CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
7 August 2016
The days of Filipino fishermen being detained in Indonesia for illegal fishing and their Filipino boat owners abandoning them claiming they are not the employees of the company are over with the issuance last 15 June 2016 by the Department of Labor and Employment (DOLE) of Department Order No. 156-16, entitled “RULES AND REGULATIONS GOVERNING THE WORKING AND LIVING CONDITIONS OF FISHERS ON BOARD FISHING VESSELS ENGAGED IN COMMERCIAL FISHING OPERATION”.
This abusive practice of Filipino commercial fishing operators in General Santos City surfaced last year in the case of 43 Filipino fishermen who were detained in Indonesia for half a year for fishing in Indonesian waters with an expired fishing permit and they were eventually repatriated through the efforts of the Department of Foreign Affairs (DFA) and civil society groups including SENTRO, Fr. Rey Ondap, CP and others last February 2015, as reported by Rappler.
When time came for the DFA to seek reimbursement for the expenses it incurred in repatriating the Filipino fishermen including their airfare in getting back to their families in General Santos City, it turned to the company that controlled the fishing boat caught in Indonesia, the tuna exporter CITRA MINA, but the company balked, saying that it had no employer-employee relationship with the 43 detained fishermen
This was contradicted by the detained 43 fishermen since their salaries are paid by CITRA MINA and they deposit fishing stock to CITRA MINA for their cash advances.
Whatever may be the contentions of the company for their working arrangement before, the new DOLE Department Order 156-16 clarifies when an employer-employee relationship exists between the fishermen and the fishing company owner and if it doesn’t exist as such, the Department Order lays out protections to the fishermen in case the arrangement is either contracting or sub-contracting or even under what is called the joint venture arrangement, which was characterized during one Congressional hearing on this item last year led by then AKBAYAN Party-list Congressman Walden Bello as a “customary practice” of fishing companies operating out of General Santos City, the tuna capital of the Philippines.
The basic evil that is sought to be cured by the Department Order is the manner in which the relationship between the fishermen and the fishing boat crew and the boat owner is set up.
The “customary practice” described as a joint venture agreement is actually in name only since the object of calling the working arrangement as a joint venture is precisely to avoid establishing an employer-employee relationship between the fishermen and the company.
Fishing companies are aware of the implications if an employer-employee relationship is established among their fishermen – the companies are bound to comply with the provisions of the Labor Code on labor standards, which involves working conditions, hours of work, including the payment of minimum wages and salaries and overtime with some prescriptions also for labor relations, like enabling the workers to self-organize so they can engage in collective bargaining, whose aim is to improve the working conditions of the worker.
A joint venture arrangement is flexible and beneficial to the fishing company since the company will not be liable for those prescribed labor standards by the Labor Code.
Now, the government is calling the bluff of the fishing company and lays down the criteria and specific obligations of the partners in the joint venture arrangement a set out in Department Order 156-16.
As demonstrated cruelly in the case of the 43 detained CITRA MINA fishermen, the company was able to evade responsibility for any thing since it denied it has anything to do with the fishermen since it only dealt with the owner of the fishing boat that was caught fishing illegally in Indonesia.
Even that kind of arrangement is now clarified, putting the onus on the fishing boat owner and mandating obligations in case of similar instances of repatriation.
With this new Department Order, there will now be :
– Clearer responsibilities of fishing boat owner, captain or master and fisher;
– Minimum requirements for work on-board fishing vessels;
– Clearly-defined terms and conditions of employment;
– An established two-tiered compensation scheme, which starts with the minimum wage and on top of it, a productivity-based or incentives-based compensation scheme;
– When fishers are considered field personnel – this is usually a scheme to evade labor standards requirements;
– Obligations to ensure occupational safety and health;
– Clearer demarcation and procedures for termination of employment;
– Clearer social protections;
– When there may be established a Joint venture and industrial partnership;
– Licensing training and development;
– Labor management cooperation;
– Compliance and enforcement provisions;
– Livelihood program and support;
– Penalties for non-compliance of the rules, and
– Mandatory review of the rules, after one year of implementation.
These rules should force a change in behavior in the Philippine commercial fishing sector not only in General Santos City but all over Philippines, learning from the mistakes of CITRA MINA, and hopefully, CITRA MINA should also reform its labor practices so that it will not invite sanctions and further labor cases from its oppressed workers.