EMPLOYEES THAT NOT SUBJECT TO LABOR LAW AND THEIR RIGHTS 16 December 2020

Under Turkish law, certain works and employment relationship are excluded from the scope of the Labor Law (“LL”). Works that are not included in the scope of the LL are determined in article 4 of the LL. According to this; employees in sea and air transportation, employees who work in agricultural and forestry workplaces or enterprises employing fifty or less than fifty workers, employees working in all kinds of agricultural construction works within the boundaries of the family economy, employees who work at home and in handicraft businesses among members of a family and their relatives up to the third degree (including third degree) with no outside participation, household employee, apprentices, athletes, rehabilitated employees and employees working in workplaces where three people work within the scope of the Tradesmen and Craftsmen Law are not subject to the provisions of the LL. Therefore, other special laws or the Turkish Code of Obligations ("TCO") will be applied instead of the LL in terms of the rights of the employees in the mentioned business lines.

1. WORKS THAT NOT SUBJECT TO THE LABOR LAW

1. Sea Transportation Works

As a rule, sea transportation works are subject to the Maritime Labor Law. However, in accordance with Article 4 of the LL; loading and unloading works from ships to land or from land to ship at coasts or ports and piers are included within LL. In addition, jobs related to seafood producers working in the seas, which are not covered by the Maritime Labor Law and are not considered as agricultural works, are also considered within the scope of LL.

2. Air Transportation Works

Since there is no special law for those working in air transportation works, the provisions of the TCO are applied. On the other hand, LL is applied to employees in work carried out in all ground facilities of aviation. Thus, pilot, cabin crew, radio operator and engineer are flight personnel who are out of LL. Apart from these, those who work in warehouses, airports, hangars and workshops, those who make, repair and maintain aircraft, in other words, those employed in all ground facilities fall within the scope of application of the LL  (Court of Cassation 7th Civil Chamber, 19.06.2013 Dated, 2013/15340 File Number and 2013/115396 Decision Number). In addition, in according with evolving jurisprudence , it is accepted that the flight personnel will be within the scope of LL if they have a collective bargaining agreement or a union.

3. Workplaces Employing Fifty Workers and Less Than Fifty Workers Where Agricultural and Forestry Work Is Performed

It has been stated that the workplaces or enterprises where agriculture and forestry work with fifty or less workers are employed are not within the scope of LL. Since there is no special Agriculture and Forestry Labor Law for those working in such workplaces and enterprises, TCO is applied. However, with an exception; It has been accepted that the provisions of LL will be applied in terms of works seen in workshops and factories where agricultural arts and agricultural tools, machinery and parts are made, construction works in agricultural enterprises, park and garden works that are open to the public or as an add-on to the workplace.

4. Family Economy

The provisions of LL do not apply to all kinds of construction works related to agriculture within the boundaries of the family economy and to works such as carpet weaving works where handicrafts are made in homes and handicrafts, even if there is no other person from outside, among individuals with relatives up to the third degree, including third degree relatives.

5. Home Services

Employees working in household chore are not covered by the LL. It is stated that in order for a business to be considered as home services, it must be directed directly to the house itself and living conditions. From this perspective; cook, butler, cleaner, gardener, driver, watchman, animal keeper, etc. are people who carry out activities related to the daily running of the house. The provisions of TCO are applied in the legal relations between these persons and their employers.

6. Apprentices

As a rule, apprentices are not included in the LL, but apprentices' rights are reserved in terms of occupational health and safety provisions.

7. Athletes

The work of the athletes under a sports club is subject to the provisions of the TCO, not the LL provisions. According to the Court of Cassation, it is clear that the athlete who is directly involved in sports is not within the scope of LL. However, the coach who does not directly do active sports, who prepares the athlete for active sports, and the coach whose active duty is to give directives and who also has the task of bringing the team to success should not be considered an athlete and should be accepted within the scope of LL. (9th Civil Chamber, 14.09.2015 Dated, 2015/17745 File Number and 2015/25607 Decision Number)

8. Rehabilitated Employees

The LL provisions do not apply to the work carried out in special centers so that employees who have lost or decreased ability to work due to illness and accident, are reintroduced to work after their treatment.

9. Some Workplaces Under the Tradesmen and Craftsmen Law

Employees working in workplaces with three or less workers in accordance with the conditions specified in Article 2 of the Tradesmen and Craftsmen Law are not within the scope of LL. According to these conditions, the provisions of TCO are applied for workplaces with three or less employees, including tradesman workplace owners, whose earnings do not qualify as a merchant, and that base their economic activity on capital and physical work.

1. RIGHTS OF EMPLOYEES NOT SUBJECT TO LABOR LAW

In terms of the rights of employees who are not covered by the provisions of LL, the provisions of the TCO generally apply to the contract of service.

2. 1. In Terms of Converting A Fixed Term Service Contract into An Open-Ended Service Contract

As a rule, fixed term service contract expires automatically at the end of the term, without the need for a notice of termination, unless otherwise agreed. However, the TCO stipulated that if the fixed term service contract is continued implicitly after the expiry of the term, it will turn into an open-ended service contract. Nevertheless, in the presence of a substantial reason, it is also allowed to establish fixed term service contract successively. Similarly, if it is agreed that the service contract will end with a notice of termination and neither party has notified the termination, the contract turns into an open-ended contract.

3. 2. In Terms of Notice of Termination Period

In service contracts for more than ten years, each party has to comply with the six-month termination notification period after ten years.

In open-ended service contracts, each party has the right to terminate the contract by complying with the termination notice periods. Termination of open-ended service contract, starting from the receipt of the termination notification to the other party; it takes place after two weeks for the employee with up to one year of service; after four weeks for a one- to five-year employee and after six weeks for an employee who has lasted more than five years. The employer who does not want to comply with these notice periods can terminate the contract only by paying the charge for the termination notification period in advance. At the same time, the termination notice periods are required to be the same for both parties. If different termination periods are stipulated for the parties in the service contract, it has been accepted that the longer notification period will be applied to both parties.

4. 3. In Terms of Termination for Convenience

In cases where the service contract is terminated by abusing the right of termination, the employer is obliged to pay the employee three times the compensation of the termination notice period.

At the same time, if the service contract is terminated by the employer without just cause; In open-ended contracts, the employee can claim the amount that employee could earn as compensation if the termination notification period had been complied with. And in fixed-term contracts, in case of failure to comply with the contract period, the amount that would have been earned if this period was complied with, as compensation. Further; the judge may also decide that a compensation to be determined freely, not more than six months' charge of the employee's, be paid to the employee.