Human Resource Management Dersi 8. Ünite Özet

Introduction

The term “labor relations” is used in a general sense to describe the formal relationship between employers or employers’ organizations, workers or trade unions, and the state. labor relations have three major actors: workers and their organizations (trade unions), employers and their organizations (employers’ organizations) and the state. Labor relations comprise both individual and collective labor relations. The main distinction between individual and collective labor relations is the parties of this relationship. Individual labor relations are between an individual worker and his/her employer. However, trade unions are the fundamental party representing workers, and employers’ organizations can also represent the employers in the collective labor relations.

Basic Concepts about Individual Labor Relations

Some fundamental concepts regarding individual labor relations are defined according to the LA No: 4857 as follows:

(i). Worker: Workers act as one of the fundamental parties of individual labor relations. They are not independent (selfemployed) employees such as tradesmen and craftsmen; they shall work on the basis of subordination. Therefore, they carry out their tasks, and they are subject to an order and instruction relation. According to the LA “a real person who works based on an employment contract is called a worker”
(ii). Employer. On the opposite side of workers, there are employers in the individual labor relations. The LA defines the employer as “any real or corporate person or a noncorporate institution or organization employing workers” (art.2/1). In other words, it does not matter if the employer is a real or corporate person in public or private sector. Therefore, a university, a trade union, a chocolate factory, a shopping mall, a municipality or a foundation which employs workers are employers according to the LA.
(iii). Employer’s representative. According to the LA, “the employer’s representative is the person acting on behalf of the employer and charged with the direction of work, the establishment and enterprise. The employer is directly liable toward the workers for the conduct and responsibilities of his representative acting in this capacity. Any obligations and responsibilities for which the employer is liable under this Act shall also be borne by the employer’s representative. Bearing the status of an employer’s representative does not abrogate the rights and obligations which one has as a worker.
(iv). Establishment (Workplace): According to the LA, the establishment is a unit wherein the workers and material (building, machinery, equipment, etc.) and immaterial elements (patents, experience, inventions, relations with the customers, etc.) are organized with a view to ensure the production of goods and services by the employer (art. 2/1)
(v). Subcontractor: Although the employment relationship is bilateral in principal, there are some exceptional cases, i.e. subcontracting and temporary agency work that have a triangle relationship.

Employment Contract and Working Conditions

The employment contract establishes the individual labor relations between the worker and the employer. Therefore, an employee who does not work under an employment contract is not a worker according to the LA. The parties to an employment contract shall fulfil some bilateral duties throughout the contract. The main duties of workers in the course of the employment contract are the duty to work (by him/herself and with care and diligence), the duty of loyalty and, the duty to abide by the instruction and orders of the employer. The main duties of employers in the course of the employment contract are the duty to pay wages, the duty to protect the worker, the duty to provide equal treatment, the duty to deliver work tools and materials.

The Employment Contract

The LA defines the employment contract as “an agreement whereby one party (the worker) undertakes to perform work in subordination to the other part (the employer) who undertakes to pay him wages” (art. 8/1). The employment contract has three components: performance of work, wage, and dependency (subordination). The parties of an employment contract may determine a trial (probation) period that gives a chance to the employer to observe the worker’s suitably to the job and to the worker to experience the workplace and working conditions.

There are different types of employment contracts according to the LA. These are as follows:

(i). Transitory (temporary) employment contract: An employment contract for a temporary work is a temporary employment contract (art. 10).
(ii). Continual (permanent) employment contract: An employment contract for a permanent work is a temporary employment contract (art. 10). Permanent work is the work which, owing to its nature, requires a - period longer than 30 days is a permanent work.
(iii). Employment contract for a definite (fixed) term: “An employment contract for a definite period is one that is concluded between the employer and employee in written form, which has a specified term or which is based on the emergence of objective conditions like the completion of a certain work or the materialization of a certain event” (art. 11/1).
(iv). Employment contract for an indefinite term: “An employment contract is deemed to have been made for an indefinite period where the employment relationship is not based on a fixed term” (art. 11/1).
(v). Full-time employment contract: An employment contract that requires the workers to work during full office hours in the workplace is called a fulltime employment contract.
(vi). Part-time employment contract: “The employment contract shall be considered as a part-time contract where the normal weekly working time of the worker has been fixed considerably shorter in relation to a comparable worker working full-time” (art. 13/1).
(vii). On call work contract: The call work or work on call means “the performance of work by the worker upon the emergence of the need for his/her services” (art. 14/1).
(viii). Telecommuting (remote) employment contract: The technological changes reshape the labor relations and pave the way for new types of employment contracts. Particularly the improvements of the internet and computer technology have significant implications for labor relations.

Organization of Work

Wage

According to the LA, “Wage is, in general terms, the amount of money to be paid in cash by an employer or by a third party to a person in return for work performed by him/her” (art. 32/1). The amount of wage paid to the worker cannot be under the minimum wage. The minimum wage shall be determined every two years at the latest by the Minimum Wage Fixing Board, a tripartite body representing the state, workers, and employers.

Working Time

According to the LA, the working time is maximum 45 hours weekly and 11 hours daily. It shall be divided equally, unless agreed otherwise (art. 63/1, 2).

