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FORCED RETIREMENT @ AGE 57

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1 FORCED RETIREMENT @ AGE 57 on Thu Oct 27, 2011 3:14 pm

SAILORMON


Arresto Menor
Forced retirement : Ive been a seaman in the same manning company for more than 20 years, after updating all my papers and training exams and ready for my next tour of duty, my crewing manager suddenly informed me that the company is now a member of the International Standard Organization (ISO) and their standard in hiring me again is 55 years old and Im 57 years old, and that they have to follow the standard of the ISO, which is against the local labor code of 60 to 65 years old. Which law or code must prevail over my case, please advice if I can sue them regarding this matter, thank you. . . MON ABAD

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2 Re: FORCED RETIREMENT @ AGE 57 on Thu Oct 27, 2011 8:23 pm

attyLLL


moderator
i'm afraid our Supreme Court has ruled that seamen are mere contractual employees, not regular employees. so when the contract ends, it's over.

http://www.google.com.ph/url?sa=t&rct=j&q=site%3Asc.judiciary.gov.ph%20seaman%20regular%20employee&source=web&cd=2&sqi=2&ved=0CCEQFjAB&url=http%3A%2F%2Fsc.judiciary.gov.ph%2Fjurisprudence%2F2010%2Foctober2010%2F187032.htm&ei=oT6pTripJoGZiAfR_5yRDg&usg=AFQjCNFjXlvRHSG5ojvLwcD8XD1pgRb0iQ&sig2=KgoCvxxGhdrOtAqlUXbqDQ


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3 Re: FORCED RETIREMENT @ AGE 57 on Sat Oct 29, 2011 3:44 am

SAILORMON


Arresto Menor
B. Retirement under the Labor Code:

Any employee whether land-based office personnel or shipboard employee who shall reach the age of sixty (60) while in active employment with this company may retire from the service upon his written request in accordance with the provisions of Art. 277 of the Labor Code and its Implementing Rules, Book 6, Rule 1, Sec. 13 and he shall be paid termination pay equivalent to fifteen (15) days pay for every year of service as stated in said Labor Code and its Implementing Rules. However, the company may at its own volition grant him a higher benefit which shall not exceed the benefits provided for in the Retirement Gratuity table mentioned elsewhere in this policy.


C. Optional Retirement:

It will be the exclusive prerogative and sole option of this company to retire any covered employee who shall have rendered at least fifteen (15) years of credited service for land-based employees and 3,650 days actually on board vessel for shipboard personnel. x x x

Under Paragraph B of the plan, a shipboard employee, upon his written request, may retire from service if he has reached the eligibility age of 60 years. In this case, the option to retire lies with the employee.

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4 Re: FORCED RETIREMENT @ AGE 57 on Sat Oct 29, 2011 3:54 am

SAILORMON


Arresto Menor
An employment shall be deemed to be casual if it is not covered by the preceding paragraph. Provided, That, any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.
The primary standard to determine a regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer. The test is whether the former is usually necessary or desirable in the usual business or trade of the employer.18
The connection can be determined by considering the nature of the work performed and its relation to the scheme of the particular business or trade in its entirety. Also, if the employee has been performing the job for at least one year, even if the performance is not continuous or merely intermittent, the law deems the repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensability of that activity to the business. Hence, the employment is also considered regular, but only with respect to such activity and while such activity exists.19

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5 Re: FORCED RETIREMENT @ AGE 57 on Sat Oct 29, 2011 9:48 pm

attyLLL


moderator
Moreover, it is an accepted maritime industry practice that employment of seafarers are for a fixed period only. Constrained by the nature of their employment which is quite peculiar and unique in itself, it is for the mutual interest of both the seafarer and the employer why the employment status must be contractual only or for a certain period of time. Seafarers spend most of their time at sea and understandably, they can not stay for a long and an indefinite period of time at sea.[21] Limited access to shore society during the employment will have an adverse impact on the seafarer. The national, cultural and lingual diversity among the crew during the COE is a reality that necessitates the limitation of its period.[22]

Petitioners make much of the fact that they have been continually re-hired or their contracts renewed before the contracts expired (which has admittedly been going on for twenty (20) years). By such circumstance they claim to have acquired regular status with all the rights and benefits appurtenant to it.

Such contention is untenable. Undeniably, this circumstance of continuous re-hiring was dictated by practical considerations that experienced crew members are more preferred. Petitioners were only given priority or preference because of their experience and qualifications but this does not detract the fact that herein petitioners are contractual employees. They can not be considered regular employees.

http://sc.judiciary.gov.ph/jurisprudence/2002/jul2002/110524.htm


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