Business Law Dersi 7. Ünite Sorularla Öğrenelim

What are the requirements of an on-call employment contract?

Firstly, article 14 of the Labour Act requires the on call employment contracts to be concluded in writing.

Secondly, article 14/II of the Labour Act states that the weekly working hours of the employee working under an on call employment contract will be deemed 20 hours unless otherwise agreed by the parties in terms of week, month, year or another measure of time.  The employee is entitled to remuneration regardless of whether he/she had worked for the period determined as working hours.

Thirdly, the employer shall make his/her call at least four days prior to the day he/she needs the employee to work, unless otherwise agreed by the parties.

What are the employee's obligations out of an employment contract?

- Obligation to perform work

- Obligation to comply with the employer's orders and instructions

- Obligation of loyalty

- Obligation of non-competition

How can the employment contract be terminated?

The most encountered means of ending an employment relationship is via termination of the employment contract either by the employee (resignation) or the employer (dismissal). There are two types of termination of the employment contract: termination with notice and termination
with a just cause (termination without notice).

Who is a subcontractor as per the Turkish Labour Act?

It is a common practice where an employer (principal employer) delegates certain tasks within an establishment organization to another employer (subcontractor).

According to article 2/VI of the Labour Act, there are five criteria that shall be met in order to deem a relationship principal employersubcontractor relationship:

• Both the principal employer and the subcontractor shall be employers.

• The subcontractor shall be delegated with a task that is related to the production of goods and services rendered in the principal employer’s establishment.

• The work performed by the employees of the subcontractor shall be executed in the establishment of the principal employer.

• Only a part of the principalemployer’s work shall be delegated to the subcontractor.

• The employees of the subcontractor delegated to the principal employer’s work shall work exclusively in the principal employer’s establishment.

What are the regulations regarding termination with notice?

Termination of the employment contracts with notice is possible only in relation to employment contracts of indefinite duration. This is due to the fact that fixed term contracts, by their nature, are foreign to the concept of termination and in the normal course of the relationships, can end only upon expiration of the duration. Otherwise, the party who has not complied with the duration will be liable for the other party’s damages. The only exception to this
rule is termination with a just cause.

The procedure for enjoying the right of termination with notice is regulated in article 17 of the Labour Act. Accordingly, the party intending to terminate the employment contract shall give the other party notice in accordance with the periods set forth in this article.

What are the fundamental concepts of labour?

Employee, employer, employer's representative, subcontractor, establishment, and transfer of an establishment or its part are the concepts of labour.

What is "transfer of establishment or its part"?

It is a common practice where an establishment or a section of it is transferred to another employer. In such an event, the legal consequences concerning the employment contracts of the employees who work for the transferor is regulated in article 6 of the Turkish Labour Act. This provision ensures the protection of the transferor’s employees by stipulating that all employment contracts that are valid on the day of transfer shall be transferred to the new employer together with all rights and obligations arising thereof.

What action is taken in case of an abuse of the right to terminate?

In case the employment contract is terminated by the employer in bad faith, namely without due regard to objective bona fides rule, the employee shall be entitled to a bad faith compensation in the amount corresponding to three times the pay of notice period. In other words, termination by the employer in bad faith of the employment contract of an employee who is not covered under job security does not prejudice the validity of the termination; however, entitles the employee a compensation of bad faith. It should be noted that entitlement to compensation for bad faith is limited to employees who are not covered within the provisions of job protection.

How can an employment contract be concluded?

As a private law contract, conclusion of an employment contract can be concluded between parties with legal capacities to act. A minor with discernment may be a party to an employment contract upon the consent of his/her legal representative.

Under which circumstances is the formation of temporary work prohibited?

• A temporary employer cannot hire a temporary employee for the same work within six months following the finalization of a professional temporary work agreement.
• Temporary work relationship cannot be formed for a period of eight months in establishments that had undergone collective redundancies.
• Temporary work cannot be concluded in public institutions and organizations. • Temporary work cannot be concluded in the area of underground mining.
• Temporary work cannot be concluded during strikes and lockouts save for activities listed in article 65 of the Act No. 6356 on Trade Unions and Collective Labour Agreements.

