Filipino seafarers are not probationary employees

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FILIPINO seafarers are not probationary employees in connection with dismissal cases.

In Dante de la Cruz vs Maersk Filipinas Crewing, Inc. (G.R. No. 172038 April 14, 2008) the company insisted that the dismissal of the seafarer was proper as he was then still on probationary status. This entitled them to dismiss him in accordance with the provisions of the Collective Bargaining Agreement (CBA) which allowed the master to terminate the contract of one under probation by merely serving a written notice 14 days prior to the contemplated discharge.

The Supreme Court explained that seafarers are not covered by the term regular employment, as defined under Article 280 of the Labor Code (Coyoca vs National Labor Relations Commission, 312 Phil 1137).

Instead, they are considered contractual employees whose rights and obligations are governed primarily by the Philippine Overseas Employment Agency – Standard Employment Contract (POEA-SEC) for Filipino seamen, the Rules and Regulations Governing Overseas Employment and, more importantly, by Republic Act No. 8042, otherwise known as The Migrant Workers and Overseas Filipinos Act of 1995.

Even the POEA-SEC itself mandates that in no case shall a contract of employment concerning seafarer exceed 12 months.

It is an accepted maritime industry practice that the employment of seafarers is for a fixed period only. The Court acknowledges this to be for the mutual interest of both the seafarer and the employer. Seafarers cannot stay for a long and indefinite period of time at sea as limited access to shore activity during their employment has been shown to adversely affect them. Furthermore, the diversity in nationality, culture and language among the crew necessitates the limitation of the period of employment.

The Court noted that the CBA cannot override the provisions of the POEA-SEC. The law is read into, and forms part of, contracts. And provisions in a contract are valid only if they are not contrary to law, morals, good customs, public order or public policy.

In Millares vs NLRC (434 Phil 524), the Court had occasion to rule on the use of the terms “permanent and probationary masters and employees” vis-à-vis contracts of enlistment of seafarers. In that case, petitioners made much of the fact that they were continually re-hired for 20 years by the company. By such circumstances, they claimed to have acquired regular status with all the rights and benefits appurtenant thereto.

The reference to permanent and probationary masters and employees was a misnomer. It did not change the fact that the contract for employment was for a definite period of time. In using the terms “probationary” and “permanent” vis-à-vis seafarers, what was really meant was “eligible for re-hire.”

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Atty. Dennis Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786./PN

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