Questions and explanations
1. Summarize briefly where the line is drawn in your jurisdiction between executives and employees (U.S.: management and supervisors). Summarize briefly in which employment legal areas the distinction plays a role.
Prior to setting forth what kinds of differences or similarities exist in terms of rights, interests and liabilities between the (executives) senior managers and workers, we shall attempt to describe the definitions of employer, employer’s representative/executive and worker in terms of Labour Act, Trade Union Act as well as Collective Labour Agreement, Strike and Lockout Act, and specify the differences between such two groups. However, we should point out that the definitions contained in the said laws are not fully identical with one another. Under one, the definitions of employer or employer’s representative are taken in a wider sense, whereas defined in a narrower manner under the other. Yet as the objective of each require to benefit from more rights under labour unions or the individuals in the management teams be equipped with the authority to give orders and instructions, the differences are maintained in the meantime.
Labour Act Article No. 2/4-5 defines the Employer in the following manner.
Any real or corporate person employing workers or any institutions and enterprises that lack corporate entity are called Employers.
Under the same Article, Worker is defined as:
Any real person working by basing on any employment contract is defined as a worker. For acquiring the qualities of a worker, it is required to work under any employer and at the business premises of such employer.
And the relationship established between the worker and the employer is defined as a work relationship.
Labour Law Article No. 2 defines managers (executives) as employer’s representatives. Said article has made a general definition concerning the concept of employer’s representative and explained the responsibilities thereof.
Accordingly, those persons acting in the name and on behalf of the employer or assigned to the management of the work, the workplace as well as the business enterprise are called employer’s representatives. The employer is directly responsible from the acts and obligations of the employer’s representative towards the workers under such capacity.
It is set forth under the law that any and all kinds of liabilities and obligations specified for the employer shall likewise applicable for the employer’s representative as well. However, there is a very important provision under the said article, relating the essence of the subject matter, and it is so provided that the title of employer’s representative shall not eliminate any rights and obligations granted to the workers.
Labour Act Art. No 2 described the employer and employer’s representative under a general definition as real and corporate persons employing workers, and provides no further details. By somewhat expanding such definition, let us point out that the employer might both the owner as well as the operator of workplace, real as well as corporate person as the case might be. Corporate person employers might cause the business enterprise be managed through Professional managers and also in case any partnership is possible regarding the structure of the enterprise, they might act as managers by assuming the role of partnership. Whenever the case is as such, a mixed outlook concerning employer – employer representative is possible. The enterprise might be as corporate persons and commercial partnerships or as enterprises and institutions that have no corporate identity. Both real person partners constituting the enterprises as well as the managers of such enterprises might assume duties in the administration of such enterprises. Thereby, those shareholders of the company might work, besides their board of director’s memberships, in the capacity of managers with respect to the management of the enterprise. Such managers thus assume mixed qualities.
Describing an employer in the context of public law, in other words referring to those public enterprises employing workers, these consist of the state, or in works that are carried out through various institutions of the state, those enterprises and entities employing workers, including establishments like the municipalities. Under state enterprises, other than those employed in the status of civil servants, there are also employed persons in the quality of workers. Under such public enterprises, certain works are caused to be performed via workers, because of their respective nature. As such institutions employ workers; they assume the qualities of an employer in the meaning of the Labour Act. Those managers as well as representatives working there under are referred to as employer’s representative/executive. However, such executives are public officers. In other words, as they are assigned to state economic enterprises, they do not work under any employment contract, and are public employees. And thereupon, there are some very critical differences between the workers. The systems they are subject to are not identical. Although Article No. 4 of Social Securities and General Health Insurance Act Number 5510 has combined all employees under the same superstructure, except for those workers employed at the private as well as public sectors under an employment contract, there exists differences between such rights and provisions entitled to the insured subject to the said act. Therefore, those executives/employer representatives working under public institutions are not employees in the capacity of workers. They are in the status of civil servants.
According to Trade Unions Act (Law Number 2821) definition of employer is contained under Article No. 2/4.[1]
Accordingly, other than and besides real and corporate persons, those public enterprises that have no corporate identity are also called employers, and in ordinary companies those shareholders other than those participating by incorporating their labour as well as employer representatives/executives are deemed as employers in the meaning of Trade Unions Act. (Provisions of Trade Unions Act, Article No. 2/4-7)
Employer representative/executive is defined under Article No. 2/6 of Trade Unions Act. Accordingly, employer representatives are those persons empowered to direct as well as manage the entire establishment in the name or real and corporate entities including public enterprises who have no corporate identity.
The coverage for definition of employer’s representative in terms of Trade Unions Act has been kept rather constricted. In other words, in order to be regarded as employer’s representative/executive, it is necessary to manage the entire establishment. Yet, keeping it in a constricted sense is a rightful provision.
According to Collective Labour Agreement, Strike and Lockout Act (Law Number 2822)
There is no definition of employer made under this act. However it is required to state that the definitions made under Trade Unions Act are valid for this act as well. While both acts are in apply in company.
Explaining such under provision set forth under Article No. 3 of [2]TSGLK (Collective Labour Agreement, Strike and Lockout Act), with respect to public enterprises, although in collective labour agreements the employer side has a distinct corporate identity, it has been foreseen to make and conclude only one single collective labour agreement. The meaning of this is that a single public institution is taken as the employer.[3]
Those assigned to state economic enterprises and acting there as employer representatives, as a requirement of such provision set forth under Article Number 62 of TSGLK (Collective Labour Agreement, Strike and Lockout Act), participate in the status of employer representative/executive in the Collective Labour Agreements and take part in the negotiations in their respective capacities of the representative of the employer side, and sign the agreement under such capacity. Therefore, these are defined as employers. In this case, we see that the executive is acting similar to an employer and in its name. However, it is not possible to say that any such person is an employer representative in terms of Trade Unions Act as well. Because in order to become an employer representative under Trade Unions Act, it is necessary to manage the entire establishment. Further, as we have already explained, since executives are civil servants, in fact it is not possible for them to become members of labour unions. There exists a public employers union, and state economic enterprises are allowed to become members of such public employers union. And also those working as civil servants in the public sector might enrol as members in the said Civil Servants Union. Under Civil Servants Union Act Number 4688, Dated 2001, the purpose of such trade unions established in order to protect and develop the common economic, social and professional rights and interests of civil servants specified as regulating the principles with respect to the collective labour bargains to be conducted by and between the Public Employers Board. Such law is applicable to civil servants working under status of worker at such locations where public services that the state or such other public corporate entities are obliged to perform.
In conclusion, it is worthwhile pointing out that those persons assuming duties at the management levels of corporate entity employers are qualified as employer’s representative/executive. Employer’s representative is such person managing the business as well as the facility in the name and on behalf of the employer, and having such liabilities under debts referred to under the laws, similar to that of the employer. In specifying any person as employer’s representative/executive, different expressions are used in terms of Labour Act and Trade Unions Act. According to Trade Unions Act, it is sought for the direction and management of the entire establishment. Whereas in terms of Labour Act, it is set forth that those persons acting in the name of the employer and assuming duties in the management of the business, the facility as well as the establishment are employer’s representatives. It is yet a provision of the same article that the acts and obligations towards the workers of such persons under the said capacity are under direct responsibility of the employer. However, the employer is at all times entitled to seek recourse in and to the employer’s representative/executive with respect to any losses and damages arising as a result of its fault and neglect.
It should accept that those persons we deem as executives and somehow describe as CEO or General Manager are individuals directing and managing the establishment as a whole. Such being the case, we shall be pointing out that the wide-scoped definition under Article No. 2 of Labour Act, as the point of essence we wish to study hereunder is the rights, authorities and responsibilities of such person directing and managing the establishment as a whole like the definition of executive/employer’s representative under Trade Unions Law, and comparison of the status of workers, we shall continuing with our explanations accordingly.
In the meaning of the provisions of Labour Act, after pointing out that the real person employer and the senior executive are real persons managing the establishment within framework of labour law and equipped with such qualities elaborated here above, it shall be worthwhile to indicate the difference between real person employer and employer’s representative.
We might encounter any real person employer as the owner of the enterprise as well as such person who has assumed the duty of management. To the extent establishments assume a corporate status; Professional managers are included in the management staff. However several real person employers manage their establishments on their own. Under Professional management, those managers assuming duties in establishments are titled as employer’s representative/executive under Turkish Legal System.
In private institutions, employment contracts are made and entered by and between the employer’s representative/executive or senior executive and the employer. The Employer’s Representative/Executive is in the status of worker towards the employer. In other words, although the employer’s representative, senior executive are under worker status in terms of the Labour Act, they are individuals not benefiting from certain rights granted to the workers, but rather managing the workers, giving them orders and instructions.
Employer’s representatives/executives or senior executives are those individuals titled and referred to as CEO and general manager, as well as assistant general manager.
Provisions regarding employment security applicable for the workers but not applicable with respect to the executives lead us as to be encountered with an essential difference setting forth the distinction between worker and executive.
Labour Act Number 18 with respect to employment security is related to the case that in the event 30 or more workers are employed at any work place, the employment contracts of workers might not possibly be terminated by the employer unless any valid cause therefore exists.[4]
As valid cause, it is sought for the existence of any justifiable cause arising from the requirements of the establishment or the facility. [5] However, this article is not applicable with respect to the executives.
In other words, the employer might possibly terminate at any time without indicating any reason, the employment contracts of the employer’s representative/executive and those persons we call senior executives, pursuant to Labour Act Article No. 17, by adhering to the respective notice periods and making the necessary payments, remit notice as well as seniority indemnities, or grant the required notice periods. Or terminate the same for any rightful cause. The Law has included a provision for indemnification concerning the use of such right of termination, in the event the employer is ill-willed at that. Employment security contained under Article No. 18 with respect to employer’s representatives, in the event of no possibility as well as right to be returned to work, and the employer is ill-willed in terminating the employment contract with respect to the executive/employer’s representative, Labour Act is entitling the worker, executive/employer’s representative working under a finite term employment contract, to claim for indemnities. And it has also determined the amount of any such indemnity; accordingly it is provided that the workers shall be paid an ill-will indemnity in the amount of three times their respective notice periods corresponding the duration of employment.
However, in the event the employment contract of the executive is a specific term employment contract, as there exists no notice period concerning termination of the contract at the expiry of the specific term employment contract, it shall not be possible to calculate any indemnity by basing on any such notice period. In the event of ill-willed termination under a specific term employment contract, as the time of expiry of the contract is already known, there no such notice period application. Therefore, it is not possible to apply the notice periods set forth under Labour Act Article No.17 for this case.[6]
Whenever the case is as such, it shall be paid as indemnity against ill-will, with the monetary consideration of the fee and such other remuneration provisions corresponding to the remaining term under the specific term employment contract had the same not been terminated. For example, assuming that any three-year term employment contract is terminated at the end of the first year, and it is so proved that the termination of such specific term employment contract is an ill-willed termination, any indemnities claimable by the executive shall be the monetary considerations of any and all benefits that could possibly be acquired up till the end of such three years.
