As the Employment Law Department of Esin Attorney Partnership, we are pleased to share with you our monthly newsletter.
This newsletter provides a summary of the recent legal developments in relation to employment matters in Türkiye.
New Decision by the Constitutional Court on the Annulment of Certain Provisions of the Mediation in Civil Disputes Law No. 6325
Decision Publication Date: 18 April 2024
Summary
The decision of the Constitutional Court of the Republic of Türkiye (“Constitutional Court”) file No. 2023/160, decision No. 2024/77 (“Decision”) was published in the Official Gazette dated 18 April 2024 No. 32521. The Constitutional Court ruled that the first sentence of paragraph 11 of Article 18/A of the Mediation in Civil Disputes Law No. 6325 (“Mediation Law”), “... this party shall be held responsible for the entire litigation expenses even if he/she is partially or fully prevailed in the lawsuit”, and the second sentence, “In addition, no attorneyship fees shall be ruled in favor of this party”, disproportionately restricted fundamental rights and freedoms, and violated the right to property and the freedom to seek rights, and, therefore, they were annulled.
Important Details
- Pursuant to paragraph 11 of Article 18/A of the Mediation Law,
if a party does not attend the first meeting without providing
a valid excuse, this party will be held liable for the entire
litigation expenses, even if this party partially or fully prevails
in the lawsuit. The same paragraph also stipulates that no
attorneyship fee will be awarded in favor of the party who did not
attend the meeting without a valid excuse.
- In a case brought before Çorum Consumer Court, the court
concluded that the contested rules were unconstitutional and
applied to the Constitutional Court for their annulment, for a
concrete norm review of the relevant rules. After examining the
application, the Constitutional Court ruled for annulment.
- According to the Constitutional Court, in disputes where
mediation is regulated as a condition for litigation, the parties
may implicitly reject the settlement in mediation by not attending
the mediation meeting, as they may request the dispute to be heard
before the court. The Constitutional Court has argued that being
held liable for all litigation expenses, even if the relevant party
prevails at the end of the dispute, imposes a disproportionate
limitation on the right to request the dispute to be heard
before the court.
- The Constitutional Court stated that the litigation expenses
for which the party who did not attend the first mediation meeting
is held responsible and the attorneyship fees that will not be
ruled in favor of this party constitute property within the scope
of the right to property regulated in the Constitution. In
addition, the Constitutional Court underlined that the freedom to
seek justice through litigation is a fundamental right and one of
the most effective guarantees that ensures the proper enjoyment and
protection of fundamental rights and freedoms. In this context, the
Constitutional Court identified that the rules subject to the
objection, imposed restrictions on the right to property and the
right of access to the court, by stipulating that the party
who prevails at the end of the lawsuit is deprived of the
litigation expenses and attorneyship fees that should be collected
from the other party.
- In summary, the Constitutional Court concluded that holding the
party who did not attend the first mediation meeting
without providing a valid excuse fully liable for the
litigation expenses and depriving the party of the attorneyship
fees causes a disproportionate restriction, as it imposes an
excessive burden on individuals and disrupts the fair balance that
should be considered between the public interest and the rights to
property as well as access to the court to the detriment of
individuals. Therefore, the Constitutional Court ruled for the
annulment of the rules subject to objection.
- The aforementioned annulment decision will enter into force nine months after the publication of the Decision in the Official Gazette (i.e., 18 April 2024).
Announcement from the General Directorate of Insurance Premiums of the Directorate of the Social Security Institution Regarding the “Extension of the Force Majeure for Certain Areas Affected by the Earthquakes Occurring in Kahramanmaraş”
Announcement Publication Date: 30 April 2024
Summary
The General Directorate of Insurance Premiums of the Directorate of the Social Security Institution published an announcement (“Announcement”) on 30 April 2024 and decided to extend the state of force majeure, which was planned to end on 30 April 2024, in Adıyaman, Hatay, Kahramanmaraş and Malatya provinces and the İslâhiye and Nurdağı districts of Gaziantep province until 31 August 2024.
Important Details
- Pursuant to the announcement, all kinds of information,
documents, declarations and workplace records (including workplace
registration declarations, occupational accidents and disease
notifications) that workplaces employing insured employees in
Adıyaman, Hatay, Kahramanmaraş and Malatya provinces and
the İslâhiye and Nurdağı districts of
Gaziantep province are obliged to submit between 6 February
2023 and 31 August 2024 in accordance with the Social Security
and General Health Insurance Law No. 5510
(“Law”) will be deemed to have been
submitted to the Social Security Institution
(“SSI”) within the legal period if
they are submitted by 16 September 2024 (including this date).
Withholding and premium service declarations/monthly premium and
service declarations (for the period from January 2023 to July
2024) will be deemed to have been submitted to the SSI within the
legal period, if submitted to the SSI until 31 October 2024
(including this date).
- In addition, premium debts that are due for payment before 6
February 2023 will be postponed until 30 September 2024
(including this date), and the premium debts for the months of
January 2023 to July 2024 will be postponed until 28 February
2025 (including this date) without implementing the penalty
and increase for the delay, as specified in Article 89 of the
Law.
