Introduction: As in various part of life, legal regulations have been made, in order to equality of opportunity for men and women and to increase women's participation in business life. In this study, the legal arrangements for women employees in Turkish Labour Law were examined in the context of women's rights (as human rights) in a broad way and it was discussed whether these provisions were changes made in "favour" of women or were a manifestation of a male-dominated (patriarchal) mindset.
-A REVIEW IN THE CONTEXT OF WOMEN'S RIGHTS-
Regulations regarding women's employment and working conditions have always been a matter of debate. Matters such as whether women can participate adequately in business life, the efficiency of the adjustments made for women related to working conditions, whether it is correct to apply positive discrimination are still up to date. This article will briefly touch on the concept of positive discrimination, discuss whether positive discrimination is applied in respect to women's employment and mention the women's working conditions. By doing this, contrary to the traditional view, we will discuss whether these provisions are made in the "favour" of women or these are just an appearing of the androcentric (male-dominated) view.
- Is Positive Discrimination A "Privilege"?
In TLA Dictionary (Turkish Language Association), positive discrimination is defined as "supporting certain groups, who are considered to be not living under equal conditions with others in the society, by giving them various privileges".1 In the Oxford Dictionary, the term takes place as "the practice or policy of making sure that a particular number of jobs, etc. are given to people from groups that are often treated unfairly because of their race, sex, etc."2
According to some academics, positive discrimination is an oxymoron (using opposite words together), a self-contradictory word.3 It is stated that inequality cannot be resolved with a "new kind of discrimination" and this does not contribute to the solution. According to the opposite opinion, positive discrimination is appropriate and useful in some areas of life; it makes a non-radical and practical contribution to resolve the problem of inequality. Accordingly, it should be possible to make arrangements to improve the situation of disadvantaged groups in favour of them, excluding fields that require special skills such as art or science.
In our opinion, positive discrimination would not be possible in an ideal world where there is absolute equality (a parity) between men and women (physical condition should not be considered in this context). But today, most of the women are forced to live in relationships which are needed some sort of dependence where they do not have economic or social freedoms. We consider it important to support any initiative that improves the living conditions of women and we do not agree with the view that perceives positive discrimination as a form of privilege.
However, it should be remarked that the positive discrimination is not a suitable instrument to eliminate the equality problem determinately. Even if the incentives called positive discrimination serve a current and positive purpose; they are not enough to solve the problem radically.
- Is the Principle of Equal Treatment an Implementation of Positive Discrimination?
There are provisions in The Labour Law indicating "no gender-based discrimination can be made in the business relationship" and "a lower wage cannot be determined for the same job because of the gender of employees".4 So, an employee cannot be treated separately from the other just because she is a woman and women cannot be paid less than male employees just because of their gender.
We think it is not possible to evaluate these provisions as part of positive discrimination. The principle of equality is an institution which takes a part in the Constitution and universal law, it is a concept born from fundamental human rights and is a natural outcome of being human. Stating where human rights ends, and positive discrimination begins is so important in terms of protecting and improving women's rights. The discussion that whether basic human rights are positive discrimination hinders the women's movement (feminism for sure) and is essentially the output of a mentality that deprives women of their most basic human rights.
- Are the Restrictions Imposed on Women Employees Regarding the Workplace Reasonable?
The Labour Law regulates that women are not allowed to be employed in underground or underwater works such as mines and cable laying, sewer, and tunnel construction.5 This provision has been transferred from the Turkish Labour Law No. 1475 (former) to the new labour law which is still in force. Accordingly, even if the woman employee wants to work in the jobs listed in the article, the employer will not have to employ her in such workplaces. The employer who acts contrary to this is faced with administrative fines.
What is protected by this provision? Why does the legislator not allow women employees to work underground or underwater? In our opinion, this provision is an appearance of one of the oldest biases against women, the notion of "physical disadvantage". In our opinion, although it can be accepted that working in the sewer or underground may not be a convenient job for everyone, the regulation that all the women cannot work in these jobs is against fundamental human rights, especially the principle of equality any way.