Who are entitled to benefit from unemployment insurance?

• Unemployment insurance premiums shall have been paid in the last 120 days before the termination of the employment contract.
• Unemployment insurance premiums shall have been paid for a minimum of 600 days in the last three years before the termination of the employment contract.
• Termination of the employment contract shall be a result of the reasons set forth in article 51 of the Act No. 4447 which are not due to the malice or fault of the insured person. These reasons are listed could be one of the following:
- Termination of the employment contract by the employer with notice
- Termination of the employment contract by the employee without notice
- Termination of the employment contract by the employer without notice for reasons stipulated in article 25/I, and article 25/III of the Labour Act
- Unemployment as a result of expiration of the term of the fixed term employment contract.
- Termination of the employment contract as a result of the transfer or permanent shut down of the establishment or the change in the nature of the work or the establishment
? The insured person requesting unemployment benefits should not be receiving old-age pension of the SSI.
? The insured person shall apply to İŞKUR requesting payment of unemployment benefits.

Who is an employer as per the Turkish Labour Act?

Article 2/I defines an employee as a real person who works under an employment contract. Article 8 of the Turkish Labour Act No. 4857 defines employment contract as “a contract where one party (the employee) undertakes to subordinately perform work and the other to pay remuneration.” Accordingly, an employee is the party to an employment contract who undertakes to perform work and who is subordinate to the employer by being bound by the employer’s orders and instructions at the highest level. These two characteristics of the employer may either be assembled in one person or may be divided between different persons.

What are the legal sources of labour law?

Legal sources of labour law consist of international sources and national sources:

International sources: Labour law has a human rights aspect to it that makes it a common subject of international documents, particularly those that govern economic and social rights such as the Universal Declaration of Human Rights of 1948 and the International Covenant on Economic, Social and Cultural Rights of 1976 adopted by the United Nations. Among the international sources of labour
law, the most common and significant documents consist of the conventions and recommendations
of the International Labour Organisation (ILO).

National Sources: National sources consist of official sources and private sources. The former refers to the sources of legislation that are adopted by the competent legislative authorities; whereas the latter consists of sources unique to labour law.

What are the national sources of labour law?

Official sources are the legal sources of labour law that are adopted by the competent authorities with legislative power. The official sources consist of the Constitution, statues, by-laws and other legislative instruments of minor significance in the field of labour law such as regulations.

The private sources refer to the binding sources that are unique to labour law. Accordingly, collective labour agreements, individual employment contracts, internal regulations, establishment practices and employer’s right of direction constitute the scope of the private sources.

What are the  four statutes that directly govern individual employment
relationships?

- The Scope of Application of the Turkish Labour Act No. 4857

- The Scope of Application of the Maritime Labour Act No. 854

- The Scope of Application of the Press and Media Labour Act No. 5953

- The Scope of Application of the Code of Obligations No. 6098

When is  the Turkish Labour Act  not applicable?

• Maritime and air transport activities. However, loading and unloading activities to and from ships at the coasts or ports and piers, as well as activities related to the producers of water products that do not constitute an agricultural activity and do not fall within the scope of application of the Maritime Labour Act are subject to the Labour Act. Furthermore, the employees working in the ground services of aviation are also subject to the Labour Act.

• Establishments or enterprises of less than
50 (inclusive) employees where agriculturaland forestry work is carried out. Exceptions to this include agricultural crafts, activities carried out in workshops and factories where tools, machines and their parts are
manufactured for agricultural purposes, construction work carried out in enterprises on agriculture, and in activities related to parks and gardens that are open to public use or are adjunct facilities of an establishment. The employees working in establishments that carry out such activities that fall within the ambit of these exceptions are subject to the Labour Act.

• Any construction work related to agriculture that fall within the ambit of family economy.

