This article intends to give a general overview on the legal effects of Covid-19 outbreak on Turkish labour law, the questions which may arise within the scope of labour law and the measures that may be applied by the employers to ensure the safety of the employees and the continuity of the workplace.
1. Some Points on Home-Office Working (Remote Working) Method
Under current conditions, the most important measure to be taken in terms of the employer is to evaluate the opportunity of working from home to the extent that the nature of business is appropriate for this. Some of the problems that arise under current conditions related to this method, which our legislation defines as “remote working” or “teleworking”, include the following points:
1.1. One of the frequently asked questions is whether the method of working in this way can be forced against the employer or the employee. Except for an administrative closure or lockdown or curfew decision, the majority opinion in Turkey and also abroad is that the employee cannot avoid going to the workplace or force the employer to work from home even if the employee goes to work by using public transportation. Likewise, the employer cannot force the employee to work from home unless there is a clause in the employment contract of the employee considering such a possibility. On the other hand, all kind of occupational health and safety measure regarding the current situation should be taken in workplace and this issue should be documented. Otherwise, “the right to avoid working” will arise for the employee, which to be mentioned in the following sections. It would be useful to apply the method of working from home where possible, in order to ensure the safety of the employees and to eliminate the risk of “work accident” as described below.
1.2. The terms of remote working are regulated under Article 14 of the Labour Law. Accordingly, in order that the employees to work remotely there should be a clause in their employment contract regarding this and the details of such work should be included. Considering the conditions relating Covid-19, it is sufficient to make a written notification with respect to working from home and to obtain the written consent of the relevant employees of those who do not have a clause in their employment contracts as mentioned above. Under current circumstances, it will be sufficient to receive the aforesaid consent via e-mail.
1.3. The wages and other payments considered as wage of the employees who will work from home have to be paid exactly as if they continue to work in the workplace. As the food and travel allowances are not regulated under the Labour Law, whether these benefits will be given during the remote working will vary depending on whether these benefits are part of the salary as per the employment contract or the workplace practice. In order not to take any risks in this respect, an explicit provision on this subject can be drafted in the consent regarding remote working.
2. Is It Possible to Make the Employee Use the Annual Paid Leave During This Period?
According to Article 8 of the Annual Paid Leave Regulation, the employer is not contingent upon the annual leave date requested by the employee. It is possible that the employer makes the employees to use their accumulated annual paid leaves in accordance with the good faith. Article 10 of the above-mentioned Regulation regulates the collective annual leave practice. Accordingly, the employer can apply collective leave for all or part of the employees between the beginning of April and the end of October. Employees who have not yet been entitled to leave on the date of the collective annual leave can also be included in this practice. Employees do not have the right for refusing to use their annual paid leaves.
3. Is It Possible to Give an Unpaid Leave to the Employee?
Under current circumstances, one option which is evaluated by both employees and employers is the unpaid leave. It is not possible for the employer to give an unpaid leave to the employee unilaterally. The employer can only apply this method by obtaining the written consent of the employee. If the employee is forced to take an unpaid leave by the employer unilaterally, this will be considered as a substantial change in the working conditions and the employee will have the right to terminate the employment contract with just cause and to demand his/her rights arising from the termination of the contract. The fact that the employee refuses to take an unpaid leave and despite this he/she is not taken to workplace by being said that he/she has been given an unpaid leave may result in a termination made by the employer and it will have the consequences of an unjust termination. On the other hand, the employer does not have to accept the unpaid leave request of the employee.
On 17 April 2020, the Law on Reducing the Effects of New Coronavirus (Covid-19) Pandemic on Economic and Social Life and the Law on Amendment of Certain Laws No. 7244 has been published on the Official Gazette. According to the new regulation introduced by this Law, the employer will be able to give the employee an unpaid leave completely or partially for three months. The employee will not have the right to terminate the employment contract with just cause on the ground that he/she has been given an unpaid leave by the employer. The three-month period specified here can be extended by the President up to six months.
After the mentioned Law entered into force, 39,24 TL per day will be paid from the Unemployment Insurance Fund to the employees who are given an unpaid leave and cannot benefit from the reduced working hour allowance over the course of unpaid leave period as per the provisions of the Law. The same payment can be made to those whose employment contracts are terminated after the date of 15.03.2020 in such a way that they are entitled to unemployment benefit and who are not eligible to unemployment benefit as per other provisions and who have not received old-age pension during the period of unemployment. The duration of the daily financial aid mentioned here shall not exceed the period of time that the employment contracts cannot be terminated pursuant to the Law.
