Before you start looking for a Payroll contractor in Turkey, it is important to know the different employment contracts existing in this country.
Article 11 of the Labour Law No. 4857 regulates fixed and indefinite term employment contracts in Turkey, Article 13 regulates part-time and full-time employment contracts, Article 14 regulates on-call and remote working, and Article 16 regulates team contracts. Apart from these, it is also necessary to mention minimum and maximum duration employment contracts based on practical examples.
Payroll in Turkey : Fixed and indefinite term employment contracts
According to Article 11 of the Labour Law No. 4857, if the employment contract in Turkey is not made for an indefinite period of time, it is considered as an indefinite-term employment contract.
In Payroll in Turkey system, a fixed-term employment contract, on the other hand, is an employment contract made in writing, according to the definition in the law and depending on objective conditions such as the completion of a certain work or the occurrence of a certain phenomenon.
It is possible to conclude fixed-term employment contracts more than once in a row (successive) due to a substantial reason. If there is no substantial reason, in this case, the employment contract will be accepted as an indefinite-term employment contract from the beginning and its provisions will arise.
On the other hand, Article 430 of the Code of Obligations stipulates two situations regarding the situations where a fixed-term employment contract continues after a certain period of time. The first of these is the situation where the termination of the contract is not subject to a prior notification condition by the parties. In this case, an indefinite-term employment contract will turn into an indefinite-term employment contract if it is continued implicitly after the expiry of its term. However, based on the provision of the article, it is also possible to conclude fixed-term employment contracts in a row in the presence of a substantial reason.
Another situation stated in the same article is the situation where a fixed-term employment contract in Turkey is agreed to be terminated with a notice of termination, but neither party has given a notice of termination. In this case, it is accepted that the contract will turn into an indefinite-term employment contract.
According to Article 12 of the Turkish Labour Law, different treatment shall not be made between employees working with fixed-term employment contracts or indefinite-term employment contracts only due to the type of contract. Accordingly, a worker employed under a fixed-term employment contract shall not be treated differently from his/her counterpart employed under an indefinite-term employment contract solely because of the duration of the employment contract, unless there is a reason justifying the discrimination. Additionally, the wages and divisible benefits related to money to be paid to the employee working with a fixed-term employment contract by taking a certain time as a criterion shall be given in proportion to the time worked by the employee. When seniority in the same workplace or enterprise is required to benefit from any employment condition, unless there is a reason justifying the application of different seniority for the employee working under a fixed-term employment contract, the seniority based on the equivalent employee working under an indefinite-term employment contract shall be applied.
The concept of equivalent worker mentioned in the above explanations is defined in the law as a worker who is employed in the same or similar work in the workplace with an indefinite-term employment contract in Turkey. If there is no such employee in the workplace, the employee who is employed with an indefinite-term employment contract undertaking the same or similar work in a workplace that meets the conditions in that line of business should be taken into consideration.
In addition to the general regulations mentioned above, Article 13 of the Law and Article 14 of the Regulation on part-time work to be carried out after maternity leave or unpaid leave, a special regulation is included in which it is possible to make a specific employment contract regardless of the type or duration of the work performed. Clearly
Although it is not regulated, based on the aforementioned texts, it is seen that if the employee starts to work with a part-time employment contract upon the submission of the part-time work request to the employer after the birth or adoption of the child, the employment contract of the replacement employee may be fixed and part-time. This is because the right to part-time work is limited to the beginning of the month following the date when the compulsory primary education age of the child starts with the application, and it is stipulated that the employment contract of the employee who benefits from the right to part-time work will be converted into an indefinite and full-term employment contract as of the termination date, provided that the termination is approved in writing.
Another fixed-term employment contract regulation that can be evaluated within the labour legislation is found in the Private Education Law No. 5580. According to Article 9 of the Law, it is essential that the employment contracts of teachers, expert instructors and master instructors who will work in private education institutions are made for at least one calendar year. However, employment contracts may also be made for a period of less than one year for those who will be employed in the transferred institutions and in place of those who will leave the institution due to excuses.
Since the conclusion of a fixed-term employment contract in Turkey depends on the existence of objective conditions, it is necessary to mention some issues in this context. The first of these is the issue of being a foreign worker. Accordingly, being a foreigner is not accepted as an objective reason for the workers working in Turkey to conclude fixed-term employment contracts. In this regard, even the duration of the work or residence permits of the worker is not important.