Article 72 of the Labour Law, which is stated in footnote number (5), states that women of all ages and men under the age of 18 are also within the scope of the prohibition in the above-mentioned jobs. It is not possible to say that the provision that indirectly equates women to minor boys have a positive effect on women and this should not be evaluated within the scope of positive discrimination. The idea of "perceiving women as individuals in need of protection" lies in the intellectual background of such legal regulations and practices6 which basically coincides with the idea that the women's movement is confronting.
Just as equality cannot be achieved by banning employment opportunities for women in certain fields of work, it is also not possible to enhance the number of woman employees by such means. Whether or not to labour in such works should be the woman's own choice.
- How is Night Shift Applied for Women?
According to the Labour Law, night means the period between 20.00 at the very latest and 06.00 at the very earliest.7 It is possible to say that the regulations of night work of women includes more reasonable formation than the practice in terms of the banned workplace we have mentioned above. Though during the period of Law No. 1475 in force, night work was completely prohibited for women, just like underground work is. Even it is not possible to talk about an absolute ban for women in the current practice, there are still some restrictions.
First of all, according to the provisions of the "Regulation on Employment Conditions of Female Employees in Night Shifts", the term "woman" means "women over the age of eighteen". So, night shifts are prohibited for women under the age of eighteen by all manner of means.
It is not possible for women (who are over the age of eighteen) to work more than 7.5 hours for a day under any normalcy. However, with an amendment made in 2017, it was determined that women working in the field of tourism, private security and health services can be employed for more than 7.5 hours a day. But in this situation, written consent of the woman who will work for more than 7.5 hours is mandatory.8
It is also mandatory for woman to obtain a medical report indicating she is suitable for working in night shifts.9
- What are the Practices for Pregnant Women and Women Those Have Children?
According to the Labour Law, women cannot be employed for 8-week periods before and after the birth. However, if the employee wills, she can continue to work with the doctor's approval up to 3 weeks before birth. This is called "maternity leave" in legal practice. Once the employee has used her maternity leave, now can only use one of her "half-work" or "unpaid leave" rights at the end of her leave. These rights should be considered "optional" after the maternity leave; means by using one of these once, the possibility of using the other right disappears.
Half-time work is the unpaid leave given to women or men who adopt a child under the age of three, under certain conditions, between 60 and 360 days, for the purpose of the care and upbringing of their child, from the end of maternity leave.10 While working in half of the weekly working hour in half-work, part-time means working less than 2/3 of the weekly working hour.
In accordance with the provisions of the "Regulation on Part-Time Work to be Performed After Maternity Leave or Unpaid Leave", woman employee can request part-time work at any time from the end of the unpaid leave, until the beginning of the month following the beginning of the compulsory primary school age of the child.11
If employee wills, part-time work request must be met by the employer within one month at the latest from the notification. The employee must be notified in writing that the request has been met.12
- Is Severance Pay Due to Marriage Against the Principle of Equality?
In accordance with the relevant provisions -those still in force- of the former Labour Law No. 1475, a woman who terminated her employment due to marriage is entitled to severance pay.13 This right is granted only to women. So, can we explain this situation within the concept of positive discrimination, or could it be said this is in accordance with the principle of equality?
In fact, this issue has been concluded with a Constitutional Court decision in the past. In 2006, an application was filed against the provisions regarding the entitlement to severance pay of married women on the grounds that the regulation is against the principle of equality.14
In our opinion, the justification of the Izmir 6th Labour Court, which applied for the annulment of the regulation, is all right. In the reasoning of the application, the court stated that the equality between women and men (husband and wife) is guaranteed by the provisions of the Turkish Civil Code; it cannot be claimed that the main duty of the woman is the care and services of the house, she has to accept the residence chosen by her husband, and therefore a compulsory and inevitable reason arises for the termination of employment due to marriage and the court stated that it was unconstitutional to grant women the right to severance pay, which is not granted to male employees.15
The case that the Constitutional Court does not find the relevant regulation unconstitutional and rejects the annulment request by majority is actually a matter of research in itself, in terms of reflecting the society's perspective on women. It is understood from the details of the court that women being entitled to severance pay due to marriage is seen as an example of positive discrimination.16 In addition, the Constitutional Court assigns a different role and mission to women in family unity; it essentially repeats some of the opinions contained in the former Civil Code numbered 743.17
On the other hand, the justification for the opposing vote of the woman members of Court (Fulya Kantarcıoğlu and Zehra Ayla Perktaş) is extremely accurate. The members are summarized in the grounds of dissenting votes in terms of the positive discrimination practices aim to prevent the loss of rights of women due to their gender, the marriage union is based on equality between spouses and entitlement to severance pay; it is stated that one of the members of the marital union cannot be superior to the other.18
In our opinion, granting only one side of the relationship the right to severance pay due to marriage is a provision that prevents women's employment and contains some biases regarding the role of women in social and family life. Trying to justify this with concepts such as "social facts" or "Turkish family structure" does not contribute to the solution of the problem. It would be the best solution to expand the severance payment application due to marriage to all parties. Men should also be granted with this right.
