Obligations of the employer in Turkey
Articles 401 to 426 of the new law regulate the obligations of the employer in Turkey arising from the employment contract. While making these regulations, it is generally seen that a number of provisions that did not exist in the old law, but which have manifested themselves in practice, have been included to eliminate the problems and to protect the worker even more. Some regulations have also been introduced in order to determine the working conditions of the workers working according to the law of obligations.
In this context, it will be emphasised one by one which regulations bind the labour laws and which regulations do not affect the labour laws.
Wage payment obligation: The obligation to pay wages is recognized as the most important employer’s obligation from the perspective of the law, and detailed regulations are included.
Article 401 of the Law stipulates that the employe in Turkey is obliged to pay the employee an equivalent wage determined in the contract or collective labour agreement, and in cases where there is no provision in the contract, not less than the minimum wage. It is a new regulation that the wage must be paid according to the aforementioned arm’s length wage.
Accordingly, if there is no regulation on wage determination, the employer is obliged to pay the employee the prevailing wage that will emerge by considering a number of criteria such as the work or the place where that work is performed or another worker performing that work. From this point of view, in a situation where the wage is not determined, it becomes possible for the employee to always claim and prove that he/she is paid less than the equivalent wage and to demand a difference or to apply for other legal remedies (termination for just cause).
Article 402 of the Law regulates overtime wages. Accordingly, employers are obliged to pay overtime work to the employee at least fifty per cent more than the normal working wage. This regulation also shows how to calculate the overtime wage of an employee who will work according to the provisions of the Code of Obligations, on the other hand, it does not contradict with the labour laws.
In the second paragraph of the article, there is a provision stipulating that employers may, with the consent of the employee, grant leave at an appropriate time instead of overtime pay. Although this regulation is not found in the Maritime Labour Law and Press Labour Law, it is found in the Labour Law and Article 41 of the Law stipulates that leave in return for overtime work may be granted upon the employee’s request, not upon his/her consent.
From this point of view, it is clear that leave in return for overtime work can also be in question for seafarers working according to the Maritime Labour Law and journalists working according to the Press Labour Law, the request in this regard will come from the employer in Turkey, the seafarer or journalist may or may not consent to this, and if not, such an application cannot be made.
On the other hand, since Article 41 of the Law No. 4857 stipulates that leave in return for overtime work can only be granted upon the employee’s request, and since such a provision is a more protective provision than the concept of the employee’s consent, it should be accepted that the provision on the subject in the Labour Law is valid and there is no change in this matter.
Article 403. Article 403 of the Labour Law regulates the share of the employee in the result of the work. Accordingly, if it is agreed by the contract that the worker shall be given a certain share of the production, turnover or profit together with the wage, this share shall be determined at the end of the accounting period, taking into account the legal provisions or generally accepted commercial principles. According to the second paragraph, in cases where it is agreed to give a certain share to the employee, if the calculation of the share cannot be agreed upon, the employer in Turkey is obliged to provide information to the employee, or instead of the employee, to the expert they have agreed together or appointed by the judge, and to submit the books and documents related to the enterprise that constitute the basis of the information to his examination, and if it is agreed to give a share from the profit, the employer is also obliged to give the employee the year-end profit and loss statement upon his request.
This regulation is essentially a Turkishised and simplified version of the second paragraph of Article 323 of the former law.
Article 404 of the Law. Article 404 of the Law regulates the brokerage fee. The regulations on brokerage fee are actually new regulations, and consist of the transposition of the matters on which a consensus has been previously established by judicial decisions into the text of the law. Since it concerns a situation for which there is no regulation in the new and special laws, it has a binding feature not only for those who work and employ according to the provisions of the Code of Obligations, but also for those who work and employ according to the provisions of all other labour laws.
Accordingly, when the intermediary service is in question;
– If it is agreed that the employer in Turkey will pay a fee to the employee in return for acting as an intermediary in certain works, the employee’s right to demand arises upon the valid establishment of the intermediary transaction with the third party.
