Under Article 29, parties to a collective agreement (CBA) (in addition to the amended POEA standard contract) submit to the jurisdiction of a voluntary arbitrator or panel of voluntary arbitrators. If no arbitrator is registered in the CBA, the parties choose from the list of voluntary arbitrators of the National Conciliation and Mediation Council (NCMB) of the Ministry of Labour and Employment. The decision of the voluntary arbitrator(s) is considered final and binding, but in practice it can be challenged before the Court of Appeal and the Supreme Court. For seafarers without ACA and covered only by the POEA Treaty, it is possible to choose between voluntary arbitration and compulsory arbitration before the labour arbitrators of the National Labour Relations Commission (NLRC). Illnesses not listed in § 32-A are ”presumed to be work-related questionable”.7 This means that compensation will be paid for illnesses suffered by a seafarer during the term of his contract, unless the employer provides ”substantial evidence” to prove that the illness is not work-related. The amended Treaty of the Philippine Overseas Employment Administration (POEA) entered into force on 26 June 2000. Two petitions have been filed with the Supreme Court of the Philippines to question the validity of the treaty. The first application was dismissed. The second petition (submitted by non-governmental organisations) resulted in the issuance of an injunction on the implementation of Article 20 of the Treaty, which deals with compensation and benefits.
The POEA implemented the Treaty by replacing Article 20 of the old Treaty instead of Article 20 of the amended Treaty. Work-related injuries are defined as ”injuries resulting in disability or death resulting from and during employment.” 3 The basic compensation requirements are that the injury occurred ”outside and during employment” and occurred during the term of the contract.4 The Supreme Court of the Philippines has ruled that an injury is work-related: when it occurs in the workplace and the employee performs his or her official duties. However, exceptions to the ”workplace injuries” doctrine are the ”back and forth” rule, which states that an employee who travels to and from work and an employee who is responsible for a special duty or ride outside the workplace will continue to be compensated for his or her injuries. Work-related illness, injury or death will be addressed in the amended contract. Occupational disease is ”any disease resulting in invalidity or death as a result of an occupational disease listed in § 32-A of this contract, the conditions set out therein being fulfilled”.5 If the ship is destroyed in such a way that the employment relationship must be terminated before the date specified in the contract, the seafarer is entitled to a wage earned. medical examination at the employer`s expense to determine his or her ability to work, repatriation at the employer`s expense and a monthly base salary as severance pay. (Item 6) In the event of total or partial permanent disability of the seafarer caused by injury or illness, the seafarer will be compensated in accordance with the performance table indicated in § 32 of his contract. The calculation of his benefits for a disease or illness is based on the rates and rules of compensation that were applicable at the time of the development of the disease or illness. It took more than five years for the POEA to amend the treaty. Several conferences were held between government, employers and unions to develop the changes. It is regrettable that petitions have been submitted to the Supreme Court questioning the validity of the treaty.
However, the remaining petition is expected to be rejected soon. Overall, the labour provisions and the exemption from ”tort” for payment of benefits are significant concessions for the employer. However, the scope of services is largely determined by the future interpretation of the changes by the courts. The NCMB has accredited the first group of voluntary maritime arbitrators who will arbitrate claims and disputes under the POEA Treaty and the CBA. The Philippine Overseas Employment Administration is an agency of the Government of the Philippines responsible for opening the benefits of the Philippine Overseas Employment Program. In addition, the unilateral employment contract has also been amended to refer to Circular No. 34 of the POEA Memorandum. ”A seafarer who knowingly conceals and does not disclose a state of health, disability and history during the medical examination before hiring constitutes a fraudulent misrepresentation and disqualifies him from any compensation and benefit.” 9 There must be a deliberate concealment, which means that the seafarer is aware of his illness or injury and still conceals that illness or injury during his medical examination before being hired. A seafarer who is dismissed and repatriated as a result of port State control procedures/measures shall be deemed to be effectively dismissed. However, he is entitled to repatriation, wages and other benefits.16 The amended contract does not specify the ”other benefits” that the seafarer must receive. In order for compensation to be paid, an illness must not only be listed in § 32-A, but it must also occur during the term of the contract.6 If the seafarer delays or makes a detour or goes to a destination other than the route agreed by the employer until recruitment, the seafarer`s employment relationship is deemed to have ended at that time, at which the seafarer leaves the ship and all additional costs shall be borne by the seafarer.
The seafarer shall be entitled to the salary earned and the basic salary, calculated on the basis of the date of arrival initially planned at the place of recruitment. All other responsibilities of the company in this case expire at the time the seafarer is terminated. Any illness, injury or death suffered by the seafarer as a result of the foregoing shall be deemed not to be work-related and shall not be compensated. Seafarers shall be provided with an appropriate rest period in accordance with international standards. The disease was acquired as a result of seafarers` exposure to the risks described; Under the amended contract, when a ship hangs up, sells or interrupts its voyage, the seafarer is entitled to a salary earned, a termination indemnity of one month`s base salary and repatriation costs, unless the seafarer is reinstated by the same client to enter into his contract.15 *Update, July 2002: The application was rejected and the amended POEA contract is now in effect. In accordance with Article 2 of the POEA Treaty (Commencement/Duration of Contract), another provision has been added stipulating that the seafarers` employment contract must continue to be effective as long as a seafarer is held captive on or off a ship due to piracy or armed robbery on ships, the date fixed for its expiry has expired or one of the parties has announced a suspension or termination of the contract. The limitation period under the old contract is one year from the date of return of the seafarer to the place of hire. Under the amended contract, the limitation period is three years from the date the appeal is filed.17 This harmonizes the contract with the Philippine Labor Code, which provides for a three-year limitation period.
Unlike the old contract, the amended contract requires that any voluntary resignation be made in writing.14 The Supreme Court of the Philippines has ruled that a termination letter prepared by the employer and signed only by the employee does not constitute voluntary termination. The master may dismiss for cause without notice if there is a ”clear and existing danger” to the safety of the crew or ship.13 The old contract did not provide for termination if ”it affects the safety of the crew or the ship.” Now the danger must be ”clear and present.” In accordance with Article 19 of the POEA Treaty (Return), letter H has been amended to indicate that the right of return ceases if the seafarers concerned do not do so within a reasonable period of time to be determined by national laws or regulations or, where appropriate, by collective agreements; unless seafarers are kept on board or away from the ship as a result of piracy or armed robbery of ships […].
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