Wages in General and in Practice in Turkey
a. In General
Article 32 of the Labour Law defines wages in Turkey in general terms as the amount provided to a person by the employer or third parties in return for a job and paid in money. According to the same article, the wage must be paid in Turkish currency at the workplace or to a specially opened bank account (this issue will be discussed in detail below). Wages in Turkey cannot be paid to taverns and similar entertainment places and shops and stores selling retail goods, except for the employees working in these places. If the wage is agreed in a foreign currency, it can be paid in Turkish currency according to the prevailing rate on the day of payment. Wages shall not be paid by means of promissory notes, coupons or any other instrument purporting to represent money valid in the country or in any other way.
Although the parties are free to determine the amount of wage, the wage to be paid to the worker should not be less than the minimum wage determined by Article 39 of the same law.
Although it is essential to pay the wage at the latest once a month, this period can be reduced up to one week with labour contracts and collective bargaining agreements.
b. Payment of wages in Turkey through a bank
The issue of payment of wages in Turkey through a bank, Article 323 of the Code of Obligations No. 818 amended by Article 82 of the Law No. 5754 (Article 407 of the Code of Obligations No. 6098 is currently in force), Article 14 of the Law No. 5953 on the organisation of relations between employees and employers in the press profession amended by Article 83 and Article 27 added, Article 84. Article 83 of the Law No. 83 amended Article 14 and added Article 27 of the Law No. 5953 on the regulation of relations between employees and employers in the press profession, Article 84 amended Article 29 and added Articles 6 and 51 of the Maritime Labour Law No. 854, Article 85 amended Articles 32 and 102 of the Labour Law No. 4857, Article 86 amended Article 54 of the Labour Law No. 544. Articles 32 and 102 of the Labour Law No. 4857 amended by Article 85, Article 73 of the Banking Law No. 5411 amended by Article 86 and the provisions of the regulation (Regulation on the payment of wages, premiums, bonuses and all kinds of wages of this nature through banks published in the Official Gazette dated 18.11.2008 and numbered 27058) can be discussed as follows.
Firstly, the meaning of the fact of depositing the wages in Turkey to the bank in the legal plan should be revealed. According to the analyses made, it would be appropriate to put forward the fact of depositing the wages to the bank as a place of performance (place of payment).
According to Article 89 of the Code of Obligations, the place of performance of the obligation shall be determined according to the express or implied will of the parties. If there is no agreement to the contrary, the following provisions must be applied. Accordingly
1. Money debts, at the place of residence of the creditor at the time of payment,
2. Money debts at the place where the subject of the debt was located at the time of conclusion of the contract,
3. All other obligations shall be performed in the debtor’s domicile in the order in which they arose.
If the performance of an obligation that is required to be performed in the creditor’s domicile is significantly difficult due to the creditor’s change of domicile after the debt arises, the debt may be performed in the creditor’s previous domicile.
The second of these regulations is applicable to wages in Turkey. As a result, the wage, which is a money debt, must be paid at the place (workplace) where the subject of the debt (performance of work) is located at the time of the conclusion of the contract.
In this context, as it has been accepted for a long time, bank deposit of wages in Turkey is a practice related to the payment of wages in terms of location, and as it is also accepted, the employer has an optional right in this regard in cases where the obligation is not foreseen. However, for the employers within the scope determined by the regulation in addition to the provisions of the law, the issue becomes an obligation, especially since administrative fines are foreseen in this regard.
It cannot be said that the employer who pays the wage at the workplace does not fulfil his wage payment obligation, and the employer will be released from his obligation by making payment at the workplace. Additionally, administrative fines may be imposed in this regard.
Considering the references made in the Regulation, the fact of non-payment through the bank is penalized with an administrative fine on its own, independently of the fact of non-payment of wages in Turkey. In other words, if an employer who is required to pay wages through a bank makes the payment by hand, he/she will be penalized despite making the payment.