In the meantime, in the event the executive has suffered any non-material loss on grounds of such a termination and its reputation is damaged, it is possible at all times to claim for non-material compensation.
In respect of the aforesaid explanations, the basic difference between any worker and an executive is that executives are not covered by any employment security. In other words, pursuant to provisions of ILO Agreement Number 158 Concerning Termination of the Employment Relationship by the Employer [7] the application with respect to effecting of the termination right arranged as a provision of Turkish Labour Act Article Number 18, cannot possibly be applied for executives. There is a difference between executives and workers with respect to employment security.
2. Does the distinction between executives and employees follow the same criteria as the differentiation between self employed (independent contractors) and employees?
Self employed employees, might in other words be grouped under Turkish Legal System as sub-employees or sub-contractors and self employed independent contractors. Definitions of so titled employers are given under Labour Act Article No. 2/6 and such other articles. Accordingly, we can define a self employed independent contractor as any individual working at the facilities independent of the principal employer, as conducting supporting segments or fragments of the principal work, as a requirement of the premises or technological reasons, or since the work requires any specialization, referred to as other employer awarded with the work/sub-employer, independent employee/sub-contractor.[8]
We would like to point out the difficulty faced in the 77 th session of ILO held in 1990, for to create employment in a manner, with in the context of drawn the distinction between self employed working/ and giving work to be done at home/ working at home independently/ with manner of working as sub-employer and sub-contracting, which has different definitions regarding to the law of Obligations causes confusion.
Independent working an agreement that name as Enterprise Contract, regulated under Article No. 355 and subsequent articles of the Law of Obligations (Article No. 363 of the Swiss Law of Obligations), made and entered by and between the contractor and owner of the business, in order to conduct and perform as well as manufacture any given work. Self employed person is legally defined as equipped with above mentioned qualities. It is not possible to consider any independent work within the scope of employment relationship and would not possible to apply Labour Act principles to that relationship. As a matter of fact, it would not possible to qualify this relation arising from the employment relationship. Such relation is between a person receiving work from the owner of the work, done at home or at its own work place. For that reason, the work done by person regarded as sub-employer, sub-contractor, self employed person works for somebody else, and the performance of any such work might done at the work place of the principal employer, as well as at the independent contractor’s own work place. The place of performance of the work would change depending on the nature of the work done.
Independent contractor/sub-contractor/ sub-employer concepts are frequently used in place of one another. However under Law of Obligations, according to the Enterprise Contract the person receiving work from the principal owner of such work is termed as a contractor. Whereas in the application, those persons receiving work from the contractor are termed as sub-contractors. Any independent worker might either be a contractor or a sub-contractor. To qualify as independent workers only those persons receiving work from any other person and performing such work at its own work place or home, would be an incomplete definition. Whenever we describe an independent worker as any person receiving work from the employer and doing such work at home, there is a subconscious instinct to structure such an individual within the scope of an employment relation. However, this is incorrect. The most important characteristic of employment relation is a relation of dependence. It is of essence that the performance and execution of any work should fulfilled under the orders and instructions of the employer, within such hours specified thereby. There is no status of any person performing at home any work received, as being under an employment relationship. The basic point differentiating such a person from workers is the manner of receiving his/her income. Under employment relationship, the worker is receiving the salary from the employer in return for the labour performed. Whereas, independent worker not only for to obtain income puts capital for the performance of the work, but it is necessary to have entrepreneurial skills and assuming risks for to run the business.
Independent worker would possibly obtain any income if the work performed appreciated. In this manner of work we qualify as independent worker and in fact desired to be assessed under the theme of doing work at home, as there exists no provision prohibiting the independent worker from employing other workers, in the event any such independent worker employs workers, he/she too assumes the position of an employer. This type of activity has nothing similar to the worker submitting its labour under an employment relationship and receiving a salary in return.
As regulated under the Labour Act by means of detailed provisions, receiving work from the principal employer and working as other employer are likewise covered by the status of independent employers. In work places, the regulations with respect to independent worker/sub-employer provided since required by the developing technology and business relations, but only in carrying out the principal work of the employer, certain rules set forth with respect to the rights of the workers of the sub-employer.
Precisely should mention that, the relationship between the sub-employer and principal employer is not cover under the LABOUR LAW. Such relationship might be under the judgment of enterprise contract or leasing or transport agreement, or any administrative agreement made and entered by government. The type of relationship between the principal employer and sub-employer or contractor is not important in terms of Labour Act. Let us point out that the existence of any liability of the principal employer towards the workers of the sub-employer does not require that the sub-employer relation is to be deemed within scope of any employment relation. To refer to any sub-employer/ contractor/ independent worker, should exists PRINCIPAL EMPLOYER. The meaning of this is that in the work place there are present jointly both the workers of the principal employer as well as the workers of the sub-employer. Sub-employer is an employer with respect to ones own workers who received work from the principal employer.
In conclusion,
Independent self-employed and workers are not under the same criteria .In case any independent employer itself employs workers would name as employer. If not employing an employee, would name as self-employed person. In addition, any person who receives work from others and performs it, or markets any product manufactured, would named as sub-contractor or self-employed person according having employed workers or not. Such person might also receive work from a principal employer in any establishment and performs the determined work he received with his own workers, thus holding the capacity of the employer as well.
In this respect, the distinction between an executive and a worker might not possibly compare with either any independent self-employed person.. Each is operating at different areas and under different status. The rules they are subject to are different. The difference between executive and worker cannot possibly compare to that between an executive and any independent self-employed. The independent self-employed is not subject to rights, authorities, and rules either like a worker or like any representative of the employer. It should mention out that any independent self-employed person is not and might become a worker. Self-employed person might be any employer employing workers. Also might be the sub-employer of any employer. In case the independent self employed is employing workers in its name and has received work from the principal employer, is qualified as contractor or sub-employer depending on the place where such work is performed. Any independent self employed person is employer towards ones own workers. Thereupon, the legal character of each is different from one another.
It can state in the assessment of the difference between an executive and worker like that between any independent self-employed person and the workers, which in case the independent /self-employer employ workers, it might anyway deemed as an employer. In this respect, he/she is not an executive. Executive is the superior of the worker, but neither owner of the establishment nor the employer.
If independent self-employed person itself employs workers, he/she is an employer. If the independent self employed person is receiving work from any employer and performing its works either at its own work place and/or at its home, he/she has no relation at all with the workers of the employer that it has received such work from. However, if he/she performing such work that received at the work place of the principal employer and using his/her own workers as well, then the law has set forth provisions with respect to such work.[9]Both sides’ obligations arranged in detail.
If it is required to make any explanation concerning the matter of independent work on one’s own account, the work which could done by the main labour force at work places of the enterprise in order to avoid liability and reduce labour costs, , the employers attempt to organize their own workers as sub-contractors to run the work. This both gives rise to weakening of trade unions as causes deprived of several rights provided to the workers under the Labour Act.
It could group the independent self-employed persons as those employing workers, who work as shifting between the status of sub-contractor and contractor, and those not employing workers and performing the work within the family only.
In relation with independent work the application with respect to perform the work of the same facility as the former worker of any work place on its own account has certain negative consequence.
The structuring of independent work beyond scope of performance via organized and technically equipped entrepreneurs in the respective capacities of contractor or sub-contractor has brought forth various hazards, particularly in the heavy industry sector.
Those attempting to perform such type of independent work facilitate escape from the system of labour security and social security. Most critical of all, work is being performed under a system that experience with respect to talent, know-how, skill and risk are eliminated.
We would particularly wish to point out that this system is in operation at vessel construction facilities and causes terrible work accidents that such a structuring has given rise to, in such works where independent work in Turkey to be performed via workers on the payroll is correct and also possible, so create independent self employed persons on the name of less tax and salary and benefits had its relevant risks.
It is also possible to operate such new working models like working at home or tele-working, which might exhibit similarities with independent working. Working patterns such as working at home or tele-working might possibly be as independent self employed working, or working as affiliated to any employer.
If working at home is accepted as any place included under the business organization of the employer and such employer is giving work to be made at home, then it is of no importance that such place of work is not the work place of the employer. Because as the concept of business organization stipulated under the Labour Act Article No. 2/3[10] , from the interpretation of the said article homes might as well be deemed as work places.
In that case, any person performing any work given to home would not be independent, but rather a worker working as dependent to the employer, and according to the Article 1/2 of Labour Act would consider with in the scope of Labour Law. [11]
Within the context of tele-working, it should be pointed out in compliance with the explanation under Labour Act Article No. 2/3, that under scope of the employer’s business organization, it is possible for the employer to that cause makes tele-work, and that the place therefore is outside the principal work place. In that respect, the type of work that tele-worker performs in either home or somewhere else under the orders and instruction of the employer.
Further, tele-working is a type of working that is more dependent on the employer than working at home. In performance of the act of doing work, there is a stricter interdependence relationship with the employer. Therefore, it should pointed out that workers of this type shall be deemed as workers in performing their jobs provided they are included in the business organization of the employer, and shall not be qualified as independent self-employed workers.
3.Which other hierarchy levels are relevant in your jurisdiction and in which respect (e.g. blue collar/white collar workers; regular employees, intermediates, executives, board members, etc.)?
Under Turkish Legal System, those in charges of the organization of any establishment and managing the other employees are designated as employers. However rather with respect to professional structuring, the possession of the assets of the establishment and management of the facility differentiated from one another. For conducting of the business, institutions make and enter into agreements with executive managers. These individuals are generally at the same level with the shareholders who are board of director’s members, and are even entitled to use such authorities with respect to adopting legally binding decisions that company’s shareholders do not possess. Such a duty delegated thereto by means of a resolution of the board of directors. In the event the executives use such authorities beyond the free will of the shareholders, termination of employment contracts is present at all times. As such persons are equipped with authorities to give orders and instructions in the management of the company business or managing the facilities of the establishment, they are at a distinct position when compared to the other workers.
On the other hand, it should mention that, under Turkish Labour Law, there is no situation like those examples in the West where physically working (blue-collared employees) and those intellectually working (white-collared employees) are differentiated and organized under discrete trade unions.