• Handcraft activities that are performed within the household and by the members of a family and their relatives up to third degree (inclusive) kinship.

• Domestic work
• Apprentices
• Sportsmen
• Persons under rehabilitation
• Establishments of three employees which
fall within the definition of article 2 of the
Act No. 507 on Tradesmen and Craftsmen.

How are individual employment contracts defined?

Article 8 of the Turkish Labour Act No. 4857 defines an employment contract as “a contract where one party (employee) undertakes to subordinately perform work and the other to pay (employer) remuneration.” From this definition derives three elements, namely performance of work, remuneration and subordination, the existence of which are essential in the formation of an employment contract.

Who is an employee as per the Turkish Labour Act?

Article 2/I defines an employee as a real person who works under an employment contract. Article 8 of the Turkish Labour Act No. 4857 defines employment contract as “a contract where one party (the employee) undertakes to subordinately perform work and the other to pay remuneration.” Accordingly, an employee is the party to an employment contract who undertakes to perform work and who is subordinate to the employer by being bound by the employer’s orders and instructions.

What is an establishment as per the Turkish Labour Act?

The establishment is defined in article 2/I-III of the Turkish Labour Act as the unit where employees and material and immaterial elements are organized with the objective of producing goods and services by the employer. The establishment is a unity of work organization which includes adherent parts, adjunct facilities and vehicles. 

When can a contract be terminated with a just cause?

1. Reasons of health:

a. In case the performance of the work arising out of the employment contract becomes a threat to the health or life of the employee due to the nature of the work

b. In case the employer or another employee with whom the employer is constantly in a close and direct contact has a contagious disease or an illness that does not suit the employee’s work

2. Cases that are against the rules of morality and good faith and similar reasons:

a. If the employer misleads the employee during the making of the contract regarding the essential points of this contract

b. If the employer makes negative comments about the honour and decency of the employee or his/her family member or engages in an act thereof or sexually harasses employee

c. If the employer bullies, threatens the employee or a member of his/her family or encourages, provokes or leads them to engage in an unlawful act or commits a crime against the employee or his/ her family member that is punishable with imprisonment or makes serious allegations or accusations against the honour and dignity of the employee

d. If the employee becomes a victim of sexual harassment by another employee or a third party and the employer fails to take necessary precautions despite having been informed about the situation by the employee

e. If the employee’s remuneration is not calculated or paid in accordance with the laws or terms of contract

f. In cases where the remuneration is agreed in terms of quantity and the employer provides the employee with work less than his/her capability, if the difference in the remuneration is not paid in terms of time and thus, the deficit in the employee’s remuneration is not reimbursed or if the working conditions are not applied

3. Force majeure: In case of emergence of reasons of force majeure that require the operations in the establishment to halt for a period exceeding one week. 

4. In case of arrest or detention of the employee that results in the absence of the employee that exceeds the notice period as governed in article 17 of the Labour Act.

What are the employer's obligations out of an employment contract?

- Obligation to pay wage

- Obligation to protect employees

- Obligation of equal treatment

The employer is also required to perform other obligations arising out of the employment relationship as set forth in law, in the employment contract and in the collective labour agreement. Among the former lies obligations such as the obligation to provide tools and equipment necessary for the performance of work, obligation to reimburse the expenses rendered by the employee, and obligation to make payment to a worker who makes an invention.

What is the duration of an employment contract?

Employment contracts of definite and indefinite duration are governed in articles 11 and 12 of the Turkish Labour Act. Unless otherwise agreed upon by the parties, an employment contract is deemed to have been concluded for an indefinite duration.

Parties intending to conclude a fixed term employment contract shall have an objective reason to make such a contract. This objective reasons can be due to the nature of the work, be directed towards the completion of a job, the emergence of a fact such as a temporary leave of absence of an employee due to birth, illness, etc. or a similar objective reason.

In what ways are the part-time and full-time employees different?

