April | Labor Law Newsletter

1. LEGISLATIVE AMENDMENTS

• The Ministry of Labor and Social Security has published the Regulation Amending the Regulation on Lines of Business!

With the Official Gazette dated January 23, 2024 and numbered 32438, the Regulation Amending the Regulation on the Scope of Labor (“Regulation”) was published and Article 4 of the Regulation on the Scope of Labor was amended and Article 4/A of the same Regulation was repealed.

In this respect;

• The determination of the line of business to which a workplace belongs is made by the Ministry of Labor and Social Security upon the application of the employer, the employers’ union or the workers’ union, according to the nature of the work carried out in that workplace, and the relevant decision is published in the Official Gazette. In accordance with Article 5 of the Law on Trade Unions and Collective Bargaining Agreements, those concerned may file a lawsuit against the determination within fifteen days of the publication of the decision.
• If the authorization process for a new collective bargaining agreement has begun, the determination of the change in the line of business is valid for the next period; the request for the determination of the line of business and the lawsuits filed in relation to it are not considered as a reason to wait for authorization procedures and authorization determination lawsuits.
• Until a new line of business determination is made, the line of business of the workplaces determined according to the abolished Regulation on the Lines of Business, which was put into force by the Decree of the Council of Ministers dated 10/11/1983 and numbered 83/7376, is considered to be the line of business in which the union that last obtained the authorization certificate is established.

As a result, with the amendment, the element of submitting the objection petition to the Ministry and Article 4/A of the Regulation have been repealed and the procedures regulated in Article 4/A have been included in Article 4.

You can access the full Regulation via the relevant link.

•  The Ministry of Labour and Social Security published the Communiqué on January 2024 Statistics on the Number of Workers in the Business Lines!

Within the scope of Law No. 6356 on Trade Unions and Collective Bargaining Agreements, the Communiqué on January 2024 Statistics on the Number of Workers in the Branches of Labor (“Communiqué”) was published in the Official Gazette dated 31 January 2024 and numbered 32446.

According to the Communiqué, only 2,495,423 out of 16,395,275 workers, 15.22% of the registered workers are unionized, while the remaining 84.78% are non-unionized. Compared to July 2023 data published in the Official Gazette No. 32265 dated July 31, 2023, the percentage of unionized workers increased by 0.46% while the total number of workers decreased by 18,084. While Hizmet-İş (All Municipal and General Service Workers’ Union) maintained its first place with an increase of 22.22% and 301,456 workers, the total number of trade unions increased from 227 to 232, indicating an increase in unionization.

As a result, the number of workers decreased across the country, while unionization activity increased.

You can access the full Communiqué via the relevant link.

• The Law Amending the Unemployment Insurance Law and Certain Laws has been published!

The Law Amending the Unemployment Insurance Law and Certain Laws (“Law”) was published in the Official Gazette dated February 3, 2024 and numbered 32449.

Pursuant to the Law, regulations have been made regarding short-time working allowance and additions have been made to the additional article 2 of the Unemployment Insurance Law dated 25/8/1999 and numbered 4447. Pursuant to the Law;

• It is regulated that short-time working can be carried out in the workplace for a period not exceeding three months due to the general epidemic.
• In order to be eligible for the short-time working allowance, it is stated that the employee must have been subject to a service contract for the last 120 days before the start date of the short-time working and must have worked as an insured for at least 450 days in the last three years and paid unemployment insurance premiums, and the minimum number of premium payment days has been reduced from 600 to 450.
• It is stated that the short-time working allowance will be paid monthly to the insured on the fifth of each month and that the Minister of Labor and Social Security is authorized to bring the payment date forward. Furthermore, it has been added that the short-time working allowance shall not be subject to any taxes and deductions except for stamp tax, and no more than one tenth of it can be seized or transferred and assigned to another person, except for alimony debts.
• It is stated that the periods paid as short-time working allowance will be deducted from the entitlement periods for unemployment benefit payments to be made based on the termination of the service contract within 3 years from the date of the start of the short-time working.
• It is emphasized that overpayments arising from the fault of the insured will be collected from the insured with legal interest, and overpayments of deceased insured persons cannot be recovered.

The above-mentioned provisions will enter into force as of 01.03.2024 in accordance with Article 11 of the Law.

Furthermore, the Law amended Additional Article 19 of the Social Security and General Health Insurance Law No. 5510 (“Law No. 5510”) and revised the minimum pension amount as TL 10,000.00.

The Law added a provisional Article 101 to the Law No. 5510 and regulated the calculation principles of the amount to be deducted from the insurance premiums to be paid to the Social Security Institution by employers who employ insured persons to whom the provisions of long-term insurance branches are applied within the scope of subparagraph (a) of the first paragraph of Article 4 and to be covered by the Unemployment Insurance Fund.