There exists an arrangement based on the concept of single type of worker. As such single type of arrangement enables regulation with the least possible limitation in terms of labour union membership, collective labour agreement and strike rights granted to the workers under the Constitution, the existence of such concept of single worker type has been an appropriate method in providing for equality as well.
Thereby, it is possible for any employee other than an executive or employer’s representative, to become members in trade unions, and as only in the case the employer’s representative manages the whole establishment, its membership to a trade union is avoided, we might specify the hierarchical level in this manner.
4. In detail, which effects does the distinction between executives and employees have in the following employment legal fields:
4.1. Collective bargaining – Are executives eligible to union membership? Are there different types of collective bargaining agreements for both sorts of staff? Are there any other aspects in this respect?
As a requirement of the provision under Article 51 of the Constitution of the Republic of Turkey[12] as well as under such system provided under Article No. 20 of Trade Unions Act Number 2881[13], workers and employers are free to become members of trade unions. Article No. 21 of the Trade Unions Act has set forth that only military personnel (except for those employed as workers in the meaning of the Trade Unions Act before work places under Ministry of National Defense, Gendarmerie General Command as well as Coast Security Command) are not allowed to become members and establish trade unions.
Likewise, it is provided under Article No. 22 of the Trade Unions Act that it is free to become members as well as resign from membership in trade unions, that workers might possibly become members in trade unions that the work place is affiliated to, and further that the employers might as well become members in employers trade unions. It stipulated under Article No. 25 of Trade Unions Act that in the event employers and employer’s representatives lose their such title and capacity, membership of any corporate person employer shall not be deleted, and that upon termination of the title of employer’s representative, only the memberships and duties thereof shall cease.
Employer and worker are defined under Article No. 2 of the Trade Unions Act and it is stated that also employer’s representatives are considered as employers under scope of this act.[14] And as a condition for being deemed as an employer’s representative, it is sought to be authorized to direct and manage the entire establishment. Pursuant to the explanation under this article, it is possible for those holding managerial positions to become members in trade unions in their respective capacities of employer’s representatives and assume duties thereunder. With a clear expression, corporate person employer is becoming member to any employers trade union and the executive who is the general manager of the company in the capacity of employer’s representative is both representing the employer before the employers trade union, and might also possibly assume duties in the organs of such trade union. In this case, it should be pointed out that executives are not entitled to become members in workers trade unions. Because it is not anyway possible for any person who represents the employer before workers trade union becomes a member of workers trade union at the same time. Any executive with such position is required to manage the whole establishment as a requirement of Article No. 2 of Trade Unions Act.
It should mention out that , other managers in the establishment and those executives who take part in the management of the facility but who do not manage the whole establishment are entitled to become members in workers trade unions.
There is no different Collective Labour Agreement for executives. To tell the truth in executive employment contracts, which provides much more different benefits to the executives, requires nothing existing in the collective agreement provisions to apply.
Further, although there is no provision under (TİSGLK) Collective Labour Agreement Law, due to a strange application developed by the decrees of Labour Courts, workers such as managers, chiefs, engineers and even certain office personnel, who qualified as employer’s representatives but not executives and entitled to become members of the workers trade union, are left also outside the scope of the collective labour agreement by practice. These workers are left to the field of employment contracts only. Even though such employees are members of the workers trade union, they are excluded from the scope of the collective labour agreement.
Such being the case, it should mention that executives/employer’s representatives generally are not included under the scope of the collective labour agreement.
It is a fact that such an application is in contrary to the principles of the Constitution as well as the right to become member of a union. Unfortunately the application realized as leaving all employers representatives outside the scope of collective labour agreement, although it should not consider all of the employer’s representative as an executives within the context of Trade Union Act art 2, where an executive is described as any individual authorized to manage an entire establishment in the name of the employer.
There is no practice of arranging any separate collective labour agreement in respect of those left outside the scope. Thereby such group of employees is deprived of such a constitutional right.
4.2. Works councils – Do works councils represent executives in your jurisdiction? If not, are there other representative bodies which can represent the executive’s interests on a company/facility level?
Turkish Labour Law has not included Works Councils. In work places, representatives of trade unions carry out the relations between the trade union and workers, and might possibly act in order to resolve certain problems to arise between the employer and workers. Keeping in mind that due to weak trade union activities, trade union representatives are anyway not functioning freely and there is no functionality at many facilities, it should hereby pointed out that generation of works councils would possibly end up with chaos and conflict with trade union representatives. There is now no ambient in work relations to enable any warm approach towards works councils.
As executives manage the establishment themselves, as long as their interests with respect to their respective rights do not conflict with the board of directors, there is no impediment for them to obtain their rights pursuant to provisions of employment contracts. In the event any dispute arises between the executive and owners or the board of directors, the means of settlement therefore is to seek recourse in any court of law.
4.3. Pension rights – Does the distinction between executives and employees affect the individual’s rights under the pension laws in your jurisdiction? If so, please describe in which respect?
In terms of the social security system, qualities of executive or worker are not causes for any change in the legal rights. However, the total amount of wages received becomes important with respect to the amount of pension salary to be allocated upon pensioning. As executives receive higher wages and as Premium is paid according to such wage under the social security system (upper limit of the Premium amount), the pension salary is accordingly different. For executives, certain possibilities for special insurances might also be provided. The employer might pay the premiums for the executive to benefit from individual pension system or cause private health insurance affected. It is seen at certain establishments that in general provisions are included in collective labour agreements with respect to the payment of individual pension premiums. The employer is providing special insurance facilities besides and in addition to compulsory social insurances, mainly for senior executives.
Under scope of the compulsory social security system, there are no differences with respect to the rights provided to workers and executives. All employees benefit from the same rights and privileges under the compulsory social security system. However, the amount of Premium paid with respect to pensioning determines the amount of the pension salary.
4.4. Individual employment legal rules – in particular
– working hours,
– liability,
– equal treatment,
– disciplinary procedures,
– dismissal law,
– restrictive covenants?
A) Working Hours:
Working hours at the facility are regulated under Article No. 63 of Turkish Labour Act. Accordingly, weekly working time is 45 hours per week. At such facilities where it worked 6 days a week, working time is 7.5 hours a day. Whereas at such facilities where it worked 5 days a week, working time is 9 hours a day. At establishments, working hours might arrange as being less than the previously mentioned. Working hours are set forth under the law as a maximum taking into consideration the principle of equality for all workers. It is not possible to make contracts setting forth working hours in excess of the aforesaid. Such provisions are mandatory provisions. In terms of working hours at the work place, it is against the law to make an agreement with the executives that they shall be working for longer hours. However, within framework of a flexible working system, provided weekly working hours are not exceeded, it is possible to arrange the daily working hours in a different manner and incorporating such changes like determining the number of days in a week that are not to be worked. The law has brought forth flexibility in relation with this issue.[15] Actual status of executives with respect to working conditions might be different. Duration and uncertainty with respect to the working hours of executives is a situation that those assigned to management positions in an enterprise encounter very frequently. Most of the times to limit the activities of executives with fixed hours could consider contrary to the nature of business.
Security of labour, force majors, problems occurs in functioning the enterprise are all indications that working hours of executives might compulsorily extend beyond such legal arrangement regulated under the Labour Act. Therefore, it should hereby be pointed out that there are applications that differ from one establishment to the other with respect to executives.
It is worthwhile to mention briefly about the overtime working where stipulated in Labour Act Art. No. 41, and subsequent articles which would give an idea about the procedure going on within the context of executives.
According to the said articles, in return for any overtime work fee should be paid. Within the context in application of overtime payment there is no distinction made between executives and employees. All workers receive a fee in case they perform any overtime work.
It provided under Labour Act Article No. 41/8 [16] that annually only 270 hours of overtime work could be made. This issue is also a mandatory provision. There is no different application of this article with the respect to worker or executive. In case another amount for over time fee is determined, which could not possibly be less than the minimum wage, then under employment contract or collective labour agreement these amounts should be paid. If no other amount adopted under employment contract or collective labour agreement, then the law provides that for each and every hour of overtime work, overtime fee should be calculated by increasing 50% the hourly wage corresponding to normal work.
As regulated under the Labour Act, a provision might be added to the employment contracts such that any overtime work up to 270 hours annually is included in the fixed monthly wage. In that case, if an agreement contracted with the executive over a fixed monthly salary, then the fee he/she receives is going to be the same regardless of whether or not any overtime work is actually performed.[17] Concerning workers as well, it is possible to make a wage payment in the form of a fixed monthly fee, and any overtime work might be considered as having been included in such monthly salary. There is no different application between the executive and the worker with in that context. Yet in general, as widespread application is to enter into employment contracts with employer representatives/ executives, by basing on a definite term and fixed monthly fee. It might be the case that the fee in consideration of 270 hours being the maximum annual permissible overtime work is included in the fixed monthly wage.
However, in application of this system, it is compulsory that a written provision thereto is contained in the employment contract. Otherwise the employer might not say that, he pays a fixed monthly wage, therefore any overtime payment included therein. Although the annual overtime hours workable limited under the law, with 270 hours a year, the reality is overtime worked in excess of such. Non-payment of such overtime work reason of the main disputes that arise between employer and worker whenever employment contracts are terminated.
B ) Liability :
Liabilities of workers, employer representatives or executives are not the same. Liability of employer representative/executive is of a wider scope, and concerning work accidents, monetary liabilities, responsibilities included within framework of the social security system, their responsibilities are at a different dimension than those of the workers.
Executives, exactly like employers, have liabilities with respect to the establishment, with respect to such transactions in relation with the management of the establishment. Unless executives are personally at fault, the monetary responsibilities against such imperative provisions that they obliged to perform before laws as well as otherwise shall be on account of the establishment, in other words on account of the employer.
Material considerations are payable by the establishment. Personal responsibility of the executive arises only upon his/her being responsible from such damages originating as a result of such illegal acts caused by his/her own deeds. In cases where there exists no personal fault or neglect, the executives have no responsibility with respect to general laws other than those regulated under the Labour Act. Monetary fines as well as indemnities are specified as debt of the establishment. In case the executive has any fault or neglect, then the employer is entitled at all times to seek recourse in and to the executive. In terms of both the workers as well as executives/employer’s representatives, their main responsibility towards the employer is to comply with the orders and instructions of the employer, and in the event any damage is caused in the establishment, the consequences thereof is set forth under Article No. 25 of the Labour Act. [18] In case the conduct occurring is classified as a crime in terms of the Penal Code are thereby requires a penalty, both the executive/employer’s representative or the worker might be sentenced to a penalty befitting such criminal deed.
If in terms of the Executive/Employer’s Representative, any illegal act occurring at the work place is classified as a crime; related punishment would apply pursuant to any decree adopted by criminal court. According to the nature of such crimes, it might be possible that the same are converted into cash, or postponed. In this respect, there exists no difference between executive/employer’s representative and any worker.
