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Turkish Labour Law (law no. 4857) Part One Turkish Labour Law (law no. 4857) Part Two

Law No. 4857


CHAPTER ONE  General Provisions

Purpose and Scope:

Article 1. The purpose of this Act is to regulate the working conditions and work-related rights and obligations of employers and employees working under an employment contract.

With the exception of those cited in Article 4, this Act shall apply to all the establishments and to their employers, employer’s representatives and employees, irrespective of the subject matter of their activities.

Establishments, employers, employer’s representatives and employees shall be subject to this Act irrespective of the date of the notification to be made to the regional directorate of labour under Article 3.

Definitions:

Article 2. The employee is a real person working under an employment contract; the employer is a real or corporate person or a noncorporate institution or organisation employing employees; and the relationship established between the employee and employer shall be referred to as the employment relationship. The unit wherein the employees and material and immaterial elements are organised with a view to ensure the production of goods and services by the employer is called the establishment.

All premises used by reason of the nature and execution of the work and organised under the same management, including all facilities annexed to the establishment such as rest rooms, day nurseries, dining rooms, dormitories, bathrooms, rooms for medical examination and nursing, places for physical and vocational training and courtyards as well as the vehicles are deemed to be part of the establishment.

The establishment is an integrated organisational entity within the meaning of the annexed and adjunct facilities and vehicles.

The employer’s representative is the person acting on behalf of the employer and charged with the direction of work, the establishment and enterprise. The employer is directly liable towards the employees for the conduct and responsibilities of his representative acting in this capacity.

Any obligations and responsibilities for which the employer is liable under this Act shall also be borne by the employer’s representative. Bearing the status of an employer’s representative does not abrogate the rights and obligations which one has as an employee.

The connection between the subcontractor who undertakes to carry out work in auxiliary tasks related to the production of goods and services or in a certain section of the main activity due to operational requirements or for reasons of technological expertise in the establishment of the main employer (the principal employer) and who engages employees recruited for this purpose exclusively in the establishment of the main employer is called “the principal employer-subcontractor relationship”. The principal employer shall be jointly liable with the subcontractor for the obligations ensuing from this Labour Act, from employment contracts of subcontractor’s employees or from the collective agreement to which the subcontractor has been signatory.

The rights of the principal employer’s employees shall not be restricted by way of their engagement by the subcontractor, and no principal employer – subcontractor relationship may be established between an employer and his ex- employee. Otherwise, based on the notion that the principal employer- subcontractor relationship was fraught with a simulated act, the employees of the subcontractor shall be treated as employees of the principal employer. The main activity shall not be divided and assigned to subcontractors, except for operational and work- related requirements or in jobs requiring expertise for technological reasons.

Declaring the establishment:

Article 3. The employer who sets up or takes over an establishment covered by this Act, who completely or partly changes the nature of his business, or who permanently closes down an establishment due to the completion of work or for any other reason must, within one month, notify the regional directorate of labour of the name and surname or trade mark and address as well as the names, surnames and addresses of employer representatives, if there are any.

The subcontractor must also make notification for his own establishment set up in order to produce goods or services in his capacity as subcontractor, according to the stipulations envisaged in the first sentence of this Article

Exceptions:

Article 4. The provisions of this Act shall not apply to the activities and employment relationships mentioned below.

Sea and air transport activities,

In establishments and enterprises employing a minimum of 50 employees (50 included) where agricultural and forestry work is carried out.

Any construction work related to agriculture which falls within the scope of family economy,

In works and handicrafts performed in the home without any outside help by members of the family or close relatives up to 3 rd degree (3 rd degree included),

Domestic services,

Apprentices, without prejudice to the provisions on occupational health and safety,

Sportsmen,

Those undergoing rehabilitation,

Establishments employing three or fewer employees and falling within the definition given in Article 2 of the Tradesmen and Small Handicrafts Act,

However, the following shall be subject to this Act;

Loading and unloading operations to and from ships at ports and landing stages,

All ground activities related to air transport,

Agricultural crafts and activities in workshops and factories manufacturing implements, machinery and spare parts for use in agricultural operations,

Construction work in agricultural establishments,

Work performed in parks and gardens open to the public or subsidiary to any establishment,

Work by seafood producers whose activities are not covered by the Maritime Labour Act and not deemed to be agricultural work.

The principle of equal treatment:

Article 5. No discrimination based on language, race, sex, political opinion, philosophical belief, religion and sex or similar reasons is permissible in the employment relationship.

Unless there are essential reasons for differential treatment, the employer must not make any discrimination between a full-time and a part-time employee or an employee working under a fixed-term employment contract (contract made for a definite period) and one working under an open-ended employment contract (contract made for an indefinite period).

Except for biological reasons or reasons related to the nature of the job, the employer must not make any discrimination, either directly or indirectly, against an employee in the conclusion, conditions, execution and termination of his (her) employment contract due to the employee’s sex or maternity.

Differential remuneration for similar jobs or for work of equal value is not permissible.

Application of special protective provisions due to the employee’s sex shall not justify paying him (her) a lower wage.