The provisions regarding the amount to be deducted from insurance premiums, which is called minimum wage support, will enter into force on the date of its publication to be applied as of 01.01.2024.

As a result, improvements have been made in the conditions to be fulfilled in order to qualify for short-time working allowance, pension and minimum wage support, and the general epidemic has been added to the cases where short-time working can be carried out.

You can access the full Law via the relevant link.

• The Regulation Amending the Regulation on Health and Safety Conditions in the Use of Work Equipment has been published by the Ministry of Labour and Social Security!

On February 4, 2024, the Regulation Amending the Regulation on Health and Safety Conditions in the Use of Work Equipment (“Regulation”) was published in the Official Gazette No. 32450.

The Regulation introduces a number of amendments, most notably the introduction of İSG-KATİP, a long-standing occupational health and safety recording, tracking and monitoring program. The Regulation regulates the process of periodic control of workplace equipment and stipulates that a contract must be concluded between the employer and the periodic control authority in accordance with the sample in the İSG-KATİP system at least 1 day before the control is carried out.

Also in the Regulation;

• Joint health and safety units authorized under the Regulation on Occupational Health and Safety Services published in the Official Gazette dated 29/12/2012 and numbered 28512, and the persons working in these units will not be able to provide periodic control services, otherwise their authorization will be suspended for one year,
• The information and documents requested by the General Directorate of Occupational Health and Safety (“General Directorate”) must be sent to the Turkish Accreditation Agency (“TÜRKAK”) by accredited inspection bodies,
• A periodic control report cannot be issued with OHS-KATIP without a contract signed between the employer and the periodic control authority, these reports issued without a contract will be invalid and the authority of the authorized person will be suspended for six months,
• Labor experts and deputy labor experts, physicists, chemists, biologists, engineers and physicians working at the Directorate General will carry out inspections and controls,

has been provisioned.

The Regulation makes a special arrangement in terms of “natural disasters or states of emergency” and stipulates that certain obligations of the institutions and organizations authorized under the Regulation may be postponed or modified with the approval of the Ministry of Labor and Social Security in regions declared as natural disaster zones or states of emergency, the validity period and upper limit of the approval, and the exceptions to the archive obligation in such regions.

As a result, the Regulation outlines the procedure to be followed in the event of a natural disaster or state of emergency, the persons who can provide periodic services and the elements of the contract to be signed between the employer and the employer, and outlines the sanctions to be applied to those who violate the relevant articles.

You can access the full Regulation via the relevant link.

• The Ministry of Labour and Social Security published the Regulation Amending the Regulation on Occupational Hygiene Measurement, Testing and Analysis!

The Regulation Amending the Regulation on Occupational Hygiene Measurement, Testing and Analysis (“Regulation”) was published in the Official Gazette dated February 4, 2024 and numbered 32450.

With the Regulation, the additional article “Natural disasters or extraordinary situations” has been added to the Regulation on Occupational Hygiene Measurement, Testing and Analysis published in the Official Gazette dated 27/1/2023 and numbered 32086.

With the article in question;

• It is regulated that the conditions required for the institutions and organisations authorised within the scope of the Regulation to establish laboratories and provide services, the obligation of the laboratory to employ personnel, the application and notification periods, the obligations of the laboratory personnel to pay the certificate renewal fee and the certificate renewal fee payments of the laboratory may be changed or postponed with the approval of the Minister.
• It is regulated that the decision taken within the scope of the relevant paragraph shall be valid for the duration of its term or the duration of the state of emergency, the approval period shall not exceed one year, and if it is necessary to extend the period, the approval of the Minister shall be obtained again.

In addition, the Regulation stipulates that in places where a disaster zone with a general impact on life or a state of emergency is declared, if the authorised institutions or organisations within the scope of the Regulation declare the destruction or damage report, the documents that are lost or inaccessible from the documents that should be in their archives will not be searched during the inspections.

As a result, with the Regulation, the article containing the necessary procedures in order to prevent the negativities that may be experienced in the areas where a state of emergency has been declared and in disaster areas affecting general life has been added to the Regulation on Occupational Hygiene Measurement, Testing and Analyses.

You can access the full Regulation via the relevant link.

• The Ministry of Labour and Social Security published the Regulation Amending the Regulation on Occupational Health and Safety Services!

On February 4, 2024, the Ministry of Labor and Social Security published the Regulation Amending the Regulation on Occupational Health and Safety Services (“Regulation”) in the Official Gazette dated February 4, 2024 and numbered 32450.

With the Regulation, the definition of “Community Health Center Unit” was removed and replaced with the definition of “Employee Health Center-ÇASMER”, which is defined as a unit affiliated to the Ministry of Health, authorized under Law No. 6331, with the necessary equipment and personnel to provide occupational health and safety services to workplaces.