To state as a concluding point, there are limits to such rule that the executive/employer’s representative would be responsible like the employer as set forth under Article No. 2 of the Labour Act. Such responsibility is not so extremely wide like the responsibility of the employer. The executive/employer’s representative is responsible towards third parties within limits of its duties and authorities on grounds of matters related to the establishment. In the event it has no personal fault or neglect in terms of indemnities, it has no responsibility either with respect to its personal wealth.
Liabilities of worker and employer/employer’s representative/executive are regulated under and in respect of the articles of Labour Act. Accordingly, executives are held responsible similar to the employer. [19] The state is authorized to monitor as well as inspect the legislations in practice with respect to the work life. Employers as well as executives are obliged to comply with the rules with respect to supervision of work life. The state uses such surveillance and supervision authority through inspectors.
Employer and employer’s representative/executive has administrative as well as criminal responsibility. Such responsibilities are set forth under the following provisions:
Correct Statements
Provision stipulated under Labour Act Article No. 96[20] with respect to making of correct statements before official authorities for both the worker as well as the employer. According to the provision it is stipulated that employer should not force employees to make different statements rather than the reality to the official authorities , and that in the event the workers make negative statements against the employer, it is prohibited to attempt any ill treatment in relation therewith.
Likewise, it is stipulated that employees should not make statements at workplaces against the employer contrary to the truth. Such an unjust manner as to put employers in to difficult position and act in an ill-willed way prohibited.
Within the context of this provision in general whenever the employment contracts of executives are terminated by employer and if the employment contract is not terminated due to expiry of the term of the agreement or if the employer has terminated the employment contract pursuant to Article No. 17 of the Labour Act, executives might possibly generate scenarios as to the termination having been carried out in an unjust manner. Thereupon, they are capable of putting the employer at difficulty by making use of both the data they have acquired while working at the facility as well as certain defaming acts and deeds which are not in compliance with the reality. In order to avoid the aforesaid, it is set forth under the said article that such acts are prohibited, and both legal as well as criminal sanctions are taken into consideration.
Violation of the obligation to notify the establishment. Obligation to report the workplace at the opening of the establishment as arranged and regulated under Article No. 98 of the Labour Act[21], is very expressly stated under this article by very clearly using the concepts of employer or employer representative/executive, that in case the same fail to fulfil such legal obligation, monetary fine is to be paid.
Violation of the general provisions Under Article No. 99 of the Labour Act [22], it is provided for monetary fine in the event of departure from the principle of equality and (Art 5) as well as (Art 7) ( Art 8 )( Art 14) (Art 28).
Violation of the provisions on mass dismissal- It is indicated that in cases of violation from such provisions with respect to mass dismissal of the workers, the employer and employer’s representative shall be charged with monetary fine for each and every worker so dismissed.[23]
Violation of the obligation to employ handicapped as well as former convicts It is stated that in such a case, the employer or employer’s representative not employing handicapped individuals as set forth under Labour Act Article No. 101 and Labour Act Article No. 30 shall be charged every month with monetary fines up to the number of handicapped failed to be employed. [24]
In the event of violation to the provisions of the wages provides that any employer and employer’s representative not pays on time, or falls to pay deliberately, not pay in full the wages of the workers, shall pay monetary fine for each and every worker.[25]
Violation of the annual paid leave provisions.
It is compulsory to allow workers use their annual paid leave rights. Or if the employment contract has been terminated and the related payment of paid leave would not be given, employer and executive/employer’s representative are charged with monetary fine.[26]
Violation of the provisions with respect to the organization of work.
In the event of violation to the imperative character provisions relating to the organization of work, as set forth under Labour Act Article No. 63 and as well as the relevant regulations, such the circumstances as , not to allow intermediate rest time , excess the night work duration , no change over in night and day shifts, employ under-aged workers , not to give birth leave, stipulates monetary fine to be charged on so acting employer and executive/employer’s representative.[27]
Violation of the provisions with respect to worker health and safety
Under Labour Act Article No.105 and related regulations it is provided that any employer and executive/employer representative violating the said provisions would penalize with administrative monetary fine.[28]
Violation of the provisions with respect to the supervision and inspection of work life.
Labour Act gives importance to the inspection of the work life, and any attempt to hinder the officials assigned with the duties of supervision and inspection from performing such duties classify as crime, and provision for administrative monetary fine set forth for those employers or employer’s representatives/executives acting contrary to such rules concerning inspection.[29]
Labour Act has set forth provisions with respect to the justifications of administrative monetary fines as well. [30]
It has been attempted here above to summarize responsibilities of imperative nature that bring forth penalty sanctions with respect to the employer as well as employer representative/executive.
C ) Equal Treatment
Employer is required to treat workers in an equal manner. In this respect, it is not possible to make any distinction between executive and worker. The employer is indebted to treat everyone working at the facilities in an equal manner. And likewise, it is not possible for any executive to violate the principle of equality while using the managerial power on the workers.
As Labour Act Article No. 5 [31], principle of equal treatment has entered Labour Law as a new provision. The employer is obliged to provide everyone working at the workplace equal working conditions and facilities, under principle of fairness granted by contemporary labour law.
In case of applying different procedure between executives and workers by employer within the context of wages of the executives should not define as the violation of the equality principle. While equal treatment is equality in terms of any application with respect to workers of the same level and qualifications, and without taking gender differences into account. It is natural in terms of the executive that any person liable from managing the entire establishment, undertaking several liabilities and responsibilities, providing for the work security in the establishment, being responsible concerning administrative matters would result in its obtaining remuneration under a method different than that in effect for the workers.
And the reason for this is that it is quite obvious for the EXECUTİVE to be superior to and different from the workers in terms of its qualifications, education, capabilities, assuming initiative, responsibilities as well as task performed.
Also application of different wages between the workers without any discrimination for sex, but basing on works done, skills, qualifications, educational status, capability of using initiative as well as social condition and status, would not be by any means contrary to the principle of equality. As a matter of fact, under Labour Act Article No.5, in the presence of essential causes and presence of causes with respect to the quality of the job, it is understood from the interpretation of the said article that different applications might be made between the employees. No different wage application might possibly be made solely for works of equal value, between workers of equal level.
We would further like to point out that also under Article No.10 of the Constitution of the Republic of Turkey, a general principle of equality has been adopted for all Turkish citizens. Such provision with “Equality Before Law” heading [32] provides that everyone equal before the law, men and women are likewise equal, no person or group has any privileges, State organs are obliged to act in compliance with the principle of equality. Provision with respect to principle of equality contained under Labour Act Article No. 5 is based on Article No. 10 of the Constitution.
It is a fact that such rule with respect to the principle of equality stipulated under Article No. 5 of the Labour Act couldn’t be interpreted as deeming everyone equal in an absolute manner. Existence of different working conditions requires differentiation between the employees. The equality mentioning here is an objective sense of equality. The criteria to be based on in assessment of equality are required to be objective. Providing different rights and privileges to types of work of differing qualities does not constitute any violation from the principle of equality. In this respect, making of any different arrangement with respect to the executive has nothing to do with violation of such principle of equality.
D ) Disciplinary Rules
Matter of discipline in respect of Turkish Labour Act :
In workplaces and establishments, provisions regarding discipline might be accepted by guidelines. It is possible to be included in Collective Labour Agreements such provisions like making proceedings under resolution of a disciplinary board in matters such as dismissal as well as penalization of workers. Whenever the case is as such, for any act of dismissal or application of any disciplinary sanction, it is so required that initially the defense of the employee should taken by the disciplinary board. Such disciplinary board consists of representatives of employers and workers or trade union representatives. The employer would give a decision according to the decisions adopted by such board. Decisions made by such boards are generally adhered to by the employers. However the employee is entitles to apply to Labour Courts concerning dismissal from work and application of disciplinary sanctions. It is out of question that the disciplinary board decisions are not final. If there is a disciplinary board within any establishment and a discipline guideline exists, then for settlement of any dispute, the judge is seeking initially the decision adopted by the disciplinary board.
Decisions to be taken by the Disciplinary Board should not be in violation of laws and those rules and sanctions set forth under the regulations of the establishment. It is not possible to create new crimes by acting in violation of those rights and authorities granted under the laws.
The Disciplinary Board might make inquiries only with respect to the management and supervision of the facility and adopt decisions pursuant to provisions of the discipline regulations. Scope of inquiry of the Disciplinary Board is limited to such provisions.
For disciplinary board decisions to be binding, it is so required that the regulations of the disciplinary board on which the decision is based are not contrary to general rules of law, that they are objective, not contrary to the rules of good-will and are to be in compliance with the material facts. In the event of any departure from the aforesaid, it is possible to apply to a court of law, and pursuant to the decision made, obtain the rights provided under Labour Act in return for such rights lost.
Examining the subject matterwithin context of the executives, it is not possible to consider adopting a decision by any organ such as the disciplinary board for termination of the employment contract of the executive or concerning any disciplinary sanction. Actually it is contrary to the nature of the individual as being the top of the hierarchic chain of the enterprise and gives instructions and orders for to run the business, to the workers and face with disciplinary board decision during termination of the employment contract, where there are the worker representatives as well.
It is specified under employment contracts entered into with executives/employer’s representatives, for which reasons the contracts might possibly be terminated. Further, in the event any definite term employment contract is made, it is a fact already known to the executive such date on which the contract shall terminate. In termination of the employment contracts entered into with executives/employer’s representatives, even in the event that such contracts are terminated for justifiable causes, existence of a Disciplinary Board within the work place does not necessarily require any decision be made with respect to the executives.
Generally in circumstances such as sales of the company’s shares, change of their possession, and change of the members of the board of directors, the employment contracts of executives/employer’s representatives, whom we generally encounter in the capacity of CEO or general manager, or assistant general manager, are terminated by giving them their indemnities as well as such other rights. For that reason there is no need of disciplinary committee and there is no such method that is established in establishments.
Disciplinary committees are generally present in large sized establishments and at such work places where there is a Collective Labour Agreement in effect and a trade union is structured, and they result in positive conclusions in settlement of several disputes. We would also like to point out that in relation with matters concerning workers, we are of the opinion that disciplinary committees should be mandatory, an even establishment of committees such as annual leave committee, work safety committee, work supervision committee, bonus payment committee would be more beneficial in terms of the functioning of establishments.
