Supreme Court, Social Chamber, 23 January 2013, Appeal No. 10-20568
Constitution of France
Article 54
If the Constitutional Council, at the request of the President of the Republic, the Prime Minister, the President of one or the other assembly or by sixty deputies or sixty senators, has declared that an international commitment contains a clause contrary to the Constitution, authorization to ratify or approve the international commitment in question may be given only after amendment of the Constitution.
Article 55
Duly ratified or approved treaties or agreements shall, upon publication, prevail over acts of Parliament, subject, in regard to each agreement or treaty, to its application by the other party.
France
Hours of work
Direct resolution of a dispute on the basis of international law
Ratified treaty1
Seafarers’ hours of work/ Direct resolution of a dispute on the basis of international law
A man was hired in 1998 as a helmsman providing transport for pilots to and from ships in the Port of Dunkirk. To this end, his position was equivalent to that of a captain and his working hours were governed by the provisions of a 1998 work agreement, amended in 2002, providing 24-hour periods of work followed by 48 hours of rest on land over three-week cycles.
Following his resignation in 2005, his employer sued him for the repayment of an advance. Acting as the claimant in a cross application, the employee filed a claim for the payment of various amounts owing for overtime, on-call duty, compensatory rest and paid leave. The Court of Appeal dismissed his claims on the grounds that the provisions of the Maritime Labour Code, on which the employee based his claim under the favourability principle, were not applicable to naval captains, in application of Article L. 742-1 of the Labour Code and 104 of the Maritime Labour Code.
In its ruling, the Supreme Court relied on the ILO Seafarers’ Hours of Work and the Manning of Ships Convention, 1996 (No. 180), ratified by France, and particularly Articles 3, 4, 5 and 18-3 of that Convention. The Court stated that Articles 3, 4 and 5 have been directly applicable in domestic law since 27 October 2004.
The Court recalled the contents of the Articles of the Convention, stating that “the duration of work for seafarers – as for other workers – is, in principle, eight hours per day with one day of rest per week, in addition to the rest corresponding to public holidays”. Concerning on-call duty, it added that the sailor must “benefit from an adequate compensatory rest period if the normal duration of his rest is disturbed by calls”.2
It concluded that “the Court of Appeal had misunderstood the abovementioned international convention” and overturned and quashed the appealed ruling “but only insofar as it dismisses the [employee’s] claims for payment of overtime, compensatory rest, on-call duty and paid leave as of 27 October 2004, the date ILO Convention No. 180 came into force”.3
In this ruling, the Supreme Court directly applied the provisions of ILO Convention No. 180 to dismiss legal provisions that were less favourable to the employee.
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