ÇALIŞMA HAYATI

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JOB SECURITY LAW

LAW CONCERNING AMENDMENT OF THE LABOUR LAW, TRADE UNION LAW AND LAW ON REGULATION OF RELATIONS BETWEEN THE EMPLOYEES AND EMPLOYERS IN THE PRESS PROFESSION

Law No. 4773 Date of Approval: 09/08/2002

ARTICLE 1. - The heading and paragraph No. (III) of the article No. 6 of the Labour Law dated 25/8/2002 with No. 1475 has been amended as follows and the following paragraph has been added in the same article.

Industrial, commercial and agricultural works:

III. With respect to the application of this Law, works to be considered agricultural are as follows:

a) Raising, production, improvement, research of any fruitful or fruitless plants; tea, cotton, tobacco, fibered plants; citrus; rice, legume; trees, treelets, vinestock, seed, seedling, sapling; vegetables and field products; fodder and ornamentals, all agricultural works related with the foregoing, sowing, planting, grafting, pruning, watering, manuring, harvesting, threshing, picking, cleaning, preparation and separation works, fight with diseases and pests, improvement of land, protection of meadow, pasture, land and water,

b) Nursery and afforesting, natural and artificial reproduction, protection and care of forests (fire protection included), development and improvement of forests, seed collection, forestry researches (watering, planting, raising, care), construction and repair of secondary forest roads, development, silviculture, production of forest products, transportation to main depots, stowage and classification in final depots, building, care and development of national parks,

c) Raising, production, improvement of all work and commercial animals (bee, silkworm and etc., included), and care, control, training, shearing, milking and getting, collecting, keeping products of the same and fighting with diseases and parasites of these animals,

d) Provided that provisions of the Maritime Labour Law with No. 854 are reserved, works related to land and marine hunting and storage, transportation and production of the products obtained in this manner.

IV. With respect to the application of this Law, Ministry of Labour and Social Security shall be authorized to determine whether any work other than those mentioned above should be included in the scope of industrial, commercial or agricultural works through consulting with the Ministry of Industry and Commerce and Ministry of Agriculture and Rural Affairs.

ARTICLE 2. - Article No. 13 of the Law with No. 1475 has been amended as follows and the following articles has been added following the same.

Article 13. - Prior to cancellation of continuous contracts of service with undetermined duration, the matter should be informed to the other party.

Contract of service shall be considered cancelled;

a) For employees worked no more than six months, following two weeks to begin with the notification to the other party is made,

b) For employees worked for six months to one and a half year, following four weeks to begin with the notification to the other party is made,

c) For employees worked for one and a half year to three years, following six weeks to begin with the notification to the other party is made,

d) For employees worked for more than three years, following eight weeks to begin with the notification to other party is made.

These are the minimum durations and could be increased with contracts.

Party not complying with the notification stipulation shall be obliged to pay compensation amounting the wage regarding the notification duration.

Employer can cancel the contract of service provided that the wage pertaining the notification duration is paid in advance.

Employer's not complying with the notification duration or cancellation of the contract through paying the wages pertaining the notification duration, shall in no way prejudice the application of the articles 13/A, 13/B, 13/C, 13/D and 13/E.

In accordance with the first sub-paragraph of article 13/A, compensation amounting threefold of the wages pertaining the notification duration shall be paid to the employees where the contact of service not included in the scope of application of articles 13/B, 13/C, 13/D and 13/E is terminated via misuse of the right of cancellation. Non-compliance with the provision of notification for cancellation also requires payment of compensation in accordance with the fourth sub-paragraph.

Justification of cancellation to a valid reason:

ARTICLE 13/A. - In workplaces where ten or more employees are employed, the employer who has cancelled the contract of service with undetermined duration of an employee who has at least six months seniority and has not a position such that employer representative to administer whole of the enterprise, should justify a valid reason emerging from qualification or conducts of the employee or requirements of the enterprise, workplace or work.

The following points shall not form a valid reason for cancellation:

a) Membership to trade unions and/or participation to the activities of trade unions outside, or with the consent of the employer, within the working hours,

b) Have been acted or be acting as a workplace trade union representative or employee representative or to be a candidate to become a representative,

c) Application to administrative or judicial authorities to follow his rights arising from the legislation or contract or to participate in such process commenced already regarding this point,

d) Race, colour, sex, civil status, family obligations, pregnancy, religion, political opinion, ethnic or social origin,

e) Not to come to work within periods when in accordance with the Article with No. 70 it is forbidden to work women employees,

f) Not to come to work temporarily within the waiting period prescribed by the sub-paragraph (b), paragraph (I) of article with No. 17 due to disease or accident.

