Turkey: Employment & Labour Law 2019 - ICLG
The ICLG to: Employment & Labour Laws and Regulations - covers common issues in employment and labour laws and regulations – terms and conditions of employment, employee representation and industrial relations, discrimination, maternity and family leave rights and business sales – in 51 jurisdictions 1. Terms and Conditions of Employment The main sources of employment law are as follows: The Turkish Constitution. Turkish Labour Act numbered 4857 (the “TLA”). Law on Trade Unions and Collective Bargaining Agreements numbered 6356 (the “Union Law”). Law on Civil Service Trade Unions and Collective Bargaining Agreements numbered 4688. Maritime Labour Law numbered 854. Press and Media Labour Law numbered 5953. Turkish Code of Obligations numbered 6098 (the “TCO”). Occupational Health and Safety Law numbered 6331. Labour Courts Act numbered 7036. The secondary laws and regulations including annual leave, working hours, overtime work, minimum wage and female and child employees. Communiqués and circulars published by the Ministry of Labour and Social Security with regards to the application and recommendation of the labour legislation. Court of Appeal’s Assembly of Civil Chambers decisions on the unification of the conflicting judgments. Employment contracts, collective bargaining agreements, internal regulations/personnel regulations. There are different types of employment contracts regulated under the TLA, such as, definite term- indefinite term, full time-part time, continual-transitory contracts, in addition to those there are also on-call and seasonal service employment contracts. 1.3 Do contracts of employment have to be in writing? If not, do employees have to be provided with specific information in writing? It is not mandatory for employment contracts to be written according to the TLA. However, fixed- term employment contracts with a term of at least one year should be in writing. In addition to that, employees must be provided with a written statement including: the names of the employer and employee; basic salary; salary payment periods; and working hours. 1.4 Are any terms implied into contracts of employment? Workplace practices are the unwritten terms implied within employment contracts. Any change to the working conditions that the employer makes based on the workplace practices, may be made only after employees’ are notified by a written notice. Changes that do not conform with this procedure and are not accepted by the employee in written form within six working days shall not bind the employee. If the employee does not accept the offer for change within this period, the employer may terminate the employment contract by respecting the term of notice, provided that he indicates in written form that the proposed change is based on a valid reason or there is another valid reason for termination. In this case, the employee may file a lawsuit against the employer. 1.5 Are any minimum employment terms and conditions set down by law that employers have to observe? The employer shall pay employees their wages and employ them with jobs in accordance with their occupational skills or status, without any reduction in wages. Additionally, employers are under an obligation to enforce the decisions of the occupational health and safety board in accordance with the legislation on occupational health and safety. 1.6 To what extent are terms and conditions of employment agreed through collective bargaining? Does bargaining usually take place at company or industry level? Article 41 of the Code on Trade Unions and Collective Bargaining Agreements (No. 6356) sets out the thresholds for a union to have the authority to enter into a Collective Bargaining Agreement (“CBA”) with an employer. Bargaining may take place on a company or industry level. 2. Employee Representation and Industrial Relations 2.1 What are the rules relating to trade union recognition? ICLG.com According to Article 2 of the Law on Trade Unions and Collective Labour Agreements, trade union refers to the organisations having legal personality to carry out activities in a group established by the association of at least seven workers or employers, in order to protect and promote their common economic and social rights and interests in labour relations. 2.2 What rights do trade unions have? Trade unions are entitled to issue an invitation to meet for collective bargaining and negotiate the terms and conditions of collective employment contracts to the employers on behalf of the employees. Besides, they are entitled to take actions in order to enforce aforesaid terms and conditions. Trade unions are entitled to act on behalf of the employees and represent them during the proceedings for protecting their rights arising from collective labour agreements or legislation. 