Speaker 1 (00:00):

Good afternoon, everyone. This is an audio lecture that will be given to you in lieu of my presence in class,
either in person or online. I'm still suffering from bronchitis, now complicated by bronchitis, and I'm finding it
really difficult to talk. But I don't want to compromise your consistent and continuous learning, so my decision
to record this audio lecture.

Speaker 1 (00:35):
This audio lecture will tackle all the principles and all the subject matters that we still have to discuss with
respect to part two of your syllabus on recruitment and placement. As I lecture, you may probably hear some
ambient sound, like for example, music or jingles.

Speaker 1 (01:01):
They are all emanating from jingles or campaign materials that are being used by people who are running for
barangay positions. So just ignore them and just focus on the substance of the lecture. So I want to start this
lecture with a reiteration of the principle that all OFWs are entitled to security of tenure. This right is made a
reality under the doctrine of Lex Losi constructus,

Speaker 1 (01:37):
or the law of the place where the contract is made. In the case of Ratscher, the Supreme Court had the occasion
to rule that these contracts are governed by our laws, referring to the employment contracts of the OFWs,

Speaker 1 (02:03):
primarily the labor code of the Philippines, and its implementing rules and regulations. At the same time, our
laws generally apply, even to employment contracts of our OFWs, as our constitution explicitly provides that
the state shall afford full protection to labor. Another principle that I want you to remember is that the courts of
the forum,

Speaker 1 (02:31):
meaning our courts, will not enforce any foreign claim obnoxious to the forum's public policy. I think I got
this from Samir Overseas Placement Agency versus Cabiles. For the citation of the GASDAS versus Grand
Placement and General Services Corporation, it is GR number 205727, January 18, 2017. Another quotable
quote that I got from Samir Overseas Placement Agency versus Cabiles,

Speaker 1 (03:07):
GR number 170139, August 5, 2014, is this, employees, meaning OFWs, are not stripped of their security of
tenure when they move to work in different jurisdictions. From there on, I would like to move to the case of
Juan Arlene

Speaker 1 (03:32):
Cuarto Cruz, this is not included in your caseload list, you are advised to include it now, versus Active Works,
Inc., and Maria Isabel Hermosa, this is GR number 209702, July 24, 2015. The OFW year was deployed as a
domestic helper to Hong Kong. She arrived in Hong Kong on August 3, 2007.

Speaker 1 (04:03):
In eight days thereafter, specifically on August 11, she received a warning from the employer about her lack of
attentiveness in performing her work. She was warned that she has to improve her performance, otherwise she
will be terminated from employment. On August 16, 2007, or days

Speaker 1 (04:31):
before, Arlene filed a complaint for illegal dismissal. In defense, respondents invoke Hong Kong Employment
Ordinance, Chapter 57, Section 9,

Speaker 1 (05:02):
which states that an employer may terminate a contract of employment without notice if the employee willfully
disobeys a lawful order. The Supreme Court ruled that Philippine laws apply in this case, Philippine laws apply
in this case. Although the employment contract is punctuated with provisions referring to Hong Kong law as
the applicable law that governs the various aspects of employment,

Speaker 1 (05:37):
Hong Kong law was not proved. A party invoking the application of a foreign law has the burden of proving it.
The foreign law is treated as a question of fact to be properly pleaded because the judge or the labor arbiter
cannot take judicial notice of it. Thus, the international law doctrine of presumed identity approach or
processual presumption applies.

Speaker 1 (06:09):
Okay, the next point that I want to emphasize is the reliefs granted to an illegally dismissed employee,
specifically OFWs. The first relief is full reimbursement, a placement fee, and the deductions made with
interest at 12% per annum.

Speaker 1 (06:32):
Next, salaries for the unexpired portion of the contract. And then third, moral and exemplary damages if
warranted. There are so many cases telling us that the last part of section 10 of RA 8042 has been declared as
unconstitutional. For purposes of recall, I want us to look at the plethora of cases sustaining this affirmative
redressive reliefs, starting from Serrano versus Galant Maritime Services,

Speaker 1 (07:12):
GR number 167614, March 24, 2009. This is the doctrinal ruling and an in-bank ruling. The next one is
Claudio Yap versus Tena Marys ship management and inter-mayor maritime agencies,

Speaker 1 (07:32):
GR number 179532, May 30, 2011. Followed by another in-bank ruling of the Supreme Court in the case of
Samir Overseas Placement Agency, Inc. versus Joy Cabiles, GR number 170139, August 5, 2014. And then
finally,

Speaker 1 (08:01):
the case of Julieta Aldovino et al. versus Gold and Greenman Power Management and Development Services,
Inc. GR number 200811, Shoe 19, 2019. The next question that I want to pose and that I would also answer
is, who has jurisdiction over money claims and termination disputes of OFWs?

Speaker 1 (08:32):
Section 10 of R.A. 8042 as amended has the answer. The labor arbiters of the NLRC shall have a regional and
exclusive jurisdiction over money claims of OFWs. Let me stress that this provision is true for land based
OFWs. Again, this provision is true for land based OFWs.

