Employment Law Newsletter October

New Work Permit Evaluation Criteria Announced

Publication Date of New Evaluation Criteria: October 1, 2024

Summary

The Regulation on the Implementation of the International Labor Force Law ("Regulation") entered into force upon its publication in the Official Gazette dated February 2, 2022 and numbered 31738. Pursuant to the provisional article of the Regulation, the "Work Permit Evaluation Criteria" applied by the Ministry of Labor and Social Security ("Ministry") in evaluating work permit applications have been updated in accordance with Article 22 of the Regulation. The new work permit evaluation criteria entered into force on October 1, 2024.

Important Details

• The employment, financial capability and salary criteria in the work permit evaluation criteria have been revised, and new arrangements have been made based on various sectors, professions or jobs. In addition, the exceptions to these criteria have been revised. In the revised criteria and exceptions, it may be important whether the workplace is subject to the balance sheet method, whether it is a newly established or already operating workplace, whether there is an ordinary partnership, and whether the foreigner has previously stayed legally in Türkiye.
• In addition, the scope of foreigners exempted from the evaluation criteria has been expanded to include: (i) foreigners who have been in Türkiye for at least eight years based on a work permit, shortterm residence permit, family residence permit, long-term residence permit, humanitarian residence permit or residence permit for victims of human trafficking; (ii) foreigners who will work in professions and jobs other than those reserved for Turkish citizens and who are declared to be of Turkish descent by the Ministry of Interior Affairs or Ministry of Foreign Affairs or deemed appropriate by the Directorate General of International Labor Force within the scope of international labor policy; and (iii) foreigners who have been granted a long-term residence permit.
• The new Regulation also introduces special evaluation criteria based on sector, profession or job. Accordingly, the criteria to be applied will differ in terms of the sectors in which the workplaces where the foreigner will work operate and the jobs in which the foreigner will work. In this context, different regulations have been made based on sectors and occupations, such as IT, education, domestic services (child care, care for disabled people or elderly people), aviation, sectors requiring advanced technology (qualified investments, R&D and design centers), public projects, health and tourism. In addition, special evaluation criteria have been introduced for foreign students' work permit applications.
• The thresholds for paid-in capital and net sales in the financial capability criteria and the capital amount threshold in the financial capability criteria for foreigners who are shareholders of companies will enter into force on January 1, 2025. In addition, the former financial capability criteria will continue to be applied for work permit applications until January 1, 2025. In this context, it will be considered sufficient in terms of the financial capability criteria if the workplace's paid-in capital is at least TRY 100,000 or its gross sales are at least TRY 800,000 or its exports from the last year amount to at least USD 150,000, and the foreign shareholder's capital amount is at least TRY 40,000.
• In addition, extension applications for work permits will be evaluated based on the financial capability criteria applicable on the date of the first application. For example, if an extension application is made for a work permit whose application was made before October 1, 2024, the criteria and exceptions that were in effect before October 1, 2024 will be taken into consideration.

Social Security Institution's General Letter on Subcontractor Registration Procedures

Publication Date of General Letter: October 3, 2024

Summary:

The general letter ("General Letter") published by the General Directorate of Insurance Premiums of the Social Security Institution ("SSI") on October 3, 2024 regulates the circumstances in which SSI directorates will notify the contracting authority after subcontractor registration.

Important Details:

• According to the General Letter, if the tender contract states that subcontracting is prohibited, the SSI will inform the contracting authority after the registration of the subcontractor.
• If there is no provision in the tender contract prohibiting the subcontracting, the SSI will not need to inform the contracting authority separately

Changes in Deferment Procedures by the Social Security Institution

Publication Date of General Letter: October 8, 2024

Summary:

On October 8, 2024, in the general letter ("General Letter") of the General Directorate of Insurance Premiums of the Social Security Institution ("SSI"), it was announced that amendments have been made to the "Procedures and Principles of Deferment and Installment of Social Security Institution Receivables in Accordance with Article 48 of Law No. 6183" and "Procedures and Principles of Deferment and Installment of Social Security Institution Receivables Deferred under Force Majeure in Accordance with Article 48 of Law No. 6183."

is prohibited, the SSI will inform the contracting authority after the registration of the subcontractor. y If there is no provision in the tender contract prohibiting the subcontracting, the SSI will not need to inform the contracting authority separately. Changes in Deferment Procedures by the Social Security Institution Publication Date of General Letter: October 8, 2024 Summary: On October 8, 2024, in the general letter ("General Letter") of the General Directorate of Insurance Premiums of the Social Security Institution ("SSI"), it was announced that amendments have been made to the "Procedures and Principles of Deferment and Installment of Social Security Institution Receivables in Accordance with Article 48 of Law No. 6183" and "Procedures and Principles of Deferment and Installment of Social Security Institution Receivables Deferred under Force Majeure in Accordance with Article 48 of Law No. 6183."

