REGISTRATION OF THE WORKPLACE IN TURKEY ACCORDING TO LABOUR LAWS
A. Establishment and registration of the workplace and closure of the workplace in Turkey
Registration of the workplace in Turkey according to Article 3 of the Labour Law No. 4857, within the scope of this law,
- Establishing a business
- By any means whatsoever the transferee
- Changes the subject of work partially or completely
- The employer who ceases its activities and closes its workplace in Turkey for any reason
– Activity title and address,
– Number of workers employed, subject of work,
– The start and end date of the work,
– Its own name and surname or title, address,
– the name, surname and address of the employer’s representatives, if any
It is obligatory to notify the Provincial Directorate of Labour and Employment Agency within one month. Apart from this regulation, the obligation stipulated for trade registry offices in the Social Security and General Health Insurance Law No. 5510 is also included here.
Accordingly, it is sufficient for employers to apply to the provincial directorate responsible for the place where the workplace is established by issuing a workplace declaration within one month from the realisation of the specified situations.
The law does not foresee any documents to be attached to this application to the provincial directorates. However, in order to avoid incomplete applications, it would be useful to attach a certificate of residence and a copy of the identity card if the employer is a real person, and a copy of the trade registry gazette and signature circular if the employer is a legal entity.
Although the declaration is sufficient for the cancellation of the file, it is appropriate to attach the workplace closure documents to be obtained from the tax office in order to avoid misunderstandings. Apart from this, the files are also removed from the process in the determinations to be made by labour inspectors.
With the Additional Article 1 of the Law No. 5510, it has been accepted that the applications made by the employers to the Social Security Institution regarding the workplace according to the Law No. 5510 will also replace the applications they will make to the provincial directorates. In this case, it will be sufficient for employers to notify the Social Security Institution in cases where they open, close or transfer their workplace in Turkey. Additionally, there is no need to notify the provincial directorate of the Ministry.
The same article also stipulates that if the trade registry offices notify the Social Security Institution regarding the registration of the workplace in Turkey, they will not notify the provincial directorates.
B. Registration of Sub-Contractors
Article 3 of the Labour Law No. 4857 stipulates a registration system in relation to subcontracting practices, and in parallel with the registration process, it is also mentioned to determine whether there is collusion or not, and finally, it is stipulated that a regulation shall be issued in this regard. The said regulation was published in the Official Gazette dated 27.09.2008 and numbered 27010 under the name of « Subcontracting Regulation » and entered into force. Here, only the formal conditions regarding the registration of subcontracting will be mentioned, and the conditions of the primary employer-subcontractor relationship, collusion and its detection and consequences will be examined under another heading below.
Under the conditions stipulated by the aforementioned regulation, Generally terms, when a primary employer-subcontractor relationship is established, this transaction must be registered by the provincial directorate to which the workplace is affiliated and a file number must be assigned to the subcontractor.
It should be noted immediately that the registration to be made by the sub-employer cannot be made subject to the file of the primary employer. The registration to be made according to Article 5/c of the Regulation will be considered as the establishment of a new workplace in Turkey.
In order to carry out this registration process, the sub-employer must first make a notification for its own workplace in Turkey according to Article 5 of the Regulation. According to the same article, this notification shall be made through the workplace declaration and the documents listed in Article 6 of the Regulation shall be attached to this declaration. These documents are the copy of the trade registry gazette for legal entities, the subcontracting agreement and its annexes.
Following this notification, according to Article 7 of the Regulation, the workplace in Turkey of the sub-employer will be registered by the provincial directorate and a registration number will be given to the sub-employer, and if the declared information and the documents to be attached are incomplete or untrue, the registration of the workplace will not be made.
In addition to the notification by the sub-employer, some institutions and organisations are obliged to transfer the information they have obtained to the provincial directorate. According to Article 8 of the Regulation, during the inspections carried out at the workplaces by the SSI inspectors or the inspection staff of other public institutions and organisations or during the operations carried out by the contracting authorities, the authorities granting the licences (governorships, district governorships, municipalities, provincial directorates of social security, tax offices) for the works subject to licences (mining exploration and operation, construction, quarry and similar works), the provincial directorates of social security and tax offices in terms of their own legislation, the workplaces must be notified to the relevant provincial directorate in accordance with Article 3 of the Labour Law. They will check whether the workplaces have notified the relevant provincial directorate according to Article 3 of the Labour Law, and will notify the titles and addresses of the workplaces that have not notified the relevant provincial directorate with a letter within 15 days at the latest.
