Employment Law Newsletter

As the Employment Law Department of Esin Attorney Partnership, we are pleased to share with youour monthly newsletter.

This newsletter provides a summary of the recent legal developments in relation to employment matters in Türkiye.

Announcement by the Ministry of Labor General Directorate of Occupational Health and Safety About the Change in Remote Training Implemented Due to Covid-19

Announcement Date: 13 November 2023

Summary

According to the announcement published on the website of the Ministry of Labor and Social Security ("Ministry") on 13 November 2023, the regulation that allowed basic trainings on asbestos removal expertise and periodic control of work equipment to be conducted remotely during the COVID-19 pandemic has been repealed and it has been decided to conduct these trainings face-to-face as of 10 November 2023.

Important details

  • The practice that allowed periodic control of work equipment and asbestos removal expertise trainings to be carried out remotely within the scope of the Regulation on Health and Safety Conditions in the Use of Work Equipment published in the Official Gazette dated 25 April 2013 and numbered 28628, the Communiqué on Registration and Training of Persons Authorized to Conduct Periodic Inspections of Work Equipment published in the Official Gazette dated 1 October 2017 and numbered 30197, and the Communiqué on Training Programs Related to Asbestos Removal published in the Official Gazette dated 29 June 2013 and numbered 28692, was abolished.
  • As of 10 November 2023, the procedure for providing basic trainings on periodic control of work equipment and asbestos removal expertise trainings remotely was terminated, and it was decided to implement the trainings face-to-face.

Letter from the SSI in relation to "Occupational Code and Monthly Earnings Subject to the Insurance Premium Payments for Foreign Insured Individuals"

Letter Date: 16 November 2023

Summary

In the general letter dated 16 November 2023 published by the Social Security Institution ("SSI"), it is stipulated that the provincial directorates of the SSI shall check the conditions related to the work permit documents of foreign national employees (such as the position, salary, commencement and expiry date of the permit) on a monthly basis until the expiry date of the work permit and take the necessary actions in this context.

Important Details

  • Work permits are granted within the framework of the relevant legislation after evaluating criteria such as the foreign national's occupation and the salary to be paid to him/her, the workplace and the address where the foreign national will work.
  • As stated in Circular 2013-11 of the SSI, the General Directorate of Labor will send a copy of the work permit documents and the permit documents issued by other ministries or institutions and sent to the General Directorate of Labor to the relevant SSI provincial directorates.
  • As stated in Circular 2015-25 of the SSI, the SSI provincial directorates have started to use the system to extract and query the permit documents of foreign national employees electronically from the General Directorate of Labor.
  • As stated in the letter dated 3 November 2023 and numbered 304295 issued by the Directorate for Guidance and Inspection of the Ministry of Labor and Social Security, in case SSI provincial directorates determine that, through the relevant system used for monthly control to be carried out until the expiry date of the work permit, the occupations specified in the work permit documents are not compatible with the occupations that were notified to the SSI by the employers; the salary amount stated in the work permit document to be received by the foreign national are not compatible with the monthly earnings subject to the insurance premium payments, which were notified to the SSI by the employers; and the earnings subject to insurance premium payments were notified lower than they should be considering the salaries determined for foreign nationals, additional accrual must be requested from the employer up to the difference, and if this situation is not remedied, the provincial directorate must make an ex officio arrangement regarding the issue

Letter from the SSI regarding Sanctions to be Applied in Illegal Temporary Employment Relationships

Letter Date: 22 November 2023

Summary

The general letter dated 22 November 2023 ("General Letter") published by the SSI sets forth certain regulations to be applied if the reports prepared by the labor inspectors indicate that the temporary employment relationship established between private employment agencies and real and legal persons acting as private employment agencies, as well as the employers receiving services from them, is not established in accordance with the regulations set forth in the Labor Code numbered 4857 ("Labor Code") and Law No. 4904 on the Turkish Employment Agency and Certain Regulations ("Code No. 4904"), and the individuals notified as employees by these agencies in the reports will be considered employees of the employers receiving services from them, as well as if certain additional conditions are met.

Important details

  • Pursuant to the letter dated 3 November 2023 published by the Ministry, it was stipulated that if the temporary employment relationship established between private employment agencies and real and legal persons acting as private employment agencies and the employers receiving services from them is not established in accordance with the regulations set forth in the Labor Code and Code No. 4904, the individuals notified as employees by these agencies should be considered employees of the real and legal persons receiving services from them.
  • Pursuant to the General Letter, if the reports issued by the labor inspectors after 1 November 2023 show that the temporary employment relationship between the private employment agency and the persons from whom they receive services is not established in accordance with the regulations set forth in the Labor Code and the Code 4904; and in these reports, the employees notified by the agencies will be considered the employees of the real and legal persons receiving services from them, and that the works are actual, and that no unfair benefit is detected regarding the situations and circumstances specified in Annex 7 of the Regulation on Social Insurance Transactions and that therefore there is no situation to be recorded as revenue and no change in the earnings, and days based on the premium of the insured whose works are determined to be actual, then:

    • No administrative fines, delay penalties and late fees will be imposed on the workplace where the employees are transferred for the obligations fulfilled by private employment agencies and real and legal persons acting as private employment agencies within the legal periods.

