Philippines: Amended POEA Contract - Update

June 2003

(Sea Venture Volume 21)

A comprehensive report on the changes to the amended Philippines Overseas Employment Administration (POEA) contract appeared in "Sea Venture" Vol. 20.¹

At yet, there are no NLRC² or Court decisions which might serve as basis or guideline in interpreting the controversial Section 20 of the amended POEA contract. This has given rise to some debate on the subject. It will take time for the NLRC to resolve pending cases. While awaiting these authorities the following should be born in mind:

It should be noted that illnesses resulting in disability or death listed in Section 32-A as occupational diseases are compensable provided the conditions set therein are satisfied. On the other hand, Section 20B, paragraph 4 provides that illnesses not so listed are disputably presumed as work-related. This means that illnesses not listed in Section 32 should be considered work-related until the employer is able to prove that the illness is not, in fact, work-related. Who determines whether the illness is work-related or not? The person in the best position to render such opinion is probably the company designated physician who should examine the seafarer's condition, evaluate the relevant medical records and consider the facts and circumstances relating to how the ailment was contracted. In short, the employer must obtain the opinion of the company doctor in order to discharge its burden of proving that the illness is not work-related.

It is suggested that while the company doctor is determining whether the illness is work-related or not, the employer may be held responsible for:

1. wages during the time seafarer is on board the vessel, 

2. sickness allowance upon sign-off from the vessel, and 

3. cost of medical treatment, in accordance with Section 20B, paragraphs 1 to 3.

These liabilities will terminate only when the employer, through the company doctor, is able to establish that the illness not work-related. It is at this point that the employer is considered to have effectively disputed the "work-related" presumption. Thus, it is in the best interests of the employer that the "work-related" issue be immediately assessed by the company doctor.

In any event, it is important to note that regardless of whether the injury or illness is work-related or not, the employer is arguably liable for repatriation costs. An examination of Sections 19 (E) and (G) of the amended POEA contract indicates that the only cases where employer may be held not liable for repatriation expenses are:

1. when seafarer is discharged for just cause, and 

2. when he requests early termination.

Thus, it would seem than even when repatriation is due to a non-work-related medical reason, the employer is still liable for repatriation expenses

On the same grounds, it is likely that an expert medical opinion will be required to show that a seafarer's death during the term of his contract was not work-related, particularly in cases of death arising from illness. Equally, for practical, cultural and humanitarian reasons, the employer may be held responsible for transporting the remains and personal effects of the seafarer to the Philippines³.

Each case will turn on its own facts and circumstances. As there is no jurisprudence yet on the amended contract, the points made above represent the personal opinion of the author. Further information can be given as soon as the NLRC or Courts begin interpreting the contract.

 

With thanks to Ruben Del Rosario of Del Rosario & Del Rosario for preparing this article.

1.Since publication of that article the outstanding petition filed with the Philippine Supreme Court questioning the validity of the contract has been dismissed and the changes to the amended POEA contract are now in force. 

2.National Labour Relations Court 

3.Section 20 (A) (4) (b)