Within these regulations, it is especially necessary to emphasise the subcontracting agreement. According to Article 9 of the Regulation, the contract that establishes the primary employer-subcontractor relationship is the subcontracting contract and must be made in writing and must include the matters specified in Article 10 of the Regulation.
These issues are set out in Article 10 of the Regulation;
- Workplace title and address of the primary employer and sub-employer,
- Name, surname and address of the employer’s representatives in case the primary employer and the sub-employer are legal entities or institutions and organisations without legal entities,
- The main work carried out at the workplace in Turkey,
- What is the work given to the subcontractor,
- If a part of the main work is given to the subcontractor, a technical explanation regarding the condition that the work assigned requires specialisation due to the necessity of the business and work and technological reasons,
- If stipulated by the parties, the start and end dates of the work,
- In which part of the workplace in Turkey the subcontractor will carry out its activities,
- Article 2 of the Law stipulates that the primary employer shall be liable together with the sub-employer for the obligations arising from the law, the employment contract or the collective bargaining agreement to which the sub-employer is a party in relation to that workplace in Turkey,
- In the event that the sub-employer hires the workers who were employed by the primary employer before the sub-employment agreement was concluded, the rights of these workers cannot be restricted,
- The principles of execution of the work given to the subcontractor in terms of the parties,
- Signature of the primary employer or its representative and the sub-employer or its representative.
Additionally, according to the same article, in the event that a work requiring specialisation in a workplace due to the necessity of the business and work and technological reasons is subcontracted to a subcontractor, a list of work equipment, work completion certificate, operator and technical staff certificates in accordance with the scope of the contract shall be attached to the contract in order to document the expertise of the subcontractor.
Although it can be argued that the Additional Article 1 of the above-mentioned Law No. 5510 will be applied here, since special regulations are included in the Regulation, it is necessary to act within the framework of the provisions of the Regulation.
C. Suspension of work
The issue of suspension of work is regulated Generally terms in Article 25 of the Occupational Health and Safety Law, and the « Regulation on Suspension of Work in Workplaces » was published in the Official Gazette dated 30.03.2013 and numbered 28603 and entered into force. It is also seen that some provisions of the Regulation on the Audit, Inspection and Suspension of Work in Military Workplaces and Workplaces Producing Substances Required for Homeland Security, the Regulation on the Prevention of Major Industrial Accidents and Mitigation of their Effects, the Council of Ministers (BK) decision numbered 2015/7249 published under the name of « Decision on Compulsory Personal Accident Insurance for Mine Employees » and the Regulation on Radiation Safety are related to the suspension of work. Therefore, the issue of suspension of work will be discussed according to these five separate regulations.
1. Suspension of work in General
General terms, suspension of work is mentioned within the framework of Article 25 of the Occupational Health and Safety Law and the provisions of the Regulation on suspension of work in workplaces.
According to the aforementioned law article and Article 7 of the Regulation;
- Generally, when an issue that poses a life-threatening danger to employees in buildings and annexes, working methods and forms or work equipment in the workplace in Turkey is detected, until this danger is eliminated, taking into account the nature of the life-threatening danger and the area and employees that may be affected by the risk that may arise from this danger, in a part or all of the workplace
- In the event that a risk assessment has not been carried out in the workplaces where mining, metal and construction works in the very dangerous class and works with hazardous chemicals are carried out or where major industrial accidents may occur
- In the works classified as very hazardous and awarded by tender, work may be stopped in case of working in such a way as to create a life-threatening hazard due to the production force by acting contrary to production and/or manufacturing plans and work programmes without providing some elements such as technological development, increasing labour capacity, innovation in production methods.
Apart from these, Article 11 of the regulation mentions the reasons for emergency suspension. In Annex 1 of the Regulation referred to in the aforementioned provision, the situations requiring urgent suspension of work are listed in articles as situations requiring urgent suspension in mining workplaces. According to this
- The presence of two ventilation groups in underground coal mines in such a way that if one of them stops, the other one will immediately operate automatically,
- Underground mining operations have no surface connection from at least two roads except for preparatory works; or
- In underground coal mines, if there are not two separate energy sources independent from each other for the operation of the systems used for ventilation, water discharge and human transport, and if one of them stops, the other source is not automatically activated, the work will be stopped in the mining workplace as an emergency in Turkey.
According to Article 7 of the Regulation, when the inspector encounters one of the above-mentioned situations at the workplace in Turkey, a report indicating the situation shall be prepared and sent to the Guidance and Inspection Presidency of the Ministry of Labour and Social Security (RTKB) to be submitted to the relevant committee no later than the next day after the date of the detection. In this report, the issues requiring suspension, the nature of the measures to be taken and other works and procedures to be carried out shall be included in detail.