- A Former Practice: Menstruation Leave
Another issue that has been discussed recently is the allowing women during their period of menstruation. Lastly, "Zomato", an international organization, put this application into effect and the menstruation leave started to be discussed again.19
In fact, menstrual leave has been applied in Turkey at one time. Article 6 of the former "Heavy and Dangerous Work Regulation" No. 25494 published in the Official Gazette dated 16.06.2004 included menstrual leave under the name of "menstruation".2021 Accordingly, women those working in heavy and dangerous works were able to take menstrual leave for five days a month and even longer with a doctor's report. However, at first, some sectors in which women mostly work were removed from the dangerous class of workplaces and the possibility of practicing menstrual leave was eliminated directly. After all, in 2013, the relevant regulation was abolished. Thus, in Turkey, there had been a very short period which menstrual leave is applied and not experienced properly.
It is a scientific fact that menstrual period affects women physically and mentally intensely. Even, it can be easily said this period is not suitable time for labour, and menstruation repeats at certain intervals due to women's nature. In our opinion, menstrual leave should be seen and implemented as a natural human right, just like the right to live. In current situation, although it is not realistic to expect an initiative from the State in this regard, private corporations should be able to take initiative. Women employees should not deprive this vital right.
In Labour Law, there are many regulations for women, but honestly, related legislations seem an output of the classical and patriarchal perspective on women. As we have studied under the topics of application and severance pay in terms of workplace and time (night shifts), these regulations do not constitute positive discrimination, and some of them are also against the principle of equality. The stereotypical roles imputed to women for thousands of years also find a place in the legal order.
In current situation, positive discrimination is an acceptable phenomenon in terms of women's working conditions and their participation in business life. However, positive discrimination alone is not enough to achieve equality. In our opinion, it is necessary to acknowledge that women's rights are "human rights" and reshape both society and legal practices according to this idea.
Despite all, the rights granted to working women should be recognized as an achievement of women's movement, and especially employers should take an active role in development and implementation these rights. It is clear that women's rights are an achievement of the women's movement and struggle. In terms of protecting these achievements and adding new ones, supporting the women's movement is essential for social peace and absolute equality between women and men.
1 https://sozluk.gov.tr/ (accessed 09.09.2020)
3 For instance, Fikret Başkaya in his article; argues that "such inventions are needed to cover discrimination, more precisely to cover up inequality and to accept and maintain the current situation". -Yeni Paradigmayı Oluşturmak, Yordam Kitap, 2018- (Creating the New Paradigm, Yordam Publishing, 2018, Istanbul)
4 Articles 5/1 and 5/4 and 5/5 of Labour Law No. 4857 contain specific provisions regarding gender discrimination.
5 Prohibition of employment underground and underwater
"Article 72- It is forbidden to employ men and women of all ages under the age of eighteen in underground or underwater jobs such as mines, cable laying, sewer and tunnel construction."
6 Associate Professor Şebnem Gökçeoğlu Balcı- Protection or Exclusion? (Analyzing some of the Protective Regulations in Labor Legislation According to Women Employment and EU Norms), Çalışma ve Toplum, issue 2017/3 pg.1, Istanbul
7 Night and night work
"Article 69-" Night "in the working life is the period that starts at 20.00 at the latest and goes until 06.00 at the earliest and in any case lasts at most eleven hours."