2.3 Are there any rules governing a trade union’s right to take industrial action? In the event of a dispute arising during negotiations to conclude a collective labour agreement, Trade unions are entitled to take industrial action with the aim of safeguarding or improving workers’ economic and social positions and working conditions. After the trade union issues an invitation to meet for collective bargaining and the employers fail to appear at the first meeting determined for the collective bargaining, or even if present at the meeting, fails, to attend the meetings after the commencement of the bargaining, or if the parties record in a report that they have failed to come to an agreement or if the period for collective bargaining terminates without any agreement, the trade union shall inform the situation to the competent authority (Regional Directorate of Employment and Labour or the Ministry of Labour and Social Security) in writing within six working days. Upon receiving the dispute in a report, the competent authority shall assign a mediator within six working days. The term of duty of the mediator shall be 15 days starting from the notification. However, this term may be extended for a maximum of six working days with the consent of the parties, and the competent authority shall be informed accordingly. If the parties fail to come to an agreement at the end of the time limit fixed for mediation, the mediator shall record the dispute within three working days and submit this report to the competent authority together with his recommendations and proposals to bring about a settlement of the dispute. The competent authority shall transmit a copy of this report to each of the parties within at least three working days. A decision to call a strike may be taken in 60 days following the notification date of the report. 2.4 Are employers required to set up works councils? If so, what are the main rights and responsibilities of such bodies? How are works council representatives chosen/appointed? ICLG.com Employers are not obligated to set up works councils. 2.5 In what circumstances will a works council have co-determination rights, so that an employer is unable to proceed until it has obtained works council agreement to proposals? The consequence of not having an obligatory works council, is that some employees cannot enjoy the co-determination rights arising from the related law. 2.6 How do the rights of trade unions and works councils interact? The interaction between the rights of trade unions and works councils is not regulated under Turkish Law. 2.7 Are employees entitled to representation at board level? Employees are not entitled to representation at board level. 3. Discrimination 3.1 Are employees protected against discrimination? If so, on what grounds is discrimination prohibited? The Turkish Constitution, the TLA, and the Law on Human Rights and Equality Institution of Turkey numbered 6701 (“Law No. 6701”) prohibits the discrimination of employees. According to Article 5 of the TLA, no discrimination based on language, race, political opinion, philosophical belief, religion, sex or any similar reason is permissible in the employment relationship. 3.2 What types of discrimination are unlawful and in what circumstances? The employer must treat the workers in the same and/or similar positions equally unless there are valid grounds concerning that employment relationship. In addition, the employer cannot impose different standards for union members and non-union members. 3.3 Are there any defences to a discrimination claim? Generally, the employee will have to prove the discrimination. 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. According to the TLA, except for biological reasons or reasons related to the nature of the job, the employer must not discriminate, 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. 3.4 How do employees enforce their discrimination rights? Can employers settle claims before or after they are initiated? ICLG.com Employees can apply to court directly or they can claim their rights from the employer before starting the legal process. The employees can also apply for mediation. 3.5 What remedies are available to employees in successful discrimination claims? If an employer breaches the equal treatment principle, the employee is entitled to request compensation of up to four months of his/her salary. The employee can also claim rights, from which he/she has been deprived, e.g., loss of salary. The employer will also be subject to an administrative fine amounting to TRY 219 (subject to review) per employee. 3.6 Do “atypical” workers (such as those working part-time, on a fixed-term contract or as a temporary agency worker) have any additional protection? Unless there are essential reasons, the employer must not discriminate between a full-time and a part-time employee or an employee working under a fixed-term employment contract, the duration of which is for a definite period and one working under an open-ended employment contract, which is entered into for an indefinite period. This principle is also applicable for temporary workers. 4. Maternity and Family Leave Rights 4.1 How long does maternity leave last? Female employees are entitled to 16 weeks of paid maternity leave. Of these 16 weeks of leave, eight weeks have to be taken before the birth and the other eight weeks have to be taken after the birth of the baby. In case of a multiple pregnancy, an extra two-week period is added to the eight weeks before confinement. In addition, upon a medical report proving the worker’s suitability, she may work at the establishment until three weeks before delivery. The unused leave period shall be added on top of the period allowed after the delivery. The above mentioned 16 weeks and 18 weeks may be increased before and after confinement according to the woman’s health condition. Moreover, depending on the number of children the employee has, she can receive permission to work part-time. If the employee is having their first child, maternity leave can last for 60 days. If the employee is having their second child, it is for 120 days and lastly, if the employee has more than two children, then the employee has the chance to take maternity leave for 180 days. In addition to part-time maternity leave in a multiple pregnancy, 30 more days are added. In case of disability of the child or adoption, this period becomes 360 days more. An employee can also take unpaid maternity leave for six months. 