T.C
JUDICIARY 22.
Department of Law
2013/22829 E.
2014/32996 K.
Date of Decision: 24.11.2014
SUMMARY: In the concrete case; in the employment contracts dated 01.06.2005 and 01.08.2005 signed between the parties, it is regulated that the overtime wage is included in the monthly wage. It is necessary to accept that this record continues in all periods of the working relationship between the parties. As stated above, although it is not possible to apply the 270-hour limitation in Law No. 4857 to the claimant master seaman working within the scope of Law No. 854, in this case, the principle that the maximum working time stipulated by the International Labor Organization convention cannot exceed 14 hours per day and 72 hours per week should be accepted. In this case, it should be considered that the wages of the work up to 72 hours per week are included in the main wage, and if there is more than this period, a calculation should be made for this overtime work. It is erroneous to make a judgment based on incomplete examination without taking this issue into consideration, and it required to be reversed.
(1475 S. K. m. 14) (4857 S. K. m. 17, 41) (854 S. K. m. 14, 26, 28, 41)
Case: The plaintiff requested a decision for the payment of severance pay, notice pay and overtime wage receivables. The court partially ruled on the request. The judgment was appealed by the defendant's lawyer within the period of time, and the file was examined after the report prepared by the Examining Judge G. Yıldız for the case file was listened, and the file was examined, the necessary issues were discussed and considered:
Decision: Summary of the Claimant's Request: The plaintiff's attorney stated that the defendant company had made the cargo fixing operations, which are under the duty and responsibility of the port, to the ship personnel for the last three months, and that the plaintiff stated that he did not want to do this work and that his employment contract was terminated by the employer, without prejudice to his rights regarding the excess; He demanded a decision to collect severance and notice pay and overtime wages from the defendant together with interest. Summary of Defendant's Response: The defendant's attorney argued that the plaintiff's claims were time-barred, that the plaintiff, who worked as a master seaman in the defendant company, left the ship on 15.06.2011 without informing anyone and for this reason, his employment contract was terminated in accordance with Article 14/I-a of the Maritime Labor Law No. 854, that he was not entitled to compensation accordingly, and that the wages for the overtime work he did were paid to him and that the lawsuit was dismissed.
Summary of the Court Decision: The court, based on the evidence collected and the expert report, decided to partially accept the lawsuit on the grounds that it was accepted and justified that the plaintiff terminated his employment contract with just cause by leaving the ship due to the fact that he was made to do some works that were not within the scope of his duty, intensive work tempo, and not paid overtime wages.
Appeal The decision was appealed by the defendant's counsel.
Grounds: 1- It is a matter of dispute between the parties whether the plaintiff worker worked overtime or not. Due to the nature and specialty of the work performed by the workers on board the ship, the working hours are regulated differently compared to other workers. For ships within the scope of Law No. 854 and engaged in long distance voyages, both the working time and the other time spent due to the obligation to stay on board are of great importance. On the other hand, in the case of ships engaged in close-haul voyages or daily voyages in inland waters, since the seafarers are not obliged to stay on board, their working time does not show much feature. According to Article 26/1 of Law No. 854, in general terms, the working time is eight hours a day and forty-eight hours a week. This period is applied by dividing the working days of the week equally. Unlike the Labor Law No. 4857, both weekly and daily working hours are determined in the Law. According to Article 26/2 of the Law No. 854, the working time is the time that the seaman works at work and keeps watch. All the time the seafarer is on board cannot be considered as working time.
The periods during which the seafarer actually works or does not actually work but keeps his strength at the disposal of the employer and waits for work to be assigned or to leave should be counted as working time. According to Article 28/1 of the Law No. 854, the work done by exceeding the working hours determined according to this law is considered as overtime work. While Law No. 4857 requires the consent of the employee working within the scope of Law No. 854, no consent is required for the seafarer working within the scope of Law No. 854. The employer of the seafarer can make the seafarer work overtime hours without having to rely on any reason. Within the scope of Law No. 854, a seafarer who works at work or on watch exceeds eight hours per day or 48 hours per week, the seafarer is considered to be overworked. Whether the seafarer is underway or in port, the seafarer shall be considered to have overworked without working or taking shifts The time spent without holding cannot be considered as overtime work.
In order to determine the seafarer's overtime work on a weekly basis, the seafarer must work seven days a week. Otherwise, overtime should be determined on a daily basis. When Article 41 of Law No. 854 is taken into consideration, those working on port and city line ships are excluded from this. Only seafarers working on ships other than these ships, for example on ships on distant voyages, may work seven days more than the sixth day due to the necessity of the work. In Maritime Labor Law, it is possible for the parties to the contract to include a provision in the contract that the overtime wage is included in the main wage. This contractual provision is valid. However, there must be a limit to this. Law No. 854 does not stipulate a daily or annual limit for overtime work. However, the limit for overtime work for workers covered by Law No. 4857 is set at 270 hours per year. For this reason, it is not possible to apply the 270-hour limit in Law No. 4857 to those working within the scope of Law No. 854, as both are special laws. The International Labor Organization Convention No. 180, which is an international source ratified by Turkey, and the European Union Directive 1999/63/EC can be taken into consideration as the limit in this regard.
In Article 5 of the aforementioned Convention and Directive, working hours are limited and minimum rest periods are set in order to protect the health and safety of the worker. Accordingly, the maximum working time cannot exceed 14 hours in a 24-hour period and 72 hours in a 7-day period. The rest period cannot be less than 10 hours in 24 hours and 77 hours in 7 days. It is possible to divide the rest periods into two periods of not less than 6 hours and the time between two rest periods should not be more than 14 hours. A parallel regulation is included in Article 84 of the Seafarers Regulation. The same conclusion can be drawn from this rule determining rest periods. However, while the regulation sets the rest period at 10 hours per day, it states that it cannot be less than 70 hours per week. This is less than the regulation in the Convention and the Directive. For this reason, it would be more appropriate to consider the Convention and the Directive in the limitation.
In the concrete case; in the employment contracts dated 01.06.2005 and 01.08.2005 signed between the parties, it was regulated that the overtime wage was included in the monthly wage. It is necessary to accept that this record continues in all periods of the working relationship between the parties. As stated above, although it is not possible to apply the 270-hour limitation in Law No. 4857 to the claimant master seaman working within the scope of Law No. 854, in this case, the principle that the maximum working time stipulated by the International Labor Organization convention cannot exceed 14 hours per day and 72 hours per week should be accepted. In this case, it should be considered that the wages of the work up to 72 hours per week are included in the main wage, and if there is more than this period, a calculation should be made for this overtime work. It is erroneous to make a judgment based on incomplete examination without taking this issue into consideration, and it required to be reversed.
2-Whether the termination of the plaintiff worker was based on just cause or not should be discussed according to whether there is an overtime claim or not. Conclusion It was decided unanimously on 24.11.2014 that the appealed decision be DISMISSED for the reasons written above, and that the prepaid appeal fee be refunded to the relevant party upon request. (¤¤)