Women workers in Turkey
Another group that requires special protection in terms of working conditions is women workers in Turkey. The protection of women in terms of working conditions can be analyzed under the headings of protection of women in general in terms of working conditions and protection of women who are pregnant, breastfeeding or have older children in particular.
a. Protection of women in terms of working conditions
The protection of women in terms of working conditions is included in legal regulations in the form of prohibiting the employment of women workers in Turkey in some jobs and more generally in terms of occupational health and safety or binding their work to a special set of conditions.
The scope of the concept of the jobs in which women are prohibited from working was prohibited in many jobs in the old regulations and this scope has narrowed considerably in the recent regulations, especially with the abolition of the Regulation on Heavy and Dangerous Work.
Law No. 4857 contains regulations that can be considered within the scope of work where women are prohibited from working.
Article 72 of the Law, entitled “Prohibition of underground and underwater work”, prohibits the employment of women of all ages in underground and underwater work such as mines, cable laying, sewerage and tunnel construction. Contrary to Article 72, Article 73 on the prohibition of night work prohibits the employment of children and young workers under the age of eighteen in industrial workplaces without gender discrimination, and it can be concluded that the employment of women workers in Turkey under the age of eighteen in industrial workplaces is prohibited.
Another special regulation is the determination of the working conditions of pregnant or breastfeeding women. Another regulation is the determination of the working conditions of female employees who have completed the age of eighteen. Article 73 of the Turkish Labour Law No. 4857 and Article 30/a of the Occupational Health and Safety Law stipulated the issuance of a regulation on this subject, and this regulation was published in the Official Gazette dated 24.07.2013 and numbered 28717 under the title “Regulation on the Conditions of Employment of Female Employees in Night Shifts” and entered into force.
According to Article 5 of the Regulation, women are prohibited from working more than seven and a half hours on night shifts. In line with Article 69 of the Law, in workplaces where tourism, private security and health services are carried out and in the work carried out by the sub-employer therein, night work over 7.5 hours may be carried out provided that the written consent of the female worker is obtained.
It is also prohibited to make women workers in Turkey work overtime during night shifts. In any case, in cases where the daily working time exceeds seven and a half hours, the work done and exceeding seven and a half hours should be considered as overtime work and the wage should be accrued and paid accordingly, regardless of whether it exceeds the total weekly 45-hour period.
According to Article 6 of the Regulation, employers are obliged to take women workers in Turkey who will work night shifts in workplaces outside the municipal boundaries or in workplaces that are within the municipal boundaries but have difficulty in commuting by ordinary vehicles during shift change hours, to the workplace from the centre closest to their residence with the appropriate vehicles they will provide.
According to Article 7 of the Regulation, in order for women workers in Turkey to be employed in night shifts, a health report must be obtained from the workplace physician stating that there is no impediment to their work and control examinations must be repeated at regular intervals to be deemed appropriate by the workplace physician.
According to Article 8, if the spouse of the female worker works in the same or a separate workplace where work is carried out in shifts, night work at the request of the female worker will be arranged so that it does not coincide with the night shift in which her spouse works. If the spouses work in the same workplace and want to work in the same night shift, this request will be fulfilled to the extent possible.
According to Article 9 of the Regulation, if a female worker is pregnant, she is prohibited from working on night shifts for a period of one year from the date of the determination of the situation with a doctor’s report until the birth, and breastfeeding employees are prohibited from working on night shifts for a period of one year starting from the date of birth, without prejudice to the provisions of their own legislation. For breastfeeding women, this period will be extended for six more months and their work will be arranged to coincide with day shifts if it is determined by the report of the workplace doctor in charge at the workplace that it is necessary for the health of the mother and child.
Finally, according to Article 10 of the Regulation, the list of names of female workers to be employed during night shifts shall be kept at the workplace and shown to labour inspectors upon request.
b. Protection of Women workers in Turkey who are Pregnant, Breastfeeding or have Older Children
The concept of employment of pregnant and breastfeeding employees is a special regulation of the concept of employment in case of maternity in general. Labour Law No. 4857 and the Occupational Health and Safety Law specifically address the maternity period, which is aimed to be protected, as the period starting from pregnancy to the end of the breastfeeding period and until the child reaches the age of compulsory primary education. The introduction of special regulations on maternity will, on the one hand, protect women workers in Turkey during pregnancy and breastfeeding, which is a physiological feature specific to women, in terms of increasing the physical wear and tear of working conditions, and on the other hand, it will positively affect the health of the child and the happiness in family life by facilitating their functions on family and baby care.
