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Philippine Shipping Updates – Manning Industry [Download]
By: Ruben Del Rosario, Managing Director, Del Rosario Pandiphil Inc., May 8, 2007
This issue contains the following:
Supreme Court rules that Labor Arbiters must exercise “judicial courtesy” in issuing writs of execution
Warning on POEA Administrative Cases
New law extends POEA regulatory powers
POEA Standard Employment Contract to be revised
Supreme Court rules that Labor Arbiters must exercise “judicial courtesy” in issuing writs of execution
Under NLRC Rules, the Labor Arbiter can issue a writ of execution even if the NLRC decision is appealed before the Court of Appeals unless, of course, a temporary restraining order is issued by said higher court. This is of grave concern to vessel interests as the appeal in effect becomes useless as the decision is already executed. The bond or the agents’ funds are already garnished even before the higher court issues its decision.
However, there is now a new Supreme Court decision which gives guidelines on such issuance of a writ. In a non-shipping case, the Supreme Court ruled that the Labor Arbiter or the NLRC “must exercise extreme prudence and observe judicial courtesy” in the issuance of a writ as the issuance of such writ would render moot the decision of the higher court. Further, the interest of Labor must be balanced with the interest of Management. Said the Court: “…the law in protecting the rights of the employees authorizes neither oppression nor self-destruction of the employer.”
Case cited: Milagros Panuncillo vs. CAP Philippines, Inc.; G.R. No. 161305; February 9, 2007; Second Division; Associate Justice Conchita Carpio Morales, Ponente
Warning on POEA Administrative Cases
We have to warn agents and their principals to give full importance to administrative cases filed at the POEA. Such cases are important considering that the imposable administrative penalty can include suspension or cancellation of the manning license. If the manning agents’ license is suspended or cancelled, the manning agent is not allowed to deploy seafarers. We all know that this creates tremendous problems as seafarers’ have to be deployed at a moment’s notice.
Further, note should be taken whether previous administrative violations have been committed as in certain offenses, the penalty increases depending on the number of previous offenses of the same nature. For example, the offense of “substituting or altering to the prejudice of the seafarer, employment contracts approved and verified by the Department from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department” carry the following penalties:
1st Offense – Suspension of License (Two months to Six months)
2nd Offense – Suspension of License (Six months and One day to One year)
3rd offense – Cancellation of License”
Manning agents/ principals should regularly check with their claims personnel and their lawyers to determine if they have any pending POEA administrative cases. It is prudent to determine the nature of such cases and how many previous offenses have been committed. A detailed report should always be obtained on such cases.
We all should note that it is quite difficult to predict how the POEA hearing officers will decide a case. They tend to follow the well-settled rule of “doubts to be resolved in favor of labor”. A manning agent may lose a case even if the thinks he has a “winnable” case. Thus, all cases must be reviewed even if “winnable” as the penalty to be imposed is quite severe.
Further, manning industry groups should review this aspect of the POEA rules and make recommendations on possible amendments.
New law extends POEA regulatory powers
Under the 1995 Overseas Migrant Workers Act, the POEA was to be phased out as the manning industry was to be deregulated. However, a new law, signed by President Arroyo on April 10, 2007 has indefinitely extended the regulatory powers of the POEA.
Although the new law may seem unimportant, in the SS Norway case, one of the arguments used by the claimants was that the POEA contract was not valid as the
POEA could no longer exercise its powers under the 1995 Overseas Migrant Workers Act. With the new law, this argument reaffirms the POEA regulatory powers and with it the POEA’s right to issue the POEA Standard Employment Contract.
The POEA in its press release states:
It may be remembered that the industry sector filed petition with the Quezon City Regional Trial Court to enforce the phase-out provisions of the regulatory functions of POEA pursuant to Sections 29 and 30, which was granted by the Court. However, the government, through Solicitor General elevated the case to the Supreme Court, which issued a Temporary Restraining Order. The case is still pending with the High Court. Thus, with the passage of R.A. 9244 the issue pending thereat was rendered moot and academic.
As it is now, the POEA shall continue to exercise its power to regulate private sector participation in the recruitment and overseas placement of workers by setting up a licensing and registration system. It shall also formulate and implement, in coordination with appropriate entities concerned, when necessary, a system for promoting and monitoring the overseas employment of Filipino workers taking into consideration their welfare and the welfare and the domestic manpower requirements
POEA Standard Employment Contract to be revised
The POEA has started to solicit recommendations from inerested groups on revisions to the Standard Employment Contract. In line with previous procedure on such amendments, the POEA will hold conferences among government, labor and employers on such proposed revisions. Del Rosario Pandiphil Inc. requests those interested to submit their recommendations on revisions and we will pass this on to the proper industry groups or the POEA.
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This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation. It is meant to be brief and is not intended to be legal advice. For further information, please email This email address is being protected from spambots. You need JavaScript enabled to view it. .
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Del Rosario & Del Rosario
Del Rosario Pandiphil Inc.
Tel. 63 2 810 1791 Fax 63 2 817 1740
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www.delrosariolaw.com
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Contact Details
mail@delrosariolaw.com
mail@delrosario-pandiphil.com
Telephone: +63 2 5317 7888, +63 2 8810 1791 Fax: 63 2 5317 7890 24/7
Mobile: 63 917 830 8384
mail@delrosario-pandiphil.com
Telephone: +63 2 5317 7888, +63 2 8810 1791 Fax: 63 2 5317 7890 24/7
Mobile: 63 917 830 8384