The above-mentioned Law also regulates that an administrative fine will be imposed on the employer if it is determined that the employee who has been given an unpaid leave and benefited from the financial aid is actually employed. Accordingly, an administrative fine will be incurred at the monthly gross minimum wage amount at the date of the act, separately for each employer employed in this way and for each month of employment and the financial aid which is paid will be collected from the employer along with its legal interest accrued as of the date of the payment of the financial aid.
4. Termination of the Employment Contact by the Employer or the Employee Due to Force Majeure
There is the opportunity to terminate the employment contract due to force majeure for both employees and the employers. Article 25/III of the Labour Law No. 4857 regulates that the employer has the right to terminate the employment contract immediately if a force majeure situation arises which prevents the employee from working for more than a week in the workplace. The reasons that prevent the employee from working must occur in the environment of the employee. The force majeure situation arising from the workplace gives the employee the right to terminate the employment contract immediately as per Article 24/III of the Labour Law. In this case, the force majeure situation should last more than a week. According to these provisions, the employee must be half paid for everyday during the week in which the force majeure situation arises. At the end of the week, in both force majeure situations, the terminating party does not give any notice period and only severance pay is paid. If the force majeure situation still continues after one week and the employment contract has not been terminated yet, the employment contract will be suspended. During this period, there will be no work and wage and Social Security Institution (SSI) premium payment and a situation like the unpaid leave will arise.
Quarantine, curfew or closure of the workplaces by an administrative decision due to epidemic disease will be considered as force majeure within the scope mentioned here. On the other hand, if there is no administrative quarantine decision or an administrative closure decision such as taken for some workplaces at present, due to the spread of the epidemic disease, there will not be situation as covered here.
The Law on Reducing the Effects of New Coronavirus (Covid-19) Pandemic on Economic and Social Life and the Law on Amendment of Certain Laws No. 7244 which was published on Official Gazette on 17 April 2020 prohibits the termination of any kind of employment or service contract by the employer for three months, except for the situations that do not comply with the rules of morality and goodwill and other similar reasons. Accordingly, in addition to the service contracts subject to the Labour Law, the contracts of the employees who work in jobs as home services, marine works, press works that are not subject to the Labour Law, and the service contracts of the employees of which regulated under the Code of Obligations will not be terminated by the employer for three months. The three-month period specified here can be extended by the President up to six months. The Law sets forth an administrative fine for the employers and employer representatives who violate the prohibition envisaged in Law.
5. Short-Time Work Allowance
The short-time work allowance is provided for employees who are considered as insured according to the Unemployment Insurance Law No.4447 and working in workplaces whose activities are wholly or partially ceased for at least four weeks regardless of this suspension is continuous or not or the weekly working time in the workplace is temporarily reduced by at least one-thirds due to general financial, sectorial or regional crisis or compelling reasons. The short-time work allowance is provided for three month period to the above-mentioned employees.
The employer who requests short-time work in the workplace makes a written notification to Turkish Employment Agency. In order to be able to benefit from the short-time work allowance, the employer’s request must be approved by the Turkish Employment Agency and the employee must be deemed as entitled to short-time work allowance in terms of the working times and the number of days of the unemployment insurance premium is paid at the date of the commencement of short-time work.
In order that the employee is to be entitled to the short-time work allowance, the employee must be on payroll for a period of minimum 60 consecutive days prior to the commencement of short-time work and 450 days during the last three years and the unemployment insurance premiums must have been paid during those periods in addition to the requirement of the request of the employer must be approved by the Turkish Employment Agency. It should be emphasized that the employee must be employed by the employer in order to be able to benefit from the short-time work allowance within the scope. Accordingly, the employee should not be dismissed by the employer during the period of short-time work, except for the reasons included in the Article 25/II of the Labour Law No. 4857 which are arising from the employee.
The amount of daily short-time work allowance is the 60% of daily gross average earning calculated by considering the earnings of the employee for the last twelve months. Short-time work allowance per month may not exceed 150% of the gross statutory minimum monthly pay.
In case the activity is completely ceased in the workplace, the allowance is received in full whereas if the working hours are partially reduced, the allowance is received for the non-working times. During this period, insurance premiums are also paid from the Unemployment Insurance Fund.
