The long-awaited Law on Labor Courts ("Draft Law") has been drafted, approved by die Judicial Commission of the Grand National Assembly of Turkey, and finally introduced to parliament, waiting to be enacted. The Draft Law contains numerous amendments and brings substantial changes to the current Law on Labor Courts No. 5521 ("LLC"). Mandatory mediation is inarguably one of the most remarkable and attention-grabbing reforms; however, it is not the only amendment that deserves notice and close examination.
The first article of the Draft Law stipulates that the purpose of the Draft Law is to regulate the organization, authorization, jurisdiction, and the procedural elements of the labor courts, and aims to revoke the first article of the LLC. The preamble of the Draft Law suggests that the necessity to ease the workload of labor courts in Turkey is a matter of paramount importance, which needs an immediate solution, considering that more than six hundred thousand labor lawsuits are pending before labor courts of first instance, and, likewise, more than two hundred thousand appeals are pending before the Court of Appeals as of 2015.
Furthermore, the LLC has a tangled history that reaches back to the 1950s, having gone through seven amendments, and yet, it still seems to be outdated in certain aspects. For example, some of the articles are no longer applicable (e.g., Articles 9 and 10), whereas some of the procedures they regulate are not compatible with the requirements set forth under the current Civil Procedure Law No. 6100 ("CPL"), which governs and regulates the judicial process.
Having said that, the principal amendment and the key change brought by the Draft Law is the introduction of mandatory mediation. According to Article 3 of the Draft Law, in cases of compensation claims raised by employees or employers based on individual or collective labor agreements and for reinstatement lawsuits, it is mandatory for the parties to submit their case to a mediator before filing a lawsuit. However, it is important to note that mandatory mediation does not cover or apply to the pecuniary and non- pecuniary damages that may arise from occupational illnesses and work-related accidents.
According to the Draft Law, in mandatory mediation cases, the mediator will be appointed either by the mediation office from a prepared list of mediators, by the commissions to be formed, or by the parties themselves.
The essential duties of the mediator are as follows: (i) informing the parties about mediation meetings, (ii) applying the best efforts possible to communicate with the parties in order to help them reconcile and reach a resolution to the matter, (iii) informing the mediation office as soon as the meeting is concluded, (iv) taking meeting minutes at the end of each negotiation session, and (v) sending those minutes to the mediation office.
According to the Draft Law, the mediator shall conclude the negotiations within three weeks, and this period may be extended for one week by the mediator in certain cases and particular circumstances.
Another significant change which may be introduced to the labor law landscape by the Draft Law concerns the scope of disputes over which the Labor Courts have jurisdiction. According to Article 5 of the Draft Law, disputes between journalists under Law No. 5953, shipmen under Law No. 854, the employees, the employers and the representatives of the employers, subject to the service contracts under Labor Law No. 4857 and Code of Obligations No. 6098, fall under the jurisdiction of the Labor Courts. Comparing the Draft Law provisions to the LLC, we observe that the gist of the amendment is to significantly widen the range of labor law disputes that will be heard by the Labor Courts.
All in all, whilst the fundamental development that the Draft Law introduces to labor law practice in Turkey is the mandatory mediation requirement, various other amendments will also be implemented, aiming to lessen the workload of the judiciary and to clarify their work range and the limits of their j urisdiction.
This article was first published in Legal Insights Quarterly by ELIG, Attorneys-at-Law in September 2017. A link to the full Legal Insight Quarterly may be found here
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