“Aanhin
pa ang damo kung patay na ang kabayo.” Never mind if the seafarer dies before he receives
compensation. Through
legislative fiat, ANGKLA partylist is throwing off-balance
the already imbalanced legal battle on
seafarers claims.
ANGKLA has
consistently used the phrase “ balancing the interest of the seafarer and the
company” when it filed the proposed bill (House
Bill No. 5430) that
aimed to delay the execution of the monetary judgment award issued by the National
Labor Relations Commission (NLRC) and the National Conciliation and Mediation
Board (NCMB) in favor of a seafarer. It
is the twin bill of the new law, the so-called “Seafarers’ Protection Act”.
Every labor dispute is a
David and Goliath battle as it involves two opposing parties: the worker on one side and the management on
the other, for monetary claims for disability and death benefits, illegal dismissal
as well as unpaid or underpayment of salaries and wages.
By placing the proceeds in escrow until such time the finality of the
decision issued by the appropriate appellate court (Supreme Court or Court of
Appeals), in the end, the
“balance of scale” will tilt more to capital as this will protect the business interest of the
manning agencies and their principal rather than the seafarers themselves.
In order to discourage seafarers in pursuing
legal actions against the companies when it authored the new law , the
Seafarers’ Protection Act, , ANGKLA
deliberately and sweepingly depicted seafarers’
lawyers as “unscrupulous” in an attempt to deflect the real issues why cases
are being filed. They blamed the lawyers
, most of them they described as
“ambulance chasers” , who go to lengths
to push seafarers to file labor cases against their foreign employers, claiming
for benefits even beyond the claims they are actually entitled to.
In essence, ANGKLA echoed the employer’s phrase “ benefits even beyond the claims
they are actually entitled ” to
sanitize the problematic legal battle
for seafarer’s compensation.
Valid claims, employers argue, necessarily must follow what the POEA contract dictates: a contract
that contains terms and conditions formulated
more favorable to his employer and is littered with ambiguous provisions,
generalizations, technicalities that he does not understand.
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.
Under
the 1996 POEA Standard Employment
Contract (SEC), for disability or death
to be compensable, it was sufficient
that the seafarer suffered injury or illness during the term of his employment.
The cause of illness or death is
immaterial.
However,
through the lobbying of the principals and their manning agencies, the restrictive clause “work-related”
was added under Section 20 (B) of the
2000 POEA SEC to limit their liabilities. The
2000 POEA SEC defined "work-related injury" as "injury(ies)
resulting in disability or death arising out of and in the course of
employment" and "work-related illness" as "any sickness
resulting to disability or death as a result of an occupational disease listed
under Section 32-A of the contract”.
Being included in the list is not enough, since all of the following conditions must be
satisfied: (a) the seafarer’s work must involve the risks described; (b) the
disease was contracted as a result of the seafarer's exposure to the described
risks; (c). the disease was contracted within a period of exposure and under
such other factors necessary to contract it; and (d) there was no notorious negligence on
the part of the seafarer. These same
definitions were reiterated in the 2010 POEA SEC.
Two
elements must concur for an injury or illness to be compensable. First, that
the injury or illness must be work-related; and second, that the work-related
injury or illness must have existed during the term of the seafarer's
employment contract. The first requirement appeared in the 2000 and 2010 POEA SEC but is absent in the 1996 version.
Through such restrictive provisions of the POEA SEC, claims
for disability compensation became a
legal battleground, especially in instances
when seafarers do not receive full
compensation that are legally entitled to have. Such emergence of cases is
attributable to the fact that the
seafarer’s employer does not hesitate to
harness its immense resources to limit its liability.