The Law on Reducing the Effects of New Coronavirus (Covid-19) Pandemic on Economic and Social Life and the Law on Amendment of Certain Laws No. 7244 which was published on Official Gazette on 17 April 2020 made a new arrangement on this issue in order to speed up the process. Accordingly, short-time work allowance can be made in accordance with the declarations of the employers without waiting for the appropriateness evaluation due to the epidemic outbreak. In case an overpayment is made because of the fact that the employer had provided incorrect information and documents, the payments made in this way will be collected from the employer along with its legal interest.
6. Compensatory Work
Pursuant to Article 64 of the Labour Law, in cases where the work has stopped due to compulsory reasons or the time worked has been considerably lower than the normal working time or where the employee is granted time of upon his/her request, the employer may call upon compensatory work within 2 months for the time lost due to non-worked periods.
The employer who will call upon compensatory work must clearly state one of the reasons listed in the Article 64 of the Labour Law for the compensatory work and inform the relevant employees on which date the compensatory work will start.
Compensatory work is carried out within 2 months following the disappearance of the compulsory reason that constitutes its source and the commencement of normal working periods of the workplace.
Compensatory work shall not exceed 3 hours per day and it shall not exceed the maximum daily working time which is 11 hours. Compensatory work shall not be carried out on holidays. Such work shall not be considered overtime work or work at extra hours. Employees should receive their wages in the same way for both non-working and compensatory work periods.
In the press release made by the President on 18 March 2020, it was declared that the compensatory work period will be increased to 4 months.
With the agreement of the parties, the weekly normal working period can be divided differently into the working days of the week in workplaces provided that it does not exceed 11 hours per day. In this case, the average weekly working time of the employee cannot exceed the normal weekly working time within two months. In other words, similar to the compensatory work, here there is a period of less work or no work which is followed by equalization of the non-working time by working more.
8. Part-Time Working
In the current situation, part-time working can be considered as an option with the written consent of the employee. Article 13 of the Labour Law regulates part-time work as “the employment contract shall be considered as a part-time contract where the normal weekly working time of the employee has been determined considerably shorter in relation to a comparable employee who is working full-time.”
According to Article 63 of the Labour Law, the weekly working period is maximum forty-five hours per week. In order for a work is considered as a part-time work, the weekly working time can be maximum two-third (30 hours) of the weekly normal working period and pursuant to the social security legislation the number of the premium days can be maximum (150 hours/7.5 hours) 20 days which to be notified to the Social Security Institution for those working with a part-time employment contract.
The wages and the divisible interests relating to money of the employee who works under a part-time employment contract should be paid in proportion to the time he/she worked in accordance with a comparable full-time employee. Written approval of the employee is required for this practice which includes substantial changes in the working conditions.
9. Measures to be Taken at the Workplace, Right to Avoid Working and Work Accident
As per Article 417 of the Turkish Code of Obligations, the employer is obliged to take any kind of measures at the workplace to ensure occupational health and safety, to keep the tools and vehicles available at the workplace and the employees are obliged to comply with any kind of measures taken regarding occupational health and safety.
The employer is also obliged to conduct risk analysis in accordance with the Occupational Health and Safety Law No. 6331 and to identify any hazards that may exist or come from outside of the workplace and take necessary measures in this regard. Workplace doctors are obliged to provide necessary hygiene training as well as preventing the infectious diseases to spread at the workplace and take any other necessary actions in accordance with the legislation they are subject to. Otherwise, employees may request the necessary measures to be taken at the workplace, and if these measures are not taken, the employees who face serious and imminent danger may exercise their right to avoid working.
If the employer has become infected by Covid-19 due to the employer’s failure to take necessary measures at the workplace, this situation can be considered as a work accident according to the nature of the event.
10. Suspensions on Collective Bargaining Processes
Pursuant to the Law on Reducing the Effects of New Coronavirus (Covid-19) Pandemic on Economic and Social Life and the Law on Amendment of Certain Laws No. 7244 which was published on Official Gazette on 17 April 2020, the periods concerning granting mandate, executing collective bargaining agreements, resolution of collective labour disputes and the strike and lockout periods under the scope of the Law on Trade Unions and Collective Bargaining Agreements No. 6356 have been extended for three months as of the date of the mentioned Law entered into force. The President is authorized to extend the three-month period up to six months in total.