As the Employment Law Department of Esin Attorney Partnership, we are pleased to share with you the first issue of our monthly newsletter, wherein you will be able to access the legal developments in relation to employment and immigration law.

This newsletter provides a summary of the legal developments in relation to employment and immigration law matters in Türkiye, and we will share the developments with you each month.

Mediation as a prerequisite for negative declaratory actions and the annulment of objection and restitution lawsuits concerning employee or employer receivables and compensation

Effective date: 1 September 2023

Summary

Law No. 7445 on the Amendment of Enforcement and Bankruptcy Law and Certain Laws (the "Law") published in the Official Gazette on 5 April 2023 has expanded the cases where the application to the mediator is regulated as a prerequisite for filing a lawsuit. In this context, applying to a mediator has become a prerequisite for the negative declaratory actions and the annulment of objection and restitution lawsuits concerning employee or employer receivables and compensation based on individual and collective employment agreements. Pursuant to the Law, this amendment will enter into force on 1 September 2023.

Important details

  • Pursuant to the Labor Courts, application to a mediator is a prerequisite in lawsuits filed for employee or employer receivables and compensation based on individual or collective employment agreements and for reinstatement.
  • With the Law, application to a mediator in the negative declaratory actions and the annulment of objection and restitution lawsuits related to employee or employer receivables and compensation based on individual or collective employment agreements is also set as a prerequisite.
  • In case of the failure to apply to the mediator in the aforementioned cases, the procedural dismissal of the case due to the lack of the prerequisite can be requested.

Law on early retirement despite failing to meet the age requirement

Effective date: 3 March 2023

Summary

Provisional Article 95 has been added to the Social Security and General Health Insurance Law No. 5510 (the "Law") with the Law on the Amendment of the Social Security and General Health Insurance Law No. 5510 and the Decree No. 375, also known as the Law on Early Retirement Despite Failing to Meet the Age Requirement ("EYT"), which was published in the Official Gazette on 3 March 2023. With this legislative amendment, the conditions in order to be eligible for retirement for those who are deemed registered within the scope of the Law before 9 September 1999 have been rearranged.

Important detail

  • The individuals who are deemed registered within the scope of the Law before 9 September 1999 will benefit from the relevant legislation. In order to qualify for retirement within the scope of the Law, those who work under the 4/1-(a) status of the Law must (i) complete 20 years of insurance period if female and 25 years of insurance period if male, and (ii) fulfill the conditions of having paid 5000-5975 days of statutory social security insurance, which vary gradually according to the insurance start date.
  • According to the relevant Law, the following individuals will be entitled to retirement without any age requirement:
    • Individuals who started working before 8 September 1999 (inclusive) within the scope of long-term insurance branches (disability, old age, and death insurance),
    • Individuals who started working after 9 September 1999 (inclusive) within the scope of long-term insurance branches, but whose insurance start date has been brought back to a date before 8 September 1999 (inclusive) with the service debt they incurred, as per the provisions of the legislation that allows it.
  • Insured individuals will be able to retire under the Law regardless of whether they are subject to 4/1-(a), 4/1-(b), or 4/1-(c) status.
  • Under the EYT legislation, if the employees who are deemed registered within the scope of the Law before 8 September 1999 (inclusive) start working subject to social security support premium in the same workplace they last worked in, within 30 days following the termination date of the employment, the amount corresponding to five points of the employer's share of the social security support premium will be covered by the treasury.
  • However, if the employee who continues to work in the same workplace after retirement subject to the social security support premium terminates the employment relationship, it is not possible to be benefited from this incentive for the relevant employee, again.

Five-point incentive on the employer's share of the social security support premium in line with the law on early retirement despite failing to meet the age requirement

Effective date: 14 April 2023 (to be applicable as of 3 March 2023

Summary

With the Social Security Institution's circular dated 14 April 2023 and numbered 2023/19, the cases in which the amount corresponding to the five-point portion of the employer's share of the social security support premium will be covered by the treasury if the employees who are deemed registered with the Social Security Institution before 8 September 1999 (inclusive) are rehired after terminating their employment within the scope of the law on early retirement despite failing to meet the age requirement are regulated.