8 "Employment period of women employees in the night shift"
"Article 5- Women employees cannot work more than seven and a half hours in night shifts. However, in the jobs where tourism, private security and health services are carried out and the sub-contractor working in the workplaces where these works are carried out, over seven and a half hours of night work can be done provided that the written consent of the female employee is obtained.
9 Health surveillance
"Article 7 / 1- In order for female employees to be employed in night shifts, before starting work, a medical report stating that it is okay to work in night shifts is obtained from the workplace doctor in charge of the workplace."
10 https://www.iskur.gov.tr/is-arayan/issizlik-sigortasi/yarim-calisma-odenegi/ (accessed 09.09.2020)
11 Part-time work request
"Article 8/1- The worker may request to work in several places at any time from the end of the maternity leave specified in Article 5, the unpaid leave specified in Article 6 or the unpaid leave specified in Article 7, until the beginning of the month following the beginning of his compulsory first age. "
12 Meeting the demand for part-time work
"Article 11/1- The demand for part-time work made in accordance with the procedure is met by the employer within one month at the latest from the notification date."
13 Labor Law No. 1475, Article 14/6: "... the termination of the employment contract of the woman in one year from the marriage ..."
14 Constitutional Court dated 19.06.2008 2006/156, 2008/125 Decision number, https://www.resmigazete.gov.tr/eskiler/2008/11/20081126-8.htm (accessed 09.09.2020)
15 From the reason for the application: "Although, due to our social structure and the distortions in the domestic and out-of-family education system due to the old and wrong traditions in the upbringing of girls and boys, and therefore the traditional structure of the Turkish family that still preserves its existence; Although it is a fact that the pressure of the man on the woman continues due to the fact that the husband is dominant against his wife in marriage and the equality that is tried to be brought by law in practice is not ensured; The principles that the legislator and the applied laws should be based on are not the current wrong practices, but the regulations that should be correct, fair and in accordance with the basic principles of law; In other words, it is not that the wrong practices in society should direct the laws, but that the rules in accordance with the law should guide the society; Otherwise, it is a fact that it is not possible to correct the mistakes and deficiencies in the society."
16 From the reason of Court: "Since social facts such as the responsibility, duty and sharing undertaken by women in society and family life may require different rules and practices for the benefit of female employees, the rule introduced by considering the status and position of female employees does not violate the principle of equality of the Constitution."
17 In the relevant law, the woman's ability to work was dependent on her husband's permission.
18 From the justification of dissenting vote: "Everyone is equal before the law without discrimination due to language, race, colour, gender, political opinion, philosophical belief, religion, sect and similar reasons" says the 10th article of the Constitution, after the definition of legal equality, in the second paragraph, that women and men have equal rights; it was emphasized that the state is obliged to ensure the realization of this equality. Thus, positive discrimination in favour of women was approved with the measures to be taken by the State in order for women to obtain the rights that men have. Undoubtedly, this rule has been introduced in order to close the distance between women who are behind the man in terms of realizing political, social and economic rights, and cannot be considered as the constitutional basis for the loss of rights of men. Positive discrimination is aimed at preventing the woman from losing her rights due to her gender.
As stated in Article 41 of the Constitution, the family is the foundation of Turkish society and is based on equality between spouses. Within the framework of this equality, if the legislator considers the resignation as a result of the establishment of the marriage union as a valid reason for entitlement to severance pay, it cannot hold one side of the marriage union superior to the other. Pure gender difference cannot justify such a distinction. This is not the positive discrimination that takes its support from the Constitution in favour of women, but the negative reflection of the traditional role given to men and women from the male side. "
20 https://www.resmigazete.gov.tr/eskiler/2004/06/20040616.htm#8 (accessed 09.09.2020)
"Article 6- Women cannot be employed in heavy and dangerous jobs during their period. The number of these days is calculated as 5 days. For more, action is taken according to the physician's report. The beginning of the menstruation is the date of notification of the worker. "
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