Speaker 1 (09:03):
With respect to sea based OFWs, the Supreme Court categorized them into those covered by a collective
bargaining agreement and those who are not. The Supreme Court said in two cases that when the seafarers are
covered by a collective bargaining agreement, then jurisdiction over their claims would fall with the voluntary
arbitrator or the panel of voluntary arbitrators.

Speaker 1 (09:37):
I'd like to call your attention to cases that you're very familiar with. I'm talking about the first case. Actually,
this is the second case, but I think that this is better written than the other case. I'm talking about the case of
Ace Navigation Company, Incorporated, Vela International Marine Limited, and Pamintuan versus Chodorico
Fernandez,

Speaker 1 (10:05):
assisted by Glenita Fernandez. This is chair number 197, 309, October 10, 2012. This is a for disability
benefit where the Supreme Court ruled that this dispute of seafarers, disputes of seafarers covered by collective
bargaining agreements are recognizable by the voluntary arbitration mechanism prescribed in the party's CBA
and the POA standard employment contract.

Speaker 1 (10:38):
What were the reasons invoked by the Supreme Court in so ruling? The Supreme Court, through the ponentia
of Justice Breon, invokes section 3, article 13 of the Constitution on the preferential use of voluntary modes in
settling disputes, as well as articles 260,

Speaker 1 (11:02):
262, now 273, and 274 of the jurisdiction of the grievance machinery and the jurisdiction of the voluntary
arbitrator, as well as section 29 of the POA standard employment contract, which reads, in cases of claims and
disputes arising from this employment, the parties covered by a CBA shall submit the claim or dispute to the
original and exclusive jurisdiction of the voluntary arbitrator or panel of voluntary arbitrator.

Speaker 1 (11:43):
The second case is the case of the estate of Nelson Dulay versus Aboitis, Jepson Maritime, Inc., and General
Charterers, Inc. This is GR number 172642, June 13,

Speaker 1 (12:03):
2012. Justice Peralta, in his ponentia, presented other reasons. According to him, section 10 of RA8-42 does
not have a specific provision which provides for jurisdiction over disputes or unresolved grievances regarding
the interpretation or implementation of a CBA. And because there is an obvious vert or absence of a specific
provision in RA8-42,

Speaker 1 (12:37):
Justice Peralta pointed to article 274, it used to be article 261, now 274 of the labor code. Justice Peralta also
pointed to a second reason. According to him, the collective bargaining agreement is the law between the
parties and a provision of the CBA applicable to Mr.

Speaker 1 (13:01):
Dulay provides that in case of dispute or conflict in the interpretation or application of the same, it shall be
settled through negotiation, conciliation, or voluntary arbitration. Clearly, the second reason is premised on
the basic concept that the collective bargaining agreement is the law between the parties and it being the law
between the parties, the same must be obeyed. Next question,

Speaker 1 (13:31):
what is the nature of employment of OFWs? The Supreme Court had answered this question without any
variation, invariably. The Supreme Court is consistent on this score. The Supreme Court said they are
contractual employees who cannot become regular employees. It is also appropriate to refer to them as fixed-
term employees.

Speaker 1 (14:01):
The doctrinal rooting, of course, is the case of Douglas Millares et al. versus Enel Arcey et al. chair number
110-524. This is dated July 29, 2002. There is also a very good discussion in the case of Panganiban versus
Tara Trading, chair number 187-116, October 18, 2010. Here is an OFW,

Speaker 1 (14:31):
I am presenting to you another concept. Here is another OFW who got another contract without a knowledge or
intervention of the placement or recruitment agency or manning agency. If this is the situation, remember the
recruitment, placement or manning agency does not have any knowledge, neither did it intervene in securing
another contract for the OFW. If this is the situation,

Speaker 1 (15:01):
the manning agency, the placement agency or recruitment agency will not be liable for any dispute that may
happen later on. This is how the theory of imputed knowledge works. Again, this is how the theory of imputed
knowledge works. Knowledge of the agent can be imputed to the principal but not the other way around. This
came from the Supreme Court ruling in the case of San Ace International Management versus Enel Arcey.

Speaker 1 (15:37):
This is a January 25, 2006 ruling of the Supreme Court. Okay, I remember that when we had our in-person
class, we discussed the different kinds of OFWs and for the special class, I think that we have discussed the
different kinds of OFWs during one of our online sessions.

Speaker 1 (16:03):
So this time, we will focus on seafarers. Okay, who is a seafarer? In order to update the definition, I will
focus on the definition found in section 3 of RA 11641. Section 3 of RA 11641. Okay, so who is a seafarer?

Speaker 1 (16:32):
It refers to an OFW who is engaged in employment in any capacity on board a merchant marine vessel, plying
international waters or other sea-based craft of similar category. For purposes of this act, it shall include fishers
on board commercial, fishing vessels on international waters,

Speaker 1 (17:03):
or as defined under relevant maritime conventions, cruise ship personnel, yacht crew, those serving on mobile
offshore and drilling units in the high seas and other persons similarly situated. Again, this came from section 3
RA 11641. For a more comprehensive definition of the concept of seafarer, I also would like to mention the
definition of seafarer under RA 842 as amended.