The most general regulation is the regulation in Article 74 of the Labour Law No. 4857 under the title of “Working in case of maternity and milk leave”. Additionally, the Regulation on Part-Time Work after Maternity or Unpaid Leave, which was enacted based on Article 13 of the Law and entered into force after being published in the Official Gazette dated 08.11.2016 and numbered 29882, and the Regulation on the Conditions of Employment of Pregnant or Breastfeeding Women, Breastfeeding Rooms and Child Care Facilities, which was enacted based on Article 30/a of the Occupational Health and Safety Law No. 6331 and entered into force after being published in the Official Gazette dated 16.08.2013 and numbered 28737.
According to Article 4 of the Regulation on pregnant or breastfeeding women, a pregnant employee is an employee who informs her employer about her pregnancy with a document obtained from any health institution, and a breastfeeding employee is an employee who is on milk leave in accordance with the provisions of the legislation to which she is subject and informs her employer about the situation. First of all, the pregnancy must be determined and documented to the employer, and in order for the fact of breastfeeding to occur, the birth must occur and the milk leave must be taken and the employer must be informed about this issue.
According to Article 6 of the Regulation, the information and evaluation process will be initiated. Accordingly, firstly, the employee will inform the employer in case of pregnancy and breastfeeding, and then the employer’s evaluation and precautionary processes will be in question.
These processes are in two stages. In the first stage, the effects of chemical, physical, biological factors and working processes that are considered dangerous for the health and safety of the pregnant or breastfeeding employee on the employees should be evaluated and the general and special measures specified in Annex 1 of the regulation should be taken according to the results of this evaluation, and in the second stage, the type, level, health and safety risks of exposure in the workplace should be evaluated to determine the effects on pregnant or breastfeeding women and to decide on the measures to be taken, and in this evaluation, psychosocial and medical factors affecting the employee personally should be taken into consideration.
The last stage is related to information. Accordingly, the pregnant or breastfeeding employee shall be informed by the employer about the results of the assessment carried out at the workplace and the measures to be taken for health and safety purposes.
When the limitations and restrictions in the regulations on pregnant or breastfeeding female employees and the additional obligations that these provisions impose on the employer are evaluated, the importance of these regulations in terms of both labour law and occupational health and safety law and the fact that administrative fines are stipulated in both laws and regulations show that the regulations in the law and regulation are related to public law.
However, since the provisions on working hours and leave are among the regulations that can be amended for the benefit of the employee, it can be said that these regulations have the characteristics of relative mandatory legal norms. Accordingly, while it is possible to reduce working hours or extend leave periods in favour of the employee, it is not possible to increase working hours or reduce leave periods to the detriment of the employee through an employment contract or collective bargaining agreement.
Article 74 of the Labour Law and the regulation on part-time work contain some protective provisions on maternity leave and milk leave. The same and similar provisions are also included in the regulation. It is seen that these provisions are about paid and unpaid leave, alleviation of working difficulties, wages, night work and working hours.
i) Leave in case of maternity
Article 74 of the Labour Law stipulates the periods of leave to be used before and after the birth. Similar provisions are found in Articles 5, 6 and 7 of the Regulation on part-time work and Articles 7 and 11 of the Regulation on pregnant and breastfeeding women.
The leave periods are associated with pregnancy, labour and breastfeeding. Accordingly
– During pregnancy, the female worker will be given paid leave for periodic check-ups.
– Female employees will be allowed eight (8) weeks of leave before giving birth.
– It is essential that they are not employed for eight (8) weeks after the birth.
– In case of multiple pregnancy, two (2) weeks will be added to the eight (8) weeks before the birth.
– If the health condition of the female employee is appropriate, with the approval of the doctor, it is possible to continue at the workplace up to three (3) weeks before the birth if she wishes. In this case, the periods worked by the employee will be added to the postnatal period and the postnatal leave period may reach 13 (thirteen) weeks in case of single pregnancy and 15 (fifteen) weeks in case of multiple pregnancy.
– In case of premature birth, the periods that cannot be used before birth will be added to the postnatal periods.
– In case of the death of the mother during or after the birth, the periods not used after birth will be made available to the father.
– One of the spouses who adopt a child under the age of three or the adopter will be granted 8 weeks of maternity leave from the date the child is actually delivered to the family.
– From the end of the specified maternity leave, for the care and upbringing of the child and provided that the child is alive, female workers and female or male workers who adopt a child under the age of three will be given unpaid leave for 60 days in the first birth, 120 days in the second birth and 180 days in subsequent births for half of the weekly working hours. In case of multiple pregnancy, thirty days will be added to these periods. If the child is disabled, this period will be applied as 360 days. However, the provisions regarding milk leave will not be applied during these periods.