If the employer violates the above provisions in the execution or termination of the employment relationship, the employee may demand compensation up his (her) four months’ wages plus other claims of which he (she) has been deprived. Article 31 of the Trade Unions Act is reserved.

While the provisions of Article 20 are reserved, the burden of proof in regard to the violation of the above – stated provisions by the employer rests on the employee.

However, if the employee shows a strong likelihood of such a violation, the burden of proof that the alleged violation has not materialised shall rest on the employer.

The transfer of the establishment or one of its sections:

Article 6. When, due to a legal transaction, the establishment or one of its sections is transferred to another person, employment contracts existing in the establishment or in the section transferred on the date of the transfer shall pass on to the transferee with all the rights and obligations involved.

In the calculation of all the entitlements based on the employee’s length of service, the transferee (new employee) must act, in regard to the transactions concerning the employee, according to the date on which the employee had started work under the transferor (previous employer).

In a transfer executed in accordance with the above provisions, the transferor and transferee shall be jointly liable for the obligations which have materialised before the transfer and which must be defrayed on the date of the transfer.

The liability of the transferor is limited, however, to the two – year period following the date of the transfer.

Provisions on joint liability shall not be applicable in cases where the corporate (legal personality) status ceases to exist as a result of a merger, participation or where the corporate type is changed.

The transferor or transferee is not authorised to terminate the employment contract solely because of the transfer of the establishment or a section thereof, nor shall the transfer entitle the employee to terminate the contract for just cause. The right of the transferor or the transferee to terminate for reasons necessitated by economic, technological or organisational changes is reserved; so is the employer’s and the employee’s right to break the contract for just cause.

The provisions stated above shall not be applicable in the event of the transfer of the establishment as a result of liquidation of the employer’s assets due to the insolvency of the employer.

Temporary employment relationship:

Article 7. A temporary employment relationship is established when, in order to have work performed similar to what the employee was doing, the employer transfers the employee, upon obtaining his written consent at the time of transfer, to another establishment within the structure of the same holding company or the same group of companies, or to another employer. While in this case the employment contract between the employer and the employee continues to be in effect, the employee is obligated to perform work for the employer with whom the temporary employment relationship has been established. While the employer who is the party to the temporary employment relationship has the right to give commands to the employee, he is under the obligation to provide the employee with the necessary training against health and safety risks.

Temporary employment relationship may be established for a period not to exceed six months, and it may be renewed twice, if required.

The employer’s (transferor’s) obligation to pay the employee’s wages shall continue. The employer with whom temporary employment relationship is established (transferee) shall be jointly liable with the employer (transferor) for the employee’s unpaid wages for the period during which the employee was engaged in his establishment as well as for the duty to protect the employee and the payment of social security contributions.

For the payment of damages, which the employee has inflicted due to his own fault in relation to the establishment and employment, the employee shall be liable to the employer with whom temporary employment relationship has been established.

Unless the contrary can be inferred from the temporary employment contract of the employee, the provisions of this Act relating to other rights and obligations of the employee shall also apply to his relationship with the employer with whom temporary employment relationship has been established.

In the event the employer who has taken over the employee temporarily is the party to a collective labour dispute which has reached the strike and lock-out stage, the employee must not be engaged in work during the execution of the strike and lock-out. The provisions of Article 39 of Act No. 2822 on Collective Agreements, Strikes and Lock-outs are, however reserved. The transferor employer must engage such employees in work at his own establishment.

In establishments where collective dismissals have taken place, no temporary employment relationship may be established in jobs affected by the collective dismissal within the six-month period following the collective dismissal.

 

SECOND CHAPTER   Employment Contract; Types and Termination

 Definition and form:

Article 8. Employment contract is an agreement whereby one party (the employee) undertakes to perform work in subordination to the other party (the employer) who undertakes to pay him remuneration. The employment contract is not subject to any special form unless the contrary is stipulated by the Act.

Written form is required for employment contracts with a fixed duration of one year or more, Such written documents are exempt from the stamp tax and all kinds of fees.

In cases where no written contract has been made, the employer is under the obligation to provide the employee with a written document, within two months at the latest, showing the general and special conditions of work, the daily or weekly working time, the basic wage and any wage supplements, the time intervals for remuneration, the duration if it is a fixed term contract, and conditions concerning the termination of the contract. This subsection shall not apply in the case of fixed term contracts whose duration does not exceed one month. If the employment contract has expired before the lapse of two months, this information must be communicated to the employee in written form on the expiration date at the latest.

The freedom to determine the type and conditions of the employment contract:

Article 9. The parties are free to draw up the employment contract in a manner commensurate to their needs, without prejudice to the limitations brought up by legislation.

Employment contracts shall be made for a definite (fixed term) or indefinite (open-ended) period. In terms of the manner of working, these contracts may be concluded on a full-time or part-time basis, or with a trial (probation) period or in other forms possible.

Employment contracts in continual and transitory work:

Article 10. Employment which, owing to its nature, lasts only up to 30 days is transitory; and employment which requires a longer period is continual.

