Observation (CEACR) - adoptée 1990, publiée 77ème session CIT (1990)

The Committee notes the Government's report and the observations made by the Turkish Confederation of Employers' Associations.

Article 1(c) of the Convention. In comments made for a number of years, the Committee noted that section 1467 of the Commercial Code empowers the master of a ship to use force, with a view to ensuring the proper running of the vessel and the maintenance of discipline to bring deserting seafarers back on board to perform their duties.

In its most recent report, supplied in 1989, the Government states that during studies undertaken together with the staff of the competent ministry it has been realised that the authority granted to masters to use force to bring deserting seafarers back on board is restricted to the case of necessity and that this application is in conformity with paragraph (d) of Article 2 of the Forced Labour Convention, 1930 (No. 29) which exempts from the scope of that Convention work exacted in any circumstances that would endanger the existence or well-being of the whole or part of the population. Consequently, the Government considers that such an application falls outside the definition of labour discipline in paragraph (c) of Article 1 of Convention No. 105.

The Government also expresses its view that the relations between the master and crew of a vessel cannot be considered an ordinary employer-employee relationship and that one of the important characteristics of such a relation is the fact that it is closely connected with the safety and security of the vessel and the persons and goods on board. According to the Government, the expression "the case of necessity" indicates that such a measure as contemplated in section 1467 would be compulsory only in the event of emergencies (i.e. in cases of danger to the security of the vessel, passengers and the goods on board). Thus, according to the Government's report, when there is not an exceptional situation representing immediate danger, then it is only natural that such a measure shall not be resorted to or, if such measures are taken, then after the completion of the vessel's journey they shall be immediately lifted. Furthermore, the Government states that introduction of an amendment to the section in question would also be quite inappropriate because bringing back deserting seafarers on board by using force by the master of the vessel is closely connected with the purpose of the proper running of the vessel, and without their services, it would be impossible to run it. The Government points out that in the case of a master illegally exercising this authority given to him by law, there are penal provisions in the Commercial Code (article 1470) and, if the exercise constitutes a criminal offence, related remedial provisions in the Penal Code may be applied. The Government concludes that the authority in section 1467 of the Commercial Code is restricted to only "the case of necessity" and an adequate legal guarantee has been provided; therefore, it is considered that there is no non-conformity between the provisions of the paragraph of Article 1 of the Convention and the provisions of the Commercial Code.

The Committee takes due note of the Government's views, which are shared by the Turkish Confederation of Employers' Associations. Several of the points raised by the Government have been made previously and commented upon by the Committee. The Committee must observe, as it has in earlier comments, that Article 1(c) of the Convention prohibits without exception the use of any form of forced or compulsory labour as a means of labour discipline, and that in order to remain outside the scope of the Convention, any sanction involving compulsory labour must be limited to acts endangering the safety of the ship or the life or health of persons which need to be strictly defined. Neither these criteria nor those of Article 2(2)(d) of Convention No. 29 are met by the wording of section 1467 of the Commercial Code, which empowers the master to use force for ensuring the proper running of the vessel and the maintenance of discipline.

The existence of legal remedies is inadequate where the criteria laid down in national law do not meet the standard of the Convention.

Accordingly, the Committee trusts that the Government will re-examine its position in the light of the requirements of the Convention and will initiate action to clearly establish in law that the powers under section 1467 of the Commercial Code are limited to circumstances where the safety of the ship or the life or health of persons are in danger. The Committee looks forward to learning of the measures taken to this effect.