It is important for seafarers to have a basic legal knowledge about employment rights.By Ina Alleco R. Silverio, Philippine correspondent, Maritime Fairtrade
Here’s a lawyer who doesn’t mind clients are not lining up at his door.
“Of course, I want to have many clients; but I guess if having more empowered seafarers capable of defending their rights on their own—seafarers who are more knowledgeable about the contracts and negotiations they enter with their manning agencies—if it means I’d have fewer clients, then I am fine with that.”
Atty. Dennis Gorecho is one of the few maritime lawyers in the Philippines who is focused on the legal issues faced by seafarers and to help them understand their rights better.
During the interview with Maritime Fairtrade, Gorecho spoke of his disgust for “ambulance chasers” in the legal profession who care more about their percentage of claims than the welfare of clients. He is also critical of the Philippine government’s support for seafarers.
“The Philippines prides itself on being a major supplier of maritime labor. In fact, for every four or five complements on board any vessel at any given time, there’s one Filipino seafarer. Many Filipinos want to work as seafarers because the pay is higher, and they get to travel to different parts of the world. Sadly, most of them are not completely aware of the many risks before they board ships, and even less aware of their rights.”
A partner of Sapalo Velez Bundang Bulilan law offices, Gorecho has been in the business of defending and educating seafarers for20 years after graduating from the University of the Philippines in 1999. He was once the president of the Maritime Law Association of the Philippines (MARLAW, term 2016-2017). He is also a widely syndicated columnist and sought-after legal commentator on maritime concerns both for media and government agencies.
Despite plethora of regulations, seafarers face harsh reality on the ground
According to Gorecho, “When it comes to legal mandates covering seafarers and their rights, the Philippines has a lot of them. First, there’s the Migrant Workers and Overseas Filipinos Act of 1995, then the Labor Code, the Civil Code, as well as the Standard Employment Contract which is a creation of the Philippine Overseas Employment Administration (POEA). Of course, there’s also the 1987 Philippine Constitution and a massive number of international conventions and recommendations.
“All of these should be sufficient to protect seafarers, but the situation on the ground is very different, and so many seafarers are still often caught at the losing end of their legal disputes with manning agencies or shipping companies.”
Seafarers do not get sufficient government support
In 2018, the Philippines deployed 337,502 seafarers globally. They collectively remitted US$6.14 billion or around P318.55 billion – a very large sum that props up the perpetually ailing Philippine economy which is heavily reliant on overseas remittances. In fact, the remittances of the sea-based sector make up at least 22 percent of all dollar remittances of Filipino workers working overseas. Remove all these remittances and the country will face even more crippling economic crises.
For all their contributions to the economy, however, and even after being touted as modern-day heroes of the country, seafarers, like many overseas workers, do not get sufficient support from the government and its agencies.
Gorecho said: “The government and its agencies often glorify the economic contributions of seafarers and other migrant workers, but sadly in many cases, lip service is what seafarers get.
“The truth is, seafarers are especially vulnerable economically. The nature of their employment makes it so: it’s periodic or short-term. Contracts often do not last longer than one year.
“Security of tenure doesn’t exist, and even when seafarers devote their most productive years to their jobs, they are not entitled to retirement benefits. They also have to pay for their training, and the training fees are really exorbitant.”
The bane of being a contract worker
According to Gorecho, like many land-based workers including overseas Filipino workers (OFWs), seafarers face the negative effects of contract work.
“Seafarers are contractual workers. Their employment relies on the contracts they sign every time they are hired and then rehired. When their contract expires, their employment is effectively terminated and they have to go through the process of applying for a new contract all over again.
Contractual fine print not easily understood
“A stipulation in contracts that works against seafarers is the provision that states that their employment is ended, as well as the responsibility and the accountability of manning agencies and shipping companies, even before the contract actually expires. For example, in the event when a seafarer arrives at the point of hire, or signs off for medical reasons, voluntarily resigns, or falls victim to a shipwreck, or for any other just cause.”
Unfortunately, he went on to say, many seafarers are not aware of this contractual provision because they did not read the fine print of their contracts.
“You can’t really blame them because these details as stated in the standard contracts are printed so small and the wording is somewhat complex,” he said.
In the meantime, most manning agencies do not consider it their responsibility to give the seafarers under their roster training on understanding contracts and what the provisions imply for their rights and welfare. This lack of awareness and/or understanding of important provisions and stipulations of their contracts is often the reason why seafarers end up filing cases or complaints.
“Most seafarers fail to go beyond reading the basic information of the contracts – when it starts, when it ends, the compensation. These are usually in the first two pages, and many hardly read the last ones,” said Gorecho.
“Not knowing can lead to unnecessary trouble – they file a complaint with the manning agency, or with the labor department, when actually what they are protesting against is in the contract. Sadly, instead of getting the assistance or clarifications they need or want, for speaking out, many seafarers get blacklisted.”
This is why he advises seafarers not to immediately file complaints but to first gather evidence and documentation if there is any, and then file when they have left the company and successfully transferred to a new one.
“Filing a case against abuses and illegal practices can be done within three years after the fact,” he said. “We stand a better chance of winning claims when the documentation is complete, and we also want to prevent a seafarer from getting blacklisted.”
Illegal blacklisting as retaliation against seafarers for speaking out
According to Gorecho, blacklisting is a hidden practice in the maritime industry and a most unjust one.
“Manning agencies block the future employment of seafarers who justly complain about bad conditions or unjust treatment. Seafarers who speak out against safety standards, poor working conditions, or unpaid wages while still employed will often find themselves blacklisted with companies the next time they apply for work,” he said.