The principle of equal treatment is valid between part-time and full-time employees and article 13/II of the Labour Act explicitly prohibits different treatment of part-time employees from comparable employees working under full-time contracts without valid reason. Furthermore, divisible monetary benefits shall be granted to parttime employees in proportion to their working time unless there are valid reasons to act otherwise.

Which groups are prohibited from the formation an employment relationship?

Children under the age of 15 shall not be put to employment. However, children who are 14 years old or above and have completed their mandatory elementary education can be employed in light work that does not hinder their physical, mental and moral development and for those continuing their education, their schooling. Furthermore, children under the age of 18 shall not be employed in underground and underwater work, as well as in
the night work of industrial activities.

Women shall not be employed in underground and underwater work. Furthermore, employment of women in night shifts is subject to special regulations.  Work of pregnant and nursing women are subject to special conditions.

Employment of non-nationals in Turkey, as a rule, is subject to an obtainment of work permits, unless otherwise set forth by law.

Who is an employer's representative as per the Turkish Labour act?

Employer’s representative is defined in article 2/IV as “persons who act on behalf of the employer and take part in the management of the work, establishment and the enterprise.” This definition indicates that an employer’s representative entails two elements. The first one is the authority to directly represent the employer. All legal transactions concluded by the employer’s representative bear legal consequences within the legal ambit of the employer. Secondly, the employer’s representative shall take part in the management of the work, establishment and the enterprise. The level of this management is irrelevant in determining the status of an employer’s representative.

Who are the workers with the employer is legally bound to conclude an employment contract?

- Persons with disabilities, ex-convicts, and persons injured while fighting terrorism

- Employees dismissed as part of a collective redundancy

- Workers whose disability has been treated(reinstatement)

- Workers returning from military service or other legal duty(reinstatement)

"According to article 8 of the Turkish Labour Act, employment contracts are not subject to a special form unless otherwise set forth in the law. "

What are the exception to this rule?

• Fixed term employment contracts with a duration of one year or longer
• On call employment contracts
• Employment contracts for distance work
• Employment contracts for temporary work
• Gang contracts
• Employment contracts concluded with the legal representatives of a child or young worker
• All employment contracts subject to the Maritime Labour Act
• All employment contracts subject to Press and Media Labour Act

What is the permission to seek new employment right?

In case of termination with notice, the employer has to grant the employee
permission to seek employment during the working hours without any deductions from the employee’s wage for the periods spent in employment hunt.

Under which conditions can a non-competition agreement be valid?

• The employee shall have full legal capacity.
• The non-competition agreement shall be concluded in writing.
• The work performed by the employee shall provide the employee with information about the employer’s customers, production confidentialities or the work performed by the employer.
• The usage of such information shall have the potential to cause significant damage on the employer.
• Conclusion of the non-competition agreement shall not endanger the economic future of the employee. In this respect, the non-competition clause shall be limited in terms of territory, time and subject.

What is a trial period in an employment contract?

With the conclusion of an employment contract, the parties engage in a continuous contractual relationship and in this relationship, the labour of the employee, and hence his/her personality, is directly relevant in performance of obligations. Therefore, with a view to observe employee’s adaption to the work and the working environment, parties to an employment contract are free to insert a trial clause to the contract.

By doing so, the employer may see if the employee is fit for the position and the employee may see if the job is right for him/her.

In which conditions are employees granted job security?

• The employee shall be subject to either the
Labour Act or the Media and Press Labour Act.

• The employee shall be working under
an employment contract of indefinite
duration.

• There shall be thirty or more employees
working in the establishment.

• The employee shall not be an employer’s representative or an assistant employer’s representative who manages the enterprise in its entirety or an employer’s representative who manages the workplace in its entirety and who assume the authority to recruit or dismiss workers.

• The employee shall have seniority of six months working under the employer.

What do not constitute reasons or grounds for  valid termination?

(a) union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours.