– In contracts where obligations are to be performed in parts and in insurance contracts, it may be agreed in writing that the wage claim for each part shall arise upon the due date or fulfilment of the obligation related to this part.
– If the contract established between the employer in Turkey and a third party through the mediation of the employee is not performed by the employer without fault or if the third party fails to fulfil its obligations, the right to claim wages shall cease. Only in case of partial fulfilment, the wage is deducted proportionally.
– If the contract does not obligate the worker to keep an account of the brokerage fee to be paid to him, the employer in Turkey is obliged to provide the worker with a written account for each period for which the fee is due, including the transactions subject to this fee.
– If the need to review the account arises, the employer in Turkey is obliged to provide information to the employee or, on his behalf, to the expert jointly agreed upon or appointed by the judge, and to submit the books and documents related to the enterprise that form the basis of the information to his examination.
405. Article 405 of the Law regulates the issues related to bonuses. In general, employers may give special bonuses to their employees on certain days such as holidays, New Year’s Eve and birthdays. However, the right of the employees to claim the bonus will arise in the presence of an agreement or a working condition or a unilateral commitment of the employer in Turkey.
According to the second paragraph of the article, if the service contract is terminated before the period in which the bonus is given, the part of the bonus reflecting the period of employment must be paid.
Here, it is necessary to touch upon the issues mentioned in the subject related to the intermediary fee. In other words, the aforementioned regulation is the inclusion of some standards that have been established by judicial decisions as a legal text. It is a new regulation that is not specifically included in the labour laws. It has a binding effect not only on those who work under the provisions of the Code of Obligations, but also on those who work and employ under the labour laws.
Article 406 of the Law. Article 406 of the Law includes the payment period among the regulations regarding the payment of wages. The provisions on the day of payment in Article 326 and the provisions on advance payment in Article 327 of the former law are combined under this article.
Accordingly, unless otherwise is customary, the wage of the employee must be paid at the end of each month. However, it is also possible to determine shorter payment periods with the service contract or collective labour agreement.
Unless a shorter payment period is agreed or there is no custom to the contrary, the intermediary fee shall be paid at the end of each month. However, if the execution of the transactions requires more than six months, the payment may be postponed to a later date by written agreement, if the brokerage fee has been agreed as the main fee.
In cases where it is stipulated to pay a share of the production in addition to the main wage, it is stipulated that the share of the product shall be paid as soon as it is determined, and in cases where it is decided to pay a share from the turnover or profit, the share shall be determined and paid within three months following the accounting period at the latest.
The employer in Turkey is obliged to give the employee an advance in proportion to his/her service in the event of a compelling need and if he/she is able to pay it as a matter of equity.
Due to the importance of the wage, it is certain that the regulations in this article will replace the regulations in the labour laws. However, since there is no different regulation regarding the payment of wages in general, the regulations in the special labour laws are valid. On the other hand, since the special laws do not contain more protective provisions for the employee, especially in the matters of brokerage fee, share from the fee, share from turnover or profit, the fee must be paid according to the aforementioned regulation.
Article 407 of the Law Article 407 of the Law includes the protection of the wage among the regulations regarding the payment of the wage. In the provision of the article, the protection of the wage is basically mentioned in three cases. These are the payment of wages through a bank, the principles of settlement and the use of wages in favor of the employer in Turkey.
The concept of wage protection is primarily associated with the payment of wages through the bank.
Accordingly, employers who are obliged to pay the wages, premiums, bonuses and all kinds of such remuneration of the workers they employ through specially opened bank accounts within the scope of the determined principles will not be able to pay the wages, premiums, bonuses and all kinds of such remuneration of the workers other than the specially opened bank accounts. Additionally, the worker will be given an account receipt in each payment period.
The protection of the wage has been tried to be ensured by regulating the settlement transactions in the second plan. Accordingly, employers will not be able to exchange the wage debt with the receivable from the employee without the consent of the employee. However, claims arising from a judicially determined damage caused intentionally by the employee may be exchanged up to the attachable portion of the wage.
