Chapter 7: Labour and Social Security Law

General Introduction to Labour Law

Labour law deals with the legal relationship between employees and employers. Not all groups of workers constitute the subjects of labour law. The subjects of labour law are only the groups of workers who work subordinately under an employment contract, namely employees.

Labour law as a separate branch of law consists of two main parts:

• Individual labour law deals with the one-on-one relationship between an employee and an employer arising out of an employment contract.
• Collective labour law constitutes the collective part of the labour relationships where trade unions are involved and collective bargaining, collective (labour) agreements and the right to strike and lock-outs are regulated.

Legal Sources of Labour Law

International Sources

Among the international sources of labour law, the most common and significant documents consist of the conventions and recommendations of the International Labour Organisation (ILO).

National Sources

Official sources are the legal sources of labour law that are adopted by the competent authorities with legislative power. The official sources consist of the Constitution, statues, by-laws and other legislative instruments of minor significance in the field of labour law such as regulations.

Official Sources: Official sources are the legal sources of labour law that are adopted by the competent authorities with legislative power. e official sources consist of the Constitution, statues, by-laws and other legislative instruments of minor significance in the field of labour law such as regulations.

Private Sources: The private sources refer to the binding sources that are unique to labour law.

1. Collective Labour Agreements
2. Individual Employment Contracts
3. Internal Regulations
4. Establishment Practices
5. Employer’s Right of Direction

Fundamental Concepts of Labour

Employee: an employee is the party to an employment contract who undertakes to perform work and who is subordinate to the employer by being bound by the employer’s orders and instructions.

Employer: Employer is the addressee of the performance of work by the employee and the person with the authority to give orders and instructions at the highest level.

Employer’s Representative: Employer’s representative is defined in article 2/IV as “persons who act on behalf of the employer and take part in the management of the work, establishment and the enterprise.”

Subcontractor: It is a common practice where an employer (principal employer) delegates certain tasks within an establishment organization to another employer (subcontractor) who puts his/ her own employees to work in the establishment of the principal employer.

Establishment: The establishment is a unity of work organization which includes adherent parts, adjunct facilities and vehicles.

Transfer of Establishment or its Part: It is a common practice where an establishment or a section of it is transferred to another employer. In such an event, the legal consequences concerning the employment contracts of the employees who work for the transferor is regulated in article 6 of the Turkish Labour Act.

Individual Labour Law

There are four statutes that directly govern individual employment relationships:

1. the Labour Act No. 4857
2. Maritime Labour Act No. 854
3. Press and Media Labour Act No. 5953
4. Code of Obligations No. 6098

Individual Employment Contracts

Article 8 of the Turkish Labour Act No. 4857 defines an employment contract as “a contract where one party (employee) undertakes to subordinately perform work and the other to pay (employer) remuneration.” From this definition derives three elements, namely performance of work, remuneration and subordination, the existence of which are essential in the formation of an employment contract.

Conclusion of an Employment Contract

As a private law contract, conclusion of an employment contract can be concluded between parties with legal capacities to act.

Limitations on the Freedom of Contract

Although as private law contracts, employment contracts are based on the principle of freedom of contract.

Prohibition to Conclude an Employment Contract A limitation is imposed on the freedom to conclude an employment contract with regard to various groups by prohibiting the formation of an employment relationship with such groups either in full or concerning various activities. Such groups and relevant activities are as follows:

1. Limitations in terms of age
2. Limitations in terms of gender
3. Limitations in terms of nationality

Obligation to Conclude an Employment Contract The workers with whom the employer is legally bound to conclude an employment contract are as follows:

• Persons with Disabilities, Ex-Convicts and Persons Injured while Fighting Terrorism
• Employees Dismissed as Part of a Collective Redundancy
• Reinstatement of Workers Whose Disability has been Treated
• Reinstatement of Workers Returning from Military Service or Other Legal Duty

Invalidity of the Employment Contract

As a private law contract, validity of an employment contract is dependent on the existence of validity conditions such as legal capacity and the subject matter of the contract being in conformity with the imperative legal rules, morality, public order, and personality rights and not impossible to be realized.