Apart from writing and submitting the report, there are a number of other works and procedures for stopping the work at the workplace in Turkey. Accordingly, firstly, a committee consisting of three labour inspectors authorised to inspect in terms of occupational health and safety should be formed. The committee will be chaired by the inspector to be determined by the RTKB, and RTKB may form more than one committee when necessary (Article 5 of the Regulation). According to Article 7, this committee may decide to suspend the work within two days following the determination of the labour inspector authorised to inspect in terms of occupational health and safety by making the necessary examinations. On the other hand, if the committee does not agree with the issues stated in the report, it will write and prepare its decision with its justifications. Additionally, if the committee deems necessary, it is also possible for the committee to conduct an inspection at the subject workplace in Turkey. Finally, the committee will also evaluate the reports on the requests for the opening of the workplace and the employer’s requests for the temporary removal of the seals.
However, if the matter detected requires urgent intervention, the labour inspector who made the determination may also stop the work, provided that it is valid until the decision is taken by the committee. According to Article 11 of the Regulation, an emergency situation is when the matter that is dangerous for the life of the employees is of such a nature that it requires measures to be taken without waiting for the period until the decision to stop the work is taken or the deficiencies listed for the workplaces specified in Annex 1 of the Regulation are in question. In this case, it is possible for the inspector who made the determination to immediately notify the RTKB and request the relevant local administrative authority to suspend the work, provided that it is valid until the decision is taken by the committee. The inspector shall prepare a report stating the reasons for the suspension and the nature of the measures to be taken, the physical and technical characteristics of the workplace and the procedures and principles of sealing in line with the nature of the work performed. A copy of the report will be given to the relevant local administrative authority and sent to the relevant board chairmanship within the day following the inspection date at the latest. The work shall be temporarily suspended by the local administrative authority with law enforcement officers on the same day, as stated in the report, until the decision is taken by the committee.
Subsequently, the necessary investigation will be carried out by the committee and a decision will be made. The decision will be sent to the relevant local administrative authority and the Provincial Directorate of Labour and Employment Agency where the workplace file is located within one day, and the local administrative authority will fulfil the requirements of the decision on the same day by law enforcement officers, after which a report determining the situation will be issued. A copy of the report will be sent to the relevant provincial directorate to be placed in the workplace file.
As it is stated in the provision of the law and Article 8 of the regulation, the decision taken following the decision will be sent to the relevant local administrative authority and the provincial directorate where the workplace file is located within one day, and the decision to stop the work will be carried out by the local administrative authority within 24 hours by law enforcement officers. On the other hand, the work suspension decision given due to the fact that the detected issue requires urgent intervention must be fulfilled on the same day by the local administrative authority through law enforcement officers.
At this point, it is seen that Article 8 of the Regulation provides a flexible arrangement for the workplaces where the work must be continuous in terms of its nature. Accordingly, in the suspension decisions to be taken in such workplaces, in order to ensure the continuity of the activity or the safety of the workplace and until the decision to temporarily remove the seals is implemented, it will be allowed to work in the works specified in the administrative measure report by the inspector without producing or selling in any way. For this purpose, it is necessary to take the situation under a report before sealing.
Accordingto the provision of the law and Article 12 of the regulation, it is possible for the employer to appeal against a suspension decision. Accordingly, the employer may object to the stoppage of work at the competent labour court within six working days from the date of execution. The objection shall not affect the implementation of the stoppage of work decision. The court must first discuss the objection and decide on it within six working days. The decision of the court is final. If the labour court decides to lift the suspension of work, this decision will be transferred to the local administrative authority for implementation, the workplace will be opened by law enforcement officers upon the order of the local administrative authority, the minutes of the situation will be delivered to the provincial directorate and these documents will be kept in the file of the workplace by the directorate.
If the decision has not been appealed or if the appeal has been rejected, the employer is expected to remedy the issues that justify this decision. If the employer notifies the Ministry in writing that the issues requiring the suspension of work have been eliminated, the employer’s request will be finalised by conducting an inspection at the workplace within seven days at the latest.
Another issue emphasised in the Regulation is the temporary removal of seals. Accordingto Article 9 of the Regulation, employers are required to submit a petition to the relevant provincial directorate for the temporary removal of the seals in order to eliminate the issues that caused the suspension of work. If the issues that cause the stoppage decision are within the scope of the first paragraph of Article 7, a file prepared with the employer’s commitment, including the measures to be taken to eliminate the vital hazard, the coordination of the work to be carried out to take these measures, the work equipment to be taken, the duration of the work to be carried out and the number of employees to be employed and similar information, as well as the electronic version of this file will be submitted to the provincial directorate. The employer’s commitment and petition must be wet signed. If the issue causing the suspension decision is within the scope of the second paragraph of Article 7, it is obligatory to add information to the file indicating the work and procedures regarding the risk assessment to be carried out in the workplace. Again, if the issue that causes the stoppage decision concerns the works to eliminate the life-threatening hazard caused by the production force, in this case, the relevant information document must be added to the file.