– These periods can be increased before and after the birth according to the health condition of the worker and the characteristics of the work, if necessary and determined by a doctor’s report.
– Upon request, the employee must be given unpaid leave up to 6 (six) months after 16 (sixteen) or 18 (eighteen) weeks in case of multiple pregnancy.
This leave will be given to one of the spouses or the adopter in case of adoption of a child under the age of three. This leave period will not be taken into account in the calculation of the annual paid leave right.
– Employees in this situation should be given another light job that their health allows. In this context, if it is not possible to transfer the employee to another job, the employee may be granted unpaid leave for the period necessary to protect the health and safety of the employee, provided that the provisions of the legislation to which the employee is subject are reserved.
– Female workers shall be given a total of 1.5 (one and a half) hours of milk leave per day to breastfeed their children under one year of age. The hours between which this period will be used and how many times it will be divided will be determined by the worker himself/herself. This period will be counted from the daily working time.
ii) Mitigation or prohibition of labour difficulty
According to Article 74 of the Labour Law and Article 7 of the Regulation on Pregnant and Breastfeeding Women, in order to reduce the difficulty of work, if deemed necessary by a doctor’s report, the pregnant/pregnant female employee should be employed in lighter work suitable for her health and in this case, no reduction should be made in her wage.
According to Article 7 of the Regulation, when the results of the assessment reveal a health and safety risk for the pregnant or breastfeeding employee or an impact on the employee’s pregnancy or breastfeeding, the employer shall temporarily change the working conditions and/or working hours of the relevant employee in a way that prevents the employee from being exposed to these risks. If this is not possible, the employer will be expected to take the necessary measures to transfer the employee to another job.
The regulation in the sense of prohibition of work is included in Article 12 of the regulation. Accordingly, firstly, it must be determined with a medical report that breastfeeding employees are not prevented from working at the end of their maternity leave and before they start working. Employees who are determined to be inconvenient to work with a doctor’s report will not be able to work for the period and jobs specified in the report.
Apart from these regulations, the issue of alleviating the working conditions of pregnant or breastfeeding women or prohibiting them from working is found in the radiation safety regulation. According to the regulations in Article 12 of the Regulation, first of all, the female employee whose pregnancy is determined must notify the management in order to reorganise the working conditions. Notification of pregnancy will not prevent the female employee from working. However, working conditions should be rearranged if necessary. For this reason, the dose to be taken by the child to be born should be kept as low as possible. In this respect, the dose limits set for the community (for radiation) in the mentioned regulation must be complied with. Female workers in the lactation period shall not be employed in work that carries the risk of radioactive contamination.
iii) Limitation of working time
According to Article 9 of the Regulation, a pregnant or breastfeeding employee shall not work more than seven and a half hours a day.
Although this is the rule, there may be cases where a pregnant or breastfeeding employee works more than seven and a half hours a day. In this case, two types of problems may arise. The first one is about what should be considered as work exceeding the prescribed periods, considering that overtime work is expressly prohibited. The other problem arises when the prescribed periods are exceeded on a daily or weekly scale, especially in a job that requires less than seven and a half hours of work, but does not exceed 45 hours in total per week. In this case, if the daily working time is exceeded due to the limitation of the daily working time in such jobs, especially on a daily scale, this exceeded period should be accepted as overtime work regardless of the weekly total.
iv) Night work ban
According to Article 8 of the Regulation, female employees shall not be forced to work at night during the period from the determination of their pregnancy with a medical report until the birth. Additionally, in accordance with the second paragraph of the article, the employee who has just given birth is prohibited from working at night for one year following the birth. At the end of this period, they cannot be forced to work at night during the period determined by a health report to be unfavourable in terms of health and safety.
A similar regulation is regulated in Article 9 of the Regulation on the Conditions of Night Shift Work of Female Employees issued according to Article 73 of the Labour Law No. 4857 and Article 30/a of the Occupational Health and Safety Law No. 6331. Accordingly, in general, female employees are prohibited from working on night shifts for a period of one year from the date of determination of their pregnancy with a doctor’s report until the birth, and breastfeeding female employees are prohibited from working on night shifts for a period of one year starting from the date of birth, without prejudice to the provisions of their own legislation. Again, for breastfeeding female employees, this period must be extended for another six months if it is documented with a report from the workplace physician in charge at the workplace that it is necessary for the health of the mother and child.