Six-months seniority of the employee is calculated with uniting the periods passed in one or more workplaces of the same employer.

Procedure in cancellation of contract:

ARTICLE 13/B. - Employer is obliged to make the cancellation notification in writing and state the reason for cancellation briefly and definitely.

The contract of service with undetermined duration of an employee can not be cancelled due to reasons related with conduct or productivity of the said employee without his defence is taken related to the claims put forward against him, provided that conditions reasonably unexpected for the employer are excluded. However, right of cancellation of the employer due to reasons as mentioned in paragraph (II) of the article with No. 17 are reserved.

Objection to notification of cancellation and procedure:

ARTICLE 13/C. - Employee, whose contract of service is cancelled, could file a suit in a labour court within one month following the date of notification of cancellation with the claim that no reasons were indicated or the reasons put forward are invalid. The dispute is referred to a special arbitrator within the same period, provided that there exists a clause in the collective labour agreement or the parties come to an agreement on the subject.

Employer is obliged to prove that the cancellation is based on just reasons.

The suit is concluded within two months in accordance with the speedy trial procedure. In case of appeal of the decision of the court, the Court of Cassation shall make a definite decision within one month.

Conclusions of cancellation with unjust reasons:

ARTICLE 13/D. - Whenever it is determined by the court that no valid reasons are presented or that the presented reasons are not just, and decides on the cancellation as invalid, the employer is obliged to start the employee at work within one month. Should the employer does not start the employee at work within one month following his application, he shall be obliged to pay a compensation to the employee amounting at least six months and at most one year worth salary of the employee. The court, when decides on the cancellation as invalid, also determines the amount of compensation to be paid if the employee is not started at work.

Wages and other benefits of the employee realized till the court decision becomes final shall be paid to him for a maximum of four months within which he was not employed.

Should wages for the notification period were paid to the employee in advance, this amount shall be deducted from the payment to be made in accordance with the above provisions. Should notification period was not given to the employee, or wages for the notification period were not paid in advance, then the amount of the wages related with these periods shall be paid separately.

The employee is obliged to make application to the employer to start work within six days following the notification of the final court decision. Should the employee makes no application within this period, the cancellation made by the employer shall be considered a valid cancellation and the employer shall be responsible only for the legal consequences of the cancellation.

Provisions included in sub-paragraphs one, two and three shall in no way be subject to amendment with contracts; provisions of contracts in conflict shall be deemed invalid.

Employment in new job:

ARTICLE 13/E. - Should an employee whose contract of service was cancelled becomes employed in another job, and the court decides on the cancellation as invalid, then the employee who does not want to return back to his previous job shall notify his former employer within six business days. Upon such notification in writing, contract of service with undetermined duration shall be considered cancelled with a just reason and legal consequences related with it shall arise.

ARTICLE 3. - The expression "13" included in the second paragraph, article with No. 8 of the Law with No. 1475 has been amended as "13, 13/A, 13/B, 13/C, 13/D, 13/E" , and the expression "in paragraph (C)" included in eleventh sub-paragraph, article with No. 14 of the same Law has been amended as "in article with No. 13".

ARTICLE 4. - The following paragraph has been included in the article 17 of the Law with No. 1475.

IV. - The employee can seek legal solution in accordance with the provisions of the articles with Nos. 13, 13/A, 13/B, 13/C, 13/D, 13/E with the claim that the cancellation is not in conformity with the reasons prescribed in paragraphs (I), (II) and (III).

ARTICLE 5. - Article with No. 24 of the Law with No.1475 has been amended with its heading as follows.

Collective Dismissal of Employees:

Article 24. - The Employer when desires to cancel the contracts of service, collectively, or within one month at least ten such contracts due to economic, technological, structural, or similar enterprise, workplace or work requirements, notifies the matter to employee representatives of trade union or employee representatives, relevant regional directorates and Turkish Employment Service in writing at least thirty days beforehand.

Such notification should include information on reasons for dismissal of employees, number and groups of employees to be dismissed and the duration of period in which such dismissal is to be executed.

In the negotiations to be held between the representatives and the employer following the notification, subjects related to prevention of collective dismissal, or reduction in the number of employees to be dismissed, or minimization of the negative effects of dismissal on employees shall be discussed. At the end of the negotiations a document indicating that the meeting was held shall be prepared.

Notifications of cancellation shall be effective thirty days following the employer's notification of collective dismissal request to regional directorate.

