The sources of Turkish labour law are those of law, custom, jurisprudence and contract. Legal and contractual sources are as follows.
i Legal sources
- The Constitution of the Republic of Turkey;
- private statutes:
- Labour Law No. 4857 (the Labour Law);
- Law No. 6552 on Amendment to Labour Law and Several Laws and Executive Orders and Restructuring of Some Credits;
- Law No. 6325 on Mediation of Legal Disputes;
- Trade Union Act No. 2821;
- Law No. 6356 on Trade Unions and Collective Bargaining Agreements;
- Work Permit for Foreign Workers Law No. 4817;
- Maritime Labour Law No. 854;
- Law No. 6458 on Foreigners and International Protection;
- Press Labour Law No. 5953;
- Labour Courts Law No. 7036 (the Labour Courts Law); and
- Social Insurance and Universal Health Insurance Law No. 5510;
- the Law of Obligation; and
- the Civil Code;
ii Contractual sources
The contractual sources of labour law are collective bargaining agreements, employment contracts, internal regulations, business practices, and employers' injunctions and prescriptions.
iii Implementation and enforcement
Supervision of business
The Ministry of Labour and Social Security occasionally supervises business activities at regional directorates with the help of business inspectors. Upon receiving complaints from employees about their employers, investigations are carried out by business inspectors. Employees, employers and the employers' attorneys are required to give statements and to submit the required information and documents upon demand of the authorised persons.
The business inspectors and authorised officers also ensure that decisions of special arbitrators and the High Board of Arbitration regarding collective bargaining agreements are applied.
The Social Security Institution, which is a part of the Ministry of Labour and Social Security, was established to provide social security as guaranteed by Article 60 of the Constitution.
The Labour Law enables the establishment and operation of private employment offices as regulated in Agreement No. 181 of the International Labour Organisation. The government may provide employment services, as may natural and legal persons if they meet the required conditions. The legal employment institution of the government is the Turkish Employment Organisation, which is supervised by the Ministry of Labour. This institution is financially and administratively autonomous and is responsible for providing public services.
Disputes between an employee and employer arising out of an employment contract as described in the Labour Law shall be settled by the labour courts. The labour courts are authorised to settle legal disputes between those persons who are considered employees according to the Labour Law and employers arising out of an employment contract or any provision of the Labour Law.2 The labour courts' authority includes public regulations. Labour courts are at the level of the civil courts of first instance (with a single judge) and are established to settle legal disputes. The civil courts of first instance are authorised to try labour cases in the locations where no labour court exists.
II YEAR IN REVIEW
On 12 October 2017, the Labour Courts Law entered into force and the effective date of Article 3-11-12 related to the requirement of application to a mediator was 1 January 2018. Mediation was introduced to the Labour Law through the Mediation Law of Legal Disputes No. 6325, which also entered into force on 1 January 2018.
Within the scope of the revisions to the Labour Courts Law conducted by the Ministry of Labour and Social Security, a foreign applicant requesting permission for temporary or permanent work must have a registered email address that must be used for all applications for a work permit, and applications must bear an e-signature. The application will be rejected if the applicant does not meet these requirements.
As of 11 November 2018, through Communique No. 2018/1, a further 36 occupations have been added to the list of occupations that cannot be worked without obtaining a professional qualification certificate.
III SIGNIFICANT CASES
A decision of the Supreme Court Assembly of Civil Chambers dated 28 February 2018 stated that seasonal employees whose annual work period exceeds 11 months cease to be seasonal employees.3
A decision of the 9th Judicial Office of the Court of Appeals dated 5 February 2018 stated that in a situation in which an employer requests that an employee move to another workplace and the employee declines, while the employee may terminate the employment contract on justified grounds (e.g, because his or her quality of life would be negatively affected by the move), he or she cannot request to move to an alternative workplace.