From this point of view, an interesting interaction emerges between the Regulation on the Conditions of Employment of Pregnant or Breastfeeding Women and Breastfeeding Rooms and Child Care Facilities and the Regulation on the Conditions of Employment of Female Employees on Night Shifts.
Accordingly, the Regulation on the Conditions of Employment of Women workers in Turkey in Night Shifts prohibits pregnant employees from working at night until the birth, but the Regulation on the Conditions of Employment of Pregnant or Breastfeeding Women, Breastfeeding Rooms and Child Care Facilities stipulates that employees cannot be forced to work at night. On the other hand, in the first regulation, the period of not working at night after childbirth is limited to one year and a maximum of 1 year and 6 months, but in the second regulation, this period is extended for as long as necessary for the health of the mother or child. Although this issue creates a contradiction, since the principle of worker protection is valid in labour law and considering that both regulations are at the same level (regulation), the provisions of the first regulation should be valid until the birth and the provisions of the second regulation should be valid after the birth.
v) Ensuring the continuity of the work
After the breastfeeding period ends, in other words, when the child is over 1.5-2 years old, it is quite common for a woman to get stuck between childcare and the length of her working hours, and in this context, it is quite common for her to quit her job and devote her time completely to her child. In such a situation, the woman is excluded from working life. This also has a negative impact on the family economy. On the contrary, the child may grow up deprived of the mother’s care, attention and love. The importance of maternal care, attention and love is beyond dispute, especially in the period until primary school age.
In order to prevent this issue, a special regulation on part-time work has been included in Article 13 of the Labour Law in order to ensure that the woman does not lose her job and the child can benefit from the mother’s affection during the period from the end of the infancy period until the primary school age. According to the regulation, it is possible for the woman to work part-time during this period, provided that she maintains a significant portion of her income. Additionally, the Regulation on Part-Time Work After Maternity Leave or Unpaid Leave, as mentioned above, has also been issued.
Accordingly, after the end of the leaves specified in Article 74, one of the parents may request part-time work until the beginning of the following month when the compulsory compulsory primary education age starts and this request will be met by the employer. Additionally, this situation will not be considered as a valid reason for termination. It is also possible for this worker to return to full-time work for the same child at any time without waiting for the end of the part-time working period in order not to benefit from this right again. In this case, the employment contract of the employee who is hired to work full-time instead of this employee will automatically terminate. The employee who wishes to benefit from this right or return to full-time work shall notify the employer in writing at least 1 month in advance. If one of the spouses does not work, the working spouse will not be able to request part-time work. It is also possible for those who adopt a child under the age of three together with their spouse or adopt individually to benefit from this right from the date the child is actually delivered.
In the aforementioned regulation, the legal regulations regarding the right to maternity leave, the right to unpaid leave equal to half of the working period and the right to unpaid leave up to six months are repeated and the regulations under the third section are devoted to part-time work after maternity leave and subsequent unpaid leave.
According to Article 8 of the Regulation, it is possible for the employee to request part-time work at any time from the end of maternity leave, unpaid leave for half of the working period or unpaid leave for up to six months until the beginning of the month following the date of the child’s compulsory primary education. It is seen that the employee is granted an optional right. The employee can benefit from this right after the expiry of any of the consecutive leaves regulated in Article 74 of the Law or after the expiry of all of them. In accordance with the second paragraph of the article, it is even possible to make this request by interrupting the unpaid leave period up to six months.
The third paragraph regulates how and when the request for part-time work shall be submitted. According to the regulation, the request shall be notified to the employer in writing by the employee at least one month prior to the utilisation of this right. The time and written form requirement here shall not be understood as a condition of validity. If this is not fulfilled, the employer cannot be expected to implement the request.
The elements of the partial work request are subject to Article 9 of the regulation. According to the first paragraph, the worker’s request for part-time work must include the date on which the worker will start part-time work, the starting and ending times of the work in case of working on all working days, and the preferred working days in case of working on certain days of the week. The employee must also attach a document stating that his/her spouse is employed to this request. The employee’s part-time work request petition will be kept by the employer in the employee’s personnel file.
The conditions of the part-time work request are regulated in Article 10.
If one of the spouses is not working, the working spouse will not be able to request part-time work. However, a number of exceptions have been introduced to this general regulation;
One of the parents has a disease that requires continuous care and treatment and this disease is documented by a doctor’s report from a full-fledged hospital or university hospital,
If the custody is granted by the court to one of the spouses, the parent who has custody of the child makes a request,
It has been ruled that this condition will not be sought in cases of individual adoption of a child under the age of three.
