the decision by the Supreme Court is released. 

The scenario envisioned by ANGKLA will be analogous to situations described by the the Supreme Court where "the judgment becomes illusory.."Corona International, Inc. v. Court of Appeals,343 SCRA 512)  In one instance, the Supreme Court lamented that   the claimant "has grown old with the case. He fears he may no longer be in this world when the case is finally decided." (Borja vs.  Court of Appeals, 196 SCRA 847)  The prevailing party might  be unable to enjoy  the judgment award  after the lapse of time, considering the tactics of the adverse party who may have no recourse but to delay. (Intramuros Tennis Club, Inc. v. Philippine Tourism Authority,341 SCRA 90; Yasuda v. Court of Appeals, 330 SCRA 385)

The reason is simple. An application for a writ of execution and its issuance could be delayed for numerous reasons. A mere continuance or postponement of a scheduled hearing, for instance, or an inaction on the part of the Labor Arbiter or the NLRC could easily delay the issuance of the writ thereby setting at naught the strict mandate and noble purpose envisioned by  the labor code (Pioneer Texturizing Corp. v.  NLRC, 280 SCRA 806, 816.)

In cases of execution pending appeal, the Supreme Court underscored that " the law itself has laid down a compassionate policy which, once more, vivifies and enhances the provisions of the 1987 Constitution on labor and the working man. . . . These duties and responsibilities of the State are imposed not so much to express sympathy for the workingman as to forcefully and meaningfully underscore labor as a primary social and economic force, which the Constitution also expressly affirms with equal intensity. Labor is an indispensable partner for the nation's progress and stability" ( Aris (Phil.) Inc. vs. NLRC, 200 SCRA 246) 

In essence, ANGKLA has consistently echoed the arguments posed by the manning agencies that "labor cases pose a threat to international employment of  Filipino seafarers". Such issue was already touched upon by the Supreme Court in the case of Vir-Jen Shipping vs. NLRC  (210 Phil  482), in the following manner:  

"This is not the first time and it will not be the last where the threat of unemployment and loss of jobs would be used to argue against the interests of labor; where efforts by workingmen to better their terms of employment would be characterized as prejudicing the interests of labor as a whole. xxxx The same arguments have greeted every major advance in the rights of the workingman. And they have invariably been proved unfounded and false. Xxx Unionism, employers' liability acts, minimum wages, workmen's compensation, social security and collective bargaining to name a few were all initially opposed by employers and even well meaning leaders of government and society as "killing the hen or goose which lays the golden eggs." The claims of workingmen were described as outrageously injurious not only to the employer but more so to the employees themselves before these claims or demands were established by law and jurisprudence as "rights" and before these were proved beneficial to management, labor, and the nation as a whole beyond reasonable doubt. xxx  If any minor advantages given to Filipino seamen may somehow cut into the profits of local manning agencies and foreign shipowners, that is not sufficient reason why the NSB or the NLRC should not stand by the former instead of listening to unsubstantiated fears that they would be killing the hen which lays the golden eggs."

In the proposed bill that aims to delay in execution, it  becomes a tool of oppression and inequity to the prejudice of labor, and the seafarer to be specific. Due to the longer years that they have to wait, without any leverage in prosecuting his monetary claims, chances are, the employee/ seafarer bows to the demand of his employer to either drop his claim or accept a small settlement. 

In the end, such legislative act runs in contradiction to the constitutional provision  that says "The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare." (Art. II, Sec. 18, Constitution, 1987.).