Important details

  • In order to benefit from the five-point premium incentive, the following conditions must be met simultaneously:
    1. The declaration regarding the termination of the employment due to old age or retirement pension request must have been submitted on or after 3 March 2023 and the employee must start working subject to the social security support premium in the same workplace within 30 days following the date of termination,
    2. The employee must request a monthly old age pension or retirement pension on or after 3 March 2023 and accordingly, a monthly old age or retirement pension is granted to the employee for the first time within the scope of the Provisional Article 95 of the Social Security and General Health Insurance Law No. 5510,
    3. The workplace must belong to a private sector employer,
    4. The monthly premium and service document/withholding and premium service declaration must have been submitted within the legal period,
    5. The accrued premiums must have been paid within the legal period,
    6. The employer must have no debts of overdue insurance premiums, unemployment insurance premiums, or administrative fines, as well as no debts of penalties for delay (gecikme cezasi, in Turkish) and increases for delay (gecikme zammi, in Turkish) regarding these, across Türkiye,
    7. There must be no determination that the employer did not submit the declaration regarding the individuals they employ to the Social Security Institution or the employer did not employ the individuals they notified to the Social Security Institution.
  • It can be benefitted from the five-point premium incentive for the period during which the insured employee, who is covered by the incentive, works subject to social security support premium in the last workplace they worked in before they were granted an old-age or retirement pension for the first time.
  • To benefit from the five-point premium incentive, employers must apply through e-SGK (e-SSI in English).

To benefit from the five-point incentive, employers can make applications for the employees within this scope through the "15510- Social Security Support Premium Incentive" menu on "e-SGK/ Employer/ Employer System https://uyg.sgk.gov.tr/IsverenSistemi / Identification of the Insured to Benefit from the Incentive", which can be accessed by logging in at https://www.sgk.gov.tr/.

Regulation on unemployment insurance premium incentive

Effective date: 11 April 2023 (to be applicable as of 1 January 2019)

Summary

The employer's share of the unemployment insurance premium support that are provided in the workplaces classified highly hazardous within the scope of Law No. 6331 on Occupational Health and Safety, with more than 10 employees, provided that occupational accidents resulting in death or permanent incapacity do not occur for three years, is regulated in the Additional Article 4 of the Unemployment Insurance Law No. 4447 (the "Law"). The principles of its implementation are regulated under the Circular of the Social Security Institution dated 11 April 2023 and numbered 2023/18.

Important details

  • In the event that an occupational accident resulting in death or permanent incapacity has not occurred within three years in workplaces that are classified as highly hazardous and have more than 10 employees, within the scope of the incentive, the employer's share of unemployment insurance will be 1% instead of 2% for three years, effective from the next calendar year. In the event that the total number of insured individuals falls to 10 or below, for all workplaces classified highly hazardous and benefiting from the incentive, the implementation of the incentive will cease as of the beginning of the month/period in which the number of employees falls to 10 or below.
  • For the calculation of the number of employees, the total number of employees employed by employers who have more than one registered workplace throughout Türkiye, that are classified as highly hazardous, will be taken as a basis.
  • In the event that an occupational accident occurs resulting in death or permanent incapacity, the implementation of the relevant incentive will cease as of the month following the respective occupational accident. Incentives benefitted from before and on the date of the occupational accident will not be clawed back from employers. However, in the event that the employers meet the conditions to benefit from the incentive again, they will be able to benefit from the respective incentive upon their request.
  • Employers, who do not report such occupational accidents despite the occurrence of an occupational accident resulting in death or permanent incapacity for work, shall reimburse the premiums they have benefited from the date of the occupational accident, together with its statutory interest accrued, and will be prohibited to benefit from the relevant incentive for five years. In the event that the employer within the scope of the ban is a subcontractor, the principal employer will also be prohibited to benefit from the incentive for a period of five years.
  • The amounts benefitted unlawfully will be clawed back from the employer together with the penalties for delay and increases for the delay, within the scope of Article 89/2 of Social Security and General Health Insurance Law No. 5510.
  • In case the employer meets all the conditions stated in the Law, but cannot benefit from the respective incentive due to the reasons arising from the Social Security Institution system at the stage of determining whether the conditions are met, the employer will benefit from this incentive if they apply to the Social Security Institution.
  • In workplaces for which there is a decision prohibiting the employer to benefit from the incentive, if an occupational accident resulting in death or permanent incapacity for work occurs within the five-year prohibition period and this occupational accident is not reported or it is reported late, a new five-year prohibition will be implemented from the beginning of the month following the date of the occupational accident.
  • Employers who do not want to benefit from the respective incentive need to apply to the respective Social Security Provincial/Central Directorate with a petition.
  • In workplaces, where a subcontracting relationship is established, in the event that the hazard classes of the principal employer and subcontractor are different, only the principal employer or subcontractor, of which the workplace is classified highly hazardous, will be able to benefit from the respective incentive.