The Regulation aims to ensure that Workplace Health and Safety Units (“İSGB”) and Joint Health and Safety Units (“OSGB”) contribute to the creation of a safe and healthy working environment in workplaces. Accordingly, the Regulation on the Duties, Authorities, Responsibilities and Trainings of Occupational Safety Experts and the Regulation on the Duties, Authorities, Responsibilities and Trainings of Occupational Physicians and Other Health Personnel have amended the duties of these units, which are responsible for monitoring whether the specified duties are fulfilled. This amendment was made within the scope of the Regulation on the Duties, Authorities, Responsibilities and Trainings of Occupational Safety Experts published in the Official Gazette dated 29/12/2012 and numbered 28512 and the Regulation on the Duties, Authorities, Responsibilities and Trainings of Workplace Physicians and Other Health Personnel published in the Official Gazette dated 20/7/2013 and numbered 28713.

With Article 17/A added to the Regulation on Occupational Health and Safety Services; the occupational branches that will fulfill the inspection and control procedures of the joint health and safety units are specified. It is emphasized that those authorized in these matters must not disrupt the work in the workplace and are obliged to keep the professional secrets of the employer and the workplace and the matters they see and learn completely confidential.

The Regulation stipulates that the inspections of OSGBs will be carried out through remote access via digital infrastructure or on-site, that the inspection personnel will prepare a report and keep minutes regarding the application of the necessary administrative sanctions for the violations detected, and that the reports and minutes will be submitted to the Directorate General by the inspection personnel.

In addition, the Regulation regulates natural disasters or extraordinary circumstances in line with the recent amendments to the occupational health and safety legislation.

As a result, the Regulation stipulates that employers may fulfill their obligations to employ occupational physicians, occupational safety specialists and other health personnel by obtaining services from OSGBs or ÇASMERs and regulates how audits should be conducted.

You can access the full Regulation via the relevant link.

• The Ministry of Labour and Social Security published the Regulation Amending the Regulation on the Duties, Authorities, Responsibilities and Training of Workplace Physicians and Other Health Personnel!

On February 4, 2024, the Regulation Amending the Regulation on the Duties, Authorities, Responsibilities and Training of Occupational Physicians and Other Health Personnel (“Regulation”) was published in the Official Gazette dated February 4, 2024 and numbered 32450.

The Regulation states that control and supervision activities will be carried out within the scope of the General Directorate of Occupational Health and Safety and includes the principles of supervision of training institutions, trainers and responsible managers.

As a result, the Regulation sets out who will carry out inspection activities within the General Directorate of Occupational Health and Safety and how inspections will be carried out.

You can access the full Regulation via the relevant link.

• The Ministry of Labour and Social Security published the Regulation Amending the Regulation on Occupational Health and Safety Services to be carried out by the Employer or Employer’s Representative in Workplaces!

On February 4, 2024, the Regulation Amending the Regulation on Occupational Health and Safety Services to be Provided by Employers or Employer Representatives in Workplaces (“Regulation”) was published in the Official Gazette dated February 4, 2024 and numbered 32450.

The Regulation amended the Regulation to provide that in workplaces with fewer than fifty employees and classified as less hazardous, the trainings required to be provided by the employer in order for the employer to provide occupational health and safety services to the employees may also be provided by public institutions and organizations, professional organizations in the nature of public institutions, workers’ and employers’ organizations through a protocol with the Ministry.

As a result, while it was regulated before the Regulation that the trainings would be provided by universities that meet certain conditions by making a protocol with the Ministry, the Regulation has been amended to allow public institutions and organizations, professional organizations in the nature of public institutions, workers’ and employers’ organizations to provide such trainings.

You can access the full Regulation via the relevant link.

• General Directorate of Insurance Premiums published the Circular on Minimum Wage Support on 29.02.2024!

With the Circular dated 29.02.2024 and numbered 2024/3 published by the General Directorate of Insurance Premiums, the amount of minimum wage support to be applied throughout 2024 was determined.

Accordingly, the minimum wage support in 2024 was determined as 700-TL per month (23.33-TL per day). In the same month of 2023, the support will be available for insured persons whose daily earnings are 671-TL and below, insured persons whose daily earnings are 1.341-TL and below in workplaces where collective labour agreements are applied, and insured persons whose daily earnings are 1.789-TL and below in lignite and hard coal workplaces.In 2024, new workplaces to be opened in 2024 will benefit from the support payment without wage limit for all insured employees.

You can access the full Regulation via the relevant link.

• Communiqué Amending the Communiqué on Workplace Hazard Classes Regarding Occupational Health and Safety (“Communiqué”) has been published!

Communiqué Amending the Communiqué on Workplace Hazard Classes Regarding Occupational Health and Safety Regulated by the Ministry of Labour and Social Security (“Communiqué”) 05.03.2024 dated Official Gazette and entered into force.