Accordingly, unlike the former regulation (Article 333), the settlement process as a whole is subject to the consent of the worker, and the requirement and obtaining of the worker’s consent for the settlement and offsetting of only the part necessary for the livelihood of the worker and his family has been abolished. In other words, according to the previous regulation, while employers could make the exchange transaction on their own initiative for the amounts exceeding the part that is necessary for the subsistence of the worker and his/her family, they will no longer be able to do so, and they will have to obtain the consent of the worker for this part as well. In the case of damages, unlike the previous regulation, two criteria have been introduced for exchange and set-off. One of them is that it is required to be fixed by a court decision that the damage is caused by the intention of the worker, and the other is that even in this case, in other words, even if the intention is fixed by a court decision, the amount of the settlement cannot exceed the attachable portion of the worker’s wage. According to Article 410 of the Law, this ratio is generally one-fourth, and this ratio does not include the amount to be appreciated by the judge for the dependent family members of the employee.
Since these regulations constitute more protective provisions compared to the regulations in the existing laws, from now on, it is necessary to act in accordance with the aforementioned regulations regarding the settlement and offsetting transactions.
In the last plan, the regulation on the use of the wage in favor of the employer in Turkey is included. Accordingly, agreements regarding the use of the wage in favor of the employer in Turkey are deemed invalid. This regulation binds not only the employees under the Code of Obligations but also the employees and employers under all other labour laws.
The concept of wage in case of obstruction of the performance of the performance of work is regulated under 2 titles in the law.
The first one is the default of the employer in Turkey (Article 408). Accordingly, if the employer prevents the fullfillment of the performance of the performance of labour with its fault or defaults in accepting the performance, it is obliged to pay the wage to the employee and will not ask the employee to fulfil this performance later. However, the expenses that the worker is saved from incurring due to this obstruction and the benefits that the worker has gained or deliberately avoided gaining by doing another job should be deducted from the wage.
The second is the case where the worker stops working (Article 409). Accordingly, in a long-term service relationship, if the employee is unable to perform his/her labour duties for a short period of time in proportion to the time he/she has been working, due to illness, military service or work arising from the law and similar reasons, the employer in Turkey shall be obliged to pay the employee an equitable wage for that period, unless it is compensated in another way.
The issues regarding the attachment, transfer and pledging of wage receivables are regulated in Article 410 of the New Law.
Accordingly, more than one quarter of the wages of the workers cannot be garnished, transferred or pledged. Additionally, the amount to be assessed by the judge for the dependent family members of the worker is not included. The rights of alimony creditors are reserved. Again, the transfer or pledge of future wage receivables is invalid.
The criteria for attachment and transfer in the article provision is essentially a repetition of the regulation in Article 35 of the Labour Law No. 4857. Additionally, pledging and transfer and pledge of future wage receivables are included. From this point of view, it is concluded that this is a more protective regulation for the employee since it introduces regulations that are not in other laws and the provision of the article is parallel to the regulations in other labour laws. In this case, Article 410 of the Code of Obligations No. 6098 is valid in this regard both in terms of the Code of Obligations and private labour laws.
The regulations on piecework or lump sum wages are set out in Articles 411 and 412 of the Law.
According to Article 411 of the Law, if an employee undertakes to perform piecework or lump-sum work or, as stated in the article, only piecework or lump-sum work for only one employer in accordance with the contract, the employer in Turkey is obliged to provide him with sufficient work.
If the employer in Turkey, through no fault of his own, is unable to provide the piecework or lump-sum work stipulated in the contract or if business conditions temporarily require it, he shall pay the wage to the worker on a time basis. In this case, if the wage to be paid on a time basis is not specified in the agreement or in the service or collective labour agreement, the employer shall be obliged to pay the worker a wage equivalent to the average wage previously received on a piece-rate or lump-sum basis.