4.2 What rights, including rights to pay and benefits, does a woman have during maternity leave? ICLG.com During a multiple-pregnancy maternity leave (the term of which lasts for 16 weeks and 18 weeks) workers are paid two-thirds of their daily earnings. This fee is paid by the Social Security Institution. The worker must have been covered by the Social Security Institution for at least 90 days before the estimated date of delivery. The other relevant cash benefits related to maternity include the Pregnancy Benefit (subject to certification of pregnancy before the date of child birth), the Child Birth Benefit (depending on the type of child birth) and Nursing Grant (on live birth). 4.3 What rights does a woman have upon her return to work from maternity leave? Female employees are entitled to one-and-a-half hours of daily leave for the breastfeeding of their children under the age of one. 4.4 Do fathers have the right to take paternity leave? Mal e employees will be allowed to take five days paid leave in case of paternity leave. 4.5 Are there any other parental leave rights that employers have to observe? In the case of working parents, one of the parents may work part-time until the child starts primary school. An employee who wants to benefit from this right shall notify the employer in writing at least one month before. 4.6 Are employees entitled to work flexibly if they have responsibility for caring for dependants? Parents are allowed to take 10 days paid leave to attend the treatment of the child who has at least 70 percent disability or chronic disease. 5. Business Sales 5.1 On a business sale (either a share sale or asset transfer) do employees automatically transfer to the buyer? In the case of a business sale via a share sale, the employees of the business will continue in their positions. They will also keep all their entitlements, including annual and long-service leave and rates of pay and conditions. In case of an asset transfer, the purchaser can purchase the business with or without taking on the existing employees of the business. If the purchaser agrees to purchase the business and take on its employees, the employees will need to be transferred to the purchasing entity. 5.2 What employee rights transfer on a business sale? How does a business sale affect collective agreements? According to Article 6 of the Labour Law No. 4857, in an executed transfer, the transferor and transferee shall be jointly liable for the obligations which have materialised before the transfer and ICLG.com which must be defrayed on the date of the transfer. The liability of the transferor is limited, however, to the two-year period following the date of the transfer. 5.3 Are there any information and consultation rights on a business sale? How long does the process typically take and what are the sanctions for failing to inform and consult? On a business sale, there are no information and consultation rights. 5.4 Can employees be dismissed in connection with a business sale? The transferor or the assigning employer is bound by the employment contract because of the transfer of part of the workplace or workplace and the transfer does not constitute a justifiable reason for termination in terms of the employee. The right of the transferor or the transferee to terminate for reasons necessitated by economic, technological or organisational changes is reserved; so is the employer’s and the employee’s right to break the contract for just cause. 5.5 Are employers free to change terms and conditions of employment in connection with a business sale? Employers are not entitled to change the terms and conditions due to a business sale. However, if workers give written permission, employers will have the right to change the qualifications of the work. 6. Termination of Employment 6.1 Do employees have to be given notice of termination of their employment? How is the notice period determined? Article 17 of the Labour Law No. 4857 regulates the period of notice in an indefinite-term employment agreement. In the case of an employee whose employment has lasted less than six months, the notice period is two weeks. If it is six to 18 months, the notice period is four weeks. If it is 18 months to three years, the notice period is six weeks. And lastly if it is more than three years, the notice period is six weeks. However, these are minimum periods and may be increased by contracts between the parties. 6.2 Can employers require employees to serve a period of "garden leave" during their notice period when the employee remains employed but does not have to attend for work? Garden leave is not common in Turkish Law. However, according to the liberty of contract principle, parties have the right to add a garden leave clause to their contracts and settlements. 6.3 What protection do employees have against dismissal? In what circumstances is an employee treated as being dismissed? Is consent from a third party required before an employer can dismiss? ICLG.com The termination of a fixed-term agreement must be based on a justified reason. Otherwise, the employee can claim the amount to be won by the end of the fixed-term agreement. As for the annulment of an indefinite-term agreement, in principle, the employer can terminate the contract by complying with the notice periods. If the employment agreement has a trial period which can be up to a maximum of two months, the employee may terminate the contract within the trial period without notice. A third party’s consent is not required for termination of employment. 