In denying, if not limiting, the seafarer’s claims, the employer usually
raise the misleading argument that the POEA mandated that disability can only
be assessed by the company-designated physician based on the disability grading
system considering that the latter had the time and the opportunity to
constantly monitor the health and physical condition of the seafarer. However, the
Supreme Court stressed that their medical assessment “is not the alpha and the
omega of the seafarer's claim for permanent and total disability.” (Elburg Shipmanagement Phils. vs. Quiogue, Jr, G.R.No.211882
July 29, 2015). The
problem can be partly attributed to the Supreme Court's observation on the
proliferation of obviously biased company doctor whose “findings cannot be
taken as gospel truth” and “are palpably self-serving and certainly could not
be considered independent” as their "loyalty rests completely upon the company
they serve" (UPL/HAL vs . Beseril, 487 SCRA 249). Thus, the POEA contract does not preclude the
seafarer from getting a second opinion as to his condition for purposes of
claiming disability benefits.
In reality, the grading system assessment
under the POEA Contract is not 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).
Employers will never hire a seafarer who suffered complete loss of the
sense of hearing on both ears (Grade 3), loss of speech due to injury to the
vocal cord (Grade 9), total loss of a leg or amputation at or above
the knee (Grade 3), paralysis of one upper extremity (Grade3) ,
or loss of one foot at ankle joint or above
(Grade 6), loss of
ten fingers of both hands (Grade
3) or amputation between wrist and elbow
joint (Grade 5), or total blindness of one eye and fifty percent (50%) loss of vision of
the other eye will never be employed due to visual impairments. (Grade 5). Fit-To Work certifications are given even to
seafarers who are still not cured or in essence can no longer be employed such
as those who suffered from heart attacks, aneurism or stroke.
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.
Thus, Supreme Court's
consistently ruled that "it is not the injury which is
compensated, but rather it is the incapacity to work resulting in the
impairment of one's earning capacity. 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 Corporation, 659 SCRA 642)
The word “unscrupulous” should likewise
be applied to the employers and their people who harness their
immense resources to limit
their liability. In many
instances, the seafarer signs Receipt and Quitclaim documents thereby releasing
his employers from all claims, demands and causes of action without even
understanding their contents. Oftentimes, he is misled into accepting an ex-gratia,
miniscule amount, in the guise that his condition is either not work-connected,
or for any other reason for which he does not comprehend.
Unless their definition of
“valid claims” is changed, through the deletion of the “work-related” clause,
and through the reversion to the old
1996 POEA Contract , the denials of seafarers’ claims will continue. The
compensation scheme should be less restrictive and more realistic, Otherwise, their
only recourse is to seek legal assistance from lawyers of their own choosing. Conversely
speaking, give the seafarers what they should receive, and employers will
not be hounded by legal cases.
In essence, such reversion to
the 1996 POEA Contract was partially done in the implementation of the
Compulsory Insurance Coverage under the Migrant Workers and Overseas Filipinos
Act of 1995” or Republic Act 8042 as amended by Republic Acts 9422 and 10022.
The seafarer or his beneficiaries will
automatically be given, among others, the benefits (US$15,000.00 if accidental
death, US$10,000.00 if natural death, US$7,500.00 if total permanent
disability) with or without fault on the part of the seafarer, as long as the
basis of such claim occurred during the
effectivity of the POEA Contract.
And expectedly,
ANGKLA will not pursue the total
deletion of the “work related clause” since this will run counter to the business
interest of the employers.
In fact, ANGKLA filed House Bill No. 5430 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.
The seafarer will wait for longer
years before they receive the award by the NLRC/NCMB, ANGKLA
proposes that the proceeds of execution shall be deposited in an escrow account
to ensure the restitution of monetary awards in case the appropriate appellate
court annuls or partially or totally reverses the monetary judgment.
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. ANGKLA
justifies the Escrow bill to ensure that the seafarer will still receive the
award in the future in the event that the manning agency close down. However,
ANGKLA disregarded the fact that in
cases of seafarers with medical conditions, some incur huge debts to sustain
their medication while others die before the decision by the Supreme Court is
released forcing the seafarers into accepting an ex-gratia, miniscule amount Companies
have the legal remedies to recover the amount, but one cannot reclaim the life
of the deceased claimant.
It is election time again. Be critical of the real colors.