If the employer in Turkey is unable to provide piecework or lump-sum or time-based work, the employer is obliged to pay at least the wage to be paid for time-based work in accordance with the provisions on default in acceptance of the performance of labour.
According to Article 412 of the Law, if the employee undertakes to work on a piece-rate or lump-sum basis according to the contract, the employer in Turkey is obliged to notify him of the unit wage to be paid before the commencement of each work.
The employer in Turkey who fails to make this notification is obliged to pay the unit wage determined for the same or similar work.
The provisions of the article actually correspond to Article 324 of the old law. However, it is more detailed than that article and also contains provisions to eliminate the problems arising from the practice.
Obligation to provide work tools and materials: According to Article 413 of the Law, the employer is obliged to provide the worker with the necessary tools and materials for the work, and if the worker uses his own tools and materials in the performance of the work in agreement with the employer, the employer in Turkey is obliged to pay the worker an appropriate compensation for this, unless otherwise agreed in the agreement or local custom.
The aforementioned provisions fulfil Article 331 of the former law. As such, it does not contain a new or different regulation.
Obligation to cover expenses: Another obligation of the employer, which was not included in the old law, but has been evaluated as a practical problem by judicial decisions over time and has been concluded in a certain way, is the obligation to meet the expenses regulated in Article 414 of the Law.
In general, the employer is obliged to pay all kinds of expenses required for the performance of the work and, if the worker is employed outside the workplace, the expenses that are mandatory for his/her subsistence. In a written service or collective labour agreement, it may also be stipulated that the expenses that are agreed to be met by the worker personally may be paid to the worker on a daily, weekly or monthly basis in a lump sum basis. However, this payment should not be less than the amount to cover the compulsory expenses. On the other hand, agreements regarding the partial or full payment of the mandatory expenses by the employee are deemed invalid.
In this context, special issues related to the means of transport, which are of particular importance in practice, are also mentioned in Article 415 of the Law.
Accordingly, if the employee uses a means of transport provided by the employer or himself by agreement with the employer in Turkey for the performance of the work, the ordinary expenses required for the operation and maintenance of the vehicle shall be covered by the employer to the extent that it is used for service.
If the worker uses his own motor vehicle for the work in agreement with the employer, the employer is also obliged to pay the tax related to this vehicle, the compulsory financial liability insurance premium and an appropriate compensation for the wear and tear of the vehicle to the extent that it is used for the service. Similarly, in the event that other means of transport and animals belonging to the employee are used in the performance of the service, the employer in Turkey shall be obliged to meet the ordinary expenses required for their use and maintenance to the extent that they are used for the service.
Article 416 regulates the manner in which the obligation to pay the aforementioned expenses shall be fulfilled. Accordingly, the receivable arising from the expenses incurred by the employee shall be paid together with the wage each time, unless a shorter period has been agreed or there is no local custom. Additionally, if the worker regularly incurs expenses in order to fulfil his/her contractual obligations, he/she shall be given an appropriate advance at regular intervals, at least once a month.
There is no provision similar to the aforementioned provision in the old law and special labour laws. For this reason, the provisions of Articles 141, 415 and 416 of the Code of Obligations regarding the reimbursement of expenses should be applied in cases where the employee is employed both subject to the provisions of the Code of Obligations and subject to the provisions of the labour laws and the problems should be solved according to the provisions of these articles.
Obligation to protect the personality of the labourer: The issues regulated in Articles 417, 418 and 419 of the Law under the heading of protection of the personality of the worker actually correspond to the provisions of occupational health and safety.
The corresponding regulation in the old law was included in Article 332. It is seen that the new regulations are more comprehensive on the one hand and include new concepts on the other hand.
According to Article 417, employers are generally obliged to protect and respect the personality of the worker in the service relationship and to maintain an order in the workplace in accordance with the principles of honesty, and in particular to take the necessary measures to prevent psychological and sexual harassment of workers and to prevent further damage to those who have been subjected to such harassment.
