You will find in this article all the obligations relating to the employment contract in Turkey.
1. Obligation to employ in case of reinstatement
According to Article 21 of the Labour Law No. 4857, employers are obliged to reinstate employees whose employment contract in Turkey has been terminated and who have been reinstated by court or private arbitrator decision within one month following their application. If this provision is not fulfilled, the employee who is not reinstated must be paid compensation in the amount of at least four months and at most eight months’ wages. The amount of this compensation will be determined by the court or special arbitrator together with the reinstatement decision. In order for the employee to benefit from this right, the employee must apply to the employer within ten days of the reinstatement decision.
Article 24 of the Law No. 6356 on Trade Unions and Collective Bargaining Agreements stipulates that in the event of termination of the employment contract in Turkey of workplace union representatives, the provisions of the Labour Law regarding reinstatement shall apply. Differently, if it is determined that the reason for termination is only the trade union representation, the compensation amount will be the amount of one year’s wage of the employee (representative).
2. Employment after collective dismissal
According to Article 29 of the Turkish Labour Law, when a collective redundancy is carried out and after this process is finalized, when it comes to re-employment for the same job within six months, first of all, those who are suitable for the qualifications of those who have been dismissed must be preferentially called to work.
Preferential recruitment means giving priority to the dismissed workers over other tenderers. It will be useful to make the call by appropriate means (registered mail with return receipt, newspaper advertisement, etc.).
3. Employment of the disabled
Generally, according to Article 30 of the Labour Law No. 4857, employers are obliged to employ disabled people in the workplace at certain rates if the number of employees they employ in their workplaces exceeds fifty. The obligation defined in the article differs for private sector employers and public sector employers. The issues related to these regulations are examined under the heading “Specially regulated Labour Rules”.
4. Employment disabled persons while employee of the workplace
According to Article 30 of the Labour Law, employers are obliged to reemploy workers who have to leave the workplace on disability and whose disability is subsequently eliminated, if they want them to be reemployed in their old jobs, if there is a vacancy in their old jobs or similar jobs, they must hire them immediately, if there is a vacancy in their old jobs or similar jobs, or if not, they must hire them on the conditions at that time, preferring other applicants to the first job to be vacated. In case of failure to fulfil this obligation, the employee must be paid compensation in the amount of six months’ wage.
5. Employment of those who leave their jobs due to military service and labour law
According to Article 31 of the Labour Law No. 4857, employers are obliged to employ workers who are recruited for manoeuvre or any reason other than active military service, or who have been recruited for any reason, or who have left their jobs due to the duty to work arising from any law, and who want to enter their old jobs within two months, immediately if there is a vacancy in their old jobs or similar jobs, or if not, they must recruit them to the first job to be vacated, preferring them to other applicants, under the current conditions. If this obligation is not fulfilled, the employee must be paid compensation in the amount of three months’ wage.
6. Obligation to employ in case of failure to pay wages on time
According to Article 34 of the Labour Law, workers may refrain from working individually or collectively in accordance with their individual decisions due to the failure to pay the wage from the day it should be paid, except for force majeure. Collective refusal to work based on this reason shall not be considered as an illegal strike.
In this case, the employment contract in Turkey of the workers cannot be terminated on the grounds that they are not working, they cannot be replaced and these jobs cannot be outsourced to others.
7. Employment occupational physicians and other health personnel and occupational safety specialists
Generally, according to Article 8 of the Occupational Health and Safety Law, employers are obliged to employ one or more occupational physicians and other health personnel and occupational safety specialists under certain conditions in workplaces of a certain size. Detailed explanations on the subject are given under the heading “those whose working rules are specially regulated”.
8. Employment of specialists in breastfeeding rooms and child care centres
According to Article 17 of the Regulation on the conditions of employment of pregnant and breastfeeding women and breastfeeding rooms and childcare facilities issued based on Article 30/a of the Occupational Health and Safety Law No. 6331, employers are obliged to employ managers, health personnel and other personnel in breastfeeding rooms and childcare facilities. However, since this issue is examined in the chapter on opening a breastfeeding room and childcare centre, it is not discussed in detail here.
9. Employment of trade union and confederation executives
Another employment obligation in the labour legislation is stipulated in Article 23 of the Law No. 6356 on Trade Unions and Collective Bargaining Agreements. According to the provision, the employment contract in Turkey of the workers who actually leave the workplace due to their duties in the trade union and confederation are generally suspended. However, if the suspended executive applies to his/her former employer to be employed in the workplace he/she left within one month from the date of termination of the legal entity of the trade union, in case of termination of his/her duty by not entering the election, not being re-elected or withdrawing voluntarily, the employer has the obligation to start these persons to their former jobs or another job suitable for their former jobs within one month from the date of the request. In the event that these persons are not employed in due time, their employment contract in Turkey will be deemed to have been terminated by the employer.