(b) being a trade union’s representative in the establishment.

c) the filing of a complaint or the participation in proceedings against an employer before administrative or judicial authorities with a view to claim one’s rights or to realize one’s obligations arising out of the law or the contract.

(d) race, colour, gender, marital status, family responsibilities, pregnancy, birth, religion, political opinion, and other similar grounds.

(e) absence from work during the period where the woman employee shall not be put to work as set forth in article 74.

(f) temporary absence from work because of illness or accident during the waiting period set forth in article 25/I(b).”

What is termination with payment in advance?

In cases where the employer no longer wants or requires the services of the employee whose employment contract has been terminated with notice by the employer, the employer is entitled to immediately end the employment relationship by paying the wage of the employer corresponding to the notice period (payment in lieu of notice) in advance.

What is unjust termination?

Unjust termination refers to the case where the termination by the employee or the employer without notice is not relied on a just cause or the just cause relied on cannot be proved or the period stated in article 26 is not complied with. In case of unjust termination by the employer, a distinction shall be made between employees working under an employment contract of definite duration and those working under an employment contract of indefinite duration.

Who is entitled to severance allowance?

• The employee shall have at least one year seniority working under the same employer

• The employment contract shall have ended
due to specific reasons:

- Termination by the employer. As a rule, termination by the employer will grant the employee the right to severance allowance if other conditions are met.

- Termination by the employee. Although termination by the employee, in principle, does not grant him/her the right to severance allowance, there are exceptions to this rule. Accordingly, in the following cases, termination by the employee will award him/her the right to claim severance allowance if other conditions are met:

? Termination by the employee with a just cause
? Termination by the employee for the purpose of performing compulsory military service

? Termination by the employee with the objective of receiving old-age pensions or invalidity pension

? Termination by the woman employee within one year following the date of her marriage

? Termination by trade union officers with a view to perform their union duties

? Death of the employee. In case the employment relationship ends due to the death of the employee, severance allowance of the deceased employee shall be paid to his/her heirs.

How is working time regulated by the Labour Act?

The Labour Act, defines working time as “the period spent by the employee in work. Periods governed in article 66/I of the Labour Act are also considered as working times.” In this respect, periods set forth in article 66/I of the Labour Act are calculated as part of the daily working hours of the employee despite the fact that the employee is not performing active work during these periods. 

The normal weekly hours of work of employees shall be maximum 45 hours. Hours spent in work that exceed the normal weekly hours of work are called overtime work. In cases of overtime work, employees will be entitled to overtime wages. 

What action may be taken in case of an invalid termination?

In case the employer terminates the employment contract of an employee who is covered within the job security provisions in the absence of a valid reason or without complying with the necessary procedure for termination, the employee has the right to file a case for reinstatement before the labour courts, or upon agreement by both parties, take it to an arbitrator within one month following the notification of termination.

What are the resting period rights employees?

- Daily rest

- Weekly rest

- National and general holiday

- Annual leave with pay

When is an employment contract considered invalid?

As a private law contract, validity of an employment contract is dependent on the existence of validity conditions such as legal capacity and the subject matter of the contract being in conformity with the imperative legal rules, morality, public order, and personality rights and not impossible to be realized. Just as any other legal transaction, employment contracts that are concluded without satisfying all of the general and special conditions for validity are void and therefore, cannot be effective and cannot cause legal consequences. Furthermore, they cannot obtain validity afterwards.

What is professional temporary work?

Professional temporary work is a form of temporary work that is formed through private employment agencies which also aims at satisfying a temporary need. As a result of the essential position of the private employment agencies in this type of work, it is also called “temporary agency
work”.

Who is covered within the universal healthcare insurance in Turkey?

As a “universal” insurance scheme, the healthcare insurance has a broad personal scope of application which is governed in article 60 of the Act No. 5510. Apart from specific groups set forth in this article, all persons residing in Turkey are covered within the universal healthcare insurance either as insured persons or as their dependents.

How can changes be made in the terms of a contract?

As a result of the fact that an employment contract is a private law contract, changes made in the terms of the contract is subject to the mutual agreement of the parties.