6.4 Are there any categories of employees who enjoy special protection against dismissal? The employer, who terminates the contract of an employee engaged for an indefinite period, who is employed in an establishment with 30 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. However, this regulation 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. 6.5 When will an employer be entitled to dismiss for: 1) reasons related to the individual employee; or 2) business related reasons? Are employees entitled to compensation on dismissal and if so how is compensation calculated? According to Article 25 of the TLA, the employer may terminate the contract, whether for a definite or indefinite period, before its expiry or without having to comply with the prescribed notice periods, if there is a valid reason. Those valid reasons are classified in Article 25 of the TLA as reasons of health, immoral, dishonourable or malicious conduct or other similar behaviour, force majeure. If the employment contract has ended due to immoral, dishonourable or malicious conduct or other similar behaviour, the employer does not have to pay the severance payment. In other cases, the employer has to pay the severance payment. There are no other valid reasons such as business-related reasons, apart from the ones mentioned in Article 25. If the length of service is longer than a year, the employer must pay a severance payment at the rate of 30 days’ salary for each year. If, upon the application of the employee, the employer does not re-engage him in work, compensation consisting of no less than the employee’s four months’ wages and no more than his eight months’ wages, shall be paid to him by the employer. 6.6 Are there any specific procedures that an employer has to follow in relation to individual dismissals? ICLG.com As mentioned in question 6.5, if the reason for the termination of the contract is for immoral, dishonourable or malicious conduct or other similar behaviour, the employer has six working days and in any case within one year after discovering the employee’s act to terminate the contract. The employer must notify the employee with a written statement. For the employees protected under job security provisions, the employer is under the liability to inform the employee of his/her performance or misbehaviour and obtain a written defence before terminating the contract. 6.7 What claims can an employee bring if he or she is dismissed? What are the remedies for a successful claim? The employee can file a lawsuit with a determination request within a month after the notification. If there is a court decision, the employer must pay between four to eight months’ salary. 6.8 Can employers settle claims before or after they are initiated? 8/29/2019 Employment & Labour Law 2019 | Turkey | ICLG Yes, employers can settle claims before or after they are initiated. 6.9 Does an employer have any additional obligations if it is dismissing a number of employees at the same time? To be considered as collective dismissal, the employer shall terminate the employment contracts of: a) at least 10 employees in a workplace where there are 20 to 100 employees; b) at least 10 percent of the workers in a workplace, where there are 101 to 300 employees; or c) at least 30 workers in a workplace with 301 or more employees. The termination of the contracts on the same date or on different dates within a month shall be deemed to be collective dismissals in accordance with TLA. When the employer contemplates collective terminations for reasons of an economic, technological, structural or similar nature necessitated by the requirements of the enterprise, the establishment or activity, he shall provide the union shop-stewards, the relevant regional directorate of labour and the Public Employment Office with written information at least 30 days prior to the intended lay-off. The said written communication shall include the reason for the contemplated lay-off, the number and groups to be affected by the lay-offs as well as the length of time the procedure of terminations is likely to take. The employer is obliged to give notice to the employees in accordance with their working periods in terms of the issuance of notice or to pay the severance pay. Unused vacation balances must be paid in advance to the employee. ICLG.com 6.10 How do employees enforce their rights in relation to mass dismissals and what are the consequences if an employer fails to comply with its obligations? The employer is compelled to pay an administrative fine for every employee subject to the collective redundancy if it does not comply with its obligations. 7. Protecting Business Interests Following Termination 7.1 What types of restrictive covenants are recognised? Non-compete, non-solicitation and confidentiality clauses are recognised as restrictive covenants. 7.2 When are restrictive covenants enforceable and for what period? 8/29/2019 Employment & Labour Law 2019 | Turkey | ICLG According to the TCO, a non-competition agreement shall be made in written form and the employee must have an opportunity to obtain information on confidential production information, the employer’s business truncations or customer portfolio in relation with their job position. The time of the agreement, apart from special circumstances and conditions, cannot exceed two years from the termination date of the employment agreement. Furthermore, the agreement should be limited by location within a certain city or particular region. 7.3 Do employees have to be provided with financial compensation in return for covenants? The employees do not have to be provided with financial compensation in return for covenants according to the TCO. 7.4 How are restrictive covenants enforced? The employee who breaches the non-competition agreement, is under obligation to compensate the employer’s all incurred damages. Beside this, the parties could put a penalty clause in the agreement. 