With this Communiqué, some services included in the list of workplace hazard classes in Annex-1 of the Communiqué on Workplace Hazard Classes Regarding Occupational Health and Safety published in the Official Gazette dated 26/12/2012 and numbered 28509 were included in the “less dangerous” class, while some services were included in the “dangerous” class.

Following the amendment made by the Communiqué, many new areas have been included in workplace hazard classes. Accordingly, employers are required to fulfil their obligations under the occupational health and safety legislation.

You can review detailed information on the relevant regulation in the bulletin on the website of our office, and you can access the full communiqué via the relevant link.  

• Law Regarding Amendments to the Personal Data Protection Law No. 6698 (“KVKK”) Has Been Published in the Offical Gazette!

The Law Regarding Amendments to Certain Laws Including the Criminal Procedure Code No. 7499 has been published in the Official Gazette dated 12.03.2024 and numbered 32487 and changes have been made to the Personal Data Protection Law  No.6698 (“KVKK”). The primary aim of the law amendment is to align the KVKK with the General Data Protection Regulation of the European Union.

In line with this goal, changes have been made to the provisions regulating the processing conditions of special categories of personal data and the transfer of such data abroad.

The main objective of the law amendment is to make the Personal Data Protection Law (“KVKK”) compatible with the General Data Protection Regulation of the European Union. In line with this objective, changes have been made to the provisions regulating the processing conditions of special categories of personal data and the transfer of such data abroad. With these changes, the aim is to fully align the current Personal Data Protection Law (“KVKK”) with the General Data Protection Regulation (“GDPR”) of the European Union.

With the Law on Amendments to Certain Laws Including the Criminal Procedure Code No. 7499, published in the Official Gazette dated 12.03.2024, changes have been made to Articles 6, 9, and 18 of the KVKK, and it has been decided that these changes will come into effect as of 01.06.2024 in accordance with Article 3 of the temporary provisions of the Law. The three main changes made to the KVKK are as follows:

1. Changes to the Conditions for Processing Sensitive Personal

Data in Article 6 With the amendment to Article 6 of the Personal Data Protection Law, the distinction between sensitive personal data concerning health and sexual life and other types of sensitive personal data has been eliminated. Thus, while maintaining the provision that processing sensitive personal data is prohibited:

1. Explicit consent of the data subject,
2. Explicit provision in laws,
3. In cases where it is impossible to obtain consent due to physical impossibility or the person is unable to give legal consent, processing is necessary for the protection of the data subject’s or another person’s life or physical integrity,
4. Relating to personal data made public by the data subject and being in line with the intention of making it public,
5. Necessary for the establishment, exercise, or protection of a right,
6. Necessary for the fulfillment of the obligations of confidentiality by persons or authorized institutions and organizations, for the protection of public health, for preventive medicine, for medical diagnosis, treatment, and care services, for the planning, management, and financing of health services,
7. Necessary for the fulfillment of legal obligations in the fields of employment, occupational health and safety, social security, social services, and social assistance,
8. Associations, foundations and other non-profit organizations or formations established for political, philosophical, religious or trade union purposes, provided that they comply with the legislation they are subject to and their purposes, are limited to their fields of activity and are not disclosed to third parties; It is directed to current or former members and members or people who are in regular contact with these organizations and entities,

In summary, with the amendment to Article 6 of the Personal Data Protection Law, the qualitative distinction among sensitive personal data has been eliminated, and the conditions for processing all sensitive personal data have been expanded.

1. Changes to the Conditions for Transferring Personal Data Abroad in Article 9

With the amendment made to Article 9 of the Personal Data Protection Law, the provision stating that personal data belonging to an individual cannot be transferred abroad without their explicit consent has been softened within the framework of compliance efforts. With this amendment, it has been clearly regulated that personal data may be transferred abroad if the necessary conditions are met.

The amendment explicitly regulates that personal data may be transferred abroad if the necessary conditions are met. According to the relevant amendment in the article, for the transfer of personal data abroad, it is determined as a precondition to have a adequacy decision regarding the country, international organization, or sectors within the country.

If such a condition is not met, it is stated that parties must provide one of the appropriate safeguards for the transfer of personal data abroad; otherwise, continuous transfers of data abroad will not be possible. The safeguards mentioned in the law are as follows: commitment, binding corporate rules (BCR), standard contractual clauses (SCC), contracts that are not of an international nature (contracts to be signed between public institutions, organizations, professional organizations, and international organizations in foreign countries and Turkey).

If there is no adequacy decision or safeguards mentioned in the law, it may be possible to transfer personal data abroad only for a single or a few times. However, according to the amendment made, these limited cases are restricted in the law.