Speaker 1 (17:37):
The term seafarer refers to any person who is employed or engaged in overseas employment in any capacity on
board a ship other than a government ship used for military or non-commercial purposes. The definition shall
include fishermen, cruise ship personnel, and those serving on mobile offshore and drilling units in the high
seas.

Speaker 1 (18:05):
I want you to compare these two definitions and see if there are conflicts but I do not actually see any conflict
except that there are certain clarifications in the definition found in RA 842 as amended by RA 10022. The next
topic that I want us to discuss is the commencement of employment of seafarers.

Speaker 1 (18:33):
When does the employment of a seafarer commence? The employment contract between the employer and the
seafarer shall commence upon actual departure of the seafarer from the Philippine airport or seaport in the point
of fire with the POEA approved contract. Take note that there are two conditions here. Actual departure of the
seafarer from the Philippine airport or seaport in the point of fire with the POEA approved contract.

Speaker 1 (19:07):
This is from section 2 paragraph 8 of the POEA standard employment contract of 2010. Point of fire means the
place indicated in the contract of employment which shall be the basis for determining commencement and
termination of contract. Okay so do remember the two conditions.

Speaker 1 (19:32):
Actual departure with a POEA approved contract. Okay next what's the period of employment of a seafarer?
The period class is mutually agreed upon by the seafarer and the employer but there is a prohibition and that
prohibition is that the employment contract shall not exceed 12 months. Any extension any extension of the
contract shall be subject to the mutual consent of both parties.

Speaker 1 (20:06):
Now let's look at the reason. Why can the employment contract be not extended to 12 months? The answer is
because seafaring as a job is a very difficult job. You cannot go online for the entire period of your
employment contract or even if you're allowed to go on short leave it's just short leave rather it's just for a short
period of time and it's very psychologically taxing for an employee to be cooked in meaning staying in and
without being able to go out.

Speaker 1 (20:45):
That's precisely the reason why the employment contract of the seafarer should not be more than 12 months
because it's highly unnatural for a person to be locked in for a period longer than that. Okay next point the
seafarers have many obligations.

Speaker 1 (21:05):
They are found in the POEA standard employment contract in the same manner that the employers of the
seafarers have many obligations. I want you to go over the different obligations of both parties. Other than the
many obligations of the seafarers with respect to his performance of work or his attitude or his deportment while
on board the ship there is one obligation of a seafarer that has a bearing on the family he left behind in the
Philippines and this is the obligation to make an allotment once a month to his designated allottee in the
Philippines.

Speaker 1 (21:51):
The allotment is equivalent to 80 percent of the seafarers monthly base basic salary 80 percent of the seafarers
monthly basic salary so the overtime pay is not included.

Speaker 1 (22:07):
The allottee by the way need not be a legal heir or dependent. Please note that in case of debt benefits and other
compensations that are paid to the legal beneficiaries then the law on succession will have to be considered but
that is not true for allotment. So what is the rule then the seafarer can choose whom he will designate as an
allottee.

Speaker 1 (22:35):
Now let's look at the labor standards benefits of seafarers. One thing that I want to assure you is that their labor
standards benefits are definitely higher than land-based OFWs as well as local employees. Why? Because I as
we said during our previous meetings the POA standard employment contract is a product of multilateral
consultations or tripartite consultations.

Speaker 1 (23:09):
Okay so let's look into the labor standards of seafarers. The first one is they are entitled to regular working
hours by regular working hours it means eight hours of work. Take note that in the boat or in the ship there are
day workers there are steward personnel as well as radio operator or those who are on seawatch.

Speaker 1 (23:36):
They have different hours of work meaning they have different shifts not different hours of work but different
shifts. They have uniform hours of work which is eight hours but they have different shifts. Okay take note that
the weekly hours of work of seafarers should not exceed 48 hours anything in excess of that would be
considered as overtime pay and that's the next pay.

Speaker 1 (24:13):
The open overtime pay and the fixed or the guaranteed overtime pay. The open overtime pay is equivalent to
125 percent of the basic hourly rate. Okay take note there are 208 regular working hours per month on the part
of the seafarer.

Speaker 1 (24:39):
The guaranteed or the fixed overtime pay on the other hand should be not less than 30 percent of the basic
salary of the seafarer. There was one case the title of the case now eludes me but that issue that was exactly the
issue meaning is it still necessary on the part of the seafarer to prove that he rendered overtime services if he is
entitled to a guaranteed or fixed overtime pay.

Speaker 1 (25:12):
The Supreme Court said of course there is an obligation on the part of the seafarer to render overtime service
despite the name despite the name because overtime services are paid for excess hours of work. Take note that
open I'm sorry fixed or guaranteed overtime pay are given to officers.

Speaker 1 (25:39):
Ratings are normally entitled to open overtime pay. Ratings are those who are not officers. Take note
however that it's possible ratings to be entitled to fix or guaranteed overtime pay but there must be a mutual
agreement to this effect.

Speaker 1 (26:01):
I want to emphasize that the seafarer cannot collect overtime pay for services due to emergency work.
Emergency work like for example work that is necessary to the safety of the vessel or the safety of a person or
cargo or during the fire or boat drill and also when responding to another vessel in distress. These are
emergency situations that are not covered by the overtime pay law or the overtime pay provisions of the
seafarers contract.