In the meantime, it should mention that that to adopt any proceedings via decision of the disciplinary committee, relating to the workers do not require a long time. Time required for such disciplinary committee to take decisions with respect to the worker either for dismissal or punishment is very short. Since for the employer to possibly apply the sanctions applicable under Labour Act Article No. 26 with respect to the worker and to notify the worker thereof, the employer is required to use its right for immediate termination. Term for this is 6 work days as from the date of becoming aware of the act.
In the event of not using such right within the specified time, possibility of using such right is eliminated[33]. Therefore, it is required that the disciplinary committee should make its decision prior to the expiry of such term, so that if the employer is going to terminate the employment contract of the worker within such term of 6 work days, it could possibly serve notice of its such decision within the legal time granted. As the decision taking processes of the disciplinary committees are very short, there is no risk such as concluding the dispute in long time.
As a result it should point out that ,executives being the party of such committees, it is not possible to consider that the disciplinary boards would authorized to make decisions about the executives as well.
E ) Dismissal Law. (Rules With Respect To Termination Of The Employment Contract)
In relation with termination of the employment contract, there exist provisions under Articles 17, 18, and 25 of Labour Act. As it is already explained here above, Labour Law Article No. 18 is not possibly applicable with respect to the executive/employer’s representative. So it is possible to terminate the executive’s employment contract pursuant to such provisions under Labour Act Article No. 17 or Article No. 25.
There is contained employment security under the Labour Act concerning workers. Due to employing more than 30 workers in establishments it is restricted to terminate their employment contracts in parallel to such provisions of ILO Agreement Number 158 which restricts such right for termination, included under Turkish Labour Act as well.
The employer is entitled to terminate the employment contracts of workers in case of existence of such causes indicated under Article No. 25. There is no difference with respect to the application of the said article for either the worker or the employer.
F) Restrictive Covenants
No agreement provision that is contrary to the mandatory rules under the Labour Act might possibly be agreed upon by and between the parties. Thereupon, it is not possible either in terms of workers or with respect to executives to make and enter into contracts that would bring forth restrictions to their respective legal rights.
It should point out that under Turkish Labour Law and legal system has adopted the principle of freedom to conclude contracts.
Besides the aforesaid, individuals are entitled to enter into and conclude contracts or otherwise with any person they so wish. This is called autonomy of free-will. Article No. 48 of the Constitution by containing a provision such as [34] “Everyone has the freedom to work and conclude contracts in the field of his choice”, has secured the freedom of concluding contracts. However, freedom of concluding contracts with the aim of protection under such general principle of public interest under legal order is restricted.
In respect of Labour Law, let us point out that the general principle of freedom to arrange employment contracts is left to the voluntary choice of the parties as freedom to enter into contracts or otherwise, as well as freedom to enter into contracts under specific terms or otherwise. Concerning the social character of the employment relations there require restrictions set forth on contracts to avoid any kind abuse in between partners.
There are prohibitions under Turkish Labour Act with respect to entering into contracts with certain persons or not. For instance, it is provided under Article No. 50/1 of the Constitution[35] as that no one may make to perform work unsuited to his age and gender. There exists a provision that minors, women, and those with physical as well as mental incompetence are to be specially protected regarding their respective conditions of work. In connection with this general rule, pursuant to provisions set forth under Articles No. 71-72-85-87 of the Labour Act[36] it is prohibited to make and entered into employment contracts. Penalty sanctions are applicable to any employer in case violation of the said provisions.
Likewise, there are also provisions under Labour Act that mandates employment contracts be made. For instance, according to Article No. 30 of the Labour Act, there is an obligation to make employment contracts with handicapped individuals, former convicts as well as those aggrieved by terrorism. Also, pursuant to Labour Act Article No. 31, those leaving work due to military service or any other legal duty are required to employed instantly to any vacant position, or to any position to be vacated in preference to such other parties demanding. Yet another requirement is that if mass dismissal has been made in workplace and then it is so needed to re-employ, pursuant to Article No. 29 of the Labour Act, the employer is compelled to invite to work those who are fit regarding their respective qualifications.
Such obligations concerning making of employment contracts are put into action on grounds of social reasons, and the employer is compelled to comply therewith.
It is not possible to enter into contracts of such character to violate the Labour Act and law provisions in general both in breach of such mandatory rules as well as containing provisions that are contrary to personal rights, moral and customs. Such employment contracts whereby legal rights of workers restrict or containing provisions as waives the rights and receivables legally granted are invalid. Such agreements are not legally protected and are deemed void.
In the event if any foreign element appears in the employment contracts, what kind of method is applicable in cases and circumstances requiring combined implementation of different legal systems?
Any foreign element might be the case whenever the worker is a foreign citizen, the employer is a foreign national, or the work place is at a foreign country yet the worker and employer are of the same nationality. Whenever the case is as such, it is made reference to and connection with the judicial system of several countries. In these cases it is necessary to resolve under which country’s judicial system the employment contract is to be assessed.
Article no 24 of Turkish International Private Law and Procedure Code provides that, those debt relations arising from the contract are subject to such law expressly selected by the respective parties.
If the parties have not expressly selected any law, that law with respect to performance place of the debt shall be applicable to the contract. In the event the place for performance of the debt is more than one, then law with respect to the performance of the act that prevails in such debt shall apply. Under these circumstances, in the event of disputes arising with respect to employment contracts bearing any foreign element, concerning which judicial system would applicable, primarily any judicial system so selected by the parties shall applied, and in case such does not exist, the judicial system of the place for performance of the debt, in other words the place where the worker performs his/her duty shall be applied.
To elaborate the matter by giving examples; when the incident is viewed from the perspective of Turkish legal system, under any agreement entered into by and between a foreign national employee and Turkish worker, and the performance of the work concerned is in Turkey, whereby the parties thereto made an agreement subject to the legal system of a foreign state, and if the rules set forth under such foreign legal system are contradicting with the rules of the Turkish legal system as well as are in contradiction with the imperative rules of law, then application of such foreign rules of law in conflict with the rights and interests of the worker shall not accept by Turkish Courts of law.
Despite having agree upon that the employment contract could subject to foreign law, as stipulated under the Article No. 5 of International Private Law and Procedure Code, that in the event of any provision applied might found expressly violating the Turkish public order, such a provision shall not apply.
Although it is adopted under Turkish Labour Law the freedom of making contracts by free will, standards of labour law mandates intervention with such freedom of making contracts, being in close contact with public order as well as social order.
Therefore, the existence of any foreign element as well as inclusion such provisions that employment contracts may be subject to foreign laws, do not necessarily mean that such provisions of foreign law are applicable under all circumstances. Such rules of foreign legal system might apply as long as they are not violating Turkish Legal System and rules of imperative nature regulated under employment relations.
Thereby, it is possible to include restricting provisions in employment contracts, provided such rules are not contrary to the rules of law and those rules of imperative character.
5. Are arbitration clauses valid and/or typical for executive contracts/employment contracts in your jurisdiction? If there is no (valid) arbitration clause, are there different courts competent to hear cases brought by/against executives/employees?
Under Turkish Labour Law relations, there is no provision prohibiting any arbitration clause. However, in the application up to the present day, the Supreme Court of Cassation somehow blocked the method of arbitration under certain judgments that constitute an application as if there is a requirement for settlement of disputes through labour courts the with respect to employment relations.
Application concerning to include the arbitration clause in the contracts for to settlement of the disputes within the context of worker and employer in employment relations is due to lack of culture in the society in this respect, and no valid as well as efficient application has yet been put into force and effect.
As explained here below, in relation with the settlement of disputes concerning work security, an arbitration agreement is possible only in this field. Yet the Supreme Court , by not allowing for the award made by the arbitrators in this respect extend beyond the facilities provided under work security, is putting emphasis on the fact that pursuant to Code of Procedure on Labour Courts, the place of settlement for any other disputes is under jurisdiction of Labour Courts.
Under Article No. 20 of the Labour Act[37], there is a provision regarding arbitration stipulated. Such clause is in force and effect in any action to be filed on grounds of return to work of the worker under scope of work security. Legislator has also included a provision with respect to a special arbitrator, concerning objection to the termination made by the employer in the event the worker is under the coverage of work security. Accordingly it is possible to raise such an objection before a court of law, as well as taking the dispute to a special arbitrator in case the parties reach an agreement therefore.
For the existence of any valid arbitration clause with respect to work security, primarily the parties are required to reach an agreement about the arbitration clause. There are likewise differing opinions in the doctrine as to which stage such an agreement is required to be made.
Making of an agreement with respect to arbitration clause at the time of construction of the employment contract or in the course of its continuation creates a dispute as to whether the worker used his/her free will at the time the said clause is adopted.
There exists dependence as well as affiliation relationship between worker and employer. It is a fact that the worker would have no other alternative, as the worker desires establishment of an employment relation at the time of construction of the employment contract. Therefore, it is defended that the arbitration clause contained in the contracts is required to be deemed invalid.
Thereupon, it is expressed as a majority opinion that any arbitration agreement is to be made after any dispute arises.
As a matter of fact, it should be accepted that any arbitration clause made after any dispute arises would become more valid.
In relation with this matter, 9th Civil Department of the Supreme Court of Cassation adjudicated under its record number 2007/20298 and 2007/37365 verdict number, dated 10.12.2007 that , in case of any dispute with respect of special arbitrator, any arbitration agreement giving rise to one of the parties making use of its economic as well as social superiority over the other party and containing a provision with respect payment of receivables concerning labour would deemed as invalid pursuant to Articles No. 19 and 20 of the Law of Obligations as well.
According to the majority opinion in the doctrine special arbitrator clause might consider null and void, not only the clause of special arbitrator arranged by means of an agreement entered between the parties after the dispute arise , but also in terms of Articles 19 and 20 of the Law of Obligations and as well as in the course of making of an agreement with respect to acceptance of a special arbitrator clause by and between the parties of such employment contract during the construction or continuation of it , on grounds of the existences of the circumstances set forth under Articles No.23-24-27-28-29 of the Law of Obligations.
However, Article No. 31 of the Law of Obligations has limited by one year such term of claiming the invalidity of the special arbitrator clause by basing on the said articles of law. This term is an abating period. Commenting the issue of special arbitrator in this respect, the best way in order for valid and applicable special arbitrator clause and not to cause any objections, is that parties should make an agreement whenever any dispute arises.
Referring to such arbitration clause with respect to work security in the general sense, would observed that such arbitration clause might possibly could construct solely by the parties in the employment contract. The expression of the law is in this direction. In other words, it is strictly out of question to accept arbitration clause as a provision of the Collective Labour Agreement. Because while in the original form of the text of law there existed a rule that arbitration clause would acceptable under any collective labour agreement, this part has been deleted by a decision of Court of Constitution. As explained here above, we hereby would like to point out that we are in favor of the opinion that such a deletion is justifiable.
