Observation (CEACR) - adoptée 2001, publiée 90ème session CIT (2002)

The Committee, referring to its previous observation, notes again that the Government’s report does not reply to the points raised. The Government states that the employment system for seamen and social relations on board vessels registered in the French Southern and Antarctic Territories are in fact, for the main part, governed by the provisions of the Labour Code and the Maritime Labour Code which are referred to by shipowners and seamen in the context of their contractual relations. The Committee notes, however, that the Government’s report indicates that these employment contracts are not regulated by law but "in fact for the main part", by the provisions of these Codes and does not specify the nature of these employment contracts, namely whether they are seamen’s articles of agreement or ordinary employment contracts. It is therefore bound to renew in part its previous observation which read as follows:

The Committee recalls that, under the Labour Code, seamen’s articles of agreement are governed by special provisions contained in the Maritime Labour Code - CTM (Act of 13 December 1926). Under the general provisions of this Code, and in view of the specific nature of maritime work, any contract concluded between a shipowner or his representative and a seafarer, whose object is the performance of a service on board ship for the purpose of a voyage, is a maritime labour contract governed by the provisions of this Act.

The Committee also notes that section 4 of the CTM provides that maritime labour contracts are governed by two sets of provisions: by the CTM for the periods in which the seafarer is on board, and by the Labour Code outside these periods.

However, the Committee recalls that the contracts of seafarers employed on ships registered in the French Southern and Antarctic Territories (TAAF) are subject to the provisions of the Overseas Labour Code (CTOM), section 30 of which states that the applicable legislation is that of the place at which the contract is executed (lex loci solutionis). The Committee points out that the CTOM contains no maritime provisions and so does not make the distinction between the two sets of provisions applying to seafarers’ contracts under section 4 of the CTM. It notes, however, that the CTOM takes precedence (section 30), and that its geographical scope extends to the antarctic territories and in part to the island of Mayotte.

With regard to the legal status of contracts of seafarers on board ships registered in the TAAF, the Committee asks the Government to state whether, as indicated in the text of the Provisional instructions concerning observance of the application to foreign seafarers of the conditions of employment in force on board vessels registered in the French Southern and Antarctic Territories, these contracts are indeed maritime labour contracts, or ordinary labour contracts, and to indicate in which sectors, other than the maritime sector, economic activities are conducted in the TAAF.

The Committee also notes that the magistrate’s court of Saint-Denis, Réunion, has jurisdiction for individual labour disputes between shipowners and seafarers, for interpreting contracts, or annulling clauses of such contracts.

With regard to the interpretation of contracts and the applicable law (French or foreign), the Committee notes the Standard Employment Contract Governing the Employment of all Filipino Seamen on Board Ocean-Going Vessels) established by the Philippine Overseas Employment Administration (POEA). It notes, inter alia, that section J (applicable law) states that the laws of the Philippines and international treaties ratified by the Philippines apply to all employment contracts of Filipino seamen. The Philippines has not ratified the Seamen’s Articles of Agreement Convention, 1926 (No. 22). According to section I (Jurisdiction) of the above Standard Employment Contract, the POEA has original and exclusive jurisdiction over any disputes arising out of the contract.

The Committee notes from the Government’s report that no individual or collective disputes concerning the application of this Convention have been registered. It requests the Government to state (i) the law which applies to the contract(s) of seafarers employed on vessels registered in the TAAF in the case of both contracts of French seafarers (or assimilated) and contracts of non-resident foreign seafarers hired under a service contract concluded with the shipowner and a company governed by foreign law, responsible for crew recruitment, and (ii) the venue for litigation from French and foreign seafarers employed on vessels registered in the TAAF.

The Committee recalls that, as regards the applicable labour law, when registration is transferred to the TAAF the contracts concluded by seafarers to work on ships previously registered in a port of metropolitan France, an overseas department or an overseas territory (other than the TAAF), are no longer governed by the CTM, but by the CTOM.

In addition, the Committee requests the Government to indicate, in accordance with article 23, paragraph 2, of the ILO Constitution, to which representative organizations of shipowners and seamen copies of the latest report have been communicated and whether any observations have been received from these organizations in regard to the practical application of the provisions of the Convention or the application of legislative or other measures giving effect to the provisions of the Convention.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.