Speaker 1 (26:41):
Next point is holiday pay. If you look at the holiday pay expressly provided under the POA standard
employment contract they are basically the same holidays that are being used in the Philippines. There are 12
Filipino holidays that are contained in the POA standard employment contract and then after holiday pay there is
this leave pay.
Speaker 1 (27:08):
Leave pay which is equivalent to four and one half days leave per month. Again four and one half days leave
per month so definitely this is higher than the service incentive leave pay that is being enjoyed by our local or
domestic workers and then of course this leave can be spent on shore leave but this shore leave will only only
be allowed upon the consent of the master or when the safety of the vessel will not be compromised.

Speaker 1 (27:46):
Next point can a seafarer be transferred to any ship? Answer a seafarer cannot be transferred to just any ship
however a seafarer can be transferred to any ship owned and managed by the same ship owner with whom he
entered into a contract of employment.

Speaker 1 (28:12):
So the transfer should be to any ship owned and managed by the ship owner with whom he signed an
employment contract and this is pursuant to the transfer clause section 15 of the POA standard employment
contract.

Speaker 1 (28:31):
There is a condition though and what is this condition? There should be non-diminution of pay benefits and the
total period of employment shall not exceed that which has originally been agreed upon. Again there should be
non-diminution of pay or benefits and the total period of employment shall not exceed that originally agreed
upon. Okay a while ago I have discussed with you

Speaker 1 (29:04):
the OFW's entitlement to security of tenure. Okay I think we have discussed that very well. Now let's focus on
this area. Are seafarers entitled to procedural due process prior determination? Yes they are entitled to
procedural due process. Some would call this procedural due process as the two notice rule but in my case I
view it as the three notice rule.

Speaker 1 (29:35):
Why? Because there is the notice of charge, there is a notice of hearing and a notice of penalty. Remember
that in the local sector meaning here in the Philippines there is no guarantee that there will be a hearing.
However with respect to seafarers there is this requirement of notice of hearing as well as the three notice rule.

Speaker 1 (30:07):
I allude to it as the three notice rule with respect to procedural due process that's being enjoyed by seafarers.
Okay take note that these can be dispensed with when there is clear and existing danger to the safety of the crew
and the ship.

Speaker 1 (30:31):
So here is the clear and existing danger to the safety of the crew or the ship. The master in this situation shall
send a complete report to the manning agency which should be substantiated by credible witnesses. This
should be substantiated by credible witnesses. Could you please add in the case of EVIC Human Resource
Management versus Panahon.

Speaker 1 (31:10):
This is GR number 206890 July 31, 2017. Okay while I am at adding cases let me just add two more cases to
your list. Another case that I want you to include in your case list is the case of Wilhelm Senn,

Speaker 1 (31:35):
Wilhelm Senn Smith Bell Manning et al versus Venser VNCR versus Venser GR number 235730. It's a March
17, 2021 ruling of the Supreme Court as well as the case of

Speaker 1 (32:02):
Ventis Maritime Corporation et al versus Joseph Kayabiab GR number 239257 June 21, 2021. I have been
attracted by these two cases because these are two cases where the seafarer suffered from schizophrenia.

Speaker 1 (32:31):
Okay and the seafarer what in in the case of Venser the seafarer hit his crew with a hammer. So this is a very
good reading material. So moving on what is the dispute settlement on board the vessel? The parties covered
by a collective bargaining agreement will submit their dispute to the original and exclusive jurisdiction of the
voluntary arbitrator

Speaker 1 (33:02):
or the panel of voluntary arbitrator. The parties who are not covered by a collective bargaining agreement is
given the option to submit to NLRC or to voluntary arbitration. That is pursuant to section 29 of the POA
standard employment contract. There is also a portion there which states that the POA exercises exercises
jurisdiction

Speaker 1 (33:34):
over disciplinary action cases as well as recruitment violations. Is it still a good provision? Yes it is still a good
provision because I have been consistently saying that POA is still lead agency in the new department of
migrant workers. Okay next point is when is an employer liable for illness or injury suffered by a seafarer?

Speaker 1 (34:03):
When is an employer liable for illness or injury suffered by a seafarer? Answer an employer is liable when the
seafarer suffers work-related injury or illness during the time of the contract. If there is any provision of the
POA standard employment contract that you should be very familiar with let it be section 20

Speaker 1 (34:32):
of said standard employment contract. Okay so work-related injury or illness during the term incurred during
the term of the contract. Now what are the obligations of the employer for seafarers illness or injury? The first
obligation is to pay the salary during the time he or she is on board the ship. So he got sick while on board or he
got injured while on board even if he's not doing anything his salary shall be paid to him.

Speaker 1 (35:10):
Okay next if the injury or illness requires medical treatment in a foreign port the employee shall be liable for the
full cost of such medical serious dental surgical and hospital treatment as well as board and lodging until the
seafarer is fit to work or to be repatriated.