IV BASICS OF ENTERING AN EMPLOYMENT RELATIONSHIP
i Employment relationship
The employment contract is a contract governed by private law through which the employee undertakes to perform work within a period of time or indefinitely and the employer undertakes to pay a salary in consideration for that work. The employment contract is a consensual contract resulting in reciprocal obligations. It is not obligatory for the parties to explain their intent in an ordinary agreement. It is possible to make a service agreement implicitly. Employment contracts can be made for a fixed or indefinite term.4
The employment contract is an agreement through which one party (the employee) undertakes to execute work dependently and the other party (the employer) undertakes to pay a salary. Unless otherwise specified by law, the employment contract does not need to be in a specific form; however, employment contracts lasting one year or more must be drawn up in writing. As the employment contract obliges the employee to perform work and the employer to pay a salary, it is necessary to include details of the following:
- when payment will be made;
- sanctions to be imposed if payment is delayed;
- the wages to be paid to the employee in case of overtime and work on non-business days;
- any provisions relating to the obligations of the employer regarding the surveillance of the employee, assisting the employee or providing equipment for the employee;
- a job description;
- the obligations of the employee regarding compliance and commitment;
- the procedures and sanctions to be followed if the employee violates the requirements of the job;
- the start date of the employment contract; and
- the terms for termination.
The provisions specified in the contract cannot be inconsistent with the provisions stipulated in the Labour Law. However, as it is not obligatory to draw up an employment contract in writing (with some exceptions), even if there is no arrangement made regarding these issues, the provisions specified in the Labour Law shall be applied.
The parties can determine in the contract the date from which the contract provisions shall apply. Employers should draw up a statement of employment for the purposes of social security registration. The date the employee signs the employment agreement is considered the start date.
Fixed-term employment contracts are permissible in Turkish labour law. This type of employment contract terminates upon the expiration of the term agreed between the parties and can only be concluded if the work that the employee undertakes lasts for a certain period of time. In other words, there is no obligation to provide notice of termination to either party and work that will last for an indefinite period cannot be the subject of a fixed-term employment contract. However, if a party's intention is to terminate the contract before the expiration date, it must have a justifiable reason to do so. Without a justifiable reason, a premature termination shall be deemed as unjust. Regarding fixed-term contracts, employees are entitled to severance payment but are not entitled to a payment in lieu of notice.
Procedures for amending the terms of employment can be specified in the employment contract. If no such procedures are specified, the parties can amend the contract terms by drawing up a new contract or a supplementary protocol. As in most cases the employment contract is not required to be in writing, the parties can amend provisions stipulated in the contract implicitly.
ii Probationary periods
The parties can specify a probation period in the contract.5 In general, the probation period can last for a maximum of two months, although this period can be extended to four months through a collective bargaining agreement. During the probation period, the parties can terminate the employment contract without advance notification and without paying compensation. The employee shall, however, still be entitled to the wages and other rights accrued during employment.
iii Establishing a presence
Under Turkish law, all persons working for a company must be registered as employees, even if the company is a foreign corporation. If a foreign company hires employees through an agency, the company is still required to register the employees.
A foreign corporation that is not registered can hire an independent contractor or subcontractor registered in Turkey. The independent contractor can open a branch itself, which will be subject to commercial and tax legislation and must be registered. It is necessary to register the employees employed in this branch and to fulfil legal obligations.
The company must also meet the social insurance liabilities and other liabilities applicable to regular employees for its short-term employees. It is possible, however, to benefit from several tax deductions and insurance deductions depending on the legal arrangement. The company must register the short-term employees and declare the work to the Social Security Institution through a statement of employment.
V RESTRICTIVE COVENANTS
Non-compete provisions can be specified in an employment contract. Even if such a provision is not specified, an employee may not compete with his or her employer during the period of employment. This is because an employee's duties of privacy, secrecy, loyalty and non-competition arise out of the employment contract. Non-competition after termination of an employment contract is dependent on an additional non-compete agreement drawn up between the employee and employer or included in the employment contract.
i Working time
The Labour Law provides for a maximum working time of 45 hours per week. This may, however, be reduced by mutual agreement of the parties. Working hours are divided equally among the working days of the week, unless otherwise agreed, but in any case an employee cannot work more than 11 hours in one day. Through a process known as 'equalisation', employees may work more than 45 hours in a normal working week provided that the average weekly working hours of the employee over two months do not exceed 45 hours. The two-month basis for calculation can be increased to four months through a collective bargaining agreement.
