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Substitution or alteration of POEA seafarer contract as illegal recruitment

By: ATTY. DENNIS GORECHO August 06,2018 - 08:58 PM

Gorecho

As with all other kinds of workers, the employment of seafarers is governed by the contracts they sign at the time of their engagement. As long as the stipulations therein are not contrary to law, morals, public order, or public policy, they have the force of law between the parties. The parties to the contract may therefore improve on the minimum terms and conditions provided that such improvements shall be made in writing and appended to the contract for employment.

But unlike that of others, deemed written in the seafarer’s contract is a set of standard provisions implemented by the POEA, called the Standard Terms and Conditions, which are considered to be the minimum requirements acceptable to the government for the employment of Filipino seafarers on board foreign ocean-going vessels

Employment contracts of seafarers on board foreign ocean-going vessels are not ordinary contracts. They are regulated and an imprimatur by the State is necessary. While the seafarer and his employer are governed by their mutual agreement, the POEA Rules and Regulations require that the POEA-SEC be integrated in every seafarer’s contract.

The standard employment contract for seafarers was formulated by the POEA pursuant to its mandate under E.O. No. 247 to “secure the best terms and conditions of employment of Filipino contract workers and ensure compliance therewith” and to “promote and protect the well-being of Filipino workers overseas.”

It is crafted for the sole purpose of ensuring that the seafarers are not put at a disadvantage in their desire of seeking greater economic benefit abroad.

The Migrant Workers and Overseas Filipinos Act of 1995 ( R.A. No. 8042, as amended by R.A. 10022) explicitly prohibits the substitution or alteration to the prejudice of the worker, of employment contracts already approved and verified by the Department of Labor and Employment (DOLE) 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 DOLE.

A subsequently executed side agreement which reduced one’s salary below the amount approved by the POEA is void because it is against existing laws, morals and public policy. The said side agreement cannot supersede the standard employment contract approved by the POEA..This side agreement is a scheme all too frequently resorted to by unscrupulous employers against helpless OFWs who are compelled to agree to satisfy their basic economic needs. Such practice is known as contract substitution for which the recruitment agency may be held accountable. (Chavez v. Bonto-Perez, 312 Phil. 88)

Agencies and foreign principals found violating POEA rules will be blacklisted or penalized in accordance with R.A. 10022. POEA rules likewise provide that disciplinary actions will be meted against foreign principals and employers of seafarers found violating Philippine laws, rules, and regulations on overseas employment.

The persons criminally liable for the said offense are the principals, accomplices and accessories. In case of juridical persons, the officers having ownership, control, management or direction of their business and the responsible for the commission of the offense and the responsible employees/agents thereof shall be liable.

Any person found guilty shall suffer the penalty of imprisonment of not less than twelve (12) years and one (1) day but not more than twenty (20) years and a fine of not less than One million pesos (P1,000,000.00) nor more than Two Million Pesos (P2,000,000.00).

The penalty of life imprisonment and a fine of not less than Two Million Pesos (P2,000,000.00) nor more than Five Million Pesos (P5,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined therein. Provided, however, That the maximum penalty shall be imposed if the person illegally recruited is less than eighteen (18) years of age or committed by a non-licensee or non-holder of authority.

In every case, conviction shall cause and carry the automatic revocation of the license or registration of the recruitment/manning agency.

 

(Atty. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan law offices. For comments, email [email protected], or call 09175025808 or 09088665786)

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