Employers are also obliged to take all necessary measures to ensure occupational health and safety in the workplace, to keep the tools and equipment in full, and workers are obliged to comply with all measures taken regarding occupational health and safety.
Compensation for damages arising from the death of the employee, damage to the bodily integrity or violation of personal rights due to the employer’s behavior contrary to the law and the contract, including the above provisions, is subject to the provisions of liability arising from breach of contract.
The article generally includes occupational health and safety measures in general terms. Since the Labour Law and the Occupational Health and Safety Law No. 63131, which has not yet entered into force, contain much more detailed regulations, it can be said that the provisions of the said law will be valid. However, in any case, the aforementioned regulations will have to be applied to the workers who will overlap according to the provisions of the Code of Obligations.
It is seen that the concept of psychological harassment-mobbing in the workplace is also included in the article. It can be said that the concept of psychological harassment-mobbing at the workplace is accepted as an occupational health and safety measure. In this case, in the case of psychological harassment-mobbing at the workplace, the provision of the Code of Obligations is binding in the context of what the concept is and who is responsible for what.
According to the aforementioned article, if the employee lives with the employer in Turkey in a household, the employer is obliged to provide adequate food and proper shelter. If the worker is unable to fulfill his/her performance of work due to reasons such as illness or accident without any fault on his/her part, the employer is obliged to provide home treatment for two weeks for the care of the worker who has worked for up to one year and who cannot benefit from social insurance benefits. For each year of service exceeding one year, this period shall be increased by two days for a period not exceeding four weeks. The employer is also obliged to fulfill the same obligations in the event of pregnancy and childbirth.
Another new regulation addressed in the context of the protection of the employee’s personality is the use of personal data under Article 419.
This regulation is not included in the labour laws. As such, it may constitute a provision in the context of both the labour laws and the law of obligations. Accordingly, employers will be able to use the personal data of the employee only when it is related to the employee’s aptitude for the job or when it is mandatory for the performance of the service contract. Additionally, by reserving the provisions of special laws on this subject, it has been tried to ensure that this provision does not contradict with the regulations introduced by special laws in this context according to their subjects.
Provision of penalty conditions and release: The obligations of the employer in Turkey arising from the employment contract are regulated in Article 420 under the title of penalty clause and enforcement.
Accordingly, only penalty clauses against the employee are invalid. This issue will solve an important problem in practice. In practice, penalty clauses are stipulated in employment contracts only against the employee and this issue frequently causes disputes. In fact, a result set forth by the judicial decisions has been turned into a legal text.
Another issue regulated in the article is related to the release, which is also a frequent problem in practice. Here, just like in the penalty clause, the judicial analyses and results of the problem, which have been resolved to a certain extent by judicial decisions, have been transformed into the text of the law.
Accordingly, it is stipulated that the release agreement regarding the employee’s receivables from the employer in Turkey must be in writing, at least one month must have elapsed since the termination of the contract as of the date of the release, the type and amount of the receivable subject to the release must be clearly stated, and the payment must be made in full compared to the right amount and through a bank. Release agreements or releases that do not fulfill these conditions are deemed null and void.
According to the third paragraph, release agreements that do not contain the actual payment of the right or other payment documents containing a statement of release are deemed to be receipts, limited to the amount they contain. Even in this case, the payments must have been made through a bank.
The last paragraph stipulates that the provisions of the above-mentioned release and receipt documents shall also apply to all compensation receivables arising from the service contract, including those that may be requested by the deprived support and other relatives of the employee.
It should be noted here that in case of non-payment through the bank, the release deed does not have the power to be a valid and debt-terminating document.
Holiday and leave obligation: According to the systematics of the Law, another obligation of the employer in Turkey is the obligation to grant holidays and leave. Accordingly, the conditions and application of the employer’s obligation to grant week holidays and job search leave (Article 421) and annual leave (Articles 422, 423, 424 and 425) are regulated.
Although there are provisions in these provisions that contradict the labour laws, since there is no regulation that brings more rights to the employee, it is seen that these provisions are only intended to determine the holiday and leave rights of the employees working outside the scope of the labour laws and within the scope of the law of obligations.