- According to the regulation in the Announcement, the premium
debts of the insured under subparagraph (4) of paragraph (b) of the
first paragraph of Article 4 and additional Article 5 of the Law,
which are due for payment before 6 February 2023, as well as
the premiums for the period from January to December 2023 and
January to June 2024 will be postponed until 28 February 2025
(including this date) without implementing the penalty and
increase for the delay, as specified in Article 89 of the
Law.
- Workplaces in the aforementioned regions will benefit from the
incentives provided that they submit their withholding
and premium service declarations/monthly premium and service
documents, which should be submitted between 6 February 2023 and 26
August 2024, by 31 October 2024 (including this date); pay their
premium debts included in the content of these documents by 28
February 2025; and pay their debts overdue for payment before
6 February 2023 by 30 September 2024 (including this
date).
- Employers, insured and beneficiaries whose overdue debts have
been restructured in accordance with various laws or postponed and
deferred in accordance with Law No. 6183 on the Procedure for
Collection of Public Receivables, and whose
restructuring/installment transactions have not entered the
breakdown condition as of 6 February 2023, will be deemed to have
paid their debts within the legal period if they pay their
installments whose payment terms expire between 6 February 2023 and
31 August 2024 by 30 September 2024.
- The debts within the scope of the postponement will be
postponed and deferred for a maximum period of 24 months within the
scope of the sixth paragraph of Article 48 of Law No. 6183 on the
Procedure for Collection of Public Receivables, provided that the
application is made by 28 February 2025 (including this date) and
other conditions specified in the relevant legislation have been
met.
- If the “SSI Notifications” regarding the
withholding and premium service declarations for the months of
January 2023 to July 2024 of the employers who have an agency and
liability agreement with the professional member operating in
Adıyaman, Hatay, Kahramanmaraş and Malatya provinces as
of 6 February 2023 and who have workplaces outside of
Adıyaman, Hatay, Kahramanmaraş and Malatya provinces are
submitted by 31 October 2024 and the accrued premium debts are paid
by 28 February 2025, these obligations will be deemed to have been
fulfilled within the legal period.
- In Adıyaman, Hatay, Kahramanmaraş and Malatya provinces and the İslâhiye and Nurdağı districts of Gaziantep province, it will be possible for employers, insured and beneficiaries who are within the scope of the disaster in Adıyaman, Hatay, Kahramanmaraş and Malatya provinces and the Islahiye and Nurdağı districts of Gaziantep province to make their applications within the scope of Restructuring Law No. 7440 by 2 December 2024. These debtors will be able to pay the first installment of their debts until the end of the month following the application and the other installments in monthly periods following the first installment. In addition, since the state of force majeure in Adıyaman, Hatay, Kahramanmaraş and Malatya provinces and the Islâhiye and Nurdağı districts of Gaziantep province has been extended until 31 August 2024, monthly premium and service documents/withholding tax and premium service declarations for August 2024 and later will be submitted within the legal period, and the premiums for the said monthly premium and service documents/ withholding tax and premium service declarations will also be paid within the legal period.
The Supreme Court of Appeals' Decision on Collusive Subcontracting
Decision Date: 3 April 2024
Summary
Pursuant to the decision of the 9th Civil Chamber of the Supreme Court of Appeals (“Court”) file No. 2024/2748 and decision No. 2024/6523, it was ruled that if the principal employer, which is in a superior position in terms of technological facilities and equipment for performing the work carried out in the workplace, subcontracts work that can be performed with its own technological possibilities, the subcontracting relationship would be considered collusive. It was also ruled that the employees hired as subcontractor employees shall be deemed to be employees of the principal employer as of the date that the collusive subcontracting relationship is established. The Court also ruled that the employees who do not notify their union membership to the principal employer cannot benefit from the provisions of the collective bargaining agreement to which the principal employer is a party.
Important Details
- The Plaintiff filed a lawsuit at the court of first instance
alleging that his rights were restricted due to a collusive
relationship by being considered an employee of the Mining Company
(“Notified Party”), which has a service procurement
agreement with the Defendant, even though he was an employee of the
Defendant from the beginning. The Plaintiff stated that he was a
member of the union that is a party to the collective bargaining
agreement executed by the Defendant and requested the determination
that he was the employee of the Defendant and the collection of his
additional disbursement and receivables arising from the collective
bargaining agreement from the Defendant.
- The court of first instance decided that the subcontracting
relationship between the Defendant and the Notified Party was
collusive and, in this context, the Plaintiff's additional
disbursement claim should be paid. However, the Plaintiff's
claims arising from the collective bargaining agreement were
rejected because the Plaintiff's union membership was
not notified to the Defendant.
- The Regional Court of Appeals ruled that, in the case at hand,
the work did not require specialization due to technological
reasons and was not necessary, which is required for subcontracting
the principal work to the subcontractor, and that the Plaintiff
should be considered the principal employer's employee. The
Regional Court of Appeals also held that the Plaintiff could
not benefit from the provisions of the collective bargaining
agreement to which the Defendant was a party, as he had not
notified the Defendant of his union membership.
- The Court upheld the Regional Court of Appeals' decision.
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.