Who is a seafarer under the Magna Carta?

Who is a seafarer under the Magna Carta?
ATTY. DENNIS GORECHO - | April 11,2023 https://cebudailynews.inquirer.net/498019/who-is-a-seafarer-under-the-ma...

A Seafarer refers to any person who “is employed or engaged or works in any capacity on board a ship to which this Act applies”.

The definition is lifted from House Bill 7325 or the proposed Magna Carta of Filipino Seafarers which the House of Representatives approved on third and final reading last March 6, 2023.

The same phrases appeared in the Coverage section:

“This Act shall cover Filipino seafarers who are employed or engaged or work in any capacity on board foreign-registered ships and Philippine registered ships operating internationally.

“This Act shall not cover seafarers on board the following categories of ships: (a) Warships and naval auxiliaries; (b) Government ships not engaged in commercial operations; (c) Ships of traditional build, as may be defined under existing rules and regulations; and (d) Fishing vessels.”
Seafarers, Labor Code

The bill further noted that “Seafarers who are employed or engaged or work in any capacity on board merchant ships operating domestically shall be covered by the Labor Code of the Philippines, and by other applicable laws, executive issuances, rules and regulations.”

During the deliberation of Magna Carta version at the Senate, we proposed that the phrase “to be engaged” should be added in the coverage and definition sections.

The law should also cover those “to be employed/ engaged” as not all seafarers are actively employed all the time. There are those who are still applying for work, undergoing trainings, recently repatriated due to contract termination or other causes, or are simply on vacation.

Legislative bodies are allowed to classify the subjects of legislation. If the classification is reasonable, the law may operate only on some and not all of the people without violating the equal protection clause. The classification must, as an indispensable requisite, not be arbitrary.

To be valid, it must conform to the following requirements: (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 and (4) It must apply equally to all members of the class. (People vs. Cayat, G.R. No. L-45987, May 5, 1939).

Cayat case principle

Applying the principle behind the Cayat case, the pending law must not be limited to existing conditions only and it must apply equally to all members of the class. The class refers to all seafarers, whether employed or not.

In fact, several provisions intend to include even those not “engaged, employed, or working”. The Magna Carta is less effective due to the non-inclusion of those “to be engaged.”

These include sections on (a) Right to Self-Organization, to Engage in Collective Bargaining, and to Participate in Democratic Exercises; (b) Right to Educational Advancement and Training at Reasonable and Affordable Costs. (c) Right to Information; (d) Right to Consultation; (e) Right against Discrimination; (f) Right to Free Legal Representation; and (g) Discrimination Against Women Seafarers.

“To be engaged” is also for the protection of those possible victims of illegal recruitment and other prohibited acts under the Amended Migrant Workers and Overseas Filipinos Act (AMWA) or R.A. No. 10022 and the POEA rules in relation to the recruitment and employment of Filipino seafarers wherein the company or persons can be held criminally or administratively liable.

A holder of an active Seafarer Identification and Record Book (SIRB) may not be considered a seafarer under the proposed Magna Carta.

Oppositions

However, there are oppositions to its inclusion as they argue that the definition and coverage should follow what is stated in the Maritime Labor Convention of 2006 (MLC2006).

The MLC2006 establishes minimum working and living standards for all seafarers working on ships flying the flags of ratifying countries. The Philippines deposited its instrument of ratification on Aug. 20, 2012.

The proposed Magna Carta seeks to implement the standards set by MLC2006 to ensure protection of the rights and welfare of Filipino seafarers by recognizing their rights, instituting mechanisms for the enforcement and protection thereof, providing for compulsory benefits.

Ironically, employers and manning agencies are pursuing the inclusion of an escrow provision which is absent in MLC2006.

The provision in essence aimed to amend the Labor Code that will have significant impact on the “immediately final and executory” nature of decisions issued by National Labor Relations Commission (NLRC) and the National Conciliation and Mediation Board (NCMB).

The proceeds shall remain in escrow until such time the finality of the decision issued by the appropriate appellate court is obtained.

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.