    • Since insurance premiums are also paid indirectly by the real and legal persons who receive services with the service fee paid to private employment agencies and real and legal persons acting as private employment agencies, the employees' services and the collections related to these services should be transferred to the workplace that is registered or that will be registered in the name of the real and legal persons receiving services, and no premium refund transaction should be made regarding the transferred collection amounts.
  • For example, if the labor inspectors' report finds that the temporary employment relationship between private employment agency (A) and employer (B) is not established in accordance with Article 7 of the Labor Code titled "Temporary Employment Relationship" and the regulations in Code 4904, and a provision/recommendation is stated that the employee should be the employee of employer (B), if the obligations regarding the employee are fulfilled by private employment agency (A) within the legal periods, the employee's services and the collections made for these services, if any, will be transferred to the workplace of employer (B) without applying administrative fines, delay penalties and delay increases.
  • However, if the insurance premium accruals for the employees whose services are transferred to the file belonging to the private employment agency and the real and legal person acting as a private employment agency are more than the collections made for these services, or if a debt arises due to the emergence of a situation in which an additional monthly premium and service document must be submitted for the employees whose services are transferred to the file belonging to the employer, a late payment penalty and a late payment increase will be calculated from the due date until the date of actual Administrative fines will also be applied for the additional monthly premium and service certificates.

  • As stated in the first example, assuming that employer (B) is requested to submit an additional monthly premium and service certificate/withholding tax and premium service declaration for the salary difference arising from the fact that the employee is considered to be the employee of employer (B), which has been receiving services from the private employment agency since the beginning, and it is stated that the employee should benefit from the rights specified in the collective bargaining agreement, a late payment penalty and late payment increase will be calculated for the debt arising from the submission of the additional monthly premium and service certificate/withholding tax and premium service declaration from the due date until the date of actual payment. In addition, an administrative fine will be applied for the additional monthly premium and service document/withholding and premium service declaration.
  • Likewise, assuming private employment agency (A) has not paid the debt arising from the monthly premium and service document/withholding and premium service declaration for December 2023 from the periods transferred to the workplace of employer (B) due to the employee being considered as the employee of employer (B), who has been receiving services from the private employment agency since the beginning, a late payment penalty and late payment increase will be calculated for the debt arising from December 2023 from the due date until the date of actual payment, and the debt will be collected from employer (B).

Decision of the Court of Appeals Regarding the Non-Adjudication of the Defendants Who Waived the Inheritance to Pay the Compensation for Moral Damage Due to Occupational Accidents

Decision Publication Date: 24 November 2023

Summary

In its decision dated 31 May 2023 with file number 2023/4120, decision number 2023/615 and published in the Official Gazette dated 24 November 2023 and numbered 32379, the 10th Civil Chamber of the Supreme Court of Appeals ("Court") pointed out that in the lawsuit filed by the siblings ("Plaintiffs") of the employee who died due to an occupational accident with a claim for non-pecuniary damages, the decision of the court of first instance, which was to collect the non-pecuniary damages from the heirs of the deceased without taking into account that they had waived the inheritance, was unlawful and therefore reversed the decision of the court of first instance in the interests of law.

Important Details

  • In the lawsuit for non-pecuniary damages filed by the siblings of the employee, who was employed as a backhoe operator, the Plaintiffs demanded the acceptance of their claims for non-pecuniary damages together with the legal interest to be accrued because the employee died from the overturning of the dozer he was using in the sand quarry where he worked.
  • The company and the heirs of the construction site supervisor of the sand quarry ("Defendants") stated that the Plaintiffs' brother, who died as a result of the overturning of the dozer, had not yet started work on the day of the accident; that he entered the site where the accident occurred after taking the keys of the dozer from the section of the administration building where the keys were kept without the authorization and knowledge of the construction site supervisor; and that they had no responsibility for the accident.
  • Upon the Plaintiffs' appeal against the court of first instance's decision to deem the case as not filed, the Court reversed the court of first instance's decision on the grounds that the file should be removed from the proceedings. The court of first instance, in the retrial conducted in compliance with the reversal decision, ruled for the partial acceptance of the Plaintiffs' claims for non- pecuniary damages.
  • The Ministry of Justice requested that the decision of the court of first instance be reviewed on appeal in the interests of law. In the appeal petition, the Ministry of Justice stated that it was not appropriate to decide to collect the Plaintiffs' claims for non-pecuniary damages from the Defendants jointly and severally, without taking into account that some of the Defendants involved in the case had waived the inheritance by court decision.
  • The Court stated that the decision of the court of first instance, which ordered the collection of the Plaintiffs' claims for non-pecuniary damages from the said Defendants without taking into account that some of the Defendants, who were among the heirs of the deceased, had waived the inheritance by court decision, was contrary to the law and reversed the decision of the court of first instance in the interests of law for these reasons.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.