Regulation on the Amendment of the Regulation on the Lines of Business

Effective date: 12 May 2023

Summary

With the Regulation on the Amendment of the Regulation on the Lines of Business ("Regulation"), which was published in the Official Gazette on 12 May 2023, the provision on the determination of the line of business of a workplace has been amended, and additions and amendments have been made to the provisions on the determination of the line of business and the list of the lines of business in the annexes of the Regulation. According to the Regulation, these amendments will enter into force as of the date of its publication.

Important details

  • The Regulation retains the provision that the Ministry of Labor and Social Security ("Ministry") will determine the line of business of the workplaces but adds that the line of business for a workplace will be determined by the Ministry by taking into account the workplace registration information obtained from the Social Security Institution, tax registration certificate, trade registry gazette registration and information that professional organizations have.
  • An addition to the Regulation is that the Directorate General of Labor may request the information and documents it needs for the determination of the line of business from the employer or relevant institutions, invite the relevant individuals to a meeting and conduct on-site inspections. In addition, the Directorate General of Labor will determine the line of business of the workplace in line with the evaluations in the determination report drafted as a result of the inspection.
  • "Manufacture of rechargeable electric vehicle batteries and parts" activities have been added to the list of the line of business in Annex-1 of the Regulation, under the metal sector titled "Metal" and numbered 1
  • In the table of the line of business in Annex-1 of the Regulation, under number 20, with the title of "General Works", the phrase "companies, subsidiaries, establishments and enterprises of municipalities and the companies in which they own more than 50 percent of the capital together or separately, except workplaces operating in other lines of business" has been added after the phrase of "Municipal services."

Istanbul Regional Court of Appeal 46th Civil Chamber File No: 2020/2264 Decision No: 2022/952

Decision date: 21 April 2022

Summary

According to the decision of the 46th Civil Chamber of Istanbul Regional Court of Appeal ("Court") dated 21 April 2022 with file number 2020/2264 and decision number 2022/952, it has been decided that in the event that the employee resigns from their job by relying on the new employer and is not hired, the employee may claim the deprived statutory seniority compensation and the salary receivable that would arise until the commencement of the employment from the employer who did not hire them.

Important details

  • It is understood from the correspondence in the case file that the defendant ("Defendant") requested that the plaintiff ("Plaintiff") resign from his job.
  • Although it is understood that the Plaintiff acted accordingly and resigned from his job, submitted the documents requested for the signing of the employment agreement and was notified to start working, it was identified that the Defendant renounced hiring the Plaintiff at this stage.
  • For this reason, the Court decided that the Plaintiff was entitled to claim statutory seniority compensation and damages based on the salary receivable that arised until the date of the commencement of employment and approved the decision ruled by the court of first instance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.