Justification of the appeal made to the Court of Constitution with the demand for deletion of the provision with respect to settlement of the dispute concerning work security before a special arbitrator such as;
“Is as such that depriving the worker who is at a weaker position economically, from a labour court as well as a natural judge , and making compulsory to seek recourse in advance in a special arbitrator in the settlement of such a dispute that is of mutual character by and between the worker and the employer, would restrict the freedom of seeking rights and not in compliance with the requirements of a democratic social order as well as principle of being commensurate , and that thereupon contrary to Articles No. 2-5-13-36-37 of the Constitution.”
In the decision of the Court of Constitution also stated that only in the event of including a provision in the Collective Labour Agreement with respect to seeking recourse in a special arbitrator, that is of normative character, and be binding on those workers who are members of the trade union, and if there is any provision in the Collective Labour Agreement contained under Article No. 20 of the Labour Act, inclusion of such provision that the dispute shall be referred to a special arbitrator would be of imperative character, and that this condition is contradicting with such provision set forth under Article No. 36/1 of the Constitution as …“everyone is entitled to the right of making use of legal ways and means to file claims before judicial authorities in the respective capacity of claimant, and be judged in an equitable manner. Because in the event ant provision is included in the collective labour agreement with respect to arbitration, as such a provision would binding similar to any provision of law and substitute the free will of the worker, deleted such paragraph of the article on grounds of violating the Constitution to include a provision with respect thereto in the Collective Labour Agreements.
It is further required to point out that in respect of the matter of special arbitrator, pursuant to such provisions contained under Article No. 533 of the Code of Civil Procedures the awards made by arbitrators are not possibly examine as per their essential motives. Therefore, arbitrator awards might only be taken to the court with in the respect to procedural reasons which would restrict the freedom of seeking rights.
As considered from this perspective, inclusion of arbitration clause in Collective Labour Agreements actually constitutes violation of the Article No. 36 of the Constitution. However, in taking the dispute to a special arbitrator upon agreement of the parties according to the employment contract, this would not consider as violation of the article No. 36 of the Constitution. Here, only the own free will of the worker is under consideration. As there is no general agreement covering all workers, and since the worker is waiving the right to file an action under his/her own free will, this could not possibly be consider as violation of the said article.
As a general rule, in relation with any and all kinds of disputes concerning labour relations, regardless of whether it is related to executives or workers, Labour Courts established and in relation with contracting, contents and termination of employment contracts[38], are processed before such courts of law. And there are also departments under the Supreme Court where especially labour disputes are settled. Labour relations have been oriented by means of the deep-rooted rulings of the same, and some very essential criteria are accepted with respect to the application of the law in those labour departments, and thereupon judgments are made. In other words, as judgments of principle are generated in settlement of disputes related to labour relations by Supreme Court, there are no substantial differences and contradictions between the awards relating to the same or very similar disputes.
6) Regarding social security (i.e. health care, unemployment benefits, public pension), do both executives and employees qualify under the mandatory social security laws of your jurisdiction? If not, what kind of protection is available for executives/employees in this regard?
Under Turkish Legal System, there is compulsory insurance as a requirement of Social Securities and General Health Insurance Law Number 5510. Under Article No. 4 of the said Law, those regarded as the insured are set forth and listed, and under Article No. 7, such provisions related to the commencement of being insured are duly regulated. As the system mandates that the individuals working are to be insured, there is no distinction like a worker or an executive. Employees are included mandatorily within the social securities system. In the event of failing to register in the said system, the employer is to be charged with penalty sanctions. However, the presence of such an imperative provision has not yet prevented unregistered work.
7) Does the distinction between executives and employees play a role under criminal law in your jurisdiction?
In terms of Criminal Law, as responsibility is based on the concept of intent and fault, in order to speak about any criminal liability, the act should classified as a crime under criminal law. In the commitment of any crime, as a requirement of the crime being personal, any causal relation is sought for between the perpetrator of the crime and the act itself.
According to Article No. 38/6 of the Constitution of the Republic of Turkey, criminal liability is personal. Personality of criminal liability means that an individual is held responsible only from any act committed by her/him. This principle explains as personality of penalties. Everyone is responsible from his/her own act and pro rata his/her fault at that. Criminal liability is dependent on the person giving rise to any act constituting a crime by any action originating from his/her own act or neglect, and such a situation taking place as a result of such a faulty action. In criminal law, criminal liability is subjective and is dependent on fault. An individual becomes responsible from any act caused by his/her own action. Such principle of any individual that has not given rise to any crime by means of his/her faulty act not being punished is called the personality of penalties or the principle of criminal liability being personal. Fault arises in the manner of intent or negligence.
Following this general explanation, for any employer’s representative/executive to be held responsible in terms of criminal law, the incident should have taken place as a result of the fault or intent of such individual performing the said act. Only then he/she might be held responsible from and on grounds of any act defined as a crime with respect to the Criminal Code.
Fault takes place as acting contrary to the obligation of care and diligence. In general, in work relations any act defined as a crime is occurring due to fault.
In employment relations, criminal liability is generally generated as a result of faulty and negligent behavior of several people. Under such circumstances, each shall be held responsible pro rata his/her own fault.
Pursuant to Article No. 22/5 of Turkish Criminal Code, each perpetrator shall be held responsible from his/her own fault, and their respective penalties shall likewise be determined pro rata their faults. At this point, it should take care to detect whether or not any situation interrupting the causality relation between the perpetrator or actions of the perpetrators and the result. In the event such causality relation is interrupted and the possibility of foreseeing the result is eliminated, it is out of question to talk about any negligence of the perpetrator or perpetrators. Therefore, in employment relations, the manner of realization of the incident is of utmost importance in determining criminal liability. It is of essence who has the responsibility as well as when, how and under whose guidance such departure from law has taken place.
Since the general rule is as explained here above, whoever has performed such act taking place and classified as a crime, or taken part in occurrence of such act constituting a crime, he/she has criminal liability under highlights of the principle of fault and intent. With respect to the application of penalties, there is no difference between being an executive/owner’s representative and being a worker.
Here, we should point out that in terms of Turkish legislative practices, concerning legal liability of the employer, principle of culpable liability is adopted. In terms of Social Securities Law, the liability of the employer with respect to any damage causing incident taking place due to any work accident and vocational disease, is based on the principle of fault. For the Social Securities Institution to possibly seek recourse[39] to the employer for any loss and damage, it is looked for the employer being at fault, and violates the laws.
Some of the References:
Laws
Prof. Dr. Nuri Çelik : Courses on Labour Law 22nd Edition
Prof. Dr. Nuri Çelik: Review of Judgment ” Deeming Special Arbitrator Agreement Agreed Upon Under The Employment Contract As Valid Unless Any Condition Maiming Free Will Is Evidenced, Dokuz Eylül (Ninth of September) University Law School Journal Volume: 9, Special Edition, 2007, pp 17-30
Prof Dr. Sarper Süzek: Labour Law 2005
Mustafa Kılıçoğlu: Labour Act Annotation 2008
Prof. Dr. Nur Centel: Turkish Criminal Law 2009
Prof. Dr. Berin Ergin: How Is Recourse In The Employer Considered Under Social Securities and General Health Insurance Law? Mess Reviev Dec. 2006.
Prof. Dr.Gülsevil Alpagut : Institution of Subcontractor withih the context of New Labour Act İntes Reviev. 2004.
1According to the Trade Union Act 2821 Art 2 the definitions:
Worker: Any person working under a contract of employment shall be considered to be a worker. Any person who undertakes to do mainly manual work under a contract for transport, excluding the vehicle owner, or gives his work to a publisher under a publishing contract, on a professional basis, and any person who does professional or manual work in an undertaking by way of participation under an ordinary contract of partnership, on condition that such a contract is open to any other person fulfilling the same conditions, shall also be considered to be a worker within the meaning of this Act.
The coverage of any person working under a contract of employment by the Act respecting the Retirement Fund of the Turkish Republic shall not be an obstacle for that person to be considered to be a worker.
Employer: Any person or corporation or non-corporate public establishment employing workers shall be considered to be an employer. The partners in an ordinary company other than the partners who participate by doing professional or manual work shall also be considered to be employers for the purposes of this Act.
Employer’s representative: Any person authorized to manage an entire establishment in the name of the person or corporation or non-corporate public bodies considered to be an employer shall be considered to be an employer’s representative.
The employer’s representatives shall be considered to be employers for the purposes of this Act.
[2] Collective Labour Agreement, Strike and Lock-Out Act (2822) Art 3 describes the Scope and level of collective labour agreement: A collective labour agreement may cover one or more establishments within the same branch of activity.
At an enterprise belonging to a legal or natural person or to a public organisation or institution that has more than one establishment in the same branch of activity, only one collective labour agreement may be concluded. Such an agreement shall be referred to as an enterprise collective labour agreement within the meaning of this Act. However, even where the institutions or establishments belonging to public organisations or institutions have separate legal personalities, a single enterprise agreement shall be concluded for these organisations and institutions.
Any dispute concerning the conditions required for establishments to conclude an enterprise collective labour agreement shall be decided within 15 days by the court of law having jurisdiction in labour matters at the place where the enterprise’s headquarters is located. In the event of an appeal, the court of appeal shall give a final ruling within 15 days.
Not more than one collective labour agreement shall be concluded or applied for the same period in an establishment.
3 Collective Labour Agreement, Strike and Lock-Out Act Art 62 has a definition of employer ‘s representative. Employers: The provisions of this Act as to rights and obligations shall apply to persons performing the duties of an employer or employer’s representative even if their wages or remuneration are determined by law. Any person holding a position as the employer’s representative in an establishment and acting as a party to a collective labour agreement or during collective bargaining as a representative shall be deemed to be an employer for the purposes of this Act
[4] – Justification of termination with a valid reason Labour Act Art 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:
a) union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours;
b) acting or having acted in the capacity of, or seeking office as, a union representative;
c) 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;
d) race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
e) absence from work during maternity leave when female workers must not be engaged in work, as foreseen in Article 74;
f) 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.
[5] –Notice of termination Labour Act Art 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:
a) 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;
b) 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;
c) 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;
d) 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.
[6] Footnote 4 Art.17
[7] The adoption date of ILO Agreement Number 158 Concerning Termination of the Service Relationship by the Employer is 02.06.1982, whereas it was made into a law inTurkey on 09.06.1994, duly published on Official Gazette Number 3999 Dated 12.10.1994.
[8] Labour Act Art 2/6: The relation between the employer and subcontractor who undertakes to carry out work in a section of the main activity or in auxiliary tasks related to the production of goods and services in the establishment of the main employer (the principal employer) provided such work is necessitated by operational requirements or technological expertise, and who engages employees recruited for this purpose exclusively in the establishment is called principal employer “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.