Articles 3,8,12,13,14,15,17,23,24,25,26,27,28,29,30,31,34,53,54,55,56,57,58,59,

75,80 and transitional Article 6 of this Act shall not be applicable in employment contracts made for transitory work. If employment is transitory, provisions of the Obligations Act shall apply on matters contained in these Articles.

Employment contract for a definite (fixed) term and for an indefinite (open-ended) term:

Article 11. An employment contract is deemed to have been made for an indefinite period where the employment relationship is not based on a fixed term. An employment contract for a definite period is one that is concluded between the employer and the employee in written form, which has a specified term or which is based on the emergence of objective conditions like the completion of a certain work or the materialisation of a certain event.

An employment contract for a definite period must not be concluded more than once, except when there is an essential reason which may necessitate repeated (chain) contracts. Otherwise, the employment contract is deemed to have been made for an indefinite period from the very beginning.

Chain contracts based on essential reasons shall maintain their status as contracts made for a definite period.

Limitations on the distinction between fixed-term and open-ended contracts:

Article 12. An employee working under an employment contract for a definite period shall not be subjected to differential treatment in relation to a comparable employee working under an employment contract for an indefinite period.

Divisible amounts for a given time period relating to wages and other monetary benefits to be given to an employee working under a fixed-term contract shall be paid in proportion to the length of time during which the employee has worked. In cases where seniority (length of service) in the same establishment or the same enterprise is treated as the criterion in order to take advantage of an employment benefit, the seniority criterion foreseen for a comparable employee working under an open-ended contract must be applied to an employee with a fixed-term contract, unless there is a reason justifying the application of a different seniority criterion for an employee working under a fixed-term contract.

The comparable employee is the one who is employed under an open-ended contract in the same or a similar job in the establishment. If there is not such an employee in the establishment, then an employee with an open-ended contract performing the same or a similar job in a comparable establishment falling into the same branch of activity will be considered as the comparable employee.

Part-time and full-time employment contracts:

Article 13. The employment contract shall be considered as a part-time contract where the normal weekly working time of the employee has been fixed considerably shorter in relation to a comparable employee working full-time.

An employee working under a part-time employment contract must not be subjected to differential treatment in comparison ta a comparable full-time employee solely because his contract is part-time, unless there is a justifiable cause for differential treatment. The divisible benefits to be accorded to a part-time employee in relation to wages and other monetary benefits must be paid in accordance to the length of his working time proportionate to a comparable employee working full-time.

The comparable employee is the one who is employed full-time in the same or a similar job in the establishment. In the event there is not such an employee in the establishment, an employee with a full-time contract performing the same or similar job in an appropriate establishment which falls into the same branch of activity will be considered as the comparable employee.

If there are vacant positions suited to the qualifications of employees working in the establishment, the employees’ requests to move into full-time from part-time jobs or vice versa shall be taken into consideration; vacancies shall be announced without delay.

Work on call:

Article 14. Employment relationship which foresees the performance of work by the employee upon the emergence of the need for his services, as agreed to in the written employment contract, qualifies as a part-time employment contract based on work on call.

In the event the length of the employee’s working time has not been determined by the parties in terms of time slices such as a week, month or year, the weekly working time is considered to have been fixed as twenty hours. The employee is entitled to wages irrespective of whether or not he is engaged in work during the time announced for work on call.

Unless the contrary has been decided, the employer who has the right to request the employee to perform his obligation to work upon call must make the said call at least four days in advance.

The employee is obliged to perform work upon the call communicated to him within the said time limit. If the daily working time has not been decided in the contract, the employer must engage the employee in work for a minimum of four consecutive hours at each call.

Employment contract with a trial (probation) clause:

Article 15. If the parties have agreed to include a trial clause in the employment contract, the duration of the trial term shall not exceed two months. However, the trial period may be extended up to four months by collective agreement.

Within the trial term the parties are free to terminate the employment contract without having to observe the notice term and without having to pay compensation. The employee’s entitlement to wages and other rights for the days worked is reserved.

Employment contracts based on a “gang contract”:

Article 16. The contract concluded between an employer and a gang of employees represented by one of the employees acting as the gang leader is called a gang contract.

The gang contract must be made in written form irrespective of the duration of employment contracts which will emanate from it. The gang contract must specify the identity and wage of each employee separately.

Once each employee named in the gang contract begins work, an employment contract is deemed to have been concluded between the employer and the employee with the conditions specified in the gang contract. However, the provision of Article 110 of the Obligations Act also apply to the gang contract.

The employer or his representative must pay the employees’ wages separately as each employee named in the gang contract begins work. For the gang leader’s acting as an intermediary or for any other reason, no deductions may be made on behalf of the gang leader from the wages of employees who form the gang.

Notice of termination:

Article 17. Before terminating a continual employment contract made for an indefinite period, a notice to the other party must be served by the terminating party.

