In Turkey, the main sources of labour law can be divided into formal and special sources. While the formal sources consist of the Turkish constitution, laws, secondary laws and court decisions; Special sources are collective agreements, employment contracts, internal regulations and labour practices. In the event of a dispute arising during negotiations for the conclusion of a collective agreement, trade unions have the right to take collective action to safeguard or improve the economic and social positions and working conditions of workers. It is also possible to provide services without being subject to an employment contract. In such cases, individuals usually work under a separate consulting or service contract that does not carry the terms of an employment contract. Instead of being defined as employees, these individuals fall into the category of self-employed. However, it would certainly be interesting to note that the degree of dependence on the self-employed on the employer`s orders and instructions in such agreements is important, as the more dependent the other party becomes on the employer, the more likely the relationship will likely be interpreted as an employment relationship. Within 15 days of receipt of the final approval document by the union, the other party will be called to collective bargaining. No matter what the parties call it, if there is an agreement with the elements of subordination and salary above, this agreement will be accepted as an employment contract and the person will be defined as an employee.
Employers must regularly pay wages in cash and not in kind. If the parties or employment do not meet certain exemption criteria, an employee`s salary must be set in Turkish lira. For example, employment contracts performed by the Turkish subsidiary, branch or liaison office of a foreign entity or relating to work performed outside Turkey may be denominated in a foreign currency. The salary can be paid in several instalments. Employees and employers can also agree on bonuses, bonus packages or other payment systems. The employer is obliged to pay a fine for each employee affected by the collective dismissal if he does not comply with his obligations. In Turkey, foreigners can work as freelancers or under employment contracts after obtaining a work permit from the Ministry of Labour. Various bilateral and multilateral agreements to which Turkey has acceded allow nationals of certain countries to work in Turkey without a work permit. The Ministry of Labour reviews applications for work permits on the basis of a number of criteria, including the type of work to be performed and other factors such as the general economic conditions in Turkey that affect employment. Before the entry into force of the International Labour Law in August 2016, employers in Turkey had to employ five Turkish nationals for every foreigner employed (the so-called “1+5” rule).
Employers were also required to give priority to Turkish candidates for all job offers, unless a justification for hiring a foreigner could be found instead. However, in accordance with International Labour Law, the Ministry of Labour should enact new secondary legislation to regulate all matters relating to work permits, including the details of the above criteria. For example, new criteria and/or requirements may abolish the 1+5 rule and/or the prioritization rule. Since workers do not have the right to conclude collective agreements themselves, they must be members of a trade union in order to benefit from the provisions of the collective agreement. Every worker who reaches the age of 15 has the right and freedom to be a member of a trade union and trade unions have the right to act on behalf of and represent workers. Trade unions have the power to take legal action and to follow the procedure of an action before the court arising from disputes arising from professional life, legislation and/or customs on behalf of workers. If, on the other hand, an employer wishes to employ its employees for similar activities within six months of the end of the collective redundancy, the dismissed workers have priority over reinstatement. It should be noted that the dismissed employee must be reinstated under the same working conditions as before. Lockout is defined as the collective removal of workers from work by the employer and its representative at their own discretion or as a result of a decision by a union or federation to cease their activities in the workplace altogether.
If the employer envisages collective redundancies for economic, technological, structural or similar reasons required by the needs of the undertaking, establishment or activity, he shall provide written information to the trade union delegates, the competent regional employment and labour directorate and the Employment Office at least 30 days before the proposed dismissal. At the end of the mediation process, if non-converging issues are resolved, the collective agreement is signed. In the event that the parties do not reach an agreement at the end of the mediation process, the mediator prepares a report of disagreement. In this disagreement report, the mediator will also indicate the opinions by which the disagreement can be resolved. The disagreement report is submitted to the Directorate of Labour by the mediator. The Labour Directorate will then send the disagreement report to the parties. Trade unions have the right to act on behalf of workers and to represent them in proceedings for the protection of their rights under collective agreements or laws. Unions have the right to invite employers to bargain collectively on behalf of employees and to negotiate the terms of collective agreements. In addition, they are entitled to take measures to enforce the above conditions.
Under Turkish law, natural persons working under an employment contract are considered employees. According to the Labour Code, an employment contract is defined as an agreement under which one party (the employee) undertakes to perform work in subordination to the employer, while the other party undertakes to pay a salary in return. However, the Labour Code leaves certain types of workers, for example. B workers in maritime and air transport, domestic workers, etc., outside the scope of the definition of “employee” and the Labour Code does not apply to them. Arbitration is not compulsory. However, according to the new law of the labour courts of 12 October 2017, in cases brought with the action or compensation of an employee or an employer on the basis of a code, a personal employment contract or a collective agreement, and in the case of an action for reinstatement, it is mandatory to contact the mediator. It should be noted that payroll deduction can only be imposed for reasons provided for in an employment contract or collective agreement, and the amount of the deduction cannot exceed two daily wages of the employee. As explained in more detail below, the termination of the employment contract is also subject to certain procedural requirements. Trade unions are legal in Turkey and have existed since 1947. The Turkish Constitution affirms the right of workers to form trade unions “without authorization” and “to have the right to become a member of a trade union and to withdraw freely from membership” (Article 51). Articles 53 and 54 reaffirm the right of workers to collective bargaining or to strike. However, Turkish trade unions face certain limitations.
A union must represent at least 10% of Turkish workers to be recognized as negotiators, and workers in education, national defense, sanitation and public services are banned from strikes. [1] A legal strike is conducted in accordance with the provisions of the legislation in order to protect or develop the economic and social situation and working conditions of workers in the event of a dispute until the time of the execution of collective agreements. A strike that has taken place without the terms of a legal strike is considered illegal. To be considered a collective dismissal, the employer must terminate the employment contracts of: Consultation with the union representative is one of the procedural steps required for collective dismissal. Once the employer has decided on a collective dismissal after informing the official authorities, he is obliged to consult the representative of the trade union. Employers and trade union representatives are discussing the possibility of preventing collective redundancies and, if not, of reducing the number of workers made redundant. They also try to find solutions to minimize the negative impact of layoffs on employees. However, it is not mandatory to reach a conclusion and make a decision at the end of the meeting.
In addition to the Constitution, which sets out the main principles, the main source of labour law is the Turkish Labour Law 4857 (the Labour Law). Although the Labour Code is not a general law that regulates all labour relations, it is the Basic Code in Turkey that regulates individual labour relations. .