[9] See Footnote No. 8
[10] Labour Act art. 2/3-Definitions. The establishment is an integrated entity within the meaning of the annexed and adjunct facilities and vehicles.
[11] Labour Act Art 1: Purpose and Scope: 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.
[12] C. Right to Organize Labour Unions stipulated in the article 51 of Turkish Constitution (As amended on October 17, 2001) Employees and employers have the right to form labour unions, employers’ associations and higher organizations, without obtaining permission, and they also possess the right to become a member of a union and to freely withdraw from membership, in order to safeguard and develop their economic and social rights and the interests of their members in their labour relations. No one shall be forced to become a member of a union or to withdraw from membership.
The right to form a union shall be solely restricted by law for purposes of safeguarding national security and public order and preventing crime and protecting public health and public morals and the rights and freedoms of others.
The formalities, conditions and procedures to be applied in exercising the right to form union shall be prescribed by law.
Membership in more than one labour union cannot be obtained at the same time and in the same work branch.
The scope, exceptions and limits of the rights of civil servants who do not have a worker status are prescribed by law in line with the characteristics of their job.
The regulations, administration and functioning of labour unions and their higher bodies should not be inconsistent with the fundamental characteristics of the Republic and principles of democracy.
[13]Trade Union Art. 20 stipulates the conditions of membership. Conditions of membership:
Any person who is a worker within the meaning of this Act and is over 16 years of age may join a workers’ trade union. Persons under 16 years of age may join trade unions with the written consent of their parent or guardian.
Any employer within the meaning of this Act may join an employers’ trade union
[14] Trade Union Act Art 2/6 is about the definition of employer’s representative: Employer’s representative: Any person authorized to manage an entire establishment in the name of the person or corporation or non-corporate public bodies considered to be an employer shall be considered to be an employer’s representative. The employer’s representatives shall be considered to be employers for the purposes of this Act.
In general terms, working time is forty-five hours maximum weekly. Unless the contrary has been decided, working time shall be divided equally by the days of the week worked at the establishment.
Provided that the parties have so agreed, working time may be divided by the days of the week worked in different forms on condition that the daily working time must not exceed eleven hours. In this case, within a time period of two months, the average weekly working time of the employee shall not exceed normal weekly working time.
This balancing (equalizing) period may be increased up to four months by collective agreement.
The application methods of working time in line with the principles mentioned above shall be indicated in a regulation to be issued by the Ministry of Labour and Social Security.
The types of work where the daily working time must be seven and half hours maximum or less for health reasons shall be indicated in a regulation to be prepared jointly by the Ministry of Labour and Social Security and the Ministry of Health.
[16] – Overtime wage Labour Act art 41: Overtime work may be performed for purposes such as the country’s interest, the nature of the operation or the need to increase output. Overtime work is work which, under conditions specified in this Act, exceeds forty-five hours a week. In cases where the principle of balancing is applied in accordance with Article 63, work which exceeds a total of forty-five hours a week shall not be deemed overtime work, provided the average working time of the employee does not exceed the normal weekly working time.
Wages for each hour of overtime shall be remunerated at one and a half times the normal hourly rate.
In cases where the weekly working time has been set by contract at less than forty-five hours, work that exceeds the average weekly working time done in connectin with the principles stated above and which may last only up to forty-five hours weekly is deemed to be work at extra hours. In work at extra hours, each extra hour shall be remunerated at one and a quarter times the normal hourly rate.
If the employee who has worked overtime or at extra hours so wishes, rather than receiving overtime pay he may use, as free time, one-hour and thirty minutes for each hour worked overtime and one hour and fifteen minutes for each extra hour worked.
The employee shall use the free time to which he is entitled within six months, within his working time and without any deduction in his wages.
No overtime work shall be done in work of short or limited duration due to health reasons mentioned in the last subsection of Article 63 as well as in night work stated in Article 69.
The employee’s consent shall be required for overtime work.
Total overtime work shall not be more than two hundred seventy hours in a year.
Overtime work and its methods shall be indicated in a regulation to be issued.
[17] Fixed monthly wage means payment to the worker the same fee from one month to the other. It is such a fee payment method that rather than by basing on a duration of 30 days, and calculate the days actually worked by the worker and the figure found by multiplying the daily wage with the number of the days worked, but payment of the same amount of fee on an ongoing basis monthly. In case of fixed monthly wage, the worker is not paid any extra fee on such days like weekly days off, holidays and such similar. Fixed monthly wage might not arrange within the limits of the minimum wage. Overtime or leave fees are not calculated within the minimum wage. The fees paid to the executives and reaching some very substantial amounts being fixed wages providing for the settlement of the problem by payment of a single figure on an ongoing basis without any need to calculate how many days are worked in any month or how many hours of overtime work is made.
[18]This article stipulates the right of the employer to break the contract. Labour Act Art. 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:
I. For reasons of health
a) 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.
b) 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.
II. For immoral, dishonourable or malicious conduct or other similar behaviour
a) 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;
b) 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 makes groundless accusations against the employer in matters affecting the latter’s honour or dignity;
c) If the employee sexually harasses another employee of the employer;
d) 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;
e) 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.;
f) If the employee commits an offence on the premises of the undertaking which is punishable with seven days’ or more imprisonment without probation;
g) 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;
h) If the employee refuses, after being warned, to perform his duties;
i) 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.
III. Force majored:
Force majored preventing the employee from performing his duties for more than one week.
IV. 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.
[19] “Supervision and Inspection of Working Conditions” – Powers of the State
Labour Act Art. 91 – The State shall follow up, supervise and inspect the implementation of labour legislation governing working conditions.
This duty shall be performed by officials of the Ministry of Labour and Social Security in sufficient numbers and with the necessary qualifications, specially empowered to exercise supervision and to make visits of inspection.
The supervision and inspection of military establishments and of workplaces where materials for national security are manufactured as well as the procedures concerning their end-results shall be carried out according to a regulation to be prepared jointly by the Ministry of National Defence and the Ministry of Labour and Social Security.
Competent authorities and officials
Labour Act Art 92. – For the purpose of implementing Article 91, the administrative authorities and the competent officials responsible for following up, supervising and inspecting working conditions shall be entitled, whenever they deem it necessary, to inspect or examine at any time, subject to the provisions of Article 93, establishments, their administration, registers, records, accounts and other documents relating to working arrangements, the equipment, tools, apparatus, raw materials, manufactured products and all materials and accessories required for carrying on operations, and all arrangements and facilities for the health, safety, cultural development, recreation, resting and boarding of employees, and if they find any actions constituting an offence under this Act, to forbid them in the manner prescribed by the labour inspection regulations to be issued by the Ministry of Labour and Social Security.
During an inspection it shall be the duty of the employer, his representatives, the employees and any other person concerned to attend whenever summoned by the authorities or officials responsible for inspection, to give them any information requested, to present for their inspection and, if necessary, to hand over all relevant documents and records, to provide them with every assistance in the exercise of their functions as indicated in the first paragraph, and to comply, without any attempt at evasion, with all relevant orders and requests received in this connection.
The reports prepared by the authorities and officials empowered to follow up, supervise and inspect working conditions shall be held as valid until they are disproven.
Duties of competent officials
Labour Act Art 93. – The authorities and officials responsible for following up, supervising and inspecting working conditions shall not, in the performance of their duties, cause any derangement of or hindrance to the normal progress of operations and the work of the establishment, except in so far as may be deemed necessary by the nature of their responsibilities; and they shall observe strict secrecy with respect to all they have seen and learned concerning the technical secrets of the employer and the establishment and his financial and commercial circumstances, unless it is necessary to disclose these matters in order to institute official proceedings, and they shall not reveal the names and identities of employees and other persons from whom they have received information or who have made reports to them.
Inspections by other authorities
Labour Act Art. 95. – The municipalities and other authorities competent to issue permissions for the setting up and opening of establishments shall, before giving the said permissions, investigate the existence of the opening and operating certificate which must have been granted by the Ministry of Labour and Social Security in accordance with pertinent labour legislation.
Municipalities and other authorities may not give opening and operating licences to establishments which have not yet been granted opening and operating certificates by the Ministry of Labour and Social Security.
Public institutions and organisations shall communicate to the competent regional directorate of labour the results of their occupational health and safety inspections and supervisions at establishments as well as the actions they will take regarding these establishments.
Municipalities and other authorities competent to give permits for setting up and opening establishments shall communicate every month to the relevant regional directorates of labour lists of names and addresses of employers and establishments for which they have issued permits as well as the nature of the work to be performed until the fifteenth day of the following month.
[20] Labour Act Art. 96. – Employers and their representatives shall not make suggestions as a basis for replies by employees from whom information is requested by the authorities responsible for supervision and inspection, nor shall they incite or compel employees in any manner whatsoever to conceal or distort the facts, or discriminate against them in any way on account of information supplied or communications or applications addressed by them to the competent authorities.
Employees shall not provide the authorities or officials with information contrary to the facts respecting their employers or the establishments in which they are or have been employed, thereby giving rise to unnecessary official action by such authorities and officials; they shall not bring false accusations or unlawful actions against their employers, or reply incorrectly to questions addressed to them by the labour inspectors, or abusively hamper, complicate or misdirect supervision or inspection work.
[21] Labour Act Art 98 – Responsibilities of employees and employers
Violation of the obligation to notify the establishment Labour Act Art. 98. The employer or employer’s representative who acts in violation of the obligation to give notification about the establishment as indicated in Article 3 of this Act shall be liable to a fine of fifty million liras per employee.
In the event of the repetition of this violation after the penalty has become definitive, the same fine shall be applicable for each ensuing month.
[22] Violation of general provisions Labour Act art 99 – The employer or his representative who;
a) acts in violation of the principles and obligation foreseen in Articles 5 and 7 of this Act,
b) does not give the employee the document mentioned in the last paragraph of Article 8, acts in violation of the provisions of Article 14, and
c) Violates the obligation to arrange a work certificate in accordance with Article 28 or writes incorrect information on this certificate, shall be liable to a fine of fifty million liras for each employee in this category.
[23] Labour Act art. 100 Violation of the provisions on mass dismissals
The employer or his representative who lays off employees in contravention of the provisions of Article 29 of this Act shall be liable to a fine of two hundred million liras for each employee thus terminated.
[24] – Labour Act Art 101 Violation of the obligation to employ disabled persons and ex-convicts
The employer or employer’s representative who does not employ disabled persons and ex-convicts in contravention of the provisions of Article 30 of this Act shall be liable to a monthly fine of seven hundred fifty liras for each disabled person and ex-convict for whom this obligation is not fulfilled. Public organisations shall by no means be exempt from this penalty.