In the old law period, holidays and leaves were included in Article 334 with very general expressions, but with this new regulation, they have been made more protective for the worker by including periods and wages.
According to Article 421, employers are obliged to give their employees a holiday every week, as a rule, on Sunday or, if the situation and conditions do not allow this, one full working day.
Additionally, employers are also obliged to give the employee two hours of job search leave per day, without any deduction in wages, within the notice period in the event of termination of an indefinite-term service contract.
In determining the hours and days of leave, the justified interests of the workplace and the employee shall be taken into consideration.
According to Article 422, annual leave shall be at least two weeks per year for workers who have worked for at least one year, and at least three weeks per year for workers under the age of 18 and workers over the age of 50, and shall be paid. In particular, the duration of leave foreseen in this provision for workers under 18 years of age and over 50 years of age seems to be in conflict with the Labour Law. In the similar regulation (4857/53-5), the aforementioned periods are determined as not less than 20 days. Here, the same periods are accepted as not less than 3 weeks (21 days). However, according to the provision of 4857/56-5, the minimum period of 20 days is actually 22 and 23 days, since week holidays (and national holidays and general holidays, if any) coinciding with the annual leave period cannot be counted from the annual leave period. Since the leave period according to the Labour Law No. 4857 is longer than the leave period determined according to the Code of Obligations, and since it is a more protective regulation for the employee, the aforementioned regulation of the Code of Obligations will not be binding on the Labour Law and the Press Labour Law. On the other hand, since Article 40 of the Maritime Labour Law No. 853 stipulates that the seafarer who has worked for at least 6 months will be granted 15 days of annual leave and there is no age limit, if the seafarer who has worked for at least 6 months is under 18 years of age or over 50 years of age, the period of leave to be granted will not be less than 20 days in accordance with the principle of interpretation in favour of the employee and the general law-specific law relationship and this provision of the Code of Obligations.
Article 423 of the Law provides the employer in Turkey with the opportunity to reduce the annual leave period under certain conditions. Accordingly, if the employee does not fulfil the service for more than one month in a service year due to his/her own fault, the employer in Turkey has the possibility to deduct one day from the annual paid leave period for each full month not worked.
However, if the employee cannot work for a maximum of three months within a service year due to reasons such as illness, accident, legal obligation or fulfilment of a public duty without his/her own fault, or if a female employee cannot work for a maximum of three months due to pregnancy and childbirth, the employer in Turkey cannot make a deduction from the annual leave period, and no arrangements contrary to the regulations regarding the right to deduction specified in this article cannot be made against the employee in service or collective labour agreements.
According to Article 424 of the Law, annual leave shall be granted without interruption as a rule. However, with the agreement of the parties, the annual leave period can also be divided into two.
The principles regarding the remuneration of annual leave are regulated by Article 425 of the Law. Employers are obliged to pay the wage for the annual leave period in advance or in advance to each employee who uses his annual paid leave before the employee starts his annual leave. Additionally, as long as the service relationship continues, the employee may not waive his/her right to annual paid leave in return for money or other benefits to be received from the employer in Turkey, and in the event of termination of the service contract for any reason, the wage for the annual leave periods that the employee is entitled to but cannot use will be paid to him/her or his/her beneficiaries at the wage on the date of termination of the contract.
The statute of limitations regarding this wage will start to run from the date of termination of the service contract.
Issuance of service certificate: According to Article 335 of the old law and Article 426 of the new law, employers are obliged to provide a certificate of service at any time upon the request of the employee, including the type and duration of the work, and if the employee explicitly requests it, the certificate of service shall also indicate his/her skills in performing the work and his/her attitude and behavior.
With the second paragraph, it is seen that a provision that was not included in the previous regulation has been included by stipulating that the employee or the new employer who hired the employee may claim compensation from the former employer in Turkey if the certificate of service is not provided on time or if the certificate contains inaccurate information.