1. Amendments to Article 18 Regulating Misdemeanors

With the new amendment to the Law, an addition has been made to Article 18 of the Personal Data Protection Law and it has been regulated that if the notification obligation in Article 9 is not fulfilled, administrative fines will be imposed on institutions that violate the obligation. Thus; The obligation to notify the Board within five business days of standard contracts to be used in data transfer abroad is regulated, and it is stated that if not notified, an administrative fine may be imposed on the data controller or data processor.

Also with the relevant changes; Administrative courts are authorized to deal with administrative fines imposed by the Board. This amendment aims to solve the problems related to the decision of the administrative fines imposed by the Board by the criminal judgeships of peace without sufficient examination. Thus; It has become possible to file a lawsuit in administrative courts against administrative fines imposed by the Board.

These amendments to KVKK are also important in the field of Labor Law, as they will make it possible to process personal data in the fields of occupational health and safety and social security, even if there is no explicit consent, provided the relevant conditions are met.

You can access the entire text of the Law regarding the relevant regulation here.

• Communiqué Amending the Communiqué on Compulsory Personal Accident Insurance Tariff and Instruction for Mine Employees has been published!

The Communiqué Amending the Communiqué on Compulsory Personal Accident Insurance Tariff and Instruction for Mine Employees issued by the Insurance and Private Pension Regulation and Supervision Agency was published in the Official Gazette dated 19.03.2024 and entered into force.

Pursuant to the communiqué on compulsory personal accident insurance tariff and instruction for mine employees, real and legal persons engaged in underground and surface coal mining, underground mining activities other than coal, are obliged to take out an insurance policy for their personnel employed in their facilities, engaged in production and production preparation activities as a result of accidents that may occur during the performance of these activities.

With the communiqué published, the duties and authorities belonging to the Undersecretariat of Treasury within the scope of this communiqué have been transferred to the Agency, the amount of damage exceeding 1,500,000-TRY per accident, separately for disability and death coverage in case of accidents occurring in the insured enterprises, which was compulsorily reinsured by the relevant insurance companies to the special risks management centre (centre), has been changed to 10,000,000-TRY, the coverage to be paid per person in case of disability and death has been updated as 1,000,000-TRY and the net premium to be paid per person has been updated as 4,675-TRY.

You can access the full Regulation via the relevant link.

• The Regulation Amending the Regulation on Partial Payment in the Private Pension System has been published!

With the regulation published in the Official Gazette dated 21.03.2024 by the Insurance and Private Pension Regulation and Supervision Agency, the effective date of the Regulation on Partial Payment in the Private Pension System (“Regulation”) published in the Official Gazette dated 26/9/2023 and numbered 32321 has been changed. The regulation, which was previously determined to enter into force on 26.03.2024, will enter into force on 01.07.2024 in line with this amendment.

The Regulation, whose effective date has changed, regulates the following issues:

• the application to be made by the participants in the individual pension system to exercise their right to partial payment in order to receive a part of their individual pension savings, including state contributions, without waiting for their retirement
• evaluation of the application
• cases where partial payment can be received,
• the calculation and payment of the state contribution to be paid by partial payment,
• sanctions to be applied,
• the duties and responsibilities of the pension supervision centre and pension companies in the partial payment process
• other aspects of partial payment

Following the entry into force of the relevant regulation on 01.07.2024, participants of the individual pension system will be able to receive up to half of their savings, including a part of the state contribution, in cases such as education, housing purchase, natural disasters, marriage, without leaving the system, if they meet the conditions in the relevant categories.

You can access the full Regulation via the relevant link.

2. JUDICIAL DECISIONS

• With the Decision of the Constitutional Court of the Republic of Turkey dated 01.02.2024, numbered 2022/154 Merits and 2024/33 Decision, paragraph 7 of Article 40 of the Maritime Labour Law was cancelled. This descision published in the Official Gazette dated 14.03.2024.

According to the Labour Law, Press Labour Law and Turkish Code of Obligations, regardless of how the employment contract is terminated, the employee who has annual leave remaining on the date of termination of the employment contract is entitled to annual leave pay, and the manner of termination of the employment contract is not important.

On the other hand, Article 40 of the Maritime Labour Law stipulates that “if the service contract of the seafarer is terminated according to subparagraphs ıı, ııı and ıv of Article 14 without using the annual paid leave, the employer or the employer’s representative must pay the wage for the leave period to the seafarer.”

From the counter-meaning of this provision, it is concluded that in case the employment contract is terminated according to the first subparagraph of Article 14, the wage for the leave period will not be paid. Article 14/I of the Maritime Labour Law lists the reasons for the termination of the seafarer’s employment contract by the employer or the employer’s representative without notice. For example, if the seafarer acts against the employer or the employer’s representative in violation of the law, service contracts and other labour and working conditions, the employment contract is terminated without notice. In this case, the seafarer will not be paid for the unused leave period.