8. Data Protection and Employee Privacy 8.1 How do employee data protection rights affect the employment relationship? Can an employer transfer employee data freely to other countries? Pursuant to Article 419 of the TCO, the employer can only use the personal data of the employee if they are fit for work or if it is required for the fulfilment of the service agreement. According to the Law on the Protection of Personal Data, personal data cannot be transferred abroad without the explicit consent of the employee. However, it may be transferred abroad without ICLG.com the explicit consent of the employee in one of the exceptional conditions set forth in the aforesaid Law. 8.2 Do employees have a right to obtain copies of any personal information that is held by their employer? According to the Law on the Protection of Personal Data, employees shall lodge an application in writing to the employer about their demands to obtain copies of any personal information. The employer shall conclude the demands involved in the applications free of charge within the shortest time possible, depending on the nature of the demand and within 30 days at the latest. The employer shall accept the application or decline it on justified grounds and communicate its response to the employee in writing or in electronic media. If the demand involved in the application is found admissible, it shall be indulged by the employer. The employee shall be reimbursed for the application fee provided that the application has been lodged due to a mistake by the employer. 8.3 Are employers entitled to carry out pre-employment checks on prospective employees (such as criminal record checks)? The employer cannot directly obtain a criminal record of an employee, as criminal records can only be provided to the individual to whom it relates or his/her proxy. However, the employer may request a criminal record from the employer during the recruitment process. 8.4 Are employers entitled to monitor an employee’s emails, telephone calls or use of an employer’s computer system? According to precedents of the Court of Appeals, generally, employers have thorough control over the computers they provide to employees in the business relationship with the employer. However, the Constitutional Court made a decision on 24 March 2016, stating that if an employer has notified its employees that a business email account can be reviewed and is used only for business purposes, the employer has a right to review these emails even if they contain personal information. Employees’ phone conversations and text messages cannot be examined or recorded. 8.5 Can an employer control an employee’s use of social media in or outside the workplace? According to Turkish law, there is no legal regulation on the employer’s authority to directly monitor the social media account of the employees. However, it is accepted that employers can monitor employee’s social media activities without having the prior consent of the employee if the social media content is public. If it is not, then the employer cannot control it. 9. Court Practice and Procedure 9.1 Which courts or tribunals have jurisdiction to hear employment-related complaints and what is their composition? Labour Courts are the specialist courts for disputes related to employment relationships and are entitled to hear all claims arising out of the employment relationship. 9.2 What procedure applies to employment-related complaints? Is conciliation mandatory before a complaint can proceed? Does an employee have to pay a fee to submit a claim? For employment-related complaints, a simple procedure is applied. Therefore, only plaint and response petitions can be filed by the parties and no further exchange of petitions can be carried out. Settlement in pairs is not mandatory. However, the new Law of the Labour Courts was published on 12 October 2017. Accordingly, in the case of an employee or employer who is based on a personal employment contract or collective labour agreement in the cases filed with the claim and reimbursement with compensation, it is obligatory to apply to the mediator. The claimant should pay the application fee and cost of proceedings at the beginning of the case. In accordance with the Code of Civil Procedure, a claimant can use legal aid if they cannot afford the cost of the proceedings. 9.3 How long do employment-related complaints typically take to be decided? Generally, a first instance proceeding before a Labour Court takes around one to two years excluding the mandatory mediation period. 9.4 Is it possible to appeal against a first instance decision and if so how long do such appeals usually take? Reasoned decisions rendered by courts of first instance can be subject to examination before intermediate courts of appeal within two weeks as of the notification of the decision. Depending on the dispute type and the monetary value of the case, decisions given by regional appellate courts can be appealed before the Supreme Court within two weeks as from the notification date of the intermediate courts of appeal decision. The Intermediate Courts of Appeal began to operate on 20 July 2016. Therefore, the total appeal stage before the intermediate courts of appeal is usually shorter than the final appeal stage before the Supreme Court and since the Intermediate Courts of Appeal are newly established, depending on the kind of the labour dispute, an appeal before the Intermediate Courts of Appeal takes about six to 18 months, and an appeal before the Supreme Court takes around one year.