10. Obligation to employ during strikes and lockouts
According to Article 65 of the Law No. 6356 on Trade Unions and Collective Bargaining Agreements, in works that are technically obliged to be continuous in terms of their nature, provided that they are in no way intended for production or sale, the number of workers who will ensure the continuity of the activity and workplace safety, the preservation of machinery and fixtures, tools, raw materials, semi-finished and finished materials or the protection of animals and plants must work during the legal strike and lockout, and the employer must employ them.
In this context, the nature, number and substitutes of the workers who will be excluded from the strike and lockout shall be announced in writing by the employer or the employer’s representative at the workplace within six working days from the start of the collective bargaining and a copy of this announcement shall be notified to the party trade union. If the trade union does not file an objection to the court within six working days following this notification, the provisions of the announcement shall become final. In case of objection, the court will make a final decision within six working days.
If the workers who will not be able to participate in the strike and lockout have not been determined within the legal period for whatever reason, the employer or the trade union may request the determination of the number of workers to be employed from the competent authority (Provincial Directorates of Labour and Employment Agency) even after the expiry of the period. The competent authority shall make this determination as soon as possible and notify the parties. If necessary, the competent authority has the right to make an ex officio determination. Again, each party has the right to object to the determination of the competent authority to the court within six working days. In case of such an objection, the court shall render a final decision within six working days.
During the strike and lockout period, the competent authority will determine which workers will continue to work in the workplace within three working days from the notification of the strike and lockout decision and notify the relevant employer and workers in writing. The executives of the trade union and its branch who work in that workplace and who are party to the collective bargaining shall not be subject to this provision.
It is possible for the employer to recruit new employees with the written permission of the competent authority instead of the employees who cannot participate in the strike and lockout for any reason.
11. First-aider recruitment
Article 19 of the first aid regulation, which entered into force in the official gazette dated 29.07.2015 and numbered 29429, stipulates that within the scope of occupational health and safety, it is obligatory to have 1 first-aider for every 20 employees in less dangerous workplaces, 15 employees in dangerous workplaces and 10 employees in very dangerous workplaces. These first aiders must be first aiders who have received the necessary training and have been certified within the framework of the provisions of the aforementioned regulation.
12. Employment under employment contract in Turkey in private education institutions
Law No. 5580 on Private Education Institutions has adopted two types of employment methods for the personnel to be employed in private education institutions, on the one hand, it is accepted as a principle that the personnel to be employed should be employed with an employment contract in Turkey, and on the other hand, it has made it possible for teachers and other instructors who have the title of civil servant to work in these institutions under certain conditions.
However, the law, while providing this opportunity, imposes a minimum limit on the number of personnel to be employed in a private education institution with a employment contract in Turkey, and stipulates a kind of employment obligation by stipulating that one third of the current number of course hours from the date the institution starts teaching, one third during the establishment and at least two thirds three years after the establishment of the institution, must be taught by teachers, specialist instructors or master instructors whose main duty is in these institutions, and by preventing all or the majority of the course hours from being taught by lecturers affiliated to the Ministry of National Education.
13. Obligation to employ lawyers
Another obligation to employ lawyers, which is also related to labour legislation, stems from the Law on Attorneys. With the amendment made to Article 35 of the Law, the obligation to employ contracted lawyers has been introduced for legal entities of certain qualifications and sizes. Some of the formal requirements for this obligation are set forth in the Regulation on the Attorneyship Law of the Union of Turkish Bar Associations.
Accordingly, Generally, joint stock companies with a share capital of 5 times or more the amount of share capital stipulated in Article 332 of the Turkish Commercial Code and building co-operatives with 100 or more members are obliged to employ contracted lawyers. The concept of joint stock company mentioned in the provision of the law covers joint stock companies with a capital of at least two hundred and fifty thousand Turkish Liras, since the initial capital is fifty thousand Turkish Liras, which refers to the capital fully subscribed in the articles of association, and joint stock companies with a capital of at least five hundred thousand Turkish Liras, since the initial capital cannot be less than one hundred thousand Turkish Liras in non-public joint stock companies that have adopted the registered capital system, which indicates the ceiling of authorisation granted to the board of directors for the increase of the capital.
As can be seen, the obligation to employ a lawyer does not concern real persons and not every legal entity, but joint stock companies with a certain amount or more of capital, and not every cooperative, but building cooperatives with a certain number of members or more.
Article 15 of the aforementioned regulation generally regulates the procedures for the detection and punishment of violations of Article 35 of the Attorneyship Law. However, it should be immediately noted that this article has been amended by Article 329 of the Law No. 5728 with the amendment of Article 35 of the Attorneyship Law in the context of harmonising the provisions of the law containing various penal regulations with the Law on Misdemeanours, and that the provisions of this law should be applied for the cases that are not foreseen by the Law on Misdemeanours.