Another issue is the employment of Turkish workers in foreign countries. Accordingly, the fact that these workers are employed abroad in accordance with the contracts signed through the Turkish Labour Institution and the duration of these contracts does not indicate that the contract is fixed-term. In this context, if the worker is hired for the first time to work abroad and the work is a project-based work for a certain period of time, it is possible to conclude a fixed-term employment contract, provided that it is compatible with the duration of the project.
Another issue is related to technical directors or coaches. It is accepted that it is possible to evaluate the employment contracts made with these persons as fixed-term employment contracts.
Part-time and full-time employment contracts in Payroll in Turkey
According to Article 13 of the Labour Law, if the normal weekly working time of the employee is determined to be significantly less than the equivalent employee working with a full-time employment contract, the contract will be accepted as a part-time employment contract in Turkey.
As in the case of fixed-term employment contracts, it is prohibited to treat part-time workers differently from full-time workers only because of the type of contract. The part-time worker’s wages and divisible benefits related to money must be paid in proportion to the time worked in comparison to the full-time equivalent worker.
The above-mentioned explanations will be taken into consideration for the concept of equivalent worker.
The provision of the law provides for the possibility of transition from part-time to full-time or from full-time to part-time. According to this provision, the requests of the employees working in the workplace to be transferred from part-time to full-time or from full-time to part-time when there are vacancies suitable for their qualifications will be taken into consideration by the employer and the vacancies will be announced on time.
Apart from these, a special regulation regarding part-time employment contracts has been stipulated in the text of the article. This regulation is essentially related to the maternity and breastfeeding leave regulated in Article 74 of the Law. 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 begins 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 in Turkey 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.
Working on call
Article 14 of the Law No. 4857 contains regulations on on-call labour. Accordingly, an employment relationship in which it is agreed in a written contract that the employee will fulfil the performance of work in case of need in relation to the work undertaken by the employee is a part-time employment contract based on on-call work and the contract must be made in writing.
Special regulations regarding on-call work are included in the continuation of the article.
If the parties do not determine how long the employee will work within a period of time such as a week, month or year, the weekly working time shall be deemed to have been agreed upon to be twenty hours.
The worker shall be entitled to wages whether or not the worker is employed during the period determined for on-call labour.
The employer, who has the right to demand the worker to fulfil his/her obligation to perform his/her work through a call, must make this call at least four days before the time when the worker will work, unless otherwise agreed. The employee is obliged to fulfil his/her labour obligation upon the call in accordance with the time limit. Immediately at this point, it should be noted that it is beneficial to make the call by provable means (registered or registered mail with return receipt, etc.) in order to prove that the call has been made.
If the daily working time has not been agreed in the contract, the employer is obliged to make the employee work at least four consecutive hours a day in each call.
Remote working in Payroll in Turkey
Remote working is regulated together with on-call working in Article 14 of the Law. Additionally, in accordance with the provision of the law on this subject, a remote working regulation was issued, which entered into force after being published in the Official Gazette dated 10.03.2021 and numbered 31419.
The Regulation defines a remote worker as a worker who fulfils all or part of the work performance by working remotely. According to the definition of the law and the regulation, teleworker refers to the employment relationship established in writing and based on the principle that the employee performs his/her work at home or outside the workplace with technological communication tools within the scope of the work organisation established by the employer.
According to Article 14 of the Regulation, it is possible to establish a labour relationship based on teleworking in two ways. The first way is to establish the labour relationship directly with a teleworking contract. In the second case, the employment contract of the employee in Turkey who is currently working at the workplace can be converted into a teleworking contract upon the agreement of the employee and the employer.
In the aforementioned article, the request of the employee, which can be associated with the second situation, is specifically regulated. From this point of view, it can be concluded that the transformation of the existing labour relationship into remote working is only possible upon the request of the employee. According to the aforementioned regulation, the request in question must be made in writing. It should be emphasised that the written request here is a validity condition when considered together with the subsequent regulations. Subsequently, the request will be evaluated by the employer in accordance with the procedure determined at the workplace, and while doing so, the suitability of remote working due to the nature of the work and the worker and other criteria to be determined by the employer will be used. At the end of the evaluation, the result shall be notified to the employee within thirty days in the same manner in which the request was made. If the request is accepted, the contract will be concluded as determined.
According to the same regulation, it is possible for an employee who has switched to remote working to request to work at the workplace again with the specified procedure. In this case, the employer must prioritise the request in question.