On the other hand, it is natural that the obligation targets the employer, who is the wage payment debtor. However, in the regulation, third parties who pay wages in Turkey are also subject to the obligation due to the definition in Article 32 of the Law. In this sense, for example, in a workplace where wages are paid according to the percentage method, it is necessary to discuss how third parties can pay wages through the bank. It is obvious that the first paragraph of Article 51 of the Law No. 4857 has been omitted here. According to the aforementioned regulation, in workplaces where such wage practices exist, the employer is obliged to distribute to the workers in full the amounts left by third parties and accepted by the provision of law as wages, excluding tips. The third parties who pay the wages deliver these wages to the employer or to his knowledge and control through various means to be given to the workers, and the obligation to pay the wages to the worker is still on the employer.
According to the foreseen regulations, the obligation is limited to depositing the wage amount in the bank. Accordingly, the obligation to pay the wage is fulfilled by the employer depositing the wage in the bank. Apart from this, technical problems that may arise from the bank or problems that may arise from the loss, theft or misuse of the employee’s bank card will not result in the employer’s failure to fulfil the wage payment obligation.
Another issue that needs to be discussed in this regard is the situation where the employee does not open a bank account or does not show explicit acceptance with his/her signature.
Although it is possible to oblige the employer to use bank intermediation for the payment of wages in Turkey, it is impossible to oblige the employee to open a bank account. In other words, the employee is not obliged to open an account or to open an account in a certain bank. If the employee shows another bank account, the employer will be required to deposit the wage amount to this bank account, even if it is different. If the person does not open an account, since the payment made by the employer to the bank will be seen as an ordinary air made to the name, and since it is not possible to pay wages in this way due to the fact that it is not legally possible to pay wages in cash by hand or to pay to the account to be opened, the obligation to pay wages will be deemed not fulfilled unless the employee withdraws this money. If it is proved that the employee is stubborn in not opening an account, the administrative fine will not be imposed on the employer who has to pay the wage by hand, since the moral element of the offense has not been realized.
However, the employee may be obliged to open an account if a prior and explicit acceptance has been obtained with the provision of an employment contract or a collective bargaining agreement or a workplace regulation, or if it has become a workplace practice with an amendment to the contract or a collective bargaining agreement to be signed with an implicit acceptance during the continuation of the employment contract. In this case, the failure of the employee to open an account will be considered as a failure to fullfil a contract or employment condition and action will be taken accordingly. On the other hand, it is not possible to consider the amendment of the labour contract provision in this direction as a fundamental change in the conditions of employment in accordance with Article 22 of the Law No. 4857. Because the transaction does not change the working conditions and it is accepted as an important convenience in wage payment for the employee. For example, issues such as the ability to withdraw the wage from the desired location and the availability of holidays stand out as a convenience.
When the aforementioned regulations are evaluated, it is seen that it is possible to consider the scope in terms of currency, person, number of employees, scale and the nature of the payment.
Regarding the currency of the payment, it is seen that the mandatory provisions do not contain any special regulations regarding the currency of the payment. Although it is possible to determine the wage in foreign currency, it is necessary to make actual payment in Turkish currency according to the current rate of the day on which the payment will be made. In this context, under the obligation to make payment through a bank, it is appropriate for the employer to make the equivalent Turkish Lira amount to the bank account.
Aside from the discussions regarding the legal provision, the payment of wages in foreign currency in the context of payment of wages in Turkey through a bank may also give rise to practical problems such as whether the bank has the prescribed foreign currency or the amount of foreign currency or whether the OPÇ device is suitable for this transaction.
It is seen that those who are obliged to deposit their wages in Turkey to the bank are workers, seafarers and journalists working under an employment contract, regardless of the scope of the relevant laws, since the same issue is also included in the Code of Obligations.