Among seafarers, there is a list of manning agencies notorious for blacklisting seafarers for speaking out against their employers. Being included in the blacklist is a real difficulty to contend with because this prevents seafarers from being rehired.
Gorecho continued: “I’ve spoken to some industry insiders, and they said that hiring agents secretly circulate among themselves information and communications that will negatively affect the chances of a seafarer from getting rehired.
“They do this or offhandedly make derogatory remarks against a rehire as a way to retaliate against whom they think as troublemakers among seafarers. All these end up negatively influencing or creating prejudice against an applicant in the mind of employers. It’s a cruel and unjust practice, and it serves to discourage seafarers from reporting labor rights violations they experienced.”
Fighting for fair compensation
Concerning labor rights violations, based on Gorecho’s experience, Filipino seafarers usually seek legal help for five issues.
“The most usual cases we handle concern illegal recruitment, illegal dismissal, and non-payment/underpayment of salaries and wages. Then seafarers also file legal claims for illness, injury, or disability benefits. On the other hand, the wives and relatives of seafarers fight for the death benefits of deceased seafarers,” he said.
Health and disability claims are among the many cases he has handled, given the numerous hazards and risks that seafarers face on the job.
“Make no mistake – seafaring is a dangerous job. Seafarers are constantly exposed to the elements, to radically changing temperatures as their ships make their way across oceans. Running and keeping the ship afloat and on schedule takes effort and skill, but it is dangerous. The risks of getting sick, injured, or killed are significant,” he said.
Despite all the risks they face and for relatively lower wages when compared to those received by seafarers of other nationalities, Filipino seafarers still have to fight tooth and nail for compensation.
Gorecho said: “When a seafarer or his heirs file compensatory claims for illness, disability, or death, it’s a struggle to get companies to easily agree during the determination process that the cause of illness or death is work-related.
“In most cases, the decision regarding the gravity or the grading of an injury will depend on the medical opinion of the company-hired doctor over that of the seafarer’s personal physician. I’ve had cases when it’s very obvious that the illness and injury took place on board a vessel at work, but the company refused to acknowledge it.
“Seldom do we encounter cases where a seafarer gets his just and full compensation as stated in the law. Why? Because employers use their resources to make sure that they are not made liable.”
Gorecho’s claim rings true because, as he also explained, seafarers sign Receipt and Quit claim documents before they start work. This releases their employers from all claims, demands, and causes of action.
“In the cases I’ve handled, it was frequently the case that my clients signed these papers without really understanding the contents. I’ve had clients say that they were tricked into accepting small amount or ex-gratia, and they failed to see that it was a ruse to make them accept that their condition wasn’t connected to work, did not develop in the course of their duties or that their injuries were not the company’s fault.”
Most seafarers choose to suffer in silence because they need the salary
But seafarers are not clueless when they experience attacks against their labor rights.
Gorecho said: “Oh, they know when they’re being cheated. They talk and discuss among themselves, assess their situation, share notes. They know it when things are not right. They want to remedy the situation, demand better conditions, just compensation, etc. But how can they do any of these things when they also know that they risk not getting rehired? Getting blacklisted is a very real fear among seafarers.”
To prevent being blacklisted, seafarers end up just gritting their teeth and suffering in silence. They sign their employment contracts, contracts of adhesion, which state the various terms and conditions that favor companies.
“They give in and sign these agreements, never mind their ambiguity when it comes to the provisions. They don’t understand the many generalizations and the overwhelming technicalities, but they sign on because they need the work,” he said.
Advocating legal awareness for seafarers
Given that in many cases, unscrupulous employers and profit-greedy manning agencies join hands against seafarers when there are disputes, the best way seafarers can defend their welfare is for them to be fully aware of their rights.
“Seafarer welfare concerns and legal mandates for their protection are not usually part of the curriculum of maritime schools, but there are institutions and training centers that provide them,” said Gorecho.
Typically, maritime education in the higher levels comprised four-year college degree programs for those who want to qualify for marine transportation or engineering work. Students have to finish a four-year program where they need to undergo three years of academic work before they can qualify for onboard job training in their final school year.
Discussions on human rights, labor rights, and legal mandates are not formally included in the courses, so while seafarers become technically proficient, this will not be sufficient to guarantee that they will not encounter legal difficulties.
Gorecho himself gives seminars on seafarers’ rights in various maritime schools all over the country as part of his work for his law firm. He promotes the education on rights advocacy also because he is a member of the Apostleship of the Sea/Stella Maris Philippines (AOS). The AOS is an agency of the Catholic church which actively promotes the rights of seafarers all over the world.
“We’re not only lawyers to seafarers, at certain times we also become spiritual advisers. We give advice and spiritual guidance to seafarers when they need it. It’s very stressful for many of them because they’re away from their families for long periods of time,” he said.
Some of Gorecho’s clients have had their wives leave them because of the lack of communication. “They literally and figuratively drifted apart as couples and families, and this can be hard for some seafarers. They can’t focus on their work, and this can lead to accidents. They get depressed and even suicidal, so they need someone to listen to them,” he said.
The battle continues
As there is yet no conclusive end to the Covid-19 pandemic in sight, seafarers continue to face difficulties from the health restrictions and lack of support. Their legal woes also continue. Thankfully, the AOS and Gorecho as well as similar-minded lawyers and support groups continue to provide online seminars and discussions that can be accessed by seafarers.
“We regularly give online paralegal lectures, publish legal publications, and go on radio programs to address issues that affect our seafarers. It’s important to keep the work and the advocacy going because seafarers need all the support that they can get to continue their work. This is the least that we can do for them,” he said.