[25] Labour Act Art 102 – Violation of the provisions on wages
a) An employer or his representative shall be liable to a fine of 114 TL for each aggrieved employee and for each month if he deliberately fails to pay the full wages to which the employee is entitled under this Act specified in Article 32, or in the collective agreement or the employment contract, or if he fails to pay the minimum wage in full fixed by the commission as defined in Article 39.
b) An employer or his representative shall be liable to a fine of 411. TL if he fails to deliver an employee the wage slip in contravention of Article 37 or if he makes deductions from the employee’s wages as fines or if he fails to specify the reasons or to produce the accounts for such deductions in contravention of Article 38, or fails to deliver the document mentioned in Article 52.
c) An employer or his representative shall be liable to a fine of 204 TL for each employee in the following categories: if he fails to pay the employee overtime wages indicated in Article 41; if he fails to allow the employee to use the free time to which he is entitled within six months; and if he does not obtain the employee’s approval for work at extra hours.
[26]Labour Act Art. Art 103. – Violation of the provisions on annual leave with pay
The employer or his representative shall be liable to a fine of 204 TL for each employee in the following categories: if he divides the annual leave with pay into segments in contravention of Article 56 of this Act; or if the pays annual leave with pay in contravention of the third or fourth paragraphs of Article 57 or if he pays less than the amount which is due; or, in the event of the termination of the employment contract before the employee has availed himself of the annual leave to which is entitled in accordance with Article 59, if he fails to pay the wages corresponding to this leave; or if he fails to implement in full the provisions of the regulation mentioned in Article 60.
[27] Labour Act art. 104. – – Violation of the provisions on organisation of work
An employer or his representative shall be liable to a fine of 1.034 TL if he causes employees to work beyond the hours fixed in Article 63 or in the regulation issued in pursuance of this Article, if he fails to comply with the provisions of Article 68 as to rest periods; if he causes his employees to work more than seven-and-a-half hours on night work or fails to alternate night and day shifts contrary to Article 69, if he acts contrary to the provisions of Article 71, if he employs boys under the age of eighteen years or girls or women irrespective of their age on work in which their employment is prohibited by Article 72, if he employs children and young employees on night work contrary to the provisions of Article 73 and the regulation mentioned in that Article or acts contrary to the prohibition mentioned in the first paragraph of that Article, if he causes pregnant or confined women to work in periods before and after birth or fails to grant them leave without pay contrary to the provisions of Article 76, if he fails to keep personnel files mentioned in Article 75, or if he fails to comply with the provisions of the regulation mentioned in Article 76.
The employer or his representative shall be liable to a fine of 204 TL for each employee concerned if he acts contrary to the provisions envisaged in Article 64 and 65.
[28] Labour Act Art 105./a Violation of the provisions as to health and safety
Under the said Act;
a) Any employer or employer’s representative not complying with provisions of such regulations set forth under Article No.78, for each and every worker health and safety measure failed to be adopted, 228 TL, and for any subsequent month the same amount for such measures failed to be adopted,
b) Any employer or employer’s representative failing to obtain its workers doctor’s report pursuant to Article No. 86, for every worker in this status, and any employer or employer’s representative failing to obtain children doctor’s report pursuant to Article No. 87, for every child in this status 228 TL.
c) Any employer or employer’s representative acting in departure from Article No.77, opening a work place without obtaining operation certificate as required under Article No. 78 or failing to obtain any certificate for such works and products requiring to be certificated, continuing with the operation of any business activity of which is ceased as required under Article No.79 without receiving permission, or opening without permit any work places closed, those acting in departure from such provisions with respect to establishment and functioning of worker health and safety committees anticipated under Article No.80, failing to implement such resolutions adopted by worker health and safety committees, failing to fulfil the obligations set forth under Article No.81, failing to comply with such conditions and methods specified under Articles No.88 and 89, 1.144 TL each,
d) Any employer or employer’s representative acting in departure from Article No.85 of this Act, employing minors of age less than sixteen, or employing workers in departure from such age restrictions set forth on the regulations pointed out to under the same article, for each and every worker One Thousand New Turkish Lira, whereas for any employer or employer’s representative employing any worker who has not received such Professional training set forth under the first paragraph of the same article 572TL, administrative monetary fine is charged.
[29]Labour Act Art. 107 (varied: 23/1/2008 – 5728/500 art) Violation of provisions as to thesupervision and inspection of working conditions.
The employer or his representative shall be liable to a administrative fine of 9157 TL.;
a) if he fails to discharge the duties envisaged in Article 92, or
b) if he fails to comply with the prohibitions listed in Article 96 of this Act.
Persons who obstruct the performance and conclusion of the labour inspector’s supervision and inspection work based on this Act as well as on other legislation shall be liable to an administrative fine of 9157 TL , in addition to any other penalty which may be inflicted by law for a different offence.
28 -Labour act Art. 108 Provisions as to application of administrative fines
The fines of an administrative nature envisaged in this Act shall be enforced, along with an explanation of the underlying reason, by the regional director of the Ministry of Labour Social Security.
The administrative fines indicated in this Act shall be enforced by the regional director of the Ministry of Labour and Social Security competent in the region concerned. Decisions on administrative fines shall be communicated to the persons concerned according to the Act No. 7201 of 11 February 1959 respecting administrative communications. Appeals may be lodged against such fines with the competent administrative court in seven days at the latest. Appeal shall not discontinue the enforcement of penalty given by the administration. The decision given upon appeal is final. Where a hearing is not deemed necessary, the appeal shall be concluded in the shortest time possible by the examination of documentary evidence.
Administrative fines levied in accordance with this Act shall be collected according to the provisions of Act No. 6183, dated 21 July 1953, on the collection procedures for public
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.
[32]Constitution Art. X. Equality Before The Law
All individuals are equal without any discrimination before the law,
irrespective of language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such considerations.
No privilege may be granted to any individual, family, group or class.
State organs and administrative authorities shall act in compliance with the principle of equality before the law in all their proceedings.
[33] Labour Act Art 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.
[34]The Constitution of theRepublic ofTurkey. Art 48 Freedoms to Work and Conclude Contracts:
Everyone has the freedom to work and conclude contracts in the field of his choice. The establishment of private enterprises is free.
The State shall take measures to ensure that private enterprises operate in accordance with national economic requirements and social objectives and in conditions of security and stability.
[35]The Constitution of Republic of Turkey Art 50 Working Conditions and Right to Rest and Leisure.
No one may be required to perform work unsuited to his age, sex, and capacity.
Minors, women and persons with physical or mental disabilities, shall enjoy special
protection with regard to working conditions.
All workers have the right to rest and leisure.
Rights and conditions relating to paid weekends and holidays, together with paid annual
leave, shall be regulated by law.
[36] Labour Act Art 71 is about – Working age and restrictions on the employment of children, Art 72- is about– Restrictions on underground and underwater work
Art 85 of Labour Act is about– Arduous and dangerous work restriction to make labour contract with young employees who have not completed the age of sixteen years and children must not be employed on arduous or dangerous work. Art-87of Labour Act is about Medical certificate for employees aged under eighteen years.
[37] Article No.20 of Labour Act regulating objection to termination notice and the method therefore: Art 20. – Any worker whose employment contract is terminated, might file an action before the labour court , claiming that no reason was indicated on the termination notice, or any reason so indicated is not a valid reason, within one month as from the date of receiving service of such termination notice. (…) if the parties reach any agreement, the dispute is referred to a special arbitrator within the same term granted.
It is on account of the employer to prove that the termination is based on a valid cause. In the event the worker claims that the termination is based on some other cause, it is obliged to prove its such claim.
According to the method of speedy trial procedure, the action is concluded within two months. In the event decision made by the court is taken to appeal, the Supreme Court of Cassation makes a final judgment within one month.
(Deleted fourth paragraph: By Decision of The Supreme Court of Constitution Number E.:2003/66, K.:2005/72 , Dated 19/10/2005.)
It is the obligation of the employer to prove that termination is based on a valid cause. In the event the worker claims that the termination is based on some other cause, it is obliged to prove its such claim.
According to the method of speedy trial procedure, the action is concluded within two months. In the event decision made by the court is taken to appeal, the Supreme Court of Cassation makes a final judgment within one month.
[38] Code on Labour Courts is Dated 30.01.1950, with Number 5521.
[39] Social Securities and General Health Insurance Law (5510) Article No.21. With respect to work accident and vocational diseases, the liability of the employer and third parties.
If any work accident and vocational disease has taken place as a result of the intent of the employer or any action thereof in departure from legislative practices with respect to protection of the health of the insured and work security, the total amount of the payments already made as well as to be made in the future to the insured or parties entitled by the Institution as a requirement of this law and the initial capital in cash on the date of commencement of the allocated income are caused by the Institution to be made by the employer, subject to being limited to such amounts that the insured or parties entitled might claim from the employer. In determining the liability of the employer, non-abstinence principle is taken into consideration.
In the event any work accident is failed to be reported by the employer to the Institution within the term set forth under sub-article (a) of the second paragraph of Article No. 13 of the Labour Act such incapacitation allowance to be paid to the insured for such period to pass till the date of notice is collected by the Institution from the employer.
With respect to such works that it is indicated on the labour legislations in practice requiring obtaining of a health report, any insured employed without basing on such a report or employed in any work that is not convenient physically in departure from any available report, such temporary incapacitation allowance paid to the insured by the Institution for any disease determined as being in existence prior to entering the said job or arising as a result of being employed at any work that he/she is not physically fit for, is caused to be paid by the employer.
In the event the work accident, vocational disease and sickness have occurred due to fault of any third party, half of such payments already made or to be made in the future to the insured as well as initial capital in cash on the date of commencement of the allocated income, is sought recourse in third parties causing the damage and to those employing the aforesaid if they are at fault therefore.
If any work accident, vocational disease and sickness have taken place as a result of such acts performed by public officials, privates and those in charge of privates as well as such other persons assigned by public administrations as a requirement of their respective duties, except for those who have a finalized conviction decree on grounds of their such acts, for such payments made to the insured or parties entitled or for incomes allocated, it is not sought recourse in their respective institution or the parties concerned. Further, in the event of deaths as a result of work accidents or vocational diseases, for income to be accrued and allowances to be provided to the parties entitled pursuant to this Law, it is not sought recourse by the Institution in those parties entitled who are at fault in occurrence of the work accident or vocational disease, or to the parties entitle with respect to the faulty insured who died as a result of the work accident.
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