However, as it is known, the right to rest is recognised by the Constitution. In cases where seafarers’ contracts are terminated by their employers without notice, the fact that they cannot claim wages for the unused annual leave causes the function of the annual leave, which is considered within the scope of the right to rest, to be destroyed. Since it is the employer’s obligation to ensure that the employee uses paid annual leave and the employer determines the time to use the leave within the legal limits, the fact that no compensatory method is foreseen in the event of termination for the reasons listed by the employer before the leave is used is found to be unlawful.

Accordingly, the relevant article provision has been cancelled and this decision will enter into force as of 14.09.2024.As of this date, regardless of how the employment contracts of the seafarers are terminated, they will have to be paid for the annual leave they have not used.

You can access the full Constitutional Court decision via the relevant link.

• Decision of the Constitutional Court of the Republic of Turkey dated 21/9/2023 with Application Number 2018/35591 A*** B****

In the Constitutional Court’s (”CC”) decision dated 21 September 2023 and numbered 2018/35591, published in the Official Gazette dated 9 January 2024 and numbered 32424, it was stated that the reinstatement lawsuit filed by the applicant A**** B**** (”Applicant”) was rejected by the 22nd Civil Chamber of the Court of Cassation (”Chamber”) due to the change of opinion of the 22nd Civil Chamber of the Court of Cassation (”Chamber”) on the grounds that the adoption of an operational decision at the workplace is not subject to the review of propriety. Civil Chamber of the Court of Cassation (”Chamber”) due to the change of opinion of the 22nd Civil Chamber of the Court of Cassation (”Chamber”) stating that the rejection of the reinstatement lawsuit filed by the applicant A1 application number and dated 20 September 2023 did not constitute a violation of the right to a fair trial and it was decided that the application was inadmissible due to manifest lack of grounds without examining the other admissibility conditions.

Workers, including the applicant, whose employment contract was terminated, filed a lawsuit against the Company and A**** for reinstatement, stating that the termination was unfair and invalid. The applicant claimed that the right to a fair trial was violated as the lawsuit filed by the applicant for reinstatement was rejected due to a change of case-law by the Court of Cassation. Some of the lawsuits filed by the workers whose employment contracts were terminated were accepted by the labour courts and the decisions were upheld by the Court of Cassation.

In the case brought by the applicant, Ankara 30th Labour Court accepted the case with a decision dated 13/12/2016 and stated in the said decision that the employer could not prove that the applicant’s employment contract was terminated for a valid reason and that the termination was resorted to as a last resort, and also pointed out that the security work continued at the workplace of A***.

The appeal request was rejected by the 7th Civil Chamber of the Ankara Regional Court of Appeals on 22/2/2017, and in the meantime, the 22nd Civil Chamber of the Court of Cassation, upon the appellate review of the precedent files, decided on 2/3/2017 that the decision on the acceptance of the reinstatement lawsuit filed by another employee was reversed as the termination of the service procurement contract between the defendants was an operational decision, and that the decision was not subject to a review of propriety, and that it was necessary to conduct research and examination only within the scope of the principle of the last resort of termination.  

In the case brought by the applicant, the 22nd Civil Chamber of the Court of Cassation reversed the judgement on 23.06.2017 and stated that the court should investigate whether there is another workplace where the defendant company can employ its workers and whether the same qualified persons have been hired recently and make a decision accordingly. The court decided to dismiss the case based on the scope of the file and the reasons in the judgement of the Court of Cassation with the decision dated 19.10.2017, and the applicant appealed the judgement. The 22nd Civil Chamber of the Court of Cassation upheld the court decision on 15/02/2018 and the applicant filed an individual application on 17.04.2018.

The Constitutional Court stated that the Court of Cassation has the authority to interpret and apply the rules of law and changes its opinion by explaining its reasoning, that the new approach adopted by the Court of Cassation has been consistently applied and deepened, that it is not possible to talk about a continuous difference of case law, and that it is clear that there is no violation of the right to a fair trial, and thus it has been reached the opinion that the constitutional fairness of the trial has not been harmed, and decided that the application is inadmissible due to lack of clear grounds.

You can access the full Constitutional Court decision via the relevant link.

• Decision of the Constitutional Court of the Republic of Turkey dated 13.02.2024 with Application Number 2020/36976

In the decision of the Constitutional Court (”CC”) dated 13 February 2024 with application number 2020/36976 published in the Official Gazette dated 22 March 2024 and numbered 32497, the application of an employee who claimed that his right to request protection of personal data was violated due to the lack of an effective criminal investigation into his complaint to the relevant authorities regarding the unlawful acquisition of his personal data by his employer.