The Labour Law also specifies a limit on night work, which cannot exceed seven-and-a-half hours. Employees who work at night cannot work overtime. If an employee works a night shift for one week, the employer must schedule the employee for day shifts in the following week. It is possible to work night shifts for two consecutive weeks provided that this is followed by two weeks of day shifts. An employee whose shift will be changed from night to day or vice versa must be given 11 continuous hours off before starting a new shift.
In accordance with Article 63 of the Labour Law, a health report must be obtained before recruitment certifying that the workers who will perform night work are suitably healthy to do so. Night workers must undergo a medical check by the employer at least once every two years. The costs of such medical checks are covered by the employer.
Pursuant to the regulation added by Law No. 6552 to Article 63 of the Labour Law, the maximum working hours of underground mining employees shall not extend beyond 36 hours per week and six hours per day.
It is permissible to work overtime for reasons such as the general national interest or to increase production, and overtime is permissible for certain types of work. Overtime is work exceeding 45 hours weekly. If the employer equalises working hours, provided that the average weekly working time of the employee does not exceed normal weekly working time, this work will not qualify as overtime. Where the employee's working hours exceed his or her daily working hours and the weekly working hours exceed 45 hours, the employer must pay overtime. If the parties agreed to a weekly working schedule of less than 45 hours and working time exceeds the average weekly working time but remains under 45 hours, the employer must still pay overtime. Typically, the total overtime cannot exceed 270 hours per year.
Overtime pay is the usual hourly rate plus another 50 per cent. For extra work (which exceeds the agreed weekly amount but is under 45 hours), the employer must increase the usual hourly remuneration by 25 per cent. This amount can be increased according to employment contracts and collective bargaining agreements. Instead of receiving overtime, the employee may elect to take compensatory time off of 90 minutes for each hour of overtime worked.
The employee's approval is required for working overtime.
Underground mining employees shall not be asked to work overtime unless urgent and extraordinary conditions as set out in the Labour Law apply. Under such urgent or extraordinary circumstances, the hourly payment for every hour exceeding 37.5 hours shall not be less than the full normal hourly payment.
VII FOREIGN WORKERS
The Work Permit for Foreign Workers Law No. 4817 regulates the employment of foreign workers. The objective of this law is to regulate the employment of foreign workers with a system of work permits and to specify the rules regarding the permits to be given.
In principle, employers must inform the Social Security Institution (through a statement of employment) about the persons working under an employment contract. It is necessary for employees to be registered for social security purposes. Foreign workers must hold a work permit, which they must obtain before they start work in Turkey, unless otherwise provided in international treaties.
There are limitations regarding the employment of foreign workers. These limitations relate to qualifications, rather than the number of foreign workers employed. Sometimes, however, these limitations regarding qualifications also limit the number of foreign workers. Limitations relating to the employment of foreign workers are set forth in several laws and legal regulations; there are also some professions that do not permit the employment of foreign workers, for example, healthcare.
An employer who employs foreign workers is liable to meet the obligations relating to the foreign workers, such as insurance premiums and other liabilities, in the same way as it does for other workers. Foreign workers are also legally protected by the mandatory provisions of the Labour Law.
Article 89/4(b) of Law No. 6458 on Foreigners and International Protection states that a refugee or subsidiary protection beneficiary, upon being granted this status, may work independently or be employed, without prejudice to the provisions stipulated in other legislation restricting foreigners to engage in certain jobs and professions given in Article 89/4(c) of the Law. The identification document issued to a refugee or subsidiary protection beneficiary can also be substituted for a work permit, and this information is written in the document.
Thus, legally, if a refugee or subsidiary protection beneficiary has an identification document that includes his or her status, he or she does not need a work permit. Refugees and subsidiary protection beneficiaries are the only exceptions to the rule of foreigners requiring a special permit to work in Turkey.
VIII GLOBAL POLICIES
Company work rules are a part of the employment contract, and employees must obey these rules. The method for establishing internal rules can be chosen by the employer. An employer can establish the rules or can let the employees or an employee-related organisation establish them.
Internal rules do not require government approval. Internal regulations that are contrary to commercial law are invalid (as are conditions of employment agreements that are contrary to commercial law).
There is no legal obligation to write the global policies in the local language and the language can be decided by both parties. It is advisable, however, to prepare it in the local language. There is no need for employees to sign such policies, as they arise from the employer's management right and become a part of the employment agreement automatically.