Important Details:

• Pursuant to the General Letter, as of January 1, 2025, it will be sufficient for a deferral request to be rejected if the deferral has been revoked twice, instead of three times, prior to the request.
• Accordingly, in the event that the deferment process within the scope of Article 48 of Law No. 6183 has been revoked twice within the year of the request and the previous two calendar years, the deferment requests will not be accepted unless the debt is paid, except for those who apply to benefit from the restructuring laws while the deferment process is in progress. However, if the debtor requesting a new deferment has paid the debts subject to the deferment process that was previously revoked, this deferment process will not be considered to be revoked.
• In addition, in the deferment process of SSI receivables postponed within the scope of force majeure, the process will be carried out regardless of whether the deferment made before the date of the request has been revoked.

Amendments to the Regulation on the Implementation of the International Labor Force Law

Publication Date of Regulation: October 15, 2024

Summary:

With the Regulation Amending the Regulation on the Implementation of the International Labor Force Law ("Regulation") published in the Official Gazette dated October 15, 2024 and numbered 32693, changes were made regarding the foreigners who will be exempted from the work permit requirement and regarding the application processes for work permit exemption.

Important Details:

• The Regulation increases the period of exemption from work permits for foreigners who can contribute to Türkiye in economic, socio-cultural, technological and educational fields from 6 months to 3 years.
• Foreign press officers have been included in the scope of foreigners to be exempted from work permits. With the approval of the Presidential Communications Directorate, foreign press members who are granted a permanent press card will be able to benefit from the exemption for the duration of their assignment.
• With the Regulation, humanitarian residence permit holders and foreigners under temporary protection who are notified through the system by the Ministry of Interior ("Ministry") are also included within the scope of the exemption. In addition, a simplified process is envisaged for these foreigners. It is deemed sufficient for the Ministry to notify them and then issue a work permit exemption information form. In other words, these foreigners are exempt from the application and assessment process.
• The legal time limit for work permit exemption applications submitted from within the country has been abolished. Before the Regulation, the application for exemption could be made within thirty days from the date of the foreigner's entry into Türkiye, whereas after the Regulation, the application can be made at any time during the period in which the foreigner is legally present in Türkiye.

Social Security Institution Publishes General Letter on E-Declaration User Change Procedures

Publication Date of General Letter: October 22, 2024

Summary:

As announced by the Social Security Institution ("SSI") in its General Letter dated October 22, 2024, e-notification user change procedures can now be carried out on the E-SSI's workplace registration application screen.

Important Details:

• The amendment can be made by a person authorized for the workplace, such as the employer, the employer's representative or the manager.
• The SSI has also published an "E-Declaration User Change Procedures Guide" explaining how this process will work and clarified the application procedures and principles.

Constitutional Court Decision on Reinstatement Lawsuits

Publication Date of Decision: October 3, 2024

Summary:

In its judgment dated June 11, 2024 and numbered 2024/7376, the Constitutional Court found that the applicant ("Applicant"), who claimed that his right to a fair trial had been violated due to an erroneous evaluation of the evidence, had a valid claim. The decision emphasized that the Applicant's right to a fair trial was violated due to the failure to take into account the witness statements and incomplete examination.

Important Details:

• While the Applicant was working as a commercial activities officer for the employer, his employment relationship was terminated through a mutual termination agreement on August 2, 2017. The Applicant filed a lawsuit for reinstatement, claiming that the contract was signed against his will and that he was under duress.
• The Ankara 32nd Labor Court ("Labor Court") accepted the Applicant's request to hear witnesses Witness A.B.P. stated that the employer downsized and created new field organizations and that the Applicant's employment was terminated and he was replaced by another person. He also stated that the Applicant's performance was outstanding and that he was subjected to pressure during the termination process.
• Based on the witness statements, the Labor Court ruled that the termination of the employment contract was invalid and that the Applicant should be reinstated. The Labor Court stated that the mutual termination agreement did not provide a reasonable benefit in favor of the employee.
• The employer filed an appeal against the decision. The employer argued that the Labor Court did not conduct an adequate investigation and that the judgment in favor of the Applicant based only on the Applicant's claim and witness statements was contrary to the procedure and the law.
• The Ankara Regional Court of Appeal ("Court of Appeal") reversed the judgment of the Labor Court and dismissed the case. The Court of Appeal emphasized that there was no evidence that the Applicant's will had been frustrated and that the mutual termination agreement was valid.
• The Constitutional Court ruled that the failure of the Court of Appeal to evaluate the witness statements, which could have been evidence in favor of the Applicant, led to a violation of the right to a fair trial and violated Article 36 of the Constitution. The decision was forwarded to the Labor Court to be sent to the Court of Appeal for retrial.

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.