It was decided that the right to request the protection of personal data within the scope of the right to respect for private life was violated due to the failure to carry out an effective criminal investigation regarding the complaint made by the employee after the employer, who terminated the employment contract, accessed the bank account movements of the employee without the employee’s knowledge and consent in order not to pay the labour receivables.

As this decision shows, in the event that the employer uses the personal data of its employees in line with its own interests, an effective criminal investigation must be carried out in the complaint filed against it, and the employer must not violate its obligation to act in accordance with the KVKK legislation.

You can access the full Constitutional Court decision via the relevant link.

3. GLOBAL EMPLOYMENT TRENDS

• In the referendum held in Switzerland on 03.03.2024, the proposal to increase pension payments for the elderly was accepted with 58 percent, while the increase in the retirement age from 65 to 66 was rejected with a high rate of 75 percent.

In the referendum held in Switzerland on 03.03.2024, it was brought to the agenda to give 13 salaries a year to pensioners and to raise the retirement age to 66. As a result of the referendum, 58% of Swiss voters voted “Yes” for the 13th salary within the scope of increasing pension payments, while the vote to increase the retirement age from 65 to 66 was rejected with a high rate of 75%. 

The 13 pensions a year system adopted by the referendum was introduced to alleviate financial difficulties such as people’s pre-Christmas spending and year-end tax payments and to increase general welfare, and was brought in line with the double salary application given to employees in November. Thus, the legal basis has been created for Swiss pensioners to receive one extra salary per year from 2026 onwards, like many working people in the country.

As a result, while the retirement age remained constant, the number of salaries to be received by pensioners during the year increased and the welfare level of pensioners was increased.

• Germany and the Dominican Republic Started Testing 4-Day Working Week in February!

According to the World Economic Forum (“WEF”), in Germany, where the average weekly working hour is 34.2 hours, 45 companies and organisations started to test the 4-day working week as of February. While it is emphasised that there will be no reduction in salaries during the six-month trial period within the scope of the pilot, only working hours will be reduced, it is envisaged to increase the productivity of employees and to test the work and social life balance with this new practice.

In addition, companies in the Dominican Republic are also preparing for a six-month pilot of a 4-day working week. The Dominican Government stated that the pilot will start in February and emphasised that the working week will be reduced from Monday to Thursday and from 44 to 36 hours, without any change in the salary of employees. The aim is to improve the health and well-being of workers and to promote environmentally friendly and sustainable productivity.

In the past, Belgium was the first country in Europe to enact a 4-day week law and the third country in the world, following Iceland and New Zealand. The said regulation was prepared in February 2022 and entered into force on 21 November 2022, and Belgian employees gained the right to work 4 days a week instead of 5 days a week without loss of salary. As a matter of fact, there was no reduction in weekly working hours as those who prefer to work 4 days in Belgium will need to fill 38 hours, which is 5 days of working hours, within 4 days.

As a result, it is seen that many countries want to increase the motivation of their employees and achieve high productivity by trying the 4-day working week system.

• Flexible Working Arrangement Announced in the UK!

In the UK, a new flexible working arrangement that received royal approval in July 2023 is scheduled to come into effect from April 6, 2024. This new model to be implemented in the UK plans to introduce flexibility in work schedules and hours through the “flexible working” system, allowing employees to work part-time according to their preferences. It is envisaged that with this practice, employees will be able to regulate their start and finish times. Under the old regulations, employees had to have worked continuously for at least 26 weeks to be able to request flexible working.

With the new changes, employees can now request flexible working from their employers from the date they start their job. Additionally, under this new amendment, employers will need to provide an acceptable reason before rejecting the request of employees for flexible working. While under the old practice, employers were required to resolve requests for flexible working from employees within three months, this period has been reduced to two months with the new regulation.

Furthermore, while in the old regulation, employees could only make one request for flexible working in a 12-month period, the new regulation grants employees the right to make two requests in a 12-month period. With this new implementation, it is anticipated that employers will review their existing flexible working policies and adjust their working systems to be in line with the new regulation to provide a conducive working environment for flexible working arrangements.

• New Regulation on Tracking Working Hours is on the Way in Germany!

According to the German Labor Code, employers are only obliged to keep track of their employees’ overtime, but following the Federal Labor Court’s ruling that all working hours of employees must be tracked, the Federal Ministry of Labor has drafted a draft law on this issue. According to the draft law of the Federal Ministry of Labor, employers will be obliged to record their employees’ working hours electronically from 2024, unless another specific collective agreement or company regulation applies.

Electronic recording of working time can be achieved by employees logging in before starting work using a time recording system and logging out again at the end of the working day.

By logging in to the app on a smartphone or tablet with internet access, employees will be able to easily record all their working and travel time and breaks through a browser or app.

• Positive Discrimination Project for Women’s Employment (KIPAP) Started!