The contract shall then terminate:

in the case of an employee whose employment has lasted less than six months, at the end of the second week following the serving of notice to the other party;

in the case of an employee whose employment has lasted for six months or more but for less than one-and-a-half years, at the end of the fourth week following the serving of notice to the other party;

in the case of an employee whose employment has lasted for one-and-a-half years or more but for less than three years, at the end of the sixth week following the serving of notice to the other party;

in the case of an employee whose employment has lasted for more than three years, at the end of the eighth week following the serving of notice to the other party.

These are minimum periods and may be increased by contracts between the parties.

The party who does not abide by the rule to serve notice shall pay compensation covering the wages which correspond to the term of notice.

The employer may terminate the employment contract by paying in advance the wages corresponding to the term of notice.

The employer’s non-observance of the rule of giving notice or his terminating the employment contract by paying in advance the wages corresponding to the term of notice shall not preclude the application of Articles 18,19,20 and 21 of this Act. In cases where employment contracts of employees who fall outside the scope of Articles 18,19,20 and 21 of this Act by definition of subsection I of Article 18 have been ended by the abusive exercise of the right to terminate, the employee shall be paid compensation amounting to three times the wages for the term of notice. If the rule to give notice has not been observed either, the employee must be paid an additional compensation (notice pay) in accordance with subsection 4 above.

In the computation of compensations to be paid in accordance with this Article as well as the advance notice pay, all the monetary benefits plus other benefits which can be measured in monetary terms emanating from the contract and from the law shall be taken into consideration in addition to the wage defined in subsection 1 of Article 32.

Justification of termination with a valid reason:

Article 18. The employer, who terminates the contract of an employee engaged for an indefinite period, who is employed in an establishment with thirty or more workers and who meets a minimum seniority of six months, must depend on a valid reason for such termination connected with the capacity or conduct of the employee or based on the operational requirements of the establishment or service.

In the computation of the six-months’ seniority, time periods enumerated in Article 66 shall be taken into account.

The following, inter alia, shall not constitute a valid reason for termination:

union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours;

acting or having acted in the capacity of, or seeking office as, a union representative;

the filing of a complaint or participation in proceedings against an employer involving alleged violations of laws or regulations or recourse to competent administrative or judicial authorities;

race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

absence from work during maternity leave when female workers must not be engaged in work, as foreseen in Article 74;

temporary absence from work during the waiting period due to illness or accident foreseen in Article 25 of the Labour Act, subsection I (b).

The “six month” minimum seniority (length of service) of the employee shall be calculated on the basis of the sum of his employment periods in one or different establishments of the same employer. In the event the employer has more than one establishment in the same branch of activity, the number of employees shall be determined on the basis of the total number of employees in these establishments.

This Article and Articles 19 and 21 and the last subsection of Article 25 shall not be applicable to the employer’s representative and his assistants authorised to manage the entire enterprise as well as the employers’ representative managing the entire establishment but who is also authorised to recruit and to terminate employees.

Procedure in termination:

Article 19. The notice of termination shall be given by the employer in written from involving the reason for termination which must be specified in clear and precise terms.

The employment of an employee engaged under a contract with an open-ended term shall not be terminated for reasons related to the worker’s conduct or performance before he is provided an opportunity to defend himself against the allegations made. The employer’s right to break the employment contract in accordance with Article 25/II of the Labour Act (for serious misconduct or malicious or immoral behaviour of the employee) is, however, reserved.

Procedure of appeal against termination:

Article 20. The employee who alleges that no reason was given for the termination of his employment contract or who considers that the reasons shown were not valid to justify the termination shall be entitled to lodge an appeal against that termination with the labour court within one month of receiving the notice of termination. If there is an arbitration clause in the collective agreement or if the parties so agree, the dispute may also be referred to private arbitration within the same period of time.

The burden of proving that the termination was based on a valid reason shall rest on the employer. However, the burden of proof shall be on the employee if he claims that the termination was based on a reason different from the one presented by the employer.

The court must apply fast-hearing procedures and conclude the case within two months. In the case the decision is appealed, the Court of Cassation must issue its definitive verdict within one month.

Consequences of termination without a valid reason:

Article 21. If the court or the arbitrator concludes that the termination is unjustified because no valid reason has been given or the alleged reason is invalid, the employer must re-engage the employee in work within one month. If, upon the application of the employee, the employer does not re-engage him in work, compensation to be not less than the employee’s four months’ wages and not more than his eight months’ wages shall be paid to him by the employer.

In its verdict ruling the termination invalid, the court shall also designate the amount of compensation to be paid to the employee in case he is not re-engaged in work.

The employee shall be paid up to four months’ total of his wages and other entitlements for the time he is not re-engaged in work until the finalization of the court’s verdict. If advance notice pay or severance pay has already been paid to the reinstated employee, it shall be deducted from the compensation computed in accordance with the above-stated subsections. If term of notice has not been given nor advance notice pay paid, the wages corresponding to term of notice shall also be paid to the employee not re-engaged in work.

For re-engagement in work, the employee must make an application to the employer within ten working days of the date on which the finalized court verdict was communicated to him. If the employee does not apply within the said period of time, termination shall be deemed valid, in which case the employer shall be held liable only for the legal consequences of that termination.