Additionally, it is stipulated that these conditions will be sought only at the time of application, and if these conditions are lost during part-time work, the right in question will continue.
According to Article 11, the duly made part-time work request must be met by the employer within one month at the latest from the date of notification, and the employer must notify the employee in writing.
In the event that the employer does not respond to the employee’s petition within the prescribed period, the request will become valid on the date specified in the employee’s petition or on the first working day following this date.
Additionally, as specially regulated, the request for part-time work will not be considered as a valid reason for termination, provided that the employee starts to perform the work on the specified date.
Article 12 of the Regulation restricts the works that can be performed as part-time work. Accordingly, part-time work can be performed
In private health institutions, in accordance with the relevant legislation, in the works performed by the responsible manager, responsible physician, labouratory supervisor and those who are foreseen to work full-time in the works deemed as health services (in this context, the works deemed as health services in accordance with Article 13ç of the regulation refers to the works performed by physicians and specialists according to the medical speciality legislation, nurses, midwives and opticians and other professionals defined in the additional Article 13 of the Law No. 1219 on the Practice of Medicine and Medical Sciences),
In works considered to be industrial, which are carried out by employing workers in shifts one after the other without stopping because they are continuous due to their nature,
Seasonal, campaign or contracting work lasting less than one year due to their qualifications,
Part-time work may be carried out in jobs that are not suitable in terms of their qualifications to be carried out by dividing the work period into working days of the week, if the employer finds it appropriate, and in jobs other than these, part-time work may be carried out without the employer’s approval.
In this regard, with the authority granted by Article 13 of the regulation, it has also been made possible for the parties to determine the works that can be performed as part-time work in collective labour agreements concluded in accordance with the provisions of the Law No. 6356 on trade unions and collective bargaining agreements, regardless of the aforementioned regulation. However, based on this regulation, it should not be considered that it is possible for the parties to determine a scope that will result in the complete elimination of this right.
The issue of transition to full-time work is included in Article 14 of the regulation. Accordingly, in general, the employee who has started part-time work can return to full-time work for the same child in order not to benefit from this right again. In this case, the worker must notify the employer of this request in writing at least one month in advance. In such a case, the employment contract of the employee hired instead of this employee will automatically terminate. In the event that the employee who has switched to part-time employment terminates his/her employment contract, the employment contract of the replacement employee will be converted into an indefinite and full-term contract as of the date of termination, provided that he/she has written consent.
According to the regulation in Article 15 of the Regulation, the time interval within the specified daily and weekly working period of the part-time employee shall be determined by the employer by taking into account the customs of that place, the nature of the work performed by the employee and the request of the employee, and the wages and divisible benefits related to money of the part-time employee shall be paid in proportion to the time worked.
Residential Caretakers
Article 110 of the Labour Law stipulates the issuance of a regulation on the working conditions of residential caretakers, and the said regulation entered into force after being published in the Official Gazette dated 03.03.2004 and numbered 25391. According to the provisions of the Regulation, a concierge is defined as the person who provides maintenance, protection, minor repairs, maintenance and cleaning of common areas and furnishings of the main immovable property, the market affairs of the residents of the independent sections, ensuring their security, lighting the heater, arrangement and maintenance of the garden and similar services, the employer is the owner or partners of the residence (in the lodgings belonging to public institutions, the employer is the relevant public institution that owns the main immovable property) and the manager is the person acting as the employer’s representative.
In Article 4 of the Regulation, the duties, powers and responsibilities of the manager are listed as follows, emphasising that the housing manager is the employer’s representative in the implementation of the provisions of the Labour Law and the Regulation and in judicial disputes:
To conclude, amend and terminate labour and collective labour agreements provided that the employer has given written authorisation (even in a situation where no explicit authorisation is given in this regard, if the housing owners, who are the employers, benefit from the caretakerial service, it means that they approve the employment contract made by the caretaker and the manager).
Investigating the existence of a fireman’s certificate for the caretaker in centrally heated houses with central heating, and hiring the one who has a certificate.
To ask for the health report of the caretaker at the entrance of the employment, to start the appropriate one and to have a health check once a year.
To pay the wage and compensation rights of the caretaker arising from the labour law and contract on time and in accordance with the procedure, to pay the insurance premiums on time.
To give technical information about the use of the housing installation to the concierge in writing and to ensure that it is maintained in accordance with its specifications.
To ensure that the housing allocated for the caretaker is suitable for health and living conditions,
To submit a document stating the working conditions and duties of the caretaker to the information of the residents of the dwelling and to hang this document at the entrance of the dwelling where it can be seen by the relevant persons,
To apply to the administrative authorities in accordance with the Condominium Law No. 634 when the caretaker’s residence needs to be evacuated.