Speaker 1 (35:39):
Next obligation number three if after repatriation the seafarer still requires medical attention he or she shall be
provided at cost. Okay he shall be provided at cost to the employer until such time he or she is declared fit or
the degree of his or her disability has been established by the company designated physician.

Speaker 1 (36:11):
Okay next sickness allowance in an amount equivalent to a seafarer's basic wage computed from the time he
signed off until he is declared fit to work or the degree of disability has been assessed by the company
designated physician shall be paid.

Speaker 1 (36:33):
Okay sickness allowance take note that the sickness allowance cannot exceed 120 days. Number five the
reimbursement of medicine prescribed by the company designated physician and then finally the reimbursement
of actual traveling expenses.

Speaker 1 (37:01):
What are the obligations of a medically repatriated seafarer on the other hand? Number one is submit himself to
post-employment medical examination by a company designated physician within three working days from his
return except when he is physically incapacitated to do so in which case a written report must be sent. I will
explain this concept later on as we discuss the jurisprudence pertaining to seafarers.

Speaker 1 (37:37):
Next number two the seafarer has to report regularly to the company designated physician on dates prescribed
by the letter and agreed upon by the seafarer. Number three to cooperate with the company designated physician
on treatment protocols.

Speaker 1 (38:03):
Okay number four consult a doctor of his own choice if he does not agree with the findings of a company
designated physician and then later on to ask for the motivation of the third doctor conflict resolution
mechanism if the findings of the company designated physician and his chosen physician are contradictory.
Speaker 1 (38:37):
Okay so from here we will discuss about the different jurisprudence pertaining to seafarers. In the early part of
this audio lecture we have defined who a seafarer is. I forgot to mention that there's also article 13 paragraph g
of the labor code and this particular provision defined seaman as any person employed in a vessel engaged in
maritime navigation and I think this would still be a good definition although not comprehensive.

Speaker 1 (39:13):
In one case and I'm talking about the case of V that's capital V as in victory people manpower philippines
incorporated versus bukid this is a 2021 ruling of the supreme court the supreme court defined who is a seafarer
when it said those employed in non-mobile vessels or fixed structures even if the said vessels structures are
located offshore or in the middle of the sea cannot be considered as seafarers under the law why because the
term that is important is moving moving a vessel but in case of non-mobile vessels or fixed structures even if the
said vessels or structures are located in the middle of the sea people employed therein cannot be considered as
seafarers again that's V people management philippines incorporated versus bukid that's a 2021 ruling of the
supreme court I cannot recall the citation I just placed 2021 okay next I want to emphasize the two primary
conditions for claiming disability benefits as it was emphasized in the case of ems crew philippines ems crew
philippines versus bau son another 2021 ruling of the supreme court these conditions are the injury or illness is
work related and it occurred during the term of the contract okay next the seafarer has the obligation to submit

Speaker 1 (41:09):
to post-employment medical examination by a company designated physician within three years three days
rather again at three years at three days upon his return the seafarer shall also report regularly to the company
designated physician what is the what is the rationale for this it would be fairly easier for a physician to
determine if the illness was work related or

Speaker 1 (41:42):
if the seafarer reports for post-employment medical examination within three working days upon his return okay
and of course you know the consequence failure of the seafarer to comply with the mandatory reporting
requirements shall result in his for future of the right to claim benefits under section 20 okay this came from the
ruling of the supreme court in the case of

Speaker 1 (42:13):
osg ship management versus the jesus osg ship management versus the jesus this is a 2020 ruling of the supreme
court okay while we're still talking about the for feature of the right let's look at a seafarer who failed to comply
with the three-day mandatory

Speaker 1 (42:37):
reporting requirement this was reiterated as i have mentioned in the case of osg ship management versus the
jesus and here is the gr gr number 207 344 november 18 2020 jurisprudence abounds by the mandatory
reporting requirement under the poa standard employment contract results in the for future of the right to claim
compensation and disability benefits of a seafarer in one case

Speaker 1 (43:15):
in one case the court even held that this ability claims should only be limited to the illness or injury reported
during the post-employment medical examination okay again only limited to the illness or injury reported during
the post-employment medical examination this came from the case of kabatan versus southeast asia shipping
kabatan versus southeast asia shipping a 2022 ruling of the supreme court okay now let's look at the 120 day
period for assessment okay the company designated physician is given 120 days to make a final and definite
assessment regarding the seafarers concern where do you reckon the 120 day period the reckoning point should
be from the time the seafarer reported to the company designated physician

Speaker 1 (44:35):
from the time the seafarer reported to the company designated position okay okay take note that was the ruling
of the supreme court in the landmark case of management versus okay what is that landmark ruling in that case
the supreme court said the period shall be reckoned from the time the seafarer reported to the company
designated physician

Speaker 1 (45:11):
however subsequent rulings of the supreme court have shown us that the court consistently counted said period
from the date of the seafarers repatriation not from the date when he actually reported to the company
designated physician the latest of these case where the supreme court so declared is in the case of cf sharp crew
management versus daganato again cf sharp crew management versus daganato another 2022 ruling of the
supreme court

Speaker 1 (45:56):
okay now let's look at what will happen after 120 days after 120 days the following may happen one

