A comparison between the 'minimum' Compulsory

Insurance provisions of Section 37-A of the Migrant

Workers Act / RA 10022 and the scope of P&I cover
available to a Member
Date: 04/11/2010
The amended Migrant Workers Act (AMWA) in the main
seeks to label a number of existing liabilities / obligations
that employers have previously faced, whether arising
under the terms of the POEA Standard Employment
Contract (SEC) and/or a Collective Bargaining
Agreement (CBA), but now requires that an Overseas
Filipino Worker (OFW) has insurance for those liabilities.
There are some subtle differences as to how those
liabilities have previously arisen, notably under sub-
paragraphs (a), (b), (c), (h) and (i), whilst there are two
(2) new liabilities, both of which will be incorporated into
the new POEA SEC, which will come into force on 12th
November.

New Liabilities
"(e) Subsistence allowance benefit, with at least One
hundred United States dollars (US$100.00) per
month for a maximum of six months for a migrant
worker who is involved in a case or litigation for the
protection of his/her rights in the receiving country."
Comment: It is unlikely that P&I cover could indemnify a
Members obligations under (e), as it is envisaged the
reason for the liability arising "in the receiving country"
would not be in connection with the operation of the
entered ship. As indicated above, the new POEA SEC
has been amended to reflect this specific obligation,
without reference any exception in respect of wilful or
criminal acts, or Section 33 of the POEA SEC (Table of
Offences and Corresponding Administrative Penalties).
"(g) Compassionate visit. When a migrant worker is
hospitalized and has been confined for at least
seven (7) consecutive days, he shall be entitled to a
compassionate visit by one (1) family member or a
requested individual. The insurance company shall
pay for the transportation cost of the family member
or requested individual to the major airport closest
to the place of hospitalization of the worker. It is,
however, the responsibility of the family member or
requested individual to meet all visa and travel
document requirements."
Comment: Whilst not currently a requirement under the
POEA SEC or CBA, this is already an area where
discretionary cover exists under P&I, to the extent the
case merits a family members presence. This would
normally see the assured / Association (Club) concerned
being guided by the advice of the attending doctor /
physician. However, as noted above, the new POEA
SEC has been amended to reflect this specific
obligation.

Other Liabilities
"(a) Accidental death, with at least Fifteen thousand
United States dollars (US$15,000.00) survivors
benefit payable to the migrant workers
beneficiaries;
"(b) Natural death, with at least Ten thousand United
States dollars (US$10,000.00) survivors benefit
payable to the migrant workers beneficiaries:
"(c) Permanent total disablement, with at least Seven
thousand five hundred United States dollars
(US$7,500.00) disability benefit payable to the
migrant worker. The following disabilities shall be
deemed permanent: total, complete loss of sight of
both eyes; loss of two (2) limbs at or above the
ankles or wrists; permanent complete paralysis of
two (2) limbs; brain injury resulting to incurable
imbecility or insanity;
Comment: To the extent there is a liability to
compensate a seafarer under the terms of the POEA
SEC or CBA, both the Omnibus Implementing Rules &
Regulations (IRR) and new POEA SEC provide for these
contractual obligations to be reduced by the payment
already made in line with the provisions of the AMWA.
A Member can be indemnified in relation to these
liabilities by the Association, subject to the Associations
Rules and the terms and conditions of entry. However, it
should be noted that the AMWA does not contain any
exception in relation to liabilities specifically excluded
from P&I, such as those arising from acts of terrorism or
war risks.

"(d) Repatriation cost of the worker when his/her
employment is terminated by the employer without
any valid cause, or by the employee with just cause
including the transport of his or her personal
belongings. In case of death, the insurance provider
shall arrange and pay for the repatriation or return of
the workers remains. The insurance provider shall
also render any assistance necessary in the
transport including, but not limited to, locating a
local and licensed funeral home, mortuary or direct
disposition facility to prepare the body for transport,
completing all documentation, obtaining legal
clearances, procuring consular services, providing
death certificates, purchasing the minimally
necessary casket or air transport container, as well
as transporting the remains including retrieval from
site of death and delivery to the receiving funeral
home.
Comment: Whilst the costs and expenses associated
with the various obligations outlined above might be the
responsibility of the employer under the terms of the
POEA SEC or CBA in force, and whilst P&I, through
their network of correspondents, could potentially render
the necessary assistance provided for within (d), the
extent to which there would be cover under P&I, will of
course be subject to the reason for the termination.

"(f) Money claims arising from employers liability
which may be awarded or given to the worker in a
judgement or settlement of his or her case in the
NLRC. The insurance coverage for money claims
shall be equivalent to at least three (3) months for
every year of the migrant workers employment
contract
Comment: Cover would be available, provided arising in
relation to a covered risk. For example, the scope of
such a claim could involve disputed or unpaid wages not
covered by P&I, although this is a liability Members are
already exposed to in any event.
"(h) Medical evacuation. When an adequate medical
facility is not available proximate to the migrant
worker, as determined by the insurance companys
physician and/or a consulting physician, evacuation
under appropriate medical supervision by the mode
of transport necessary shall be undertaken by the
insurance providers; and
Comment: The requirement does not expressly limit the
obligations in any way, or give consideration to the
obligations defined under the POEA SEC and CBAs in
force. For example, once repatriated, if the condition is
declared to be non-work related, under the POEA SEC
an employer would have no obligation to provide medical
treatment, let alone arrange his / her medical evacuation
to a suitable medical facility. Similarly, if a CBA is in
force, for a non-work related illness the employer would
ordinarily be under no obligation to provide medical
assistance beyond 130 days treatment post-repatriation.
Notwithstanding the above, to the extent adequate
medical assistance at the port of disembarkation abroad
can not be provided, P&I assists Members in identifying
other suitable medical facilities and in making
arrangements for the seafarers transfer or repatriation.

"(i) Medical repatriation. When medically necessary
as determined by the attending physician,
repatriation under medical supervision to the
migrant workers residence shall be undertaken by
the insurance provider at such time that the migrant
worker is medically cleared for travel by commercial
carrier. If the period to receive medical clearance to
travel exceeds fourteen (14) days from the date of
discharge from the hospital, an alternative
appropriate mode of transportation, such as air
ambulance, may be arranged. Medical and non-
medical escorts may be provided when necessary."
Comment: A number of enquires received have
suggested that the obligation is to undertake the
repatriation of an ill or injured seafarer after 14 days
hospitalisation. It will be appreciated that this is not what
sub-paragraph (i) actually states and we can think of
very few situations where a seafarer who has been
discharged from hospital, would not be fit to fly on a
commercial carrier for more than 14 days.