Apart from these cases, if teleworking is to be applied in all or part of the workplace due to compelling reasons specified in the legislation, the employee’s request or approval will not be sought for the transition to teleworking.
The works that cannot be performed remotely are specified in Article 13 of the regulation. Accordingly, teleworking cannot be performed in jobs involving working with hazardous chemicals and radioactive substances, processing of these substances or working with the wastes of these substances, working processes that involve the risk of exposure to biological factors. Additionally, the work performed by public institutions and organisations through service procurement according to the relevant legislation and the unit, project, facility or service of strategic importance in terms of national security will be determined by the public institution and organisation responsible for the project, facility or service or the public institution and organisation receiving the service.
According to Article 14 of the Law and Article 5 of the Regulation, employment contracts regarding teleworking must be in writing. The condition of being in writing here is accepted as a condition of validity within the framework of the obligation to protect the employee, since teleworking is an atypical form of work. The minimum matters that must be included in the contract are listed in Article 5. Accordingly, the contract shall include the definition of the work, the manner of performance, the duration and location of the work, the wage and the matters regarding the payment of the wage, the work tools and equipment provided by the employer and the obligations regarding their protection, the employer’s communication with the employee and the provisions regarding the general and special working conditions.
It may be necessary to organise the environment where the work will be carried out before starting to work remotely. According to Article 6 of the Regulation, if necessary, the arrangements regarding the place where the remote work will be carried out must be completed before the work starts. Additionally, the method of meeting the costs arising from these arrangements will be determined jointly by the remote worker and the employer. In this context, it would be appropriate to include the determination regarding the aforementioned issue in the contract to be concluded for teleworking.
A special issue in remote working is the provision of the materials and work tools required for the goods and services by the employer. In the event that the employer provides the necessary materials and work tools, unless otherwise agreed in Article 7 of the regulation, the list of work tools indicating their prices on the date of delivery to the employee shall be delivered to the employee in writing by the employer, and a copy of the document delivered to the employee signed by the employee shall be kept by the employer in the employee’s personnel file. If the list of work tools is issued in the employment contract or as an annex to the employment contract on the date of the contract, it will not be required to issue a separate written document.
The legislator has left the issue of meeting the production costs to the will of the parties. According to Article 8. of the Regulation, issues regarding the determination and reimbursement of mandatory expenses directly related to the production of goods or services arising from the fulfillment of the work shall be specified in the employment contract in Turkey.
According to Article 9 of the Regulation, another issue to be determined by the employment contract is the time interval and duration of teleworking. Although it is possible for the parties to make changes in these matters, they are also obliged to adhere to the limitations stipulated in the legislation.
Again, according to Article 9, overtime work in remote working shall be carried out upon the written request of the employer and the acceptance of the employee in accordance with the provisions of the legislation. Since the written request condition here is a condition that does not exist in the law, it does not have an absolute meaning. In this regard, it would be appropriate to act according to the general rules regarding overtime work. Because, in case the employee performs overtime work, if this is carried out by the employer’s instruction or if it is due to the necessity of the work, he/she will also be entitled to overtime wages, so it is not possible to use the employer’s written request or not as a validity or proof tool.
According to Article 10 of the Regulation, the communication method and time interval in remote working shall be determined by the remote worker and the employer. Again, according to Article 11 of the Regulation, the employer must inform the remote worker about the business rules and relevant legislation regarding the protection and sharing of data related to the workplace and the work performed, and must take the necessary measures to protect these data. In this context, the employer must determine the definition and scope of the data to be protected in the contract. The remote worker is also obliged to comply with the business rules determined by the employer for the protection of data.
Regarding occupational health and safety, it is stipulated in Article 12 of the regulation that the employer is obliged to inform the employee about occupational health and safety measures, to provide the necessary training, to provide health surveillance and to take the necessary occupational safety measures regarding the equipment provided, taking into account the nature of the work performed by the remote worker.
Finally, according to the provision of the law, in case of teleworking, workers cannot be subjected to different treatment compared to the equivalent worker solely due to the nature of the employment contract, unless there is a substantial reason.
Payroll in Turkey : Team Contract
Team contracts are regulated in Article 16 of the Labour Law. According to the provision of the article, the contract made by one of these workers, representing a team formed by more than one worker, with the employer in the capacity of team leader is called a team contract.
The team contract must be made in writing, regardless of the period of time agreed for the employment contracts to be formed. In the contract, the identity of each worker and the wage to be received shall be shown separately.
