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Updating the Public Service Act: Boon or bane to Philippine shipping?

Updating the Public Service Act: Boon or bane to Philippine shipping?
Brenda V. Pimentel July 1, 2020

Second of three 3 parts

Last week, the world paid tribute to seafarers, acknowledged as “key workers” in this time of the pandemic. In this archipelago, various events were held, albeit by virtual mode, to celebrate the Filipino seafarer, acclaimed, together with the other overseas Filipino workers, as the Philippines’ bagong bayani (new heroes).

It should have been an opportune time to seriously ponder on how to genuinely commend the Filipino seafarer for his contribution to this archipelago. Yet, as Congress resumes its session, there is every indication the amendments to Commonwealth Act 146, otherwise known as the “Public Service Act (PSA),” will be in the agenda; a legislative formula that illustrates a tongue-in-cheek treatment of the Filipino seafarer.

Updating the 80-year old PSA is a long awaited change with the introduction of further reforms in the regulatory framework for public services. The House of Representatives endeavours to provide clear policies and implementation procedures, which are expected to improve governance over public services and public utilities. However, Congress may need to review and/or amplify certain new provisions, which could result in pernicious consequences to the maritime human resources, specifically the seafaring sector.

House Bill (HB) 78, or the proposed New Public Service Act, provides under Section 7, paragraphs 3: “Unless otherwise provided by law, or by any international agreement, a public service shall employ a foreign national only after the determination of non-availability of a Philippine national who is competent, able and willing to perform the services for which the foreign national is desired: Provided, that in no case shall the employed foreign nationals comprise more than 25 percent of the total employees of the public service.”

The aforementioned provision needs to clearly state whether such policy applies to the crewing of Philippine-flagged ships, these being considered as the Filipino seafarer’s workplace. This archipelago has taken an unwavering stance in respect of the policy of a 100-percent Filipino crew on all Philippine-registered ships. The Philippines has taken pride of its seafarers being considered the world’s preferred shipboard crew; once this provision becomes part of the law, it becomes a contradiction of this archipelago’s self-esteem.

The application of the cited provision could find relevance in some sectors, but not in seafaring where the Filipino enjoys the lead. From the perspective of domestic shipping, having foreign seafarers is disconcerting as no one probably knows better the waters of the archipelago than its homegrown shipboard manpower. With the pandemic, the Filipino seafarer’s re-joining his employment onboard international ships remains confounded by divergent health and travel protocols imposed by various countries.

Proponents of this provision may brush aside the aforementioned concern through explanatory statements excluding seafarers from the application of Section 7 paragraph 3 of the HB 78; however, unless there is clear exemption clause for seafaring, interpretation of that provision will place the Filipino seafarer’s employment on Philippine-flagged ships in a precarious position. Besides, it is always best to remove any room for interpretation as to the application of the cited provision.

Although the possibility is remote, it may be acceptable to include a provision that will allow, under very special circumstances, deployment of a foreign crew that could be cited more as an exemption rather than as a general rule and under very stringent conditions.

Reserving the manning requirements of Philippine ships to Filipino crew was one of the few non-negotiable positions of this archipelago under the World Trade Organization-General Agreement on Trade in Services (GATS) and in the Asean (Association of Southeast Asian Nations) Trade in Services arrangement. Under Section 7 of HB 78, this is now being opened.

In light of the coronavirus disease 2019 pandemic, hundreds of Filipino seafarers are being repatriated and may find challenges in returning back to their shipboard employment due to the travel restrictions adopted worldwide. Therefore, employment in inter-island ships becomes an option for returning seafarers and the cited provision of HB 78 will have the effect of constricting the employment opportunities of the Filipino seafarer in this archipelago.

Let the proposed Act Modernizing the Public Service work for the Filipino seafarer.