Who is insured persons and partially insured persons within the social security system?

Insured Persons:

• Persons working for one or more employers under an employment contract (Article 4/I(a))
• Village and district headmen and independent workers (Article 4/I(b))
• Public servants (Article 4/I(c))

Partially Insured Persons:

• Convicts and detainees who are not party to an employment contract and who work in the facilities, workshops and similar units of prisons and detention homes

• Candidate apprentices, apprentices and students of vocational training in enterprises who are subject to the Act No. 3308 on Vocational Training

• The payment of invalidity pensions of war veterans who are disabled and various groups of persons who are disabled during active duty and who continue to work as insured persons

• Participants of the training courses organized by the Turkish Employment Institution (İŞKUR) on obtaining, developing and changing vocations shall benefit from insurance for occupational hazards and diseases, as well as the universal healthcare insurance.

• Turkish nationals who are employed by employers in foreign countries with
which Turkey does not have social security agreement shall benefit from short-term insurance schemes, as well as the universal healthcare insurance.

• Other persons set forth in relevant legislations

What do the short-term social insurance schemes consist of?

- Occupational hazard

- Occupational disease

- Sickness insurance

- Maternity insurance

What is severance allowance?

Employees who have worked for the same employer for a certain period of time are entitled to a severance allowance in the amount corresponding to their thirty days’ wage for every year they have worked for that employer.

What are long-term social insurance schemes?

- Invalidity insurance

- Old-age insurance

- Death insurance

What is unprofessional temporary work?

Unprofessional temporary work refers to the type of employment relationship where an employee is transferred to another establishment in the same holding or corporate group to satisfy a temporary need and thus, for a temporary period of time. In this respect, an unprofessional temporary work relationship with an employee can be established only for a temporary period of time and only regarding employers that are organized in the same holding or corporate group.

How can an employment relationship be ended by a mean other than termination?

- Mutual agreement

- Death

- Expiration of definite duration

Who is a non-insured person?

• The spouse of the employer who works in the establishment without pay. (Article 6/I(a))

• Work performed within the household and among relatives up to third degree (inclusive) kinship without any third-party participation. (Article 6/I(b))

• Domestic workers; except those who are insured pursuant to additional article 9/II and those who work 10 or more days under the same person. (Article 6/I(c))

• Persons performing their military service as privates and the students of reserve officer school. (Article 6/I(d))

• Persons regulated in Article 6/I(e) who certify that they are insured in a foreign country. The provisions of international social security agreements are reserved. (Article 6/I(e))

• Students of higher education who perform construction and production activities as part of their education. (Article 6/I(f))

• Persons with diseases or persons with disabilities who are rehabilitated or integrated into working life via healthcare service providers. (Article 6/I(g))

• Independent workers or public servants who are under the age of 18. (Article 6/I(h))

• Agricultural or forestry workers specified in Article 6/I(i). (Article 6/I(i))

• Independent workers specified in article 6/I(k) with low income. (Article 6/I(k))

• Persons employed in foreign missions of public administrations as specified in article 6/I(l). (Article 6/I(l))

• Persons who are assigned duties in youth and sports activities as specified in article 6/I(m). (Article 6/I(m))

• Independent workers who continue working while receiving old-age pensions. (Article 6/I(n))

Who can benefit from voluntary insurance?

• The insured person has to either reside in Turkey or to be a Turkish citizen who, while residing in Turkey, is sent to a country with which Turkey has not signed a social security agreement.
• The voluntarily insured person shall not be insured under the long-term social security schemes as a result of their employment. Exceptionally, those who are not employed full time may join the voluntary insurance scheme for the complementary hours.
• The voluntarily insured persons shall not be receiving disability allowances or oldage pensions from the SSI as a result of any previous employment.
• The person applying to voluntary insurance scheme shall be at least 18 years old.
• The person shall apply to the SSI with the claim of joining the voluntary insurance scheme.