CHICAGO – The Philippine National Labor Relations Commission (NLRC) is vested by Republic Act 8042, the Migrant Workers and Overseas Filipinos Act of 1995 with original, exclusive jurisdiction to determine disciplinary actions on violations of recruitment laws, rules and regulations involving employers, principals, contracting partners and Filipino seafarers.
This power of NLRC is the reason why in past labor disputes involving Filipino crewmen in the US, American labor employers of Filipino seafarers were just too happy to litigate labor cases in the Philippines, not in the U.S. This enabled them to save a bundle in fees for retaining their lawyers and paying for damages when they lost their cases. The cheaper cost is due to the fact that the standard of living in the Philippines is lower than that of the U.S.
But a clarification issued by Philippine Overseas Employment Administration Administrator Hans Leo J. Cacdac to Filipino-American lawyer Ellaine Carr changed the situation. Cacdac said that settlement provisions arising from an employer-employee relationships or any law or contract involving Filipino workers for overseas deployment, including claims for actual, moral, exemplary and other forms of damages, “do not preclude enforcement of laws in an appropriate foreign jurisdiction.”
The change in labor-dispute arbitration could happen only if the Philippine and U.S. governments help some of the 600 Filipino overseas workers living in the Philippines or deployed in other parts of the world in their bid to obtain visas so they can come to the U.S. and testify at a jury trial set on Aug. 11, 2014 at the U.S. Eastern District Court of Louisiana in New Orleans.
If the Filipino overseas workers — such as welders, riggers, pipe fitters or scaffolders — cannot attend the trial, they would be deposed or they could testify through video-conferencing or other audio-visual remote means. At the trial, the workers will prove that their employer, Grand Isle Shipyards (GIS), an oil-gas company of Galliano, Louisiana, violated their contracts when it paid them salaries half the U.S. federal minimum wage provided for under the Fair Labor Standards Act (FLSA).
The physical appearance of the hundreds of witnesses in court would not have been needed but Judge Kurt D. Engelhardt denied the certification of a class-action suit because the plaintiffs’ lawyers – namely, Ellaine Carr and those of the Schneider Wallace Cottrell Konecky, LLP, and Peiffer, Rosca, Abdullah & Car, L.L.C. — could not present a single complainant who could have testified on behalf of the class.
If no one of the 600 Filipino workers testifies in court, the jury would just find GIS not guilty of the offense charged.
The lawyers of the Filipino workers initially tried to present three former workers – Samuel Nora, Nora Mallari and Michael Dalice — to testify on behalf of the class, 200 of them still working with GIS, but they were denied visas by the U.S. Embassy in Manila.
The defendants were charged with allegedly subjecting the Filipino workers into forced labor in violation of Trafficking Victims Protection Act of 2003, Racketeer Influenced and Corrupt Organization Act (RICO), the Klu Klux Klan (Civil Rights) Act of 1871 and the 13th Amendment (slavery and involuntary servitude). They were also accused of torts of fraud, negligent misrepresentation false imprisonment and intentional and negligent infliction of emotional distress under Louisiana law, and breach of contracts and/or covenants of good faith and fair dealing, which were all dismissed with prejudice or settled.
Super typhoon Haiyan (Yolanda) late last year in Central Philippines even made the case more complicated because of fears that many of the Filipino complainants might have been killed in the disaster.
Only the Philippine and U.S. governments can help them secure visas and provide them free transportation to enable them to appear at the trial. A sworn affidavit of one of the workers, Filipino welder Rodel Eje, who returned to his home town of San Pascual, Batangas and who worke at GIS for three months, showed that the work contract presented to him by POMI in Manila in 2006 obliged him to work 12 hours a day, seven days a week at a flat rate of $600 per month and a flat rate of $430 payment for overtime pay for a total monthly salary of $1,030. The fine print of the Standard Employment Contract of POEA states that he “shall perform not more than 48 hours of regular work a week.
“The seafarer shall be compensated for all work performed in excess of the regular eight hours as prescribed above.”
In 2006, the minimum federal wage in Louisiana was $6.15 per hour. If Eje’s total work hours of 336 a month were paid a “straight time,” not overtime, based on Louisiana’s federal minimum wage, he was supposed to receive $2,066, almost half of $1,030 that he actually received.