Filipino seafarers' group opposes 'anti-labor' magna carta; CMA supports NUPL statement

Filipino seafarers' group opposes 'anti-labor' magna carta
Arlie O. Calalo March 4, 2023 https://www.manilatimes.net/2023/03/04/news/filipino-seafarers-group-opp...

A GROUP of Filipino seafarers on Friday expressed strong opposition to an escrow provision in the proposed Magna Carta of Filipino Seafarers, saying it was clearly anti-seamen and pro-manning agencies and ship owners.

"The very purpose of this proposed bill is to protect the welfare of the seamen, who are also overseas Filipino workers, but with the questionable and 'hidden' provision. It is obvious to be for the interest of big manning agencies and ship owners," Butch Elaba, president of the Association of Marine Officers and Ratings Inc. (AMOR Seaman), told a press conference held at a Quezon City restaurant.

The group's spokesman, Jacinto Rivera, in an interview with reporters, said they filed a petition that they submitted to Speaker Ferdinand Martin Romualdez objecting to at least two provisions in the proposed Magna Carta, which involves the putting up of a monetary award for sickly seamen and death benefits into the escrow bank account.

The provision in question states that any monetary award for a sick or deceased seaman filed at the National Labor Relations Commission (NLRC) or National Conciliation and Mediation Board (NCMB) will not be immediately available to the seaman winning the case.

"The AMOR Seaman strongly opposes the proposal to put the monetary award that has already been won in the NLRC or the NCMB into the escrow account," Rivera said.

"It will be placed in an escrow bank account while the case is in the Court of Appeals and up to the Supreme Court. Disability or death benefits can only be obtained if there has been a final decision in the high court, which usually takes five to 10 years," he said.

The seafarers' group said the escrow provision will put them at a disadvantage and discourage them from filing claims for disability or death benefits because of the number of years they will have to wait before they can win the case.

"Where do the sick or disabled seamen get the money to spend on the case, their medical treatment and the food for their families while waiting for the outcome of the case?" the group asked.

It argued that the escrow provision was unconstitutional as the Labor Code provides the decision of the NLRC or the NCMB to be "final and executory," which means that if they (NLRC and NCMB) decide in favor of the seaman, the seaman will immediately get his benefits.

"Also, why must the monetary award of a Filipino seafarer who won the case be placed in the escrow account but the monetary award of other workers including land-based OFWs who won their cases be allowed to receive it immediately?" the group said.

This is a clear violation of the equal protection clause under the Constitution and contrary to long-established principles in jurisprudence, according to the group's legal counsel, Jaliel Moeen Basay, who filed the petition.

The group decried that the filing of a case for monetary award is an uphill battle for a sick or injured seaman.

Apart from the fact that it is expensive and takes a long time to resolve, the aggrieved seaman immediately needs to address his illness and injury, it said, adding that seafarers are driven to file a case not because of greed but need.

"Isn't this a lot of suffering for our sailors? It'll be a heavier cross to bear," the group said.

"If it is true that we are considered 'modern-day heroes,' then we should be given fair, reasonable and just treatment not only in the eyes of the law but in actual situations," according to AMOR Seaman.

It clarified that it supports the enactment of the Magna Carta, which is already on third and final reading, except for the questionable escrow provision.

from the CMA Facebook page:
1 March 2023

(T)he Center for Migrant Advocacy, Phils. Inc. supports the statement of the National Union of Peoples' Lawyers against the inserted escrow provision in the house version of the proposed magna carta for seafarers.

Press Statement
March 1, 2023

The NUPL opposes the inclusion of the ESCROW provision in the House Bill “ An Act Instituting the Magna Carta of Filipino Seafarers” for being constitutionally infirm, for discriminating against seafarers and for being adverse to the rights of labor.

While the passage of the Magna Carta of Filipino Seafarers is laudable and long overdue, the inclusion of Section 51, Escrow as a Manner of Execution, runs counter to the objective of the law which is to protect labor.

Under said provision, Any monetary award by the arbitrator to the seafarer, or his successors-in-interest, made whether in a voluntary or mandatory arbitration, or by the National Labor Relations Commission (NLRC), shall be placed in escrow, if the employer or manning agency has raised or intends to raise the decision for judicial review in accordance with the Rules of Court. The amount in escrow shall not include claims for salaries, statutory monetary benefits, or those originally determined by the employer or manning agency to be legally due to the seafarer.

The amount shall remain in escrow until the issuance of an entry of judgment by the appropriate reviewing court or when the employer or manning agency fails to perfect his appeal or his petition for review

This Escrow provision will amend the Labor Code of the Philippines which allows the immediate payment of the money award to all employees including laborers, OFWs, fishers and seafarers who have won a case with finality at the NLRC or NCMB even if the company files a certiorari at the Court of Appeals later on and even a Petition for Review at the Supreme Court.