Speaker 1 (46:12):
the seafarer did not faithfully comply with his obligation to report regularly to the company physician for his
designated checkups okay or there is a final assessment concerning the seafarer's disability claim okay and then
third the company physician failed to make a final assessment of the seafarers medical concern okay so what are
the legal implication

Speaker 1 (46:46):
if the seafarer did not faithfully comply with his obligation to report regularly to the company physician he may
forfeit his right to claim sickness or disability benefit okay if there is already a final assessment concerning the
seafarers disability claim within a period of 120 days then the seafarer who is not satisfied with the medical
finding can now consult

Speaker 1 (47:19):
his physician of choice okay what about the situation where the company physician failed to make a final
assessment of the seafarers medical concern within the 120 day period in this situation then the seafarer will be
entitled to permanent total disability benefits okay permanent total disability benefits

Speaker 1 (47:52):
now we're talking about the three-day reporting requirement of course there are exceptions to the three-day
reporting requirement rule what are the exceptions number one the seafarer is incapacitated to report to the
employer upon his repatriation but it comes with a condition

Speaker 1 (48:15):
that there must be a written notice to the employer for it to be deemed as compliance with reporting requirement
this is for soon to section 2a paragraph 3 of the 2010 poa standard employment contract or it could be possible
that the employer inadvertently or deliberately refused to submit this seafarer to a post-employment medical
examination by a company designated physician in that situation happened in the case of vilie vilie versus marks
filipina screwing incorporated a 2021 ruling of the supreme court again vilie that's vil l e versus marks filipina
screwing incorporated 2021 next exception to the three-day rule is when the illness upon which the disability
claim rests manifests or is discovered after the contract which is usually after the seafarer has disembarked from
the vessel okay this is about the seafarer who does not have any illness at all but after the expiration of the
contract and after he disembarked from the vessel the symptom manifested and these symptoms were or illness
rather symptoms of the illness and this illness was found to be work related and therefore supportive of a claim
for a permanent total disability benefit that was the ruling of the supreme court in the case of ventis maritime
corporation versus salenga again ventis maritime corporation versus salenga that's a 2020 ruling of the supreme
court okay what will happen if there is no final assessment after 120 days what will happen if there is no final
assessment on the part of the company designated physician after 120 days if without justifiable reason to
extend then the seafarers disability becomes total and permanent okay if there is sufficient justification example
the seafarer requires further medical treatment or the seafarer is uncooperative then it can be extended up to 240
days take note that the rule

Speaker 1 (51:11):
extending period of assessment to 240 days is based on section 2 rule 10 of the amended rules compensation
which implemented book 4 of the labor code okay what if there are no justification for extension please note that
under article 192 paragraph c of the labor code disability that both permanent and total is defined as total
disability lasting continuously for more than 120 days so under article 192 if you've been disabled for 120 days
you are considered as temporarily totally disabled this is in line with the ruling of the supreme court in the case
of esplago esplago versus nice shipping philippines esplago versus nice shipping philippines nice is spelled n-a-
e-s-s shipping philippines another 2021 ruling of the supreme court okay the court also ruled in another case that
the company designated position must perform significant act the emphasis is on the words significant act
before he can invoke the exceptional 240 day period for example there is a need for medical reports diagnostic
tests or procedure i want you to look at the 240 day period as an exceptional period okay it's not the rule it's an
exception and can only be justified if there is further need for medical reports diagnostic tests or procedures the
supreme court so declared in the case of the campo versus secrets maritime management incorporated a 2021
ruling of the supreme court

Speaker 1 (53:33):
okay take note that we cannot completely ignore the general 120 day period under the labor code and the poa
standard employment contract and unconditionally apply the exceptional 240 day period under the
implementing rules and regulations otherwise the implementing rules and regulations becomes absolute and it
will render the law forever inoperable okay that's the pronouncement the supreme court in the case of secrets
maritime management incorporated versus bernardy

Speaker 1 (54:19):
though the advice there is do not ignore the general 120 day period under the labor code and the poa standard
employment contract remember the 240 day period only came into

Speaker 1 (54:35):
the awareness of practitioners in in labor law with the ruling of the supreme court in the case of harmonia i think
it was justice brian who penned that ruling and he referred to the implementing rules and regulations of book
four rather than sticking to the labor code provision on the 120 day period as well as the 120 day period
provided for under the poa standard employment contract okay take note that the 240 day period will apply if
there is a justification for the extension

Speaker 1 (55:19):
okay take note the employer has the burden of proving that the company designated physician has sufficient
justification for extension to 240 days so where's the burden of proof here the employer has the burden of
proving that the company designated physician has sufficient justification this is again from the case of esplago i
have mentioned this already but this a very good case esplago versus nice shipping philippines 2021 okay if
there is sufficient justification for the extension then the company designated physician must have a final
assessment before the lapse of the 240 days period okay so what will happen the company designated physician
one one may declare the illness or injury as not work related or he may give a disability grading to the seafarers
illness or injury or in the alternative he may certify that the seafarer is fit to report for work what if after the
extended 240 days there is still on the part of the company physician to give a final and definite assessment