The relevant provincial directorate will send the employer’s request to RTKB on the same day together with the annexes submitted electronically or in a similar environment. If the above-mentioned file and information/documents are not attached to the application or if there is no record in the workplace file in the provincial directorate about the continuation of the activity in the workplaces where there is a technical obligation to be permanent due to its nature or the continuation of the works to ensure the safety of the workplace, the application will not be processed and the owner will be informed by the directorate.
RTKB will refer the employer’s request for temporary removal of the seals to the committee, the committee will evaluate the request in the light of the information presented in the petition and its annexes and make its decision within two days. The committee may request additional information from the employer if necessary.
In case of a decision to temporarily remove the seals, the decision will be sent to the local administrative authority and the first directorate in a letter. The local administrative authority shall ensure that the seals are temporarily removed by law enforcement officers and a report indicating the situation is issued within 24 hours from the date of receipt of the decision and a copy of the report shall be sent to the relevant provincial directorate to be placed in the workplace file in Turkey. If the request for the temporary removal of the seals is not deemed appropriate, this decision will be notified to the relevant provincial directorate with the justification to be conveyed only to the employer. At the end of the period in which the seals are temporarily removed, the local return supervisor will ensure that the workplace in Turkey is sealed again and the implementation of the suspension decision is continued by law enforcement officers. If the temporary removal of the seals is related to the decision to stop the work given on the basis of ensuring the continuity of the activity or the safety of the workplace in the workplaces where there is a technical necessity to be permanent due to its nature, in this case, it will be implemented by issuing a report in accordance with the issues mentioned above.
The lifting of the suspension decision will be carried out within the framework of the provisions of Article 10 of the regulation. Accordingly, the employer who fulfils the issues that cause the suspension of work must first submit a written request to the relevant provincial directorate for the lifting of the suspension decision. This request shall be accompanied by a file containing the works carried out to eliminate the reasons for the suspension, the information, documents and qualification certificates of the work equipment purchased or revised, photographs of the areas where the measures are taken and the workplace risk assessment in Turkey, and at the same time, the electronic or similar media of this file shall be submitted to the provincial directorate
In the event that the requests for temporary removal of the seals and lifting the suspension decision for the same workplace in Turkey are made at the same time, the request for lifting the suspension decision will not be processed and the applicant will be notified by the directorate. The request for temporary removal of the seals will be finalised within the framework specified in Article 9 of the Regulation.
If it is stated in the report prepared as a result of the inspection carried out by the inspector upon the notification of the employer that the issues causing the suspension decision have been eliminated, a decision will be made by the committee within 7 days. In the event that the committee decides to lift the suspension, the decision must be fulfilled by the local administrative authority within 24 hours from the date of receipt of the decision by law enforcement officers.
In the opposite case, in other words, in the event that it is determined that the issues that caused the suspension decision have not been eliminated as a result of the inspection made by the inspector, the decision taken in favour of the continuation of the suspension decision will be forwarded to the relevant provincial directorate to be notified to the employer together with the relevant report and kept in the workplace file in Turkey.
On the other hand, the employer’s obligation to pay the wages of the employees who are unemployed due to the work suspension will continue. However, it is also possible for the employer to give the workers another job according to their profession or situation, provided that there is no decrease in their wages.
2. Suspension of work in the context of special regulations
In the context of special regulations, suspension of work in military workplaces, workplaces where there is a possibility of major industrial accidents, failure to provide compulsory personal accident insurance for mine workers and radiation safety.
According to Article 9 of the Regulation on the supervision and inspection of military workplaces and workplaces producing substances necessary for national security and the suspension of work in these workplaces, the suspension of work in military workplaces will be carried out in accordance with the provisions of the Regulation on the suspension of work in workplaces. However, the competent authority will be the Presidency of the Military Labour Inspection Board and the committee authorised to decide to suspend part or all of the work will be composed of military labour inspectors authorised to inspect in terms of occupational health and safety.
