An employment contract defines the relationship in which a service provider (usually called an employee) undertakes to work (for a certain or unspecified period), and a service receiver (usually called an employer) undertakes to pay compensation (wages) for the time and effort of the service provider with a social security guarantee. Although the freedom of contract principle prevails in Turkish law, in some cases where the parties are not equal, legislators have introduced mandatory regulations to ensure balance between the parties. The parties can freely decide on matters other than these mandatory regulations, and if there is no regulation in a contract, the existing legal regulations in the relevant legislation will be applied. It is also important to determine the relative mandatory legal rules that cannot be ruled against an employee in a contract and the absolute mandatory provisions that cannot be changed in any way.
Employment relations vary according to the title of the service provider, the scope of work and the type of the workplace. The regulations that can be applied to a contract according to the scope of the service relationship are included in different laws as mentioned below. There are also additional detailed regulations that have been introduced to complement these laws.
1. Employees Within the Scope of Labor Law No. 4857
Turkish Labor Law No. 4857, (TLL) is applied to all workplaces, employers, employer representatives and employees, regardless of their field of activity, other than in the exceptions noted below.
As can be understood from its scope, as a rule, TLL is applied to all employment contracts. There are, however, exceptions to this rule as specified in Article 4 of the Law. Pursuant to the aforementioned regulation, TLL is not applied to the following employment and employment relations:
- Sea and air transportation work
- Agricultural and forestry workplaces or enterprises with 50 or fewer employees
- Any kind of construction work related to agriculture within the boundaries of the family economy
- Handicrafts done at home between family members and relatives up to and including the 3rd degree without the participation of nonfamily members
- Home services
- Rehabilitated persons
- Workplaces where three people work in accordance with the definition of Article 2 of Law No. 507 on Tradesmen and Craftsmen.
However, TLL includes a number of exceptions to these exceptions listed below that fall within the scope of TLL:
- Loading and unloading work from ships on the coast or at ports and piers
- Employment in all ground facilities for aviation
- Employment in workshops and factories performing agricultural arts and making agricultural tools, machinery, and other items
- Construction work in agricultural enterprises
- Employment in parks and gardens that are open to the public or that are an extension of a workplace,
Employment related to seafood producers who are not considered agricultural businesses, and that is not covered by the Maritime Labor Law.
2. Employees Within the Scope of the Maritime Labor Law No. 854
One of the exceptions listed in Article 4 of TLL, which is applied as a rule to employment relations, is sea transportation. Thus, Maritime Labor Law (MLL), which is a special law, regulates certain types of maritime employment.
The scope of employees subject to the MLL is regulated in its first article. Accordingly, MLL is applied to seamen working with a tonnage of 100 or more gross tonnes, and also seamen with a contract of employment to work on ships carrying the Turkish flag, and their employers.
The definition of seaman and employer should be examined in order to fully determine the scope of the law. A seaman is defined as a captain, officer, crewman or other persons working on a ship with an employment contract. The owner of a ship or persons who operate a ship on their own behalf and account are considered as employers under this law. Additionally, it is stated that sea transportation vehicles such as boats, barges, dummy barges and scows are counted as ships.
Since the MLL does not apply to employment relations on ships that do not fly the Turkish flag, and these relationships are also excluded from the scope of the TLL, the Turkish Code of Obligations is applicable.
3. Employees Within the Scope of Press Labor Law No. 5953
Law No. 5953 on the Regulation of Relations between Employers and Employees in the Profession of the Press (PLL) is applied to persons, and their employers, who work in all kinds of intellectual and artistic roles in newspapers and periodicals, and news and photograph agencies in Turkey, who are not covered by the definition of employee in the Labor Law.
As can be seen from its scope, a person must work in intellectual and artistic employment in order to be considered a journalist and to be covered by the PLL. Thus, people employed in roles such as editor-in-chief, editor, writer, cameraman and journalist are considered to be within the scope of the PLL. Employees who are not directly involved in journalism, such as secretaries, accountants, and cleaning personnel, although working in the press sector, are not regulated under this law. The compensation principles in PLL have more severe terms than in TLL thus it is important for fourth estate and related companies to identify which employees fall under which regulations and then design their internal human resources policies for optimum risk management.
4. Employees Within the Scope of the Turkish Code of Obligations No. 6098
The Turkish Code of Obligations (TCO) is a fundamental law. The general rules of the law applicable to contracts and the rules to be applied to some standard contracts are regulated in the TCO.
One of the standard contracts regulated in the TCO is the service contract. The regulations in the service contract of the TCO are applied to employees who fall within the scope of the MLL, PLL or the exceptions specified in the 4th article of the TLL. Additionally, as the TCO is a general law, in cases where there are no provisions in special laws, this law also applies to employees covered by special laws.
5. Apprentices and Interns
An apprentice is someone who is employed to develop their profession or art. Interns can be described as students working to improve their practical knowledge as a part of their education.
The most important elements of an employment contract are the work undertaken by an employee and the wage payed by an employer. The most important element of an apprenticeship contract, however, is education. For this reason, an apprenticeship contract cannot be qualified as an employment contract.
The most important element of an internship contract is the development of an intern's knowledge and experience. Therefore, it is not possible to qualify an internship contract as an employment contract.
As both apprentices and interns are not covered by the regulations of an employment contract, laws specific to the service contract cannot be applied. Instead, Vocational Education Law No. 3308 is applied to relationships between apprentices and legal internships relating to vocational training and their employers. However, if no legal obligatory internship exists and a person named as an intern performs an activity based on a contract, this relationship will be considered as an employment contract and the intern will be considered as an employee within the scope of the above-mentioned laws according to the subject of the job.
There is no single law that covers all areas of labor practice in Turkey. Regulations under Labor Law, Maritime Labor Law, Press Labor Law, the Turkish Code of Obligations, or Vocational Education Law can be applied to an employment contract according to the type of work undertaken. In order to determine the correct rules to be applied to an employment contract, it is of great importance to determine which law falls within the scope of an employment relationship.
As a rule, Turkish Labor Law governs the regulations applied to employment contracts. The 4th article of the Labor Law states the types of work and the workers that are exceptions to the law. The Turkish Code of Obligations is applied to employment contracts within this scope if they are not covered by other special laws. It is of the utmost importance before signing an agreement to check the legal background of an employment relationship and the scope of work to ensure the correct law is applied. From a risk management perspective, staff managers should identify the pertinent laws applicable to their company and workforce and ensure their internal policies are designed to comply with the standards of the relevant laws.
Originally Published by Cetinkaya, November 2020
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