Overtime work is work which exceeds 45 hours a week. As mentioned above, the work which exceeds the maximum weekly working hours in the balancing period or compensatory work is not considered as overtime work. There are three types of overtime work:

(i). Normal overtime work: “Overtime work may be performed for purposes such as the country’s interest, the nature of the operation or the need to increase output.” This is defined as normal overtime work (art. 41/1).
(ii). Compulsory overtime work: Compulsory overtime work may be required in the case of an actual or potential malfunction, or in the case of urgent work to be performed on machinery, tools or equipment, or in the case of force majeure. The workers do overtime work until the establishment operates regularly (art. 42).
(iii). Overtime work in emergency (force majeure) situations: In the case of a declaration of mobilization by the President, overtime work in emergency is required at establishments serving the needs of national defense (art. 43).

Daily and Weekly Rests

According to the Constitution, “all workers have the right to rest and leisure” (art. 50/III). It is abnormal to work without any daily, weekly, or annual rest and leisure time. The workers are granted to have a rest in the daily working time to meet their ordinary needs, such as having a meal or coffee. The workers may spend their daily breaks wherever they want. According to the LA, the duration of the daily rest has been determined in consideration to the length of daily working hours as follows (art. 68):

• Daily working time ? 4 hours › Minimum 15 minutes
• 4 hours ›Daily working time ? 7,5 hours › 30 minutes
• Daily working time › 7,5 hours › minimum 60 minutes

Annual Paid Leave

According to the LA, “workers who have completed a minimum of one year service in the establishment since their recruitment, including the trial period, shall be allowed to take paid annual leave” (art. 53/1). The duration of the paid annual leave has been determined in consideration to the worker’s length of service as follows (art. 53/4):

• 1 year ? length of service ? 5 years › minimum 14 days
• 5 years › length of service › 15 years › minimum 20 days
• length of service ? 15 years › minimum 26 days

Occupational Health and Safety

One of the most important duties of employers is to take measures for occupational health and safety. According to the Occupational Health and Safety Act (OHSA) No: 6331, “The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work” (art. 4/1). All employees in the public and private sectors, including apprentices and trainees, are covered by the OHSA.

The Act obliges employers to decrease occupational risks by:

• taking risk assessment and accident prevention measures,
• employing occupational health and safety staff,
• setting up occupational health and safety boards (in companies where more than 50 people are employed),
• reporting and recording accidents and occupational sickness.

Terminating of Employment Contract and Severance Pay

The employment relationship is broken by the termination of the employment contract for different reasons, such as economic crises, downsizing, poor performance, disloyalty, health problems, the death or resignation of the worker, mobbing, etc. Although the bilateral duties of employers and workers are also cancelled by the termination of the employment contract, there are still two duties that must be accomplished by employers: giving the severance pay and issuing an employment certificate.

Terminating the Employment Contract

Either party may terminate the employment contract unilaterally by respecting a term of notice or with a just cause. By the notice of termination, either party gives a notice to the other party in advance, declaring that the employment contract will be terminated. According to the LA, the notice period is determined depending on the length of employment.

The worker can terminate the employment contract for a definite or an indefinite term, before its expiry or without observing the term of notice, in the following cases:

(i). For reasons of health (art. 24/I)
(ii). For immoral, or dishonourable conduct or other similar behaviour (art. 24/II)
(iii). Force majeure (art. 24/III) “Necessary suspension of work for more than one week in the establishment where the worker is working.”

The employer also can terminate the employment contract for a definite or an indefinite term, before its expiry or without observing the term of notice, in the following cases:

(i). For reasons of health (art. 25/I)
(ii). For immoral, or dishonourable conduct or other similar behaviour (art. 25/II)
(iii). Force majeure (art. 25III)
(iv). “If due to the worker’s being taken into custody or due to his arrest, his absence from work exceeds the notice period indicated in Article 17.”

Severance Pay

If the worker terminates the employment contract according to the art. 17 or if the employer terminates the employment contract according to the art. 25/II, the worker is not entitled to severance pay.

Basic Concepts about Collective Labor Relations

There are three fundamental pillars building collective labor relations: right to organize, right to collective bargaining, and right to strike. These rights complement each other and constitute institutional labor relations.

(i). Trade (labor) union. The parties of an employment contract, namely the worker and the employer, are equal legally, but not economically.
(ii). Confederation: Confederation refers to the umbrella organization having a legal personality established by the association of minimum five trade unions or employers’ organizations operating in different sectors (art. 1/1(f)).
(iii). Collective bargaining: Collective bargaining is a mutual rule-making process regulating the terms and conditions of employment.
(iv). Strike: Industrial action is one of the fundamental means of workers and trade unions to solve labor disputes and promote their economic and social interests. Strike is one of the forms of industrial action that is explicitly recognized in most of the countries.
(v). Lock-out: According to the TUCLA, “lock-out means any action taken by an employer or his representative, either upon his own initiative or in accordance with a decision taken by an organization, to collectively suspend workers from work in a manner that completely stops the activities in the workplace” (art. 59/1).

The Right to Organize and Collective Bargaining

According to the TUCLA, any person who completes 15 years of age and who is considered as a worker may join a trade union. Workers have both positive and negative union freedom.

Positive union freedom means the freedom of workers and employers to form and join unions and confederations of their own choosing. Negative union freedom means the freedom of the worker and employers not to join a union or to refrain from resigning or to resign from the union.

The Right to Strike and Lock-Out

When a collective interest dispute arises between the trade union and the employer or the employer’s organization at the bargaining table, the dispute is sought to be solved by mediation first. If the mediator resolves the dispute, the collective agreement is signed. However, when the mediator fails to settle the dispute, the trade union may decide to call a strike.