Upon the commencement of work by each of the workers whose names are written in the team contract, an employment contract shall be deemed to have been concluded between that worker and the employer under the conditions specified in the team contract. However, with the reference to the team contract, Article 128 of the Code of Obligations titled “Assumption of the act of a third party” shall also be applicable.
The employer or the employer’s representative is obliged to pay the wages of the workers with whom an employment contract has been established upon the commencement of work, separately to each of them. For the team guide, deductions cannot be made from the wages of the workers included in the team for mediation or similar reasons.
Minimum and maximum term employment contracts in Payroll in Turkey
Within the dynamics of working life, the parties to the employment contract in Turkey may conclude an employment contract in any form they wish, provided that they remain within the limits set out in the law. In this context, one of the types of employment contracts in question is minimum and maximum duration employment contracts.
A minimum-term employment contract is a contract that arises when the employee and the employer determine the minimum duration of the contract. The conclusion of this type of contract enables the employer to employ its qualified employee for the minimum period determined, and the employee obtains a job security during this period. In particular, the restrictions stipulated in the law for fixed-term employment contracts push the parties to conclude such a contract. Minimum-term employment contracts are not a specially regulated type of contract in our law. In this context, examples can be found only in Article 16 of the Labour Law No. 854 and in Article 9 of the Law on Private Education Institutions Law No. 854 and the Article 16 of the Labour Law No. 854 stipulates that an indefinite employment contract with a seafarer cannot be broken unless 6 months have elapsed since the seafarer’s employment, except for the cases written in Article 14, and Article 9 of the Law No. 5880 stipulates that the employment contract between the founder or the founder’s representative and the administrators, teachers, specialist instructors and master instructors working in private education institutions shall be for at least one calendar year. According to the practice, doctrine and judicial decisions, the following features can be stated about minimum term employment contracts:
- The minimum term may be determined as a certain date, provided that the day, month and year are specified, or it may be determined as a certain period of time such as at least 6 months or 1 year.
- In minimum-term employment contracts, the employment contract does not automatically terminate at the end of the minimum period determined. Therefore, at the end of the minimum term, the parties do not need to make a new contract for the continuation of the labour relationship.
- The parties remove their right of termination by giving a notice of termination with the minimum period they have determined. However, as of the expiry of the minimum period, it becomes possible for the parties to exercise their termination rights by giving a notice.
- The determination of the minimum term does not eliminate the right of the parties to terminate for just cause.
- If the minimum term employment contract is terminated by the employer without just cause before the minimum term, the employee may terminate the contract for the remainder of the minimum term in accordance with Article 408 of the Code of Obligations. In accordance with Article 408 of the Code of Obligations and within the limitations specified in this article, the employee may demand the wage for the remaining period.
- Terminations made after the minimum period is over are subject to the provisions regarding the termination of an indefinite-term employment contract. Therefore, it is possible for the employee to request notice and severance pay and to benefit from job security, provided that other conditions are met.
In the event that the parties determine the maximum period for which the employment contract will continue, maximum duration employment contracts arise. These types of contracts are the contracts in which the parties know the expiry date of the contract in advance.
It is possible to identify the following characteristics of maximum duration employment contracts in terms of application examples and judicial decisions:
- The maximum duration can be determined as a certain date, such as days, months and years, or as a certain period of time such as 6 months, 1 year, or it can be linked to the realisation of a certain purpose, such as the completion of a project with a predetermined duration.
- In maximum-term employment contracts, it is accepted that the parties have the right to terminate with notice by giving a notice until the end of the maximum period. Therefore, until the end of the maximum period, such contracts will be subject to the provisions of indefinite-term employment contracts.
- However, since the contract will automatically terminate at the end of the maximum period, in this case, the provisions of the fixed-term employment contract will come into effect. Therefore, until the end of the maximum period, such contracts will be subject to the provisions of the indefinite-term employment contract.
- However, since the contract will automatically terminate at the end of the maximum period, in this case, the provisions of the fixed-term employment contract will come into effect. For this reason, such contracts are considered as mixed-quality contracts.
- Due to the automatic termination of the contract at the end of the maximum period, the existence of the objective conditions specified in Article 11 of the Labour Law will be sought in order to establish the contract. The absence of these conditions will not invalidate the contract, but will turn it into an indefinite-term employment contract from the beginning.
- During the specified period, the parties always have the right to terminate for just cause.