Speaker 1 (56:54):
the supreme court said again in esplago versus nice shipping philippines then the seafarers disability becomes
permanent and total regardless of any justification okay the supreme court in one case the case of reuyan r-e-u-
y-a-n versus inc inc navigation company philippines another 2022 ruling said verily the failure of the company
designated physicians to issue a final and definite assessment within the prescribed period gave rise to the
conclusive presumption that the seafarer indeed sustained a work-related permanent and total disability thus
entitling him to benefits corresponding thereto okay

Speaker 1 (57:56):
what about medical abandonment what is medical abandonment this is a situation where

Speaker 1 (58:05):
the seafarer does not cooperate okay so under the poa standard employment contract no compensation and
benefits shall be payable in respect of any injury in capacity disability or death of the seafarer resulting from his
intentional breach of his duties which includes his duty to attend regular checkups so this is what we call as
medical abandonment the seafarer did not attend his regular checkup without any valid reason this is from the
case of philippine transmarine carriers

Speaker 1 (58:45):
versus tena e it's a 2022 ruling of the supreme court if the seafarer was uncooperative and failed to subject
himself to the medical consultation or the company physician's orders then his claim for disability benefit must
fail for a breach of his obligation under the poa standard employment contract okay what else now let's look at
the designated physician a valid assessment must be timely okay what do we mean by timely it must be made
within the 120 or the exceptional period of 240 when justified okay it must be final

Speaker 1 (59:51):
what do we mean by final no further action is necessary and all possible treatment options have been explored
what else it must be definite a specific and categorical statement

Speaker 1 (01:00:12):
declaring that the disability is not work related okay or the declaration of the disability grading or that the
seafarer is already fit to work so remember the keywords are a specific and

Speaker 1 (01:00:34):
categorical statement on either of the three options next is substantiated the assessment must be supported by
medical tests procedures or records next the assessment must be complete it must include all the medical
concerns that the seafarer has and then finally it must be conveyed meaning the company physician must furnish
a copy of the assessment to the seafarer and sufficiently explain the contents to him or to her again timely final
definite substantiated complete conveyed these are the characteristics of a valid assessment characteristics of a
valid assessment okay in one case the supreme court said that a definite declaration by the company designated
physician is an obligation it's an obligation the abdication of which indubitably transforms the temporary total
disability to permanent total disability regardless of the disability grade this came from the case of rayas versus
magsaysay mitchoui or sk marine incorporated another 2021 ruling of the supreme court okay remember there is
an obligation and if you don't do it there is an abdication of such obligation next in the case of reuyan versus
incorporated inc navigation company philippines i have mentioned this case a while ago it's also a 2022 ruling
the supreme court said very really the failure of the company designated physicians to issue a final and definite
assessment within the prescribed periods gave rise to the conclusive presumption that the seafarer indeed
sustained a work-related permanent and total disability thus entitling him to benefits corresponding thereto okay
again then i'm wording some supreme court no okay still on valid assessment

Speaker 1 (01:03:09):
let's look at some other concepts with respect to valid assessment i think we have tackled it and instead let's
move on to work relatedness remember one of the conditions for a seafarer to be entitled to sickness or
disability benefit is work relation of the sickness or illness okay so the court held in the case of balbarino
balbarino versus pacific ocean manning it's a 2020 ruling of the supreme court where the supreme court said we
clarify however that section 20

Speaker 1 (01:03:58):
b paragraph 3 refers only to the declaration of fitness to work or the this degree of disability

Speaker 1 (01:04:08):
it does not cover the determination of whether the disability is work related there is nothing in the poa standard
employment contract which mandates that the opinion of the company designated physician regarding work
relation should prevail or that the determination of such relation be submitted to a third physician okay this is a
clarification of section 20 paragraph b3 because what is to be declared there is fitness to work or the degree of
disability it does not cover the determination of whether the disability is work related or not so let's look at
jurisprudential concepts on work relatedness okay like this take note that the element of work relatedness

Speaker 1 (01:05:08):
only demands a reasonable link between the illness and the seafarer's work it is not required that the seafarers
work is the sole contributor or factor in the aggravation of the illness probability that the work rendered by the
seafarer contributed to his illness or injury or that despite the pre-existence of his illness the work aggravated
condition okay the test is only reasonable proof of work connection and not direct causation

Speaker 1 (01:05:47):
this is from castillion versus mcchui osk marine incorporated uh finally i was able to put the gr number 234711
march 2 2020 in balbarino versus pacific ocean manning another 2020 ruling and then okay versus next wave
maritime management incorporated a 2021 ruling of the supreme court okay if you summarize the rulings in
these three cases the key concepts in granting work relatedness are therefore probability that the work caused the
disability it's not certainty probability and aggravation that work exacerbated a pre-existing condition