According to Article 10 of the Regulation on the suspension of work in other military workplaces and workplaces where substances necessary for homeland security are produced, it is essential to carry out the suspension of work in other military workplaces and workplaces where substances necessary for homeland security are produced in accordance with the provisions of the Regulation on the suspension of work in workplaces. However, one of the members of the committee authorised to decide to suspend part or all of the work shall be selected by the military labour inspectors authorised to inspect in terms of occupational health and safety. Additionally, it is also required that the labour inspectors of the Ministry of Labour and Social Security who will take part in the committee should have a special identity card issued by the Ministry of National Defence.
Article 23 of the Regulation on Prevention of Major Industrial Accidents and Mitigation of their Effects stipulates the conditions and procedures to be carried out regarding the suspension of work in workplaces within its own special subject.
Accordingly, in the event that an issue that poses a life-threatening danger to the employees is detected in the field inspections, the work will be completely or partially stopped in the establishment by the MoLSS. In the event that the Ministry of Environment and Urbanisation determines that the provisions of the regulation are contrary to the provisions of the regulation, a one-time period not exceeding one year may be granted for the elimination of the contradiction in question. The activity shall be stopped immediately if no time is given, or partially or completely, temporarily or indefinitely, if the contravention is not corrected at the end of this period. In the case of activities that pose a danger to the environment and human health, the suspension is carried out without giving a period of time. Again, the absence of a safety report of a high-level organisation, failure to send it for examination or its inadequacy is also accepted as a reason for stopping the work in the entire organisation.
Article 1 of the Council of Ministers (« CoM ») decision numbered 2015/7249 published in the Official Gazette dated 06.01.2015 and numbered 29259 with the title « Decision on Compulsory Personal Accident Insurance for Mine Employees ». Article 1 of the Decree No. 2015/7249 published in the Official Gazette No. 29259 under the title of « Decree on Compulsory Personal Accident Insurance for Mine Employees » obliges real and legal persons engaged in underground and surface coal mining and underground mining activities other than coal to have « Compulsory Personal Accident Insurance (Insurance) for Mine Employees » for their personnel employed in their facilities and engaged in production and production preparation activities as a result of accidents that may occur during the execution of the said activities, and Article 2. According to Article 2, the insurance policy will be required in the licence applications made to the relevant public institutions in order to operate and it is not possible for real and legal persons to operate and continue their activities without having an insurance policy or having an insurance policy in force.
For this purpose, firstly, a risk examination will be carried out by the insurance company on whether the minimum insurance conditions are met. If the policy request is rejected or the insurance coverage is suspended as a result of the risk examination, upon the notification made by the insurance company, the activity in the facility subject to the policy will be suspended by the relevant public institutions until the insurance policy is issued or the insurance coverage is reinstated. In case the insurance policy is terminated, the activity licence granted to real and legal persons operating in accordance with Article 1 shall be cancelled by the relevant public institutions within a period not exceeding one month. In the event that the insurance coverage is reinstated, it is possible that the relevant public institutions may decide to continue the activities upon notification of this situation, provided that the conditions required by the legislation are reserved.
It is seen that some articles of the Radiation Safety Regulation contain provisions on the suspension of work in workplaces working with radiation sources and the cancellation of the relevant licence when necessary.
Accordingly, as a result of the inspections carried out in accordance with Article 67 of the Regulation, a report on the inspection must be prepared by the personnel of the Turkish Atomic Energy Authority (TAEK) carrying out the inspection procedures in accordance with Article 68. As a result of the evaluation of the report, the deficiencies identified will be notified to the auditee in writing and a maximum period of three months will be given for the elimination of the deficiencies. If it is assessed that radiation safety cannot be ensured due to the deficiencies identified, the radiation application will be temporarily suspended until the deficiencies are eliminated. If the identified issues are completed within the given period, the temporary suspension decision will be lifted, and if the deficiencies are not eliminated within the given period, the license will be cancelled. Again, as a result of the evaluation of the report, if it is evaluated that radiation safety cannot be ensured and that this situation cannot ensure the radiation safety of the society and the environment and that this situation may threaten the protection of the society and the environment from radiation, the licence will be cancelled without a deadline.
According to Article 75 of the Regulation, TAEK will notify the local administrative authorities to stop the radiation application and take necessary measures, the relevant authorities or the Public Prosecutor’s Office to initiate legal or administrative investigations against real and legal persons who are found to be operating without a licence, who do not complete the licensing procedures or who do not eliminate the deficiencies identified during inspections. Again, according to Article 6 of the Regulation, which is titled as « unauthorised substances even though they are within the exemption limits », import, export, manufacture, possession, use and storage of toys, stationery, clothing, cosmetics, household goods and similar materials containing radioactive substances are prohibited, even if they are within the exemption limits in Article 5 of the Regulation, otherwise the provisions of Article 75 of the Regulation mentioned above will be applied.