The law is silent on how companies should inform employees about global policies. A notification to employees or an announcement of their release on the company intranet should be sufficient, as such rules supplement the main agreement, and they are rules that employees are obliged to obey automatically. Rules related to discipline can be added to the employment agreement or can be regulated through internal regulations.
Details relevant to labour agreements in Turkish Law are given above. There are no additional legal requirements, such as arranging contracts in a native language or translating documents into a native language. However, in case of a dispute, the court shall ask to translate all documents notarised in a foreign language into a native language. As a result, labour contracts, offer letters and confidentiality agreements written or conducted in a foreign language will still be effective and applicable.
X EMPLOYEE REPRESENTATION
Employees may join councils or representative bodies. Employees may also join a labour union, either as a member or a founder.
In accordance with Law No. 6536 on Trade Unions and Collective Bargaining Agreements, the number of union representatives in a business is limited: if there are 50 or fewer employees in the workplace, there can be one representative; if the number of employees is between 51 and 100, there can be two representatives at most; for 101 to 500 employees, three representatives; for 501 to 1,000 employees, four representatives; for 1,001 to 2,000 employees, six representatives; and for more than 2,000 employees, eight representatives.
The authorised union may nominate a representative to make a collective agreement. The union must choose this union representative from among the members working for that employer. The candidate should be qualified to perform the role. The responsibilities of all union representatives at the business last until the authorisation of the union expires.
The union representative in a business cannot be suspended even for a reason such as a transfer of the undertaking (i.e., a divestment or merger). The employment contract of a union representative can be only be terminated for a just cause. Further, without the written approval of the relevant union, the duties of the union representative cannot be changed.
The union representatives must be allowed to carry out their union activities during working hours in line with the law. Meetings are arranged regularly as per the union regulations. If there is no regulation on this issue, the meetings are held once every four years.
XI DATA PROTECTION
i Requirements for registration
Employees have a right (which they may not waive) to social insurance and consequently their employment must be registered and notified to the Social Security Institution. Information regarding employees is, therefore, recorded and kept by both the government and the employer. The company does not have to submit all the employee information it processes to the government, but it may be obliged to supply certain information to government institutions.
A personnel file must be kept for each employee containing prescribed information, including a certified copy of the employee's national identity card, certificate of domicile, criminal record information, marriage licence, documents concerning family and children, the employment agreement, job application form, graduation certificates and references. To process other personal information, an employee's permission must be obtained. Access to the data related to employees is allowed if it is gained pursuant to a legal obligation.
Employers should take all necessary precautions to prevent the loss, alteration or damage to the information they hold about employees and to prevent the unauthorised dissemination or transfer of the data.
The relevant arrangement of Article 75 of the Labour Law is as follows:
Employee's Personal File: The employer arranges for a personal file for each employee. The employer is obliged to keep the identity particulars of the employees as well as any document and record pursuant hereto and to other laws and submit the same to authorized officials and bodies, when required.
ii Cross-border data transfers
Transferring an employee's data without his or her consent is illegal. The employee can prepare a common use agreement to assist the employers' record-keeping obligations. The database controller is responsible for keeping the information secure.
Regarding the use of personal data, the following provision has been regulated in Article 419 of the Turkish Code of Obligations: 'The employer may only use the personal data of the worker to the extent that it is necessary for the employment of the worker or for the performance of the service contract.'
iii Sensitive data
Health information, social insurance numbers, family information, bank business records or account information can be considered sensitive information and limitations can be placed on the handling of such information, which is regulated by several laws. If these laws are violated, legal action may be taken in the form of security measures and administrative fines for entities, and penal sanctions for individuals.
iv Background checks
Background checks, including credit checks, are permissible, but with certain legal limitations. Attorney–client privilege applies to meetings between a candidate and his or her lawyer.
XII DISCONTINUING EMPLOYMENT
In offices where job protection provisions are not in force, an employer can dismiss an employee without giving a reason on the condition that it is not malicious. There are, however, notice and severance provisions.
The employer must notify the Social Security Institution that an employee has left a job within 10 days of the employee leaving and within 10 days of an employment contract with an employee ending, and must submit the employee's resignation letter to the Institution. The employer is supposed to notify the relevant district office and Turkish Employment Agency within 30 days.
