Seafarer's failure to attend conferences
Manning agent's failure to attend mandatory conferences
Waiver of right to file position paper
Hearings and clarificatory conferences
Procedure for recovery of amount paid to seafarer during execution proceedings
Extraordinary remedies available to manning agents other than appeal
The National Labour Relations Commission (NLRC) has promulgated its 2011 Rules of Procedure, which took effect on August 7 2011. The previous revision to the NLRC rules was made in 2005. This update highlights the significant changes that were introduced by the 2011 rules as they relate to seafarers and manning agents.
Seafarer's failure to attend conferences
Under both the 2005 and 2011 rules, the labour arbiter can dismiss a complaint if the seafarer fails to appear, despite due notice, during the two settings for mandatory conciliation and the mediation conference. However, the dismissal is without prejudice, which means that the seafarer can re-file his or her complaint.
However, under the 2005 rules, the seafarer could not re-file the case after it had been dismissed for the second time on the grounds of his or her non-appearance during the mandatory conferences. This limitation is absent from the 2011 rules. Thus, it would appear that the seafarer can keep filing a new case despite dismissals of previous cases due to his or her non-appearance at mandatory conferences.
Manning agent's failure to attend mandatory conferences
In cases of non-appearance by the respondent (ie, the manning agent) during the first scheduled conference, the second conference as scheduled in the summons shall proceed. However, under the new rules, if the respondent fails to appear at the second conference despite being duly served with summons, he or she shall be considered to have waived his or her right to file a position paper.
Waiver of right to file position paper
In instances in which a party is declared to have waived his or her right to file a position paper, the 2011 rules provide a remedy. They state that:
"A party declared to have waived his/her right to file a position paper may, at any time after notice thereof and before a case is submitted for decision, file a motion under oath to set aside the order of waiver upon proper showing that failure to appear during the hearings was due to justifiable and meritorious grounds."
Thus, if the manning agent can prove that the failure to attend a mandatory conference for the second time was due to "justifiable and meritorious grounds", he or she may have the order of waiver set aside and can file the necessary position paper.
Hearings and clarificatory conferences
The 'hearings' and 'clarificatory conferences' referred to in Section 14a, Rule V are independent of and different from the mediation and conciliation hearings in which the seafarer and the manning agents are encouraged to enter into an amicable settlement. The clarificatory hearing is conducted after the submission of the position papers.
Clarificatory hearings are rarely held and are at the discretion of the labour arbiter. As the term connotes, the purpose is to ask the parties clarificatory questions to elicit further facts or information, which will include obtaining relevant documentary evidence from any party or witness.
A hearing or clarificatory conference shall be terminated within 30 calendar days of the date of the initial clarificatory conference. The new rules shorten this period from 90 calendar days under the 2005 rules.
In any event, under both the 2005 and 2011 rules, in cases involving overseas Filipino workers (including seafarers) the mandatory conciliation and mediation conferences and the clarificatory conferences must be terminated within 60 days of the acquisition of jurisdiction by the labour arbiter over the person of the respondents.
Procedure for recovery of amount paid to seafarer during execution proceedings
Where a case is lost at labour arbiter level, the manning agents or principals can file an appeal to the NLRC. If the appeal is dismissed, the manning agents or principals can file a motion for reconsideration. Denial of such a motion will render the labour arbiter's decision final and executory. Consequently, at this stage, manning agents and their principals are required to pay the seafarer based on the final award.
However, such cases may continue, since manning agents have the option to appeal the case to the Court of Appeals and, eventually, to the Supreme Court. In some cases the Court of Appeals or the Supreme Court may either reverse or modify an NLRC decision. Where a labour arbiter's decision is reversed or modified, the manning agent will seek to recover the amount that it paid to the seafarer as a result of the original award.
In contrast to the 2005 rules, the new rules provide explicit guidelines on how to recover such amounts from the seafarer. Under Rule XI of Section 14, NLRC labour arbiters can issue orders of restitution to enable manning agents to recover the amount that they previously paid to the claimants as a result of reversed or modified decisions.
Extraordinary remedies available to manning agents other than appeal
One of the most critical stages in NLRC proceedings occurs during execution of the judgment award. It is at this point that the seafarer can collect from the manning agents or the bonding company the amount stipulated in the labour arbiter's decision.
The writ of execution is the basic document which empowers the NLRC sheriff to collect the judgment award from the losing party. Under the 2005 rules, once such a writ was issued against them, manning agents were already helpless to prevent the sheriff from enforcing the judgment award (except on rare occasions on which the Court of Appeals issued a temporary restraining order or writ of injunction).
The 2011 rules provide for a specific remedy. Rather than appeal, the manning agent may issue a verified petition with the NLRC to annul or modify the labour arbiter order which issued the writ of execution. The immediate effect of filing the verified petition is that the NLRC sheriff cannot, in the meantime, enforce the writ of execution (ie, collect the stated amount from the manning agents or from the bonding company).
The mere filing of the verified petition will prevent the bank of either the manning agents or the bonding company from releasing the relevant amount to the seafarer within 15 calendar days of the filing of the petition. Of course, this period may be longer if the NLRC issues a temporary restraining order or writ of preliminary injunction, which have a duration of 20 and 60 days, respectively. The period can also be extended beyond 15 days if the NLRC issues a final injunction.
However, the temporary restraining order or writ of preliminary injunction becomes effective only upon the manning agent's posting of a cash bond, not a surety bond, amounting to Ps50,000 or more, as may be required by the NLRC.
While the extraordinary remedy described above can be availed of during execution proceedings, Rule XII of the 2011 rules can be availed of by "any party aggrieved by an order or resolution of the labour arbiter". It is thus not confined to execution proceedings but can be availed of in relation to all orders or resolutions of the labour arbiter. For example, if the manning agent files a motion to dismiss on the grounds that the seafarer has already been paid his or her disability benefits and this is denied by the labour arbiter, the manning agent can avail of the extraordinary remedy under Rule XII of the 2011 rules.
For further information on this topic please contact Ruben T Del Rosario at Del Rosario & Del Rosario law Offices by telephone (+63 2 810 1791), fax (+63 2 817 1740) or email ([email protected]).