Speaker 1 (01:06:48):
okay now who has the burden of proof the honest probandi falls on the seafarer to establish his claim for
disability benefits and substantially prove that his work condition cost or at least increase the risk of contracting
his illness let me state that again the honest probandi
Speaker 1 (01:07:13):
falls on the seafarer to establish his claim for disability benefits and substantially prove that his work conditions
cost or at least increase the risk of contracting his illness that is the pronouncement of the supreme court in
daroka junior versus century maritime agencies incorporated 2021 okay and in another ruling the supreme court
said it is not required that an employee must be in perfect health when he contracted the illness to be able to
recover disability compensation it is equally true that while the employer is not the insurer of the of the
employees once he takes the employees as he finds them then he already assumes the risk of liability this
beautiful language came from intercrew shipping agency incorporated versus kalantok chair number 239 299
july 8 2020 again i did not forget that she are here now moving on

Speaker 1 (01:08:32):
the court held that in order for an illness to be compensable it is enough that the employment had contributed
even to a small degree even to a small degree to the development of the disease this is from ems crew
philippines versus bau son 2021 ruling of the supreme court okay now let's look into the personal comfort
doctrine

Speaker 1 (01:09:06):
okay of course the personal comfort doctrine is found in board resolution number 15 cedarforth point 15 of the
employees compensation commission but this has relevance to seafarers as well what is the personal comfort
doctrine this is an act or acts performed by an employee

Speaker 1 (01:09:33):
within the time and space limits of his employment to minister to personal comfort such as satisfaction of his
thirst hunger or other physical demands and shall be deemed incidental his employment and injuries the
employee may have suffered in the performance of such act shall be considered as compensable and arising out
of employment take note that the foregoing definition was used by the court in the case of oscaris versus
magsaysay maritime corporation a 2020 ruling of the supreme court to award uh to justify rather the award of
disability benefit in favor of the seafarer as i was saying before i was rudely interrupted by my packing calf we
will discuss about circumstances that shows work relatedness is the seafarer was initially fit moving on the
seafarer was initially fit but suffered symptoms for coronary arterial disease which according to the court
logically follows that the seafarer's working conditions contributed to or aggravated his illness okay so he was
so he was physically fit but considering the nature of his work the supreme court said it logically follows that
the seafarers working conditions contributed to or aggravated his illness that's from corcora jr versus magsaysay
mall marine incorporated chair number 226779 august 24 2020 next if the company designated physician failed
to make a well-supported claim that the disability was not work related or the findings of non-work relation are

Speaker 1 (01:11:41):
struck down if it was made post-case and without reference to any test or diagnostics okay example here is a
company designated physician who declared that the element is not work related uh so the findings of non-work
relation will be struck down if it was made post-case and there was no reference to any test medical diagnostic
procedure

Speaker 1 (01:12:12):
or intensive medical treatment that that had been conducted in that case the company designated physician's
finding will not at all merit any probative weight that's the ruling of the

Speaker 1 (01:12:31):
crew service the 2020 ruling of the supreme court next this is from kines versus united philippine lines
incorporated again kines q u i n e s versus united philippine lines incorporated this is a 2021 ruling of the
supreme court the supreme court said the seafarers performance of the same strenuous work for the same
employer for almost 13 years was considered in finding work relation of the disability okay so these are some
doctrines on work relatedness

Speaker 1 (01:13:19):
now let's look at some circumstances that negates work relatedness number one repatriation due to a finished
contract is an indication that the injury or illness is not work related

Speaker 1 (01:13:37):
repatriation due to a finished contract is an indication that the injury or illness is not work related this
pronouncement is from osg ship management manila incorporated versus dejesus a 2021 ruling of the supreme
court next inordinate delay unexplained delay in the institution of the complaint nine months from repatriation
was held to cast a grave suspicion and doubt not only as to the veracity of the seafarers claim but also on his true
intention against the employer so this is another circumstance that negates work relatedness again this is from
osg ship management manila versus dejesus that's 2021 okay

Speaker 1 (01:14:37):
now let's talk about the definition of a work related illness a work related illness is any sickness as a result of an
occupational disease listed under section 32a of the poa standard employment contract with the conditions set
therein satisfied okay look at section 32a

Speaker 1 (01:15:03):
of the poa standard employment contract but the more important consideration dear ladies and gentlemen is for
you to look at the conditions by which these occupational diseases listed under section 32a would be satisfied
next what is work related injury work related injuries injury arising out of and in the course of employment
work related injuries injury arising out of and in the course of employment okay when we talk about work
related illness we're talking about occupational diseases if the disease is not one of those enumerated under the
law then the same is still presumed work related so let me have this clear with you class

Speaker 1 (01:16:03):
occupational diseases are listed under section 32 okay 32a if the disease is not one of those listed then it does not
mean that there can be no claim for compensation there could still be a claim for compensation because those
not listed are presumed work related those not listed are presumed work related who has the burden to prove the
work relatedness whoever is claiming that his illness or injury is work related has the burden of proof okay

Speaker 1 (01:16:45):
take note when a seafarer invokes an occupational disease or occupational diseases as listed in section 32a the
seafarer must prove the following conditions one the seafarer seafarers work must involve the risk described
therein the seafarers work must involve the risk described herein two

Speaker 1 (01:17:15):
the disease was contracted as a result of the seafarers exposure to the described risk the disease was contracted
as a result of the seafarers exposure to the described risk three the disease was contracted within a period of
exposure and such other factors necessary to contract it and then finally there was no notorious negligence on
the part of the concurring conditions