The provisions of subsections 1,2 and 3 of this Article shall not be altered by any agreement whatsoever; any agreement provisions to the contrary shall be deemed null and void.

Change in working conditions and termination of the contract:

Article 22. Any change by the employer in working conditions based on the employment contract, on the rules of work which are annexed to the contract, and on similar sources or workplace practices, may be made only after a written notice is served by him to the employee. Changes that are not in conformity with this procedure and not accepted by the employee in written form within six working days shall not bind the employee. If the employee does not accept the offer for change within this period, the employer may terminate the employment contract by respecting the term of notice, provided that he indicates in written form that the proposed change is based on a valid reason or there is another valid reason for termination. In this case the employee may file suit according to the provisions of Articles 17 and 21.

By mutual agreement the parties may always change working conditions. Change in working conditions may not be made retroactive.

Responsibility of the new employer:

Article 23. If the employee working for an employer under a contract with a definite or indefinite period quits employment before the expiration of the fixed term or without respecting the notice period and accepts employment under another employer, the new employer is also liable jointly with the employee, in addition to the employee’s liability for ending the contract in this fashion, in the following cases;

if the new employer has caused the employee to act in this manner,

if the new employer has engaged the employee in work even though he was aware of the employee’s action, or

if the new employer has retained the employee in his service after becoming aware of the latter’s action.

Employee’s right to break the contract for just cause:

Article 24. The employee is entitled to break the contract, whether for a definite or an indefinite period, before its expiry or without having to observe the specified notice periods, in the following cases.

For reasons of health

If the performance of the work stipulated in the contract endangers the employee’s health or life for a reason which it was impossible to foresee at the time the contract was concluded;

If the employer, his representative or another employee who is constantly near the employee and with whom he is in direct contact is suffering from an infecting disease or from a disease incompatible with the performance of his duties.

For immoral, dishonourable or malicious conduct or other similar behaviour

If, when the contract was concluded, the employer misled the employee by stating the conditions of work incorrectly or by giving him false information or by making false statements concerning any essential point of the contract;

If the employer is guilty of any speech or action constituting an offence against the honour or reputation of the employee or a member of the employee’s family, or if he harasses the employee sexually;

If the employer assaults or threatens the employee or a member of his family to commit an illegal action, or commits an offence against the employee or a member of his family which is punishable with imprisonment, or levels serious and groundless accusations against the employee in matters affecting his honour;

If, in cases where the employee was sexually harassed by another employee or by third persons in the establishment, adequate measures were not taken although the employer was informed of such conduct;

If the employer fails to make out a wages account or to pay wages in conformity with the Labour Act and the terms of the contract;

If, in cases where wages have been fixed at a piece or task rate, the employer assigns the employee fewer pieces or a smaller task than was stipulated and fails to make good this deficit by assigning him extra work on another day, or if he fails to implement the conditions of employment.

Force majeure

Force majeure necessitating the suspension of work for more than one week in the establishment where the employee is working.

The breaking of the employment contract by the initiative of the employer (summary termination):

Article 25. The employer may break the contract, whether for a definite or indefinite period, before its expiry or without having to comply with the prescribed notice periods, in the following cases:

For reasons of health

If the employee has contracted a disease or suffered an injury owing to his own deliberate act, loose living or drunkenness, and as a result is absent for three successive days or for more than five working days in any month.

If the Health Committee has determined that the suffering is incurable and incompatible with the performance of the employee’s duties. In cases of illness or accident which are not attributable to the employee’s fault and which are due to reasons outside those set forth in (a) above and in cases of pregnancy or confinement, the employer is entitled to terminate the contract if recovery from the illness or injury continues for more than six weeks beyond the notice periods set forth in article 17. In cases of pregnancy or confinement, the period mentioned above shall begin at the end of the period stipulated in Article 74. No wages are to be paid for the period during which the employee fails to report to work due to the suspension of his (her) contract.

For immoral, dishonourable or malicious conduct or other similar behaviour

If, when the contract was concluded, the employee misled the employer by falsely claiming to possess qualifications or to satisfy requirements which constitute an essential feature of the contract, or by giving false information or making false statements;

If the employee is guilty of any speech or action constituting an offence against the honour or dignity of the employer or a member of his family, or levels groundless accusations against the employer in matters affecting the latter’s honour or dignity;

If the employee sexually harasses another employee of the employer;

If the employee assaults or threatens the employer, a member of his family or a fellow employee, or if he violates the provisions of Article 84;

If the employee commits a dishonest act against the employer, such as a breach of trust, theft or disclosure of the employer’s trade secrets.;

If the employee commits an offence on the premises of the undertaking which is punishable with seven days’ or more imprisonment without probation;

If, without the employer’s permission or a good reason, the employee is absent from work for two consecutive days, or twice in one month on the working day following a rest day or on three working days in any month;

If the employee refuses, after being warned, to perform his duties;

If either wilfully or through gross negligence the employee imperils safety or damages machinery, equipment or other articles or materials in his care, whether these are the employer’s property or not, and the damage cannot be offset by his thirty days’ pay.