The duties and responsibilities of the caretaker are as follows:
To light the heater on time, adjust the heat and extinguish it in accordance with the instructions of the manager (in this regard, the caretaker must obtain a “heater igniter” certificate showing that he is competent to do these works. This certificate is obtained from time to time by attending the courses opened by the relevant professional chambers or public education centres).
To operate hydrophore and similar vehicles.
To keep the common areas and facilities of the main immovable property clean, to keep the fixtures, tools and equipment in an orderly, well-maintained and functioning manner.
Not to use the dwelling allocated to him/her for other purposes, to protect it, to compensate for damages and damages caused by himself/herself or his/her family members.
To take measures to ensure the security of the residence within the framework of the manager’s instructions.
To see the service services during the specified hours, to collect garbage, to make garden arrangement and maintenance.
To act in accordance with the trainings given and to use protective equipment.
To perform other duties specified in the labour or collective bargaining agreement.
When the foreseen duties are evaluated, it is seen that the caretaker is expected to work in various fields such as security, garden maintenance, heating and cleaning. From this point of view, it should be emphasised that, according to Article 400 of the Code of Obligations, in order to compensate for the damages that the caretaker may cause or cannot prevent from being caused while performing the duties imposed on him, the characteristics of the caretaker such as experience, education, professional competence should be evaluated. If the manager or employer employs a caretaker who does not have the necessary professional qualifications for these duties, or if the manager or employer does not provide the necessary trainings while performing his/her job, the manager or employer will also be liable.
Article 6 of the Regulation stipulates that the employment contract to be concluded with the caretaker must include the type and format of the contract, the name and address of the employer and the workplace, the identity of the caretaker, the date of commencement of work, the works to be performed, the wages and wage supplements to be received, the method and time of payment of wages, working time and interim rest, special provisions, if any, the date of issue and the signature of the parties. Article 10 emphasizes that it must be written in the contract whether the caretaker will work on national holidays and general holidays.
Articles 7, 8, 9, 10 and 11 of the Regulation stipulate that the labour law shall be applied in the regulation of the working and resting hours of the caretaker (if the caretaker resides in a house assigned to him, the daily working time can be divided into four at most), payment of wages, week holidays, general holidays and annual leave.
The Regulation also defines the concept of temporary caretaker. Accordingly, it is possible to employ a temporary caretaker to replace the caretaker when the caretaker leaves his duty for reasons such as annual leave, sick leave or holiday. The temporary caretaker shall not be paid less than the minimum wage. With this regulation, caretakerial work, which is a job that lasts more than 30 days due to its nature, has been reduced to a temporary job depending on the duration if it lasts less than 30 days. If the temporary caretaker’s work lasts less than 30 days for a predetermined period of time, some provisions of the labour law as mentioned above will not apply to him.
Article 13 of the Regulation addresses the issue of housing the caretaker and a frequently encountered problem. The housing concierge is not responsible for giving housing due to his/her duty. If housing is given, this housing must meet the minimum requirements stipulated by the Zoning Law No. 3194 and the Municipal Zoning Regulations. In cases where housing is provided, rent will not be demanded during the continuation of the employment contract, and whether the caretaker will partially or fully participate in the water, electricity, heating and water expenses will be determined by the contract. Accordingly, in absolute terms, such expenses of the caretaker are not foreseen by the employer. Annex Article 2 of the Condominium Law No. 634 shall be applied in the evacuation of the caretaker’s residence. The rights arising from the contracts in this regard shall remain reserved.
According to Article 2 of the Condominium Ownership Law No. 634, the caretakers whose contracts are terminated or terminated in any way by the board of condominium owners or the authorized administrator (including the caretakers, gardeners, watchmen and managers appointed from outside) are obliged to vacate these places within fifteen days if a place has been established for them in relation to these duties.
If it is not evacuated within this period, it will be evacuated by the police within one week upon the application of the manager or any of the condominium owners with the decision of the local local authority without the need for further notification.
Seasonal workers
In our country, seasonal work is generally encountered in tourism, construction and agriculture sectors depending on weather conditions. The employment of workers in such jobs or workplaces that are not worked all year round naturally brings along a number of special regulations.
