Magna Carta of Filipino Seafarers

BY BRENDA V. PIMENTEL, Manila Times, Sep 9, 2017

House Bill (HB) No. 5685 entitled “Instituting the Magna Carta of Filipino Seafarers” impresses me as an initiative of translating into national law the Maritime Labour Convention, 2006 (MLC 2006), which the Philippines ratified about five years back. The convention embodies up-to-date standards of existing international maritime labor conventions that clearly stipulate the fundamental rights and principles governing all workers of the world, with specific focus on defining the employment and social rights of seafarers. The peculiarities of shipboard employment were amply considered in this much deliberated convention, which are presented through well-written and logically arranged articles, regulations and standards (through a Code).

At a glance, the bill captures the basic provisions of MLC 2006 although it would have been much easier to appreciate the same if the logical arrangement in the convention is followed. Reading through the rest of HB 5685, I realized it is implementing selected provisions of MLC 2006, omitting some important aspects of the convention that could result in confusion and implementation gaps in the future.

Take the provision on wages. Chapter VI Section 22 of the bill prescribes the process for setting minimum wage rates for seafarers on Philippine-flagged ships plying domestic routes. For Filipino seafarers deployed on foreign-flagged ships engaged in international trade, the bill is silent understandably as wages is left to the determination of the flag States. There is no reference the wages of Filipino seafarers engaged on Philippine-registered ships in international voyages; presumably this is covered by existing laws and regulations. To avoid confusion and conflicting interpretations, it is best to have wage determination of Filipino seafarers be placed in one coherent legislation.

Besides the guidance provided by MLC 2006 on the determination of wages, there are in the convention detailed recommendations, which to most Filipino seafarers are crucial such as the prompt remittance of their earnings to their families and that of being provided regular accounts of the wages paid to them. These are stipulations so basic yet are the best manifestation of upholding the rights of Filipino seafarers. These are not found in the proposed Magna Carta of Filipino Seafarers.

Is a cadet a seafarer?

Upon the other hand, there are certain provisions in the bill that are not covered by MLC 2006. Specifically, Chapter IV, Section 14 of the bill that sets the minimum age for a seafarer who is to be engaged or deployed for work onboard a ship. There is no problem with that, until the mention of exempting a cadet from the proviso. A cadet is defined in the bill as a student who goes onboard to complete the academic requirements for merchant marine education. By this definition, there is no reason to exclude a cadet from Chapter IV, Section 14.

Reading on to Chapter V, one is puzzled on why “cadetship” was included in the bill considering that a cadet is not yet a seafarer and he is not employed for shipboard work.

The bill defines a seafarer as one who is “employed or is engaged to work in any capacity on board a ship.” He is covered by a contract of work and for which wages is to paid him which is not so in the case of a cadet. Apprenticeship or cadetship is not contemplated by MLC 2006 and therefore nowhere is there any rights or privileges afforded a cadet. It is only after completing the shipboard training that a cadet can be considered for graduation. At that stage, certification as to the student’s competency to be a seafarer has not been determined. It appears therefore that cadetship should be governed by rules and regulations on maritime education.

The recent issues surrounding cadets’ safety and welfare while undergoing shipboard training as what happened when a “Starlite” vessel sank and which claimed the lives of a number of cadets, could be one pressing motivation to include cadetship in HB 5685. However, declaration of the rights of a seafarer should not be mixed up with those who are yet to be certified as such. There is a “bill of rights” of passengers, the Labor Code provides for the bill of rights of workers, and one is being contemplated by HB 5685 for seafarers. A separate set of rights and privileges for students could be drawn up, if such be the intention, to include the rights of shipboard cadets. And in crafting such “bill of rights of cadets,” the Commission on Higher Education (CHED), the Maritime Industry Authority (MARINA) together with the stakeholders from the maritime and training institutes, and ship owners must be called to extensively deliberate on how best to protect maritime students undertaking onboard apprenticeship.

Further, if the bill shall be enacted into law, cadets shall enjoy the same rights at that of a seafarer. There are certain entitlements that are necessarily carried over such as those which refer to a safe, secure and healthy workplace. Cadets shall also be entitled to allowances or stipends over and above the other amenities that they may enjoy while training onboard. As provided therein, ship owners will have to assume additional financial responsibilities for the allowances and stipends of cadets. The willingness and capacity to take in cadets onboard rest on the ship owners and the additional costs of doing so may work against the interest of maritime students. After all, accepting cadets for onboard training is ultimately the decision of the ship owner.

The limited shipboard training berths for Filipino cadets is a persistent challenge to maritime education. CHED records show that in 2016, only 5,101 out of the 25,855 BS Marine Transportation and BS Marine Engineering students were able to complete the 12 months shipboard training. The remaining 20,754 maritime students failed to graduate. The number is expected to grow exponentially in the coming years unless there are more ships that accept cadets for onboard apprenticeship.

Exercising labor-supplying responsibilities

I consider Regulation 5.3 of MLC 2006 as one of its most important provision on account of the Philippines being a labor-supplying country. I expected HB 5685 to provide the measures by which the rights of Filipino seafarers who are deployed on foreign-flagged ships are protected. Philippine-flagged ships are enjoined to implement the provisions of the bill – the prescriptions as are found in the bill find basis in the exercise of the country’s flag-state responsibilities. I am trying to figure out what provisions in the bill demonstrate the Philippines’ exercise of its labor-supplying responsibilities.

MLC 2006 is one convention that ascribes specific responsibilities to labor-supplying countries and the group of workers and professionals to which it refers, undeniably are the seafarers. It is a convention that prescribes in general the qualification requirements of seafarers and conditions of work including the welfare, safety and security of seafarers. Ensuring that seafarers are provided the necessary guarantees of decent work and social well-being in the workplace are what MLC 2006 aims to achieve. These guarantees include safe and secure workplace.

The ship is a seafarer’s workplace and making the ship seaworthy and secure is extensively covered by standards set by the International Maritime Organization (IMO) as are found in the International Convention for the Safety of Life at Sea (SOLAS), 1974, as amended; the International Convention on the Prevention of Pollution from Ships (MARPOL), 1978 as amended; the International Standards of Training, Certification and Watchkeeping for Seafarers (STCW), as amended and many other codes, protocols and recommendations.

The first two cited conventions set the standards for the ship’s structure, equipment and life-saving appliances including the installation of safety management system. The STCW Convention, on the other hand, provides the minimum standards in certifying the competency of seafarers and is closely monitored and enforced when attesting to the seaworthiness of a ship. The aforementioned international conventions were formulated and adopted by the international maritime community to promote safe, secure and efficient ships.

IMO conventions establish the mechanisms by which member-states could effectively monitor the effective implementation of ship safety and security requirements and which MARINA, the Philippine Coast Guard (PCG) and the Philippine Ports Authority (PPA) are tasked to perform. The question remains: how is the Philippines to implement its responsibilities as a labor-supplying country under MLC 2006?