The provisions of the relevant law do not foresee the inclusion of all workers, journalists and seafarers and their employers in the scope of the regulation, but the principle of making a determination by taking into account factors such as the type of tax liability to which the employers are subject, the size of the enterprise, the number of employees employed, the province where the workplace is located and similar factors. In this sense, as stated in Articles 2, 6, 8 and 10 of the Regulation, the scope is related to the number of workers, journalists and seafarers and scale. Accordingly, employers employing at least 5 workers (journalists or seafarers) in Turkey are obliged to pay wages in Turkey through a bank.
At this point, it is useful to mention a special regulation introduced for employers of journalists by Article 7 of the Regulation. Accordingly, employers who employ journalists are obliged to pay the net amount of all kinds of payments to be made to the journalist and the worker in that month, after deducting the legal deductions, through banks, if the total number of journalists employed and the number of workers is at least 5, if they also employ persons who are outside the provisions of Law No. 5953 and who fall within the definition of “worker” in the Labour Law.
According to Article 2 of the regulation, the obligation to pay through banks applies to workers employed in accordance with the provisions of the Code of Obligations and the Labour Law, seafarers employed within the scope of the Maritime Labour Law and journalists in accordance with the definition in the Law on the Regulation of Relations between Employees and Employers in the Press Profession. Again, with a provision added to Article 2 later on, payments to be made to these persons in the event that a workplace is a workplace that has a facility security certificate within the scope of the Defence Industry Security Law dated 29.6.2004 and numbered 5202 or a confidential facility within the scope of the Technology Development Zones Law dated 26.6.2001 and numbered 4691, and payments to be made to those who are assigned to fulfil the duties specified in the State Intelligence Services and National Intelligence Law dated 1.11.1983 and numbered 2937 and the regulations issued in accordance with this law, are exempted from the obligation to pay wages through banks.
Again, another issue to be considered in the context of the person is that the account to be paid wages must be the worker’s account. In this context, since the wage is one of the rights strictly connected to the person, the wage cannot be paid to the relatives, friends, another worker of the workplace, any other person, team guide and the borrowing employer in temporary employment relationship, and the employer will not fulfil its wage payment obligation in case of wage payments to the accounts of these persons.
The issue of scale is considered as Turkey-wide. Accordingly, the obligation to pay will be determined according to the total number of workers, journalists and seafarers employed by the employer throughout Turkey, and will only arise if the total number is 5 or more than 5. In this case, the number of workers employed in each workplace is not important.
When the relationship between the scope and the nature of the payment is analysed, it is seen that the type of payment is not limited and the broadest possible wage concept is considered. The payment of the wages in Turkey, premiums and bonuses of the employee and all kinds of rations of this nature, as stipulated in the relevant legal regulations and the regulation, through the bank. In this sense, other wage supplements other than wages, premiums and bonuses, increased wages such as overtime wages, social benefits in cash, minimum subsistence allowance amounts and the like will have to be paid through the bank. In this regard, it is also useful to mention the advance payment. Contrary to the practice of advance payment in our country, according to Article 406 of the Code of Obligations. According to Article 406 of the Code of Obligations, since it is basically a deserved wage amount, it will be appropriate to be evaluated within this scope and paid through the bank.
Additionally, in the event of termination of the contract, payments in the nature of compensation such as notice pay, severance pay, wages for unused annual leave should not be considered within this scope, since the regulations clearly mention wages and similar concepts.
Again, it is seen that there is flexibility in the legal regulations regarding whether the amount to be deposited in the bank regarding the payments will be the gross amount of the wage or the net amount remaining after the legal deductions.
In the relevant articles of the Regulation, this amount is adopted as net amount. Article 13 of the Regulation stipulates that the Ministry of Labour and Social Security, the Ministry of Finance and the Ministry to which the Undersecretariat of Treasury is affiliated are jointly authorised to oblige employers or employers’ representatives or third parties to deposit the payments to be made to them in gross to the accounts to be opened with banks.