According to the current regulation, in case of violation of the provision of the article, the public prosecutor will impose an administrative fine on those who do not appoint a contracted lawyer for each month that they do not appoint a lawyer, up to the gross amount of two months of the minimum wage foreseen for workers over the age of sixteen in force on the date of the offence. The general provisions of the Law on Misdemeanours No. 5326 shall not be applied with regard to the notification of the fine, objection to the fine, resolution of the objection and collection of the fine, and the Penalties shall be notified to the relevant persons in accordance with the provisions of the Law on Notification No. 7201, the relevant person may appeal to the competent court within fifteen days from the date of notification, and the Penalties shall be collected in accordance with the Law on Collection Procedure of Public Receivables No. 6183.
The obligation to employ contracted lawyers stipulated by the regulation is fulfilled in two ways in practice. In the first case, the legal entity employs a lawyer with a employment contract in Turkey in accordance with the provisions of the Labour Law No. 4857 and related legislation, or, in the second case, it makes a contract with a self-employed lawyer and pays him/her the fee specified in the contract on a monthly basis or in other periods. When the first way is preferred, the issue turns into an employment obligation that should be evaluated within the labour legislation. In the second case, with the addition, an attempt has been made to create a unity of practice, a form of contract has been stipulated for different applications, and a certain bureaucratic process has been tried to ensure that the works and transactions on this subject are kept in a manner suitable for inspection.
At this stage, the formal requirements introduced by the aforementioned regulation gain importance. In line with the purpose of our book, when the regulations are analysed, it is useful to state the following points.
Article 73/A of the Regulation stipulates that a written contract for continuous legal services in accordance with the Attorneyship Law No. 1136 and the minimum fee tariff for attorneys must be drawn up for forms of work involving continuous legal services. According to the provisions of the same article, in this contract, the name, surname, professional or commercial title, address, tax / TR identification number of the business owner, the name, surname, title, tax / TR identification number of the lawyer / law firm / law partnership, the description of the work, the attorney fee and the method of payment of this fee, the provisions of the contract will be adapted to the changes in the minimum fee tariff of attorneys, duration, The termination conditions, the fees and expenses of the work belong to the business owner, these must be paid in advance or immediately upon the lawyer’s request, the address written in the contract is the address to which the lawyer will forward the requests in this regard, the notifications made to this address will be deemed to have been made to the business owner, the disputes arising from the contract can be resolved by arbitration within the scope of Article 516 of the Code of Civil Procedure No. 1086. and related articles of the Code of Civil Procedure No. 1086, that the arbitral tribunal shall consist of three lawyers, one of whom shall be the chairman of the arbitral tribunal, who have served as a lawyer for at least ten years, that the appointment to the arbitral tribunal shall be made by the court in charge of the dispute, located at the bar association centre where the lawyer is registered, upon a written application by one of the parties by attaching a sample of the term attorney services agreement.
According to the aforementioned article, after the agreement containing these matters is drawn up in one more copy than the number of parties, one copy must be kept by the parties and one copy must be given to the bar association where it is registered by the lawyer who is a party to the agreement, and in case of possible disputes, this copy kept in the bar association will be relied upon.
According to Article 73/B of the Regulation, samples of self-employment receipts or payrolls regarding the attorney fees collected according to the agreements made according to Article 73/B of the Regulation must be submitted to the bar association at the end of the year by the lawyer in a list and the documents must be kept in the lawyer’s registration file.
Article 73/C of the Regulation imposes an obligation on the bar associations and stipulates that legal entities that do not fulfil the obligation to employ lawyers shall be monitored by the bar association where their headquarters are located and in case of a possible violation, a criminal complaint shall be filed against these legal entities.
14. Employment of professionals in food and feed establishments
The obligation to employ a professional in food and feed enterprises derives its source from Article 22, paragraph 7 of the Law No. 5996 on veterinary services, plant health, food and feed. According to the aforementioned regulation, food and feed establishments specified in Annex-1 of the law are obliged to employ at least one personnel who have undergraduate education on the subject according to the type of work. Changes can be made by the Ministry of Agriculture and Forestry on the said Annex 1 and these changes will be announced with a communiqué. On the publication date of the Law, the Ministry of Agriculture and Forestry amended Annex-1 attached to the Law and this amendment was published in the Official Gazette dated 06.12.2019 and numbered 30970 under the name of “Communiqué on the Determination of Compulsory Professionals to be Employed in Food and Feed Enterprises” and entered into force with a communiqué.
In the table attached to the Communiqué, it is listed which professional members should be employed in which food and feed establishments. When the list is examined, it is seen that these professionals are veterinarians, agricultural engineers, food engineers, chemical engineers, aquatic sciences engineers, aquaculture engineers, fisheries technology engineers, chemists, food technologists, bioengineers, biologists, dietitians and graduates of the department of nutrition at home economics colleges.