The first important issue for seasonal employees is the need to form the labour contract according to these conditions. Accordingly, it should be clearly defined in the employment contract that the work to be performed is seasonal or that the employer works seasonally and in which season the work will be holidayed. A common mistake in this regard is that employment contracts with such working conditions are perceived as fixed-term employment contracts. Whether an employment contract is fixed-term or not is related to whether the contract ends on the specified date or at the end of the work. However, in seasonal work, the work does not end at the end of the season, but it is understood that it will continue in the next season. For this reason, the termination of the employment contract at the end or beginning of the season or while the work continues during the season will have the same consequences as the termination of an indefinite-term employment contract.
Another important issue is that when the work is suspended at the end of the season, the transaction is accepted as a notice of termination, especially by the employee. The most appropriate way to eliminate this misunderstanding is to clearly define the type and time of work in the employment contract as mentioned above and to provide the employee with a document explaining the transaction at the end of the season. Another problem that arises in connection with this issue is the method of calling the worker to work at the beginning of the season. The issue to be considered here is to prove that the call to work has been made. Accordingly, sending a written notice to the address of the worker, announcing it through appropriate means (especially through written and oral media) or stating this date in the suspension of the employment contract are the methods that can be used.
Another issue to be addressed in this regard is whether seasonal employees can benefit from the right to annual leave. According to Article 53 of the Labour Law No. 4857, employees working in seasonal jobs lasting less than one year due to their qualifications are not entitled to annual paid leave.
Heavy vehicle drivers
Article 6 of the regulation on working hours that cannot be divided into weekly working hours issued based on Article 76 of the Labour Law No. 4857 stipulates that the daily working time of those who drive vehicles with professional and heavy vehicle licences cannot exceed 9 hours, and no other special regulation has been made in this regard. In Article 49 of the Highway Traffic Law No. 2918, it is prohibited for drivers of motor vehicles carrying cargo and passengers for commercial purposes to drive vehicles in violation of the vehicle driving hours and to allow them to drive vehicles. Highway Traffic Regulation 98. In Article 98 of the Road Traffic Regulation, detailed and special regulations have been made on the working and resting hours of heavy vehicle drivers, week holidays and similar issues.
First of all, it is necessary to mention the highway transport regulation. According to Article 32 of this regulation, employers, i.e. authorisation certificate holders, are obliged to have a sufficient number of personnel who are qualified to carry out their services during their activities. Otherwise, they will be liable for all damages that may arise.
According to Article 33 of the Regulation, those who will work in transport works must be subject to a labour contract. Personnel cannot be employed without a labour contract. Employers, authorisation certificate holders are obliged to pay the wages, social security and personal rights of the employees on time and in full, and those employed shall fulfil their duties and responsibilities related to the service they undertake and shall not engage in acts and actions that endanger workplace and occupational safety.
Furthermore, Article 34 of the Regulation sets out a number of limitations and determinations regarding the drivers who will work in these jobs.
Accordingly, firstly, it is stipulated that the drivers must have a vocational qualification certificate stipulated by the relevant legislation. Based on this regulation, it is understood that drivers must obtain a driver (SRC) type vocational qualification certificate. SRC certificates are divided into 5 main groups. These are SRC1 for international passenger transport, SRC2 for domestic passenger transport, SRC3 for international goods-cargo transport, SRC4 for domestic goods-cargo transport and SRC5 for dangerous goods transport. According to Article 7 of the Regulation, SRC1 type certificate holders will be able to use SRC2 document type and SRC3 type certificate holders will be able to use SRC4 document type.
The aforementioned article of the Regulation introduces an age restriction and stipulates that drivers of large buses who will work in passenger transport must not be older than 26 years of age and all drivers who will work within the scope of the Regulation must not be older than 66 years of age. Additionally, drivers of vehicles carrying dangerous goods must have a certificate showing that they have received the training stipulated by the relevant legislation, they must not have been sentenced to imprisonment for drug, arms, human and customs smuggling and terrorism offences, and they must obtain a health report showing that they are physically and psycho-technically healthy in terms of the profession of driving from the competent health institutions every five years.
According to Article 35 of the Regulation, the working and rest periods of drivers shall be determined in accordance with the provisions of the AETR (European Agreement concerning the Work of Personnel Employed in Vehicles Engaged in International Road Transport) Convention and the provisions of the Road Traffic Law and Road Traffic Regulation.
First of all, it should be noted that the provisions of the Road Traffic Law and Road Traffic Regulation regarding the working and rest hours of drivers are regulated in parallel with the provisions of the AETR Agreement. For this reason, it will be sufficient to evaluate these two legal regulations in the context of our subject.