Instead of releasing the award to the winning seafarer or to their heirs if they die while the case is pending,, it will be deposited in Escrow in a bank and will be released only when the Court of Appeals has affirmed the NLRC decision and the Supreme Court has affirmed the decision of the Court of Appeals later on. “Aanhin pa ang damo kung patay na ang kabayo? As the saying goes.

Right now, the process in the NLRC is tedious and long winding enough. First there is the SENA or Single Entry Approach where the seafarer and the company will negotiate, then the filing of the case with a Labor Arbiter, then if the seafarer wins, the company can still appeal to the NLRC Commission consisting of three Commissioners. If the Commission affirms the Labor Arbiter’s decision, the company can still file a Motion for Reconsideration.

Once a judgment has become final, the prevailing party can have the judgment executed as a matter of right. The seafarer can at last get his winning award even if the company files
a petition for certiorari at the Court of Appeals, and later on a Petition for Review with the Supreme Court which will take additional years to resolve.

With the Escrow provision,(Sec. 51) the money will be deposited in Escrow with a bank and the seafarer can only get the money after the Supreme Court has decided the case with finality. How can this nefariously anti labor insertion be included in a Magna Carta for Seafarers which is supposed to protect the rights of seafarers?

This is violative of the constitutional provision that “no person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.” (Article III, Section 1). The constitutional right of equal protection shall mean that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. Seafarers are also laborers who are entitled to the equal protection of the labor laws of the country.

It singles out seafarers and excludes them from the class of employees who can get the immediate payment of their awards after winning the case at the NLRC with finality. If the seafarer wants the immediate payment of their award at the NLRC, they should pay a Bond. This is an absurd imposition on labor since under the Labor Code of the Philippine, no employee is required to pay a bond for execution. Why impose this only on the seafarers who are jobless, sick, disabled and infirm when they file cases at the NLRC?
If passed into law, this provision on Escrow would be tantamount to Class Legislation. The classification by the legislative body must, as an indispensable requisite, not be arbitrary. To be valid, it must conform to the following requirements as enunciated in the oft-cited case of People v. Cayat to wit:

1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.

The exclusion of seafarers from other OFWs and employees in the land is arbitrary. It is not based on substantial distinctions as seafarers are not different from any OFW or any landbased worker. It is also not germane to the purpose of the law since it protects the rights of the employer and not the employee. Delaying the release of the hard earned money award to the seafarer for many years protects the rich manning agency and foreign principals and their Protection and Indemnity Clubs (ship insurers). The extraordinary Escrow power is also unilaterally given to the employers who can decide how much would be released and how much would be put in Escrow. The seafarer has no say in this, neither do the Labor Arbiter and the NLRC Commission. The legislature would be surrendering the quasi judicial power to determine the amount of Escrow to the litigant employer. This is obviously one sided against labor.

To allow this diminution of the rights of seafarers and their arbitrary exclusion from the protective ambit of the Labor Code of the Philippines and beneficent labor laws is an attack on labor. If they can single out seafarers today, what can prevent them from applying the Escrow on all OFWs later on? Even the Filipino industrial workers here are all at risk, if this anti labor virus is allowed to be inserted in our labor laws.

The NUPL supports the call of Hon. Arlene Brosas and the Makabayan Bloc, one of the proponents of the bill, to expunge this objectionable Escrow provision from the Magna Carta for Filipino Seafarers. We stand in solidarity with the seafarers, OFWs and all the workers of the land in the defense of labor rights of all Filipinos here and abroad.

Reference:
Atty. Ephraim B. Cortez
NUPL President | +639172092943
Atty. Josalee S. Deinla
NUPL Secretary General | +639174316396

AN ACT INSTITUTING THE MAGNA CARTA OF FILIPINO SEAFARERS
SEC. 51. Escrow as a Manner of Execution. – Any monetary award by the arbitrator to the seafarer, or his successors-in-interest, made whether in a voluntary or mandatory arbitration, or by the National Labor Relations Commission (NLRC), shall be placed in escrow, if the employer or manning agency has raised or intends to raise the decision for judicial review in accordance with the Rules of Court. The amount in escrow shall not include claims for salaries, statutory monetary benefits, or those originally determined by the employer or manning agency to be legally due to the seafarer.

The amount shall remain in escrow until the issuance of an entry of judgment by the appropriate reviewing court or when the employer or manning agency fails to perfect his appeal or his petition for review. The fees in obtaining or maintaining the escrow account shall be paid by the employer or the manning agency.
The interest earned by the amount in escrow shall inure to the benefit of the prevailing party.

However, the seafarer or his successors-in-interest may, in accordance with the Rules of Court, move for the execution of the monetary award pending appeal upon posting of a bond, the amount of which shall be determined by the appropriate court.

The DMW shall issue the appropriate implementing guidelines for section 50 and this section.