It can be assumed that three types of disputes will arise regarding the payment of wages in Turkey through banks. The first arises from the relationship between the employee and the bank, the second arises from the relationship between the employee and the employer, and the last arises from the relationship between the bank and the employer. In the first case, the use of the bank card by the employee, the use of the bank card by other and unauthorized persons and technical failures that may occur in the devices come to mind. The second situation arises in cases where the wage is not paid or underpaid. In the last case, it can be mentioned in cases where the payment made by the employer cannot be fulfilled by the bank, fulfilled late or incompletely fulfilled.
In cases where the employee misuses, loses or steals his/her bank card and malfunctions that may occur in the OPÇ machine may adversely affect the proper relations between the employee and the bank and disputes may arise.
Accordingly, if the employee loses or steals his/her bank card, he/she must immediately notify the bank. This notification may be made in writing or verbally. The practice is in the direction of accepting that the expenditures made during the period until this notification is made are made by the cardholder. Because the card is cancelled and removed from use immediately after the notification is made.
On the other hand, the bank’s liability for damages arising from software or hardware malfunctions that may occur in the OPÇ machine and malfunctions that may occur due to misuse by persons other than the debit card holder should be accepted as strict liability.
It comes to mind that the disputes that may arise between the employee and the employer with the deposit of the wages in arrears are related to the non-payment of the wages in Turkey, late payment, underpayment, and the claim of the rights arising from the underpayment or late payment (interest and penal clause).
In case of payment of the wage, since the proof of payment of the wage falls to the employer, the employer should be expected to prove that he deposited the wage amount to the bank and that there is a problem arising from the bank’s transactions.
Since the proof of the amount of the wage falls to the employee, the employee will be expected to deal with the underpayment or late payment and the claim for the rights arising therefrom. In this case, bank records can always be tested as evidence. When and in what amount the wage amount was deposited can be easily revealed by bank records.
As it is known, the late payment or underpayment of the wage reveals the meaning of waiver of the remaining part and additional rights. In this sense, the employee’s withdrawal of the money from the bank account may raise the claim that he/she has waived the unpaid portion or the interest and penal clause that may be requested in case of late or underpayment.
Acceptance of underpayment does not mean waiver of the balance. In this sense, underpayment of the main wage amount, not including overtime work, bonuses, premiums or payments of this nature in the main wage does not indicate that these payments have been waived, and the difference can always be claimed.
However, the issue does not seem to be so clear regarding the request for interest and penal clause, which are ancillary rights. In this regard, Article 131 of the Code of Obligations should be evaluated. According to the aforementioned provision, in such cases, if it is declared that the right to demand is reserved or if it is understood from the circumstances, the ancillary rights can be demanded. However, since the receipts given by the OPÇ machines do not contain signatures, they do not have the status of a promissory note, they can only be a special provision from discretionary evidence, and since the limit of this is 2.500.- TL in Article 200 of the Code of Civil Procedure, it does not make sense as a special provision for amounts exceeding this amount, and it is not possible to put a reservation on these documents in practice, it is not possible to claim these rights.
On the other hand, since the employer’s obligations to issue a wage statement and wage payroll or a document replacing it continue, the employee’s signature on these documents as well as making a reservation is also a solution.
The problems that may arise in terms of employer-bank relations refer to non-payment, underpayment or late payment situations that may arise due to the fact that the wage is not deposited in the bank or, although deposited, the bank takes action or does not take action outside or contrary to the principles stipulated for the existing relationship.
Regarding these situations, first of all, it is determined that the relationship between the employer and the bank complies with the concept of assistant regulated in Article 116 of the Law of Obligations, and in this sense, the problems that may arise from the fault of the bank, which is an assistant, will bind the employer. In other words, the employer will be held responsible for disputes arising from issues such as late payment, underpayment or non-payment arising from the bank’s fault.
In the event that there is no bank branch in the location where the payment will be made or if it is not possible to make payments to the employees through the bank, it is required by Article 11 of the regulation that the payments are made through PTT branches. Another issue is included in Article 12 of the regulation. According to the aforementioned regulation, the nature of the payments will be specified in the account disclosure.