A union may intervene in a dispute between an employee and employer at the written request of the employee. The company's termination of the employment contract may prompt such an intervention. There is no provision making it compulsory to notify the labour union of dismissals. For mass dismissals, the employer must notify the union representative in writing.
Provision of notice is mandatory. The employer has to abide by minimum notification times when terminating an employment contract. These range from two weeks' notice for employees who have worked for under six months up to eight weeks' notice for employees who have worked for three years or more. These notification periods can be increased by contract. If the employee is not given notice, the employer must make payment in lieu of notice, corresponding to the salary the employees would have earned during the notification period.
There are no categories of employees protected from dismissal. Employment contracts can be terminated without giving valid reasons or any reason. If an employer terminates the contract of an employee employed for at least one year without giving reasons, however, a seniority indemnity must additionally be paid equivalent to 30 days' social aid for every full year worked. If an employer terminates the employment contract of an employee without abiding by the notice period, it must make a payment in lieu of notice.
As an employment relationship is contractual, the parties can draw up a settlement agreement concerning the termination of the employment contract and can waive compensation and legal rights mutually. In labour law, however, some rights (e.g., payment in lieu of notice) are mandatory and cannot be wholly contracted out of or modified if the change is disadvantageous to the employee.
There is no requirement as to the manner in which an employer should inform its employees about the termination of an employment contract. If it is done in writing, however, it is easier to confirm the date and details. For employees who work in a workplace with 30 employees or more and who have completed more than six months' service, termination of the contract of employment must be in writing, citing a justified reason. Again, the employer is liable for observing the notice period and paying severance benefit to employees if applicable. In mass dismissals, however, there are different conditions. When the employer requires mass dismissal as a result of economic, technological, constitutional or similar requirements of the enterprise or business sector, it must inform the union representative, relevant district office and Turkish Employment Agency of the dismissal at least 30 days in advance. This notification must include the reasons for dismissal, how many of the employees will be affected and when the dismissal will be effective.
XIII TRANSFER OF BUSINESS
In accordance with Article 6 of the Labour Law, when a business or a part thereof is transferred to another person based on a legal procedure, the labour contracts effective in the business or a part thereof on the date of transfer are transferred to the transferee with all rights and liabilities.The transferee is obliged to take into account the date employees originally commenced at the transferor with respect to rights that take the duration of service of the worker as their basis.
In a transfer, pursuant to the above provisions, the transferor and transferee are jointly liable for the debts incurred prior to the transfer, which must be settled on the date of transfer. The responsibility of the transferor for such liabilities is, however, limited to two years from the date of transfer. If one of the companies is subsequently terminated by a merger, participation or conversion, the provisions for joint liability are not applied.
Neither the transferor nor transferee can terminate the labour contract merely on the grounds of the transfer of the business or a part thereof, and the transfer does not constitute a justified ground for termination on the part of the worker. The termination rights of the transferor and transferee as a result of economic changes, technological changes to the work organisation and the immediate termination rights of worker and employers based on justified reasons are reserved.
European Union directives and European Court of Justice resolutions express the concept of economic unity in relation to the workplace (or part of it) subject to the handover. According to these guidelines, for a transaction to be considered a handover of a workplace (or part of it) leading to permanent legal consequences, the handover process must be executed by maintaining the structure of economic unity of the workplace (or part of it). If economic unity is not maintained, Article 6 of the Labour Law excludes the possibility of handover operations in any workplace (or part of it).
The Turkish Commercial Code contains provisions related to business relationships that are the result of a merger, division or conversion of trading companies. Any other transfer operations (e.g., through sale or rental) are not covered by the provisions of the Commercial Code.
There is no agenda for 2019 related to labour law, or any planned or foreseeable regulations or trends in this field.
1 Serbülent Baykan is a founding partner and İlayda Şüküroğlu is a partner at BaykanIdea Law Offices.
2 Certain businesses and relationships are exempted from the law, including some activities in the maritime and air transport sector, and in agricultural and forestry businesses with fewer than 50 employees. Domestic servants, apprentices, sportspeople, persons being rehabilitated and some family businesses are also exempted.
3 Verdict No: 2018/385.
4 Article 9 of the Labour Law.
5 Article 15 of the Labour Law.