Filipino seafarers as contractual employees

By Atty. Dennis R. Gorecho

Seafarers are not entitled to the benefits given to a regular or permanent employee, such as 13th-month pay, reinstatement, separation or termination pay or in some instances, even retirement benefits, since they are considered merely as
contractual employees.

This has been the consistent ruling of the Supreme Court since it issued its decision in the 2002 case of Millares v. NLRC (GR 110524 July 29, 2002) that became the landmark jurisprudence defining the nature of employment of Filipino seafarers and the applicable law.

Seafarers are considered contractual employees. Their employment is governed by the contracts they sign every time they are rehired and their employment is terminated when the contract expires. Their employment is contractually fixed for a certain period of time. They fall under the exception of Article 280 whose employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.

A Filipino seafarer is governed by the Rules and Regulations of the Philippine Overseas Employment Administration. The Standard Employment Contract governing the employment of All Filipino Seamen on Board Ocean-Going Vessels of the POEA, particularly in Part I, Section C specifically provides that the contract of seamen shall be for a fixed period.

The provisions of the POEA contract require the seafarer to arrive at the point of hire as it signifies the completion of the employment contract, and not merely its expiration. Similarly, a seafarer’s employment contract is terminated even before the contract expires as soon as he arrives at the point of hire and signs off for medical reasons, due to shipwreck, voluntary resignation or for other just causes. In a nutshell, there are three requirements necessary for the complete termination of the employment contract: 1. termination due to expiration or other reasons/causes; 2. signing off from the vessel; and 3. arrival at the point of hire.

The Millares doctrine was reiterated in the latest case of Ceriola v. NAESS Shipping (GR 193101 April 20, 2015) where the Supreme Court noted that it is an accepted maritime industry practice that employment of seafarers are for a fixed period only. Constrained by the nature of their employment, which is quite peculiar and unique in itself, it is for the mutual interest of both the seafarer and the employer why the employment status must be contractual only or for a certain period of time. The exigencies of their work necessitates that they be employed on a contractual basis.

Seafarers spend most of their time at sea and understandably, they cannot stay for a long and an indefinite period of time at sea. Limited access to shore society during the employment will have an adverse impact on the seafarer. The national, cultural and lingual diversity among the crew during the contract is a reality that necessitates the limitation of its period.

The circumstance of continuous rehiring is normally dictated by practical considerations that experienced crewmembers are more preferred. Current crew members are only given priority or preference because of their experience and qualifications but this does not detract the fact that seafarers are contractual employees.

Atty. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan  law offices. For comments, e-mail or call 09175025808 or 09088665786.


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