Force majeure:

Force majeure preventing the employee from performing his duties for more than one week.

If due to the employee’s being taken into custody or due to his arrest, his absence from work exceeds the notice period indicated in Article 17.

The employee may file a lawsuit according to Articles 18,20 and 21 by claiming that the termination was not in conformity with the subsections cited above.

The prescribed period within which the right to summary termination may be exercised:

Article 26. The right to break the employment contract for the immoral, dishonourable or malicious behaviour of the other party may not be exercised after six working days of knowing the facts, and in any event after one year following the commission of the act, has elapsed. The “one year” statutory limitation shall not be applicable, however, if the employee has extracted material gains from the act concerned.

The employee or employer who has terminated the contract for any of the reasons mentioned above within the period indicated in the above subsection is entitled to claim compensation from the other party.

Permission to seek new employment:

Article 27. During the term of notice the employer must grant the employee the permission to seek new employment within working hours without any deduction from his wage. The time devoted to this purpose should not be less than two hours daily and if the employee so requests such hours may be added together and taken at one time. But if the employee wishes to take these hours at one time, he must do so on the days immediately preceding the day on which his employment ceases and must inform the employer in advance.

If the employer does not grant the permission to seek new employment or allows less time than that stipulated in this Article, he must pay the employee the wages corresponding to the time to which he was entitled.

If the employer makes the employee work during the time to be allowed for seeking new employment, he must compensate the employee twice the amount of wages he is entitled to even for no work during the time which should be allowed for seeking new employment.

Certificate of employment:

Article 28. The employer must furnish the employee leaving employment with a certificate stating the nature and duration of employment

The employee who suffers a loss or the new employer who has recruited him may claim compensation from the previous employer for the latter’s failure to furnish the certificate on due time or for the incorrect information contained in the certificate.

Such certificate is exempt from taxes and fees.

Collective dismissal:

Article 29. When the employer contemplates collective terminations for reasons of an economic, technological, structural or similar nature necessitated by the requirements of the enterprise, the establishment or activity, he shall provide the union shop-stewards, the relevant regional directorate of labour and the Public Employment Office with written information at least 30 days prior to the intended lay-off.

A collective dismissal occurs when,

in establishments employing between 20 and 100 employees, a minimum of 10 employees; and

in establishments employing between 101 and 300 employees, a minimum of 10 percent of employees; and

in establishments employing 301 and more workers, a minimum of 30 employees, are to be terminated in accordance with Article 17 on the same date or at different dates within one month.

The said written communication shall include the reason for the contemplated layoff, the number and groups to be affected by the lay-off as well as the length of time the procedure of terminations is likely to take.

Consultations with union shop-stewards to take place after the said notification shall deal with measures to be taken to avert or to reduce the terminations as well as measures to mitigate or minimize their adverse effects on the workers concerned. A document showing that the said consultations have been held shall be drawn up at the end of the meeting.

Notices of termination shall take effect 30 days after the notification of the regional directorate of labour concerning the intended lay-offs.

In the event of closing the entire establishment which involves a definite and permanent stoppage of activities, the employer shall notify, at least 30 days prior to the intended closure, only the regional directorate of labour and the Public Employment Office and shall post the relevant announcement at the establishment.

If in seasonal and campaign work layoffs are carried out in conjunction with the nature of such work, provisions on collective dismissals shall not apply.

The employer shall not apply the provisions on collective dismissal to evade and prevent the application of Articles 18,19,20 and 21; otherwise the employee may file suit according to these articles.

The requirement to employ disabled persons, ex-convicts and victims of terror:

Article 30. In establishments employing fifty or more employees, employers shall employ disabled persons, ex-convicts, and victims of terror – who must be engaged in work in accordance with the annex Article (B) of Act No. 3713 on the Struggle Against Terrorism – , and assign them to jobs consistent with their occupational skills and physical and mental capacities; the ratios to be employed in each category shall be determined by the Council of Ministers in a manner to go into effect at the beginning of January of each year. The total ratio of employees to be employed within the scope of this article is six percent. But the ratio of the disabled shall not be less than half of the total ratio. For employers who have more than one establishment within the boundaries of a province, the number that the employer must employ shall be computed according to the total number of employees.

In determining the number of employees to be employed within the scope of this provision, employees with open-ended and fixed term contracts shall be considered together. Taking their working time into consideration, part-time employees shall be converted into full-time numbers.

In the computation of the ratios, fractions up to one half are to be omitted; those above half shall be elevated to one.

Priority in hiring these categories must be given to those who have become disabled or ex-convicts or victims of terror during their previous employment in the establishment.

Employers shall recruit such employees through the Public Employment Organisation of Turkey (Türkiye İş Kurumu).

The nature of employees who shall be employed in the meaning of this clause, the types of jobs in which they may be engaged, the special conditions that will apply to them and their occupational orientation and how they shall be recruited professionally is to be indicated in a regulation which will be issued jointly by the Ministry of Justice and the Ministry of Labour and Social Security.