In case of complete closing of the workplace and termination of its activities definitely, the employer is responsible only for informing the regional directorate and Turkish Employment Service and making announcement in the work place at least thirty days prior to closing.

As for the dismissal of employees working in seasonal and campaign works, provisions related with collective dismissal shall not apply if the dismissal is made due to the nature of these works.

The employers can not use the provisions related with collective dismissal of employees, to prevent the application of the provisions of the articles 13/A, 13/B, 13/C, 13/D and 13/; otherwise the employee can bring a suit according to mentioned articles.

ARTICLE 6.1 – The expression of "in paragraph (A) of article with No. 13" included in sub-paragraph (3) of paragraph (A) of the article with No. 98 of the Law with No. 1475 has been replaced with "in article with No. 13", and the expression of "the employer or his representative who has dismissed employees and employed new employees in their place contrary to the provisions of the article with No. 24, shall be (...) for each employee he dismisses or employs" included in paragraph (B) of the same article has been replaced with "the employer or his representative who acts contrary to the provisions of the article with No. 24".

ARTICLE 7. – The following article has been added to the Law with No. 1475.

ADDITIONAL ARTICLE 4. – For those working in agricultural works, provisions related with their working conditions, points related with the contract of service, wage, regulation of work shall be regulated with a by-law to be enacted within six months.

ARTICLE 8. – The following provisional article has been added to the Law with No. 1475.

PROVISIONAL ARTICLE 13. – Until such time as a new regulation is introduced regarding the workplace representatives, in cases where no trade union representative exists in the work place, employee representatives to be selected by the employees in that workplace in a number stipulated by the article with No. 34 of the Law of Labour Unions with No. 2821 shall be charged.

ARTICLE 9. – Article with No. 34 of the Law of Labour Unions dated 05/05/83 with No. 2821 has been amended as follows.

Article 30. – Relevant provisions of the Labour Law with No. 1475 shall apply in the cancellation by the employer of the contract of service with undetermined duration of the workplace trade union representative.

In case of cancellation of the contract of service of the representative only due to representation activities, a compensation amounting to a minimum of one year worth salary is ruled in accordance with the first paragraph of article with No. 13/D of the Law with No. 1475.

The employer, unless there exists a written consent, can not change the workplace of the workplace representative and can not make a fundamental change in his work. Otherwise, such change will be considered invalid.

ARTICLE 10. – Paragraph 6 of the article with No. 31 of the Law with No. 2821 has been amended as follows, and the following paragraphs have been added at the end of this article.

In case of employer's acting contrary to the provisions of paragraphs three and five, other than cancellation of the contract of service, compensation amounting no less than one year salary of the employee is ruled. Provisions of articles with Nos. 13/A, 13/B, 13/C, 13/D and 13/E of the law with No. 1475 shall apply in case of cancellation of contract of service due to membership to trade union or activities of trade union. However, the compensation to be paid in accordance with the first paragraph of the article with No. 13/D of the Law with No. 1475 can not be less than the amount of one year salary of the employee.

In lawsuits brought by employees subject to the Maritime Labour Law with No. 854, the Law on Regulation of Relations between the Employees and Employers in the Press Profession and the Law of Obligations with No. 818, and those working in agricultural works and employees, who in accordance with the first paragraph of the article with No. 13/A of the Law with No. 1475 are considered out of the application field of the articles with Nos. 13/A, 13/B, 13/C, 13/D and 13/E of the same Law, due to claim of cancellation of contract of service for membership to trade union or activities of trade union, general provisions of the Law of Labour Courts with No. 5521 shall apply, with proof liability charged to the employer. Provisions of the sixth paragraph shall apply regarding the amount of compensation to be paid to the employee.

All rights of the employees acquired in accordance with the labour laws and other laws are reserved.

ARTICLE 11. – Sub-paragraph (2) of the first paragraph of the article with No. 5 of the Labour Law dated 25/08/71 with No.1475 has been amended as "in workplaces of agricultural works employing less than 50 (included) employees".

ARTICLE 12. – The following paragraph has been added to the amended 6th article of the Law on Regulation of Relations between the Employees and Employers in the Press Profession dated 13/06/52 with No. 5953.

Provisions of the articles with Nos.13/A, 13/B, 13/C, 13/D, 13/E and 24 of the Law with No. 1475 shall be applied by analogy.

ARTICLE 13. – This Law shall come into force on the date of its publication effective as of 15 March 2003.

ARTICLE 14. – Provisions of this Law shall be executed by the Council of Ministers.