By Batuhan Sahmay
Firm: Bener Law Office
This article describes the significant changes to Turkish employment law that took place in 2017.
Mandatory occupational pensions introduced
As of 1 January 2017, employers must provide employees who are Turkish citizens below 45 years of age with an individual pension agreement based on a group scheme. This applies to both private and public sector employees. Employers can only provide a pension plan offered by a pension company deemed appropriate by the Under-Secretariat of Treasury. Employers must make their choice of company based on service quality and advantages provided to the employees and must not obtain any benefit including commission as a result of their choice of pension provider. Employers may provide different pension schemes for different employees in their workplaces. Employees are automatically included in the individual pension system through the pension schemes provided by their employers.
The basic level of employee contribution is 3% of gross salary. The employee may notify the employer that he or she wishes to make contributions at a higher rate. The contribution is deducted from the employee’s salary and paid to the pension company on the first business day after payday at the latest.
The pension company must notify the employee that he or she is included in the pension scheme on the first working day following the transfer of the first pension contribution to the employer’s account. Employee contributions are deducted from the employee’s salary and transferred to an individual pension account in the employee’s name as set out in the pension agreement.
An employee is entitled to withdraw from the pension agreement within two months of receiving the notification described above. However, an employee may still leave the individual pension scheme at any time after this withdrawal period. Contributions shall be returned to the employee within ten working days after the employee giving notice of withdrawal.
According to the amendment made in the Regulation Regarding Annual Leave, annual leave can now be taken in segments; provided that the employer and employee reach an agreement and that each segment of leave exceeds ten days.
Additionally, where employees of a subcontractor continue to work in the same workplace despite a change in subcontractor, those employees’ annual leave is calculated based on their employment period in that workplace. In this respect, the main employer is responsible for checking whether employees use their annual leave entitlement and ensuring that they used it in the relevant year. The subcontractor is responsible for providing the main employer with copies of annual leave records.
The annual leave period for employees who work underground (i.e. miners), was also increased by an additional four days on top of the basic leave entitlement (this depends on the duration of employment).
Working time in tourism, private security and healthcare
Female employees in the tourism, private security and healthcare sectors may now be asked to work for more than seven and a half hours on night shifts provided that their prior written consent is obtained. This also applies to female employees working for subcontractors in workplaces in these sectors.
An amendment to the Regulation Regarding Special Principles and Procedures Related to Works Performed by way of Employment of Employees in Shifts made the following changes:
- Shifts for employees in the tourism, private security and healthcare sectors may now be distributed into two shifts in 24 hours. This also applies to subcontractors performing duties at workplaces, in which tourism, private security and health services works are performed.
- Provided that the employee’s written consent is obtained, employees in the tourism, private security and healthcare sectors may be employed for more than seven and a half hours.
- Where employees undertake shift work, employers and employer representatives must keep lists of shift workers, including their full names, at the workplace to be submitted to the Ministry of Labour and Social Security on request.
New law on Labour Courts
A new Law on Labour Courts was published on 25 October 2017. It introduced the following amendments.
1. Jurisdiction of Labour Courts
Cases can no longer be lodged regarding the following subjects:
- actions by employees seeking to be rehired or requesting a determination of unlawful termination;
- actions brought by an employee requesting the withdrawal of disciplinary action by the employer;
- actions brought by a trade union or trade union representative regarding unlawful termination of an employment agreement;
- actions to determine the required features of a workplace for which a collective employment agreement will be executed;
- actions for interpretation of collective employment agreements;
- actions for the determination of unlawful strike and lock-out.
2. Limitation period
The ten-year limitation period has been decreased to five years for the following claims:
- severance payments;
- payment in lieu of notice;
- compensation for bad faith;
- compensation arising from unfair dismissal;
- annual leave payments.
The new five-year limitation period will apply to employment agreements executed after 25 October 2017. For agreements executed prior to this date, the ten-year limitation period will continue to apply, however if the unexpired term of the agreement is more than five years, after five years, the limitation period shall terminate.
3. Mandatory mediation
The most significant change introduced by this new law is that mediation is now required before some actions can be brought. It is now obligatory to apply for mediation for financial claims by employees or employers, claims based on individual or collective employment agreements and claims for employee restitution. All employment claims by seamen and journalists are also subject to the requirement.
On the other hand, the law does not require employees whose claims relate to workplace accidents and occupational diseases to apply for prior mediation.
If a claim is filed before applying to mediation, the court will reject it on procedural grounds. A final written minute indicating that the parties could not reach an agreement at the end of mediation or a copy thereof approved by the mediator must be added to the petition before a claimant can proceed with a claim before the court. If this condition is not met, the court will grant the claimant a week in which to comply. If the requirement for such a notice is not met, the lawsuit will be rejected on procedural grounds.
A dismissed employee who is seeking to be rehired must apply for mediation within one month from the date of the termination letter, stating that the termination was made without any reason or that the reason given is invalid.
If the parties fail to reach an agreement at the end of mediation, a claim may be brought in the courts within two weeks from issue of the final written minute stating mediation failed. Where a claim is rejected on procedural grounds due to the fact that the lawsuit is filed directly at the labour court without recourse to mediation, this is notified to the parties. The parties have two weeks from this date to apply for mediation. The lawsuit shall be concluded promptly. If the parties appeal the court’s decision, the regional courts of justice shall resolve the appeal promptly and definitively.
4. Claims relating to social security
It is now obligatory to apply to the Social Security Institution before filing a claim in all actions arising from the Social Security and General Insurance Health Law or from other social security legislation, except for actions relating to an employee’s period of service. If the Social Security Institution does not respond to an application within 60 days, the application shall be deemed rejected. In order to file a lawsuit at the court, an application must be either rejected or deemed to be rejected.
5. Entry into force
The amendments in sections 1, 2 and 4 above entered into force on 25 October 2017. The amendment in section 3 entered into force on 1 January 2018.
Overtime: no annual agreement needed
Pursuant to an amendment made in the Regulation Regarding Overtime and Additional Works, employers are no longer required to obtain employees’ written consent regarding overtime and additional work at the beginning of each year. Instead, consent can be obtained when the employment agreement is signed or when the need arises. Additionally, according to this amendment, an employee is entitled to withdraw his or her consent to overtime by serving 30 days prior written notice to the employee.