Misplaced 'balancing of interest' in Seafarers’ Magna Carta

Misplaced 'balancing of interest' in Seafarers’ Magna Carta
Dennis Gorecho November 24, 2018 https://www.panaynews.net/misplaced-balancing-of-interest-in-seafarers-m...

The manning agencies and principals are throwing off-balance the already imbalanced legal battle on seafarers’ claims in connection with the proposed Magna Carta for Filipino Seafarers.

They consistently used the phrase “balancing the interest of the seafarer and the company” to pursue their position on the premise that their proposals will ensure employment of Filipinos on board foreign cean-going vessels.

They proposed the inclusion of the following issues, among others, with respect to the monetary claims:

(a) 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)

(b) the formation of a specialized regulatory body, and

(c) the terms and conditions of the Standard Employment Contract (SEC) be codified in the magna carta, specifically the list of occupational illnesses and the grading system.

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.

Every labor dispute for monetary claims for disability and death benefits, illegal dismissal as well as unpaid or underpayment of salaries and wages, is a David and Goliath battle as it involves two opposing parties: the worker on one side and the management on the other,

Labor litigation takes years starting from the proceedings before the National Labor Relations Commission (NLRC) or the National Conciliation Mediation Board (NCMB) until the case is finally decided upon by an appellate court.

In cases of seafarers with medical conditions, some incur huge debts to sustain their medication while others die before the final decision is released forcing them into accepting an ex-gratia, minuscule amount the companies offer.

Claims for disability compensation became a legal battleground through restrictive provisions of the POEA contract, especially in instances when seafarers do not receive full compensation that they 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.

Companies usually argue that seafarers’ claim “benefits even beyond what 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.

Before and under the 1996 POEA contract, 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 contract to limit their liabilities.

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 contract but was absent in the 1996 version.

The 2000 POEA contract defined “work-related injury” as “injury 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.”

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.

Lord Alfred Thompson Denning, a famous English lawyer and judge, described a Magna Carta as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot.”

Ironically, if the manning agencies’ proposed provisions on the misleading premise of “balancing of interest” will appear in the Magna Carta, the law that is meant to protect the seafarers will ironically be used to downplay their rights.