In the Regulation, it is emphasized that the drivers of vehicles with a maximum weight exceeding 3.5 tonnes and the drivers of vehicles with a carrying capacity exceeding 9 persons including the driver shall be subject to the provisions of the Regulation. These drivers are prohibited from driving more than 9 hours in total and more than 4.5 hours continuously for 24 hours. The concept of 24 hours is not a day but 24 hours. However, the fact that this regulation allows long-distance drivers or heavy vehicle drivers to work up to 9 hours per day should not be perceived as allowing these drivers to work a total of 54 hours in a 6-day period. Since the labour law is superior to the regulation and the Road Traffic Law does not contain any regulation on this subject, the 45-hour limit should be taken into consideration regarding the total weekly working hours. Accordingly, if the heavy vehicle driver works for 9 hours every day in 6 days according to the regulation, 9 hours of the 54 hours of work should be accepted as overtime work and evaluated accordingly.
When this working pattern is continuous, it will be concluded that the working hours are violated.
However, with the equalisation method, as mentioned above, it seems possible to temporarily or partially increase the daily working hours to 9 hours by making them work overtime or by taking Saturday off.
Similar to the labour law, the regulation also includes the principles for the use of week holidays by such drivers and stipulates that after 6 days of driving, the drivers must be given 1 day of week holiday. Unlike the labour law, in the case of international passenger transport, which is not a regular service, drivers are allowed to work 12 days and take 2 days of week holiday, and the total working time is limited to 90 hours for two weeks. Flexibility is only provided for passenger transport. There is no such flexibility for freight transport. However, since the mandatory provisions of the Labour Law will also come into play in this regard, and since there is no flexibility in these regulations in the form of working two weeks and using two days of week holidays, it is seen that the provision of the regulation in question, even if it is a special regulation, is contrary to Article 41 of the Labour Law, which is the mandatory provision.
The highway traffic regulation, which is related to driving, pedestrian and vehicle safety on highways rather than labour rights, contains detailed regulations on the rest hours and facilities of such drivers. Accordingly
– At the end of 4.5 hours of driving time, drivers who are mainly concerned with the provision of the regulation are obliged to take a 45-minute break (intermediate rest) if they are not resting.
– Drivers are prohibited from engaging in other work during the breaks. It is especially emphasised that breaks shall not be counted as daily rest time and waiting time in a moving vehicle, ferry or train and time spent without driving shall not be considered as other work.
In addition to the concept of break rest, the Regulation also includes the concept of rest, and special regulations have been made in the Regulation regarding the rest periods, which can be considered as the time spent by the driver without driving during the day. Accordingly
– Although drivers are required to rest for 11 hours in every 24 hours without interruption, this period may be divided into two or three periods, one of which must be at least 8 hours without interruption.
If the vehicle is used with at least two drivers, each driver shall rest for at least 8 hours in every 30-hour period.
– If the second case is applied, 1 hour should be added to the daily rest period and this period should be increased to 12 hours.
– The 11-hour uninterrupted daily rest period may be reduced to at least 9 hours, not more than 3 times a week.
– It is also possible to spend the daily rest period in vehicles with beds and special resting places in their construction and in vehicles with sections where the driver can sleep comfortably, in the garage or by parking outside the platform on the highways outside the settlements and taking the necessary precautions.
– If the vehicles are transported by ferry or train, the daily rest period may be interrupted only once. However, the time between the two parts of the rest period must be very limited and it is forbidden to exceed 1 hour after boarding or disembarking the ship or ferry, including customs procedures, and the rest period interrupted in this way must be extended by 2 hours.
The Regulation also regulates the tachograph application as a special regulation in terms of the records and documents to be kept outside the working conditions of the drivers. Tachograph application is an important evidence that shows how many hours the driver of the vehicle has been working on the one hand and highway traffic safety on the other hand. The Regulation stipulates the following in this regard:
– Vehicle operators (employers) must have this device in their buses, lorries and tow trucks and ensure that it is in working condition,
– Keep the device records in vehicles for 1 month from the date of registration, in workplaces for 5 years, or in vehicles if there is no workplace.
Employers are required to organise a book or list in which the type and number plates of the vehicles, the identity information of the drivers, the place, day and time of departure and the destination are recorded.
The Regulation also gives employers the duty of monitoring and training. It is defined as an obligation for employers to monitor the working hours of drivers and their unlawful behavior during these periods, and in case of violation of the decisions, to train these drivers and take preventive measures. Another obligation of employers in the Regulation can be summarized as the obligation to keep drivers on duty. Accordingly, employers are required to keep substitute drivers ready at the provinces, districts or stops where the vehicle will stop, taking into account the working and resting hours of the drivers and the destinations and routes of the vehicles.