Types of Employment Contracts

1. Employment Contracts for Continuous and Discontinuous Work
2. Employment Contracts of Definite and Indefinite Duration
3. Part-Time and Full-Time Employment Contracts
4. On Call Employment Contracts
5. Distance Work
6. Employment Contracts with Trial Period
7. Gang Contracts
8. Temporary Work:
   • Unprofessional Temporary Work
   • Professional Temporary Work (Temporary Agency Work)
9. Marketing Contracts

Parties’ Obligations Arising out of an Employment Contract

1. Employee’s Obligations
   • Obligation to Perform Work
   • Obligation to Comply with the Employer’s Orders and Instructions
   • Obligation of Loyalty
   • Obligation of Non-Competition
2. Employer’s Obligations
   • Obligation to Pay Wage
   • Obligation to Protect Employees
   • Obligation of Equal Treatment

Ending of the Employment Relationship

An employment relationship can end either by termination of a party or by means other than termination.

Ending of the Employment Relationship by Means Other than Termination

1. Mutual Agreement
2. Death
3. Expiration of Definite Duration

Termination of the Employment Contract

1. Termination with notice
   • Permission to seek new employment
   • Termination with payment in advance
   • Abuse of the right to terminate
2. Job security: Job security is a form of employment protection that seeks to protect employees from arbitrary terminations by their employers and secure their employment, and hence their source of income.
   • Valid termination: In terms of valid reasons, only reasons that are connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking, establishment or service can be the grounds for termination. Reasons connected with the capacity or conduct of the employee can be due to the unproductivity and low performance or the behaviour of the employee; whereas reasons based on operational requirements can be a result of economic, organizational or technological changes in the undertaking, establishment or service.
   • Invalid termination: In case the employer terminates the employment contract of an employee who is covered within the job security provisions in the absence of a valid reason or without complying with the necessary procedure for termination, the employee has the right to file a case for reinstatement before the labour courts, or upon agreement by both parties, take it to an arbitrator within one month following the notification of termination.
3. Changes in the conditions of work
4. Termination with just a cause
   • Unjust termination

Legal Consequences of the Ending of the Employment Contract

In case the employment relationship ends, the obligations of the parties arising out the employment contract will also come to an end. If the parties have made a noncompetition agreement, the obligation of the employee to non-compete arising out of this agreement will continue until the expiration of the period set forth in the agreement. On the other hand, with the ending of the employment contract, new rights and obligations unique to the ending of the contract will emerge.

Severance Allowance: Employees who have worked for the same employer for a certain period of time are entitled to a severance allowance in the amount corresponding to their thirty days’ wage for every year they have worked for that employer. e calculation of the severance allowance shall be rendered in terms of the final gross salary.

Organization of Work

Organization of work consists of two aspects: working time and the rest periods of employees.

Working Time

Article 3 of the By-law on Working Times Regarding the Labour Act, defines working time as “the period spent by the employee in work. Periods governed in article 66/I of the Labour Act are also considered as working times.”

Rest Periods

• Daily breaks
• Weekly rest
• National and general holidays
• Annual leave with pay

Social Security Law

Legal Sources of Social Security Law

• Constitution
• Statutes
• Other legislative sources

Scope of Application of Social Insurance Schemes

1. Personal Scope of Application
   • Insured Persons
   • Partially Insured Persons
   • Non-insured Persons
   • Voluntary Insurance
2. Territorial Scope of Application

Types of Social Insurance Schemes

Short-Term Social Insurance Schemes

1. Insurance for Occupational Hazards and Diseases
2. Sickness Insurance
3. Maternity Insurance

Long-Term Social Insurance Schemes

1. Invalidity insurance
2. Old-age insurance
3. Death insurance

Unemployment Insurance

According to article 47/I(c) of this act, unemployment insurance is a “compulsory insurance which operates with the insurance technique and compensates for a specific period part of the loss of income of the insured person as a result of being unemployed, who have lost their jobs without their own malice and fault despite having the will, competence, health and proficiency to work.”

Universal Healthcare Insurance

The universal healthcare insurance aims to ensure individuals with security against the social risk of illness by providing them healthcare services.