No disabled person shall be employed in any underground and underwater work, and employees engaged in underground and underwater works shall not be taken into consideration in determining the number of employees according to the provisions mentioned above.

The employer must give priority to applicants who have left his establishment because of disablement but who have later recovered should they wish to resume their old jobs, either immediately if vacant positions are available, or if not, when vacancies occur in their previous jobs or in other corresponding jobs, subject to the prevailing conditions of employment. Should the employer fail to respect his obligation to conclude the said employment contract despite the existence of the above – mentioned requirements, he shall pay his ex-employee making the application a compensation equal to his six months’ wages.

The employment of ex-convicts shall be without prejudice to the provisions concerning services related to public security.

Concerning employers who employ disabled persons, ex-convicts or victims of terror above the quotas designated by the Council of Ministers, or who employ these categories although they are not obligated to do so, or employers employing disabled persons who have lost more than 80 percent of their working capacity, and for each disabled person thus employed; the employer shall pay only fifty percent of the employer’s share of contributions according to Act No. 506 on Social Insurance, and the Treasury shall pay the remaining fifty percent.

In the event of violations of this clause the fines which will be collected according to Article 101 shall be appropriated as income to a special account of the Turkish Employment Organisation (İş-Kur) which will be opened by the Ministry of Finance. The money thus collected in this account shall be transferred to the Turkish Employment Organisation to be spent for the vocational training and rehabilitation of the disabled or for promoting self-employment businesses or similar projects for such people.

The subject matter and amounts of such appropriations shall be decided, under the coordination of the general Directorate of the Turkish Employment Organisation, by a committee to be composed of a representative from the general Directorate of Labour of the Ministry of Labour and Social Security, General Directorate of Occupational Health and Safety, Directorate of the Administration for the Disabled, General Directorate of Penal and Prison Institutions of the Ministry of Justice, the Confederation of the Disabled of Turkey and top level organisations of labour and employers with the largest membership. The working methods of the committee will be determined by a regulation to be issued by the Ministry of Labour and Social Security.

Employment in relation to military and statutory duty:

Article 31. If an employee is recalled to military services to take part in maneuvers or for any other reasons, or if he leaves his employment to perform statutory labour service, his employment contract shall be deemed to have ended after two months have elapsed from the date of his departure.

To be entitled, the employee must have been employed for a minimum of one year.

Employees who have been employed for more than one year are allowed two additional days for each year of service, provided that the total period of absence must not exceed 90 days.

The employee is not entitled to wages within the period which must elapse in order for his employment contract to be deemed terminated, without prejudice to the provisions of special legislation on this matter. Even in cases where notice has been given by either party for any other reason based on law, the notice period for termination designated by law shall begin to be operative after the lapse of the time indicated. The provisions of this Article shall not apply if the employment contract is a fixed- term one and if it expires within the period indicated above.

If employees who leave their employment to carry out any military or statutory duties apply to their employer within two months of the completion of such duties, the employer shall re-hire them by giving priority over other applicants, when there is a vacancy equal or similar to their previous jobs, under the prevailing conditions; if there is no vacancy, the employer shall re-hire them to the first job which will become vacant. If the employer does not fulfill his obligation to conclude the employment contract despite the presence of the required conditions, he shall pay the ex-employee applying for re-employment compensation equal to three-months’ wages.

THIRD CHAPTER   Wages

The wage and its remuneration:

Article 32. Wage is, in general terms, the amount of money to be paid in cash by an employer or by a third party to a person in return for work performed by him.

As a rule the wage shall be paid in Turkish money (legal tender) at the establishment or shall be deposited into a specially opened bank account. If the wage has been decided in terms of a foreign currency, it may be paid in Turkish money according to the currency rate on the date of payment.

Wage payment must not be made in bonds, coupons or another paper claimed to represent the national currency valid in the country or by any other means whatsoever.

Wage may be paid on a monthly basis at the latest. The time of remuneration may be reduced down to one week by employment contract or by collective agreement.

Upon the expiration of the employment contract, employee’s wage claims as well as all the benefits based on the employment contract and law must be paid in full.

No wage payments may be made to employees in bars and similar entertainment areas where alcoholic beverages are served as well as in retail stores, with the exception of employees working in such establishments.

Statutory limitation on wage claims is five years.

Insolvency of the employer:

Article 33. In case of the employer’s inability to pay as evidenced by the declaration of a concord by him or the issuance of a certificate attesting to his insolvency or bankruptcy, a separate Wages Guarantee Fund shall be established within the Unemployment Insurance Fund with a view to meet the employees’ wage claims for the last three months accruing from the employment relationship.

The Wages Guarantee Fund shall comprise one percent of the total unemployment insurance contributions paid by employers. The formation and working methods of the Wages Guarantee Fund shall be laid down in a regulation to be issued by the Ministry of Labour and Social Security.

