In Emergency Situations
04 Feb, 2025

On March 14, 2024, the Constitutional Court (hereinafter referred to as “AYM”) published its decision in Official Gazette No. 32489, dated 01.02.2024, with case number 2022/154 E. and 2024/33 K., declaring the 7th paragraph of Article 40 of the Maritime Labour Code (Law No. 854) as unconstitutional and nullifying it, based on its contradiction with Article 50 of the Constitution.

The 7th paragraph of Article 40 of the Maritime Labour Code, which was subject to annulment, states: “If the employment contract is terminated under Articles 14 II, III, and IV, without the seafarer using their entitled annual paid leave, the employer or employer’s representative is obliged to pay the wage for the leave period to the seafarer.”

Article 14, paragraph I, which is not mentioned in the relevant provision of the Law, regulates the employer’s right to terminate the employment contract in cases where the seafarer’s ability to work becomes impossible due to situations that violate law, customs, or moral rules. Accordingly, prior to the annulment decision, if the employment contract was terminated by the employer or their representative according to Article 14, paragraph I of the Law, the seafarer could not claim the unused annual leave pay if any of the following occurred:

  • The seafarer fails to return to the ship before departure or does not return at all from any port;
  • The seafarer’s ability to serve on board the ship becomes impossible due to arrest, imprisonment, or being prohibited from working on the ship;
  • The seafarer acts in violation of the law, service contracts, or other working conditions;
  • The seafarer violates maritime rules, customs, or moral and ethical standards towards the employer or employer’s representative.

However, the Constitutional Court found that this situation does not align with the regulations concerning service relationships in the “Turkish Code of Obligations, Labour Code, and Press Labour Code” and that it is entirely incompatible with the right to rest guaranteed by the Constitution.

The High Court annulled the relevant provision with the following justifications:

  • Ensuring the worker’s entitlement to paid annual leave is part of the employer’s obligations;
  • It is a positive obligation of the state to foresee compensatory measures in the context of the right to rest;
  • This provision could entirely negate the function of paid annual leave rights;
  • The rule that does not allow employees to claim leave pay violates the paid annual leave rights under the right to rest.

As a result, the annulment decision will come into effect 6 (six) months after its publication in the Official Gazette (on 14/09/2024). Therefore, after 14/09/2024, if the employment contract of a seafarer is terminated for any reason, they will be entitled to payment for unused leave days they have earned.

You can access the annulment decision from the link below:

If you require more detailed information, please feel free to contact us through the contact numbers provided below at any time.

Esenyel Partners | The Constitutional Court Cancelled Paragraph 7 of Article 40 of the Maritime Labour Law No. 854 on the Right to Annual Leave!
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