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Friday, April 19, 2024

Escrow fund in seafarers’ bill anti-labor, says lawyer

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A LAWYER said the escrow provision of the proposed magna carta law for seafarers pending in Congress is “undeniably unfair and not protection” to seafarers.

In a statement, Atty. Dennis R. Gorecho, head of the seafarers’ division of the Sapalo Velez Bundang Bulilan law offices, said the escrow provision of the proposed law wrongly penalizes seafarers instead of its supposed target: ambulance chasers.

“The escrow provision will put the benefits won by seafarers to an escrow account and can only be released upon final decision of appeal before the Court of Appeals or Supreme Court, which takes 7 years or more,” said Gorecho.

According to Gorecho, the claim of protecting seafarers seems to be off tangent.

“First, holding seafarers’ death or disability benefits for even 1 or 2 years after being final and executory is undeniably unfair and not protection to seafarers. The benefits won is for their welfare. It is life or death for them finance-wise,” he said.

“Denying, it is clearly not in protection of their welfare. The escrow provision should not be used to address ambulance chasers as it ultimately penalizes seafarers thru hostage-taking their benefits. It punishes not the ambulance chasers but our modern heroes,” added Gorecho.

Under the House-approved House Bill 7325, any monetary award by the arbitrator to the seafarer, or the seafarer’s successors-in-interest, made whether in a voluntary or mandatory arbitration, or by the National Labor Relations Commissions, shall be placed in escrow, if the employer or manning agency has raised or intends to raise the decision for judicial review in accordance with the Rules of Court.

The amount in escrow shall not include claims for salaries, statutory monetary benefits, or those originally determined by the employer or manning agency to be legally due to the seafarer.

The amount shall remain in escrow until the issuance of any entry of judgment by the appropriate reviewing court or when the employer or manning agency fails to perfect the appeal or petition for review. The fees in obtaining or maintaining the escrow account shall be paid by the employer or the manning agency.

The interest earned by the amount in escrow shall insure to the benefit of the prevailing party.  However, the seafarer or the seafarer’s successors-in-interest may, in accordance with the Rules of Court, move for the execution of the monetary award pending appeal upon posting of a bond, the amount of which shall be determined by the appropriate court.

Earlier, groups of seafarers called on Congress to delete the escrow provision in Magna Carta of Seafarers bill, which they described  to be “anti-seaman, anti-labor and pro-manning contrary to the intent of the bill which is to protect seafarers.”

Instead, Gorecho said local manning firms and foreign shipowners should urge the government to strictly implement and apply the existing law on Ambulance Chasing (RA 10706).

“All it needs is an implementing rule from the Department of Labor and Employment,” he added.

But House Committee on Overseas Workers Affairs Chairman Ron Salo quickly assured seafarers that this provision is designed to protect the seafarers from becoming prey to ambulance chasers who take advantage of their unfortunate situation and jack up the amounts being sought with the intention of profiting from the amount awarded to the seafarers.

Still, Gorecho said the reversal rates in the Court of Appeals (28 percent) and Supreme Court (30 percent) cannot overshadow the fact that almost 70 percent of decisions of the appealed voluntary arbitration cases are affirmed in favor of labor.

“The numbers contradict the sweeping allegations that most cases are ‘frivolous’ and are associated with ‘ambulance chasers’ or lawyers who go to lengths to push seafarers to file labor cases against their foreign employers,” he told BusinessMirror in a Viber message.

Gorecho said data from the Department of Migrant Workers (DMW) reveal that in a span of 20 years, or from 2002 to 2022, there were 5,985 maritime cases that availed of the voluntary arbitration (VA) process, mostly filed before the National Conciliation and Mediation Board (NCMB).

From 2018 to 2022, he said 81.5 percent (3,582 cases) are for disability benefits, 7.1 percent (501 cases) for death benefits, and 1.1percent (313 cases) for other monetary benefits.

From 2016 to 2022, out of the 2,031 decided voluntary arbitration cases, 1,618 were appealed to the Court of Appeals; and 98 cases were later brought up from the Court of Appeals to the Supreme Court. A total of 2,795 cases were settled.

At the Supreme Court, Gorecho said 79 cases were decided with 40 affirmations, 19 affirmations with modifications, 23 reversals and 2 remanded to the CA. The affirmation rate is 70 percent (53 cases) wherein 96 percent (51 cases) are in favor of labor while only 4 percent (2 cases) are in favor of management.

The reversal rate is 30 percent (23 cases) wherein 96 percent (22 cases) are in favor of management while 4 percent (1 case) for labor.

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