Non-payment of wages on the day due:

Article 34. The employee whose wage has not been paid within twenty days of the day it was due, except for force majeure, may refrain from fulfilling his obligation to work. Even if refraining from work by employees based on their personal decisions takes on the character of a concerted action in quantifiable terms, it shall not qualify as a strike. The highest interest rate charged to bank deposits shall be levied on wage debts not paid on the day they were due.

Employment contracts of such employees shall not be terminated solely because they have refrained from working for this reason; no replacements shall be hired, nor may such work be performed by others.

Protected portion of the wage:

Article 35. Not more than one – fourth of the wages in a month may be seized, transferred or assigned to a third party, provided that any maintenance allowances awarded by a judge to members of the employee’s family whom he is required to support shall not be included in this sum. This provision shall apply without prejudice to the rights of persons entitled to alimony.

The obligation of public agencies to deduct wage claims from contractors’ entitlements:

Article 36. Public agencies administered by the general and annexed budgets, local governments, state economic enterprises, and banks and organisations established under special laws must ensure, before making any progress payment to a contractor carrying out construction work such as construction of buildings, bridges, railways and roads of any kind as well as repair work, that all the employees hired for such work have been paid their wages adequately by the contractor or a subcontractor, and if there are any employees who have not yet been paid, as determined by the payrolls to be produced by the contractor or subcontractor on demand, must deduct the appropriate amounts from the contractor’s progress payment and pay the employees’ wages that are due.

Before any progress payment is made to a contractor, a notice by the agency concerned must be prominently displayed in written form in places where the employees gather together. The agency concerned is not liable, however, for any wage claims exceeding the amount of three months’ earnings to which the employee is entitled.

Any transaction involving a transfer, takeover, sequestration or enforced sale on the guarantees and entitlements accorded by the said contractors to the employers (agencies) concerned may be implemented only on the sum obtained after apportioning the wage claims of the employees who have been employed in such ventures.

Any sequestration and enforced sale on the equipment, materials, raw, semi-finished and finished products and other assets in the establishment of an employer for his debts to a third party may be implemented on the sum obtained only after apportioning the wage claims of the employees for the three months’ period preceding the date on which the decision for forced sale was taken.

All employers responsible within the meaning of subsection 6 of Article 2 are authorised as well to use the powers given to public legal bodies and other organisations defined in this Article.

Wage account slip:

Article 37. In wage payments which the employer makes at the establishment or through a bank, he must deliver to the employee a signed slip showing the wage account and bearing the special mark of the establishment.

This slip must indicate clearly the date of payment, the pay period, all supplements to basic wages such as overtime earnings, payments for weekly rest days and national or general holidays, and all deductions such as taxes, insurance contributions, reimbursement of advance payments, payments for alimony and sequestrated deductions.

These transactions are exempt from all stamp taxes and fees.

Deductions of fines from wages:

Article 38. No employer may impose a fine on an employee’s wage for reasons other than those indicated in the collective agreement or the employment contract. The employee must be notified at once, together with the reason, of any wage deductions as fines.

Deductions made in this way must not exceed three days’ wages in any one month, or in the case of piece work or amount of work to be done , the wages earned by the employee in two days.

These deductions shall be credited within one month to the account of the Ministry of Labour and Social Security in a bank established in Turkey and must be designated by the Ministry for use in the training of and social services for employees. Every employer must maintain a separate account in his establishment showing such deductions. A committee presided over by the Minister of Labour and Social Security and including employees’ representatives shall decide where and in what amounts the fines thus collected are to be used. Rules for the establishment and working methods of this committee shall be indicated in a regulation to be issued.

Minimum wage:

Article 39. With the object of regulating the economic and social conditions of all employees working under an employment contract, either covered or uncovered by this Act, the minimum limits of wages shall be determined every two years at the latest by the Ministry of Labour and Social Security through the Minimum Wage Fixing Board.

The Minimum Wage Fixing Board, presided over by one of its members to be designated by the Ministry of Labour and Social Security, shall be composed of the General Director of Labour or his deputy, the General Director of Occupational Health and Safety or his deputy, the chairman of the Economic Statistics Institute of the State Institute for Statistics or his deputy, representative of the Under- Secretariat of Treasury, the head of the relevant department of the State Planning Organisation or his representative, five employees’ representatives from different branches of activity selected by the highest – ranking labour organisation representing the majority of employees and five employers’ representatives selected by the employer organisation representing the majority of employers. The Minimum Wage Fixing Board meets with at least ten members present. The Board takes its decisions by majority vote. In the event of a tie, the chairman has a casting vote.

Decisions of the Board are final. Decisions become effective upon their publication in the Official Gazette.

The meeting and working methods, and rules that shall apply to fixing the minimum wage as well as the honorariums to be paid to the chairman, members and the reporter of the Board shall be set out in a regulation to be issued jointly by the Ministry of Finance and the Ministry of Labour and Social Security.

Secretarial services of the Minimum Wage Fixing Board shall be handled by the Ministry of Labour and Social Security.

Half wage:

Article 40. The employee who can not work or who is not engaged in work due to the reasons set forth in subsections III of Articles 24 and 25 shall be paid, up to one week, half his wages for each day.



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