With the project created by the Turkish Employment Agency (İŞ-KUR) to support women’s employment, employers will be provided with premium, tax and wage support up to 25,000-TRY per month for each female worker they employ within the scope of the project; if the female worker working within the scope of the project has a child between 0-66 months, a monthly childcare support of 3,000-TRY will be provided.

The criteria to be met by the participants and employers to be supported are detailed on İŞKUR’s website. Accordingly, employers must operate in the manufacturing sector, have at least two insured employees, be registered with İŞKUR, and commit to employing the relevant worker for at least twice the duration of the support payment.

This 3-month project will be implemented in Adana, Adıyaman, Ankara, Bursa, Denizli, Diyarbakır, Gaziantep, Hatay, İstanbul, İzmir, Kahramanmaraş, Kayseri, Kilis, Kocaeli, Konya, Malatya, Manisa, Mardin, Mersin, Osmaniye, Samsun, Şanlıurfa, Tekirdağ.

• The Innovative Profession of Progressive Times: AI Prompter!

Artificial intelligence has become one of the most influential and talked about topics in the world today and has been included in our lives in many areas. In particular, studies and projects have started to be carried out in the direction that artificial intelligence, which is thought to negatively affect employment, will increase employment by creating new business lines, contrary to what is thought.

In this context, as a new line of business, the AI Prompter profession, which means an authorized person who tells artificial intelligence what to do and directs it, has made quite an impact on the agenda.  The profession, which is a kind of artificial intelligence engineering, is actually intended to serve as a bridge between human and machine learning and to be a tool for artificial intelligence to fulfill the expectations and requests of people correctly and in accordance with what is requested.

Contrary to popular belief, the quality of the content created by artificial intelligence largely depends on the quality of the prompts used and the commands given, and it has been observed that the content created is enriched as a result of expressing the given command in a descriptive and clear manner and drawing sharp boundaries. In this direction, it is emphasized that knowing how to speak with artificial intelligence will be at the forefront in the AI Prompter profession, where verbal ability comes to the fore as well as mathematical knowledge.

 As a result, artificial intelligence will change our lives in the direction of creating new professions by being actively involved in all areas of our lives, and will continue to offer various opportunities to those who move towards change.

• The International Monetary Fund (IMF) has released a report titled “Artificial Intelligence and the Future of Work”!

Based on research conducted by the International Monetary Fund (IMF) and published on their website on January 14, 2024, the Report evaluates the role of artificial intelligence in global employment. The report highlights the difficulty in determining the impact of artificial intelligence on the global economy and societies, while also noting that artificial intelligence aimed at increasing productivity in the job market could potentially replace humans in certain job sectors.

According to the report published as part of the IMF’s research, it is revealed that the population engaged in high-skilled jobs will be affected by artificial intelligence. Given the prevalence of information technology-related jobs in today’s world, it is also noted among the IMF’s findings that 60% of professions in advanced economies will be primarily affected by artificial intelligence.

Additionally, while it is mentioned in the report that the rate of replacing human labor with artificial intelligence is higher in advanced economies, it is also stated that these economies will benefit more from artificial intelligence compared to less developed and developing economies.

The IMF Report emphasizes that artificial intelligence could impact up to 40% of global employment, suggesting that economies in development may face fewer challenges in integrating artificial intelligence into their workforce, but may also benefit less from its advantages.

Furthermore, the report warns that this situation could exacerbate income inequality between countries, and highlights that the risk of job displacement created by artificial intelligence may affect not only mid-level workers but also high-wage earners.

• M**** M**** has transitioned to AI-supported recruitment process in Turkey!

M**** M****, an electronic product retail chain brand, introduced an artificial intelligence-integrated human resources system to streamline its recruitment processes. With the system named “AI’M H*****,” M**** M**** aims to make its recruitment processes more practical.

Candidates applying for entry and mid-level positions at M**** M**** now conduct their initial interviews not with a human, but with the company’s own artificial intelligence assistant. This method speeds up the initial interview process, allowing more candidates to be evaluated and increasing operational efficiency.

The job interview process for candidates applying for open positions within the company progresses through the following stages:

1. Gathering information of applicants who have applied and possess qualifications suitable for the positions.
2. Selection of candidates whose resumes are deemed suitable by the integrated artificial intelligence.
3. Invitation of selected candidates to the AI-supported recruitment program via email.
4. Registration of candidates who accept the invitation and watching the informational video provided by the artificial intelligence after logging into the system.
5. Preliminary interview stage, where candidates are asked questions in Turkish and English covering competencies related to M**** M****.

Upon completing these stages, candidates’ responses to the questions are analyzed by artificial intelligence based on their competencies, creating a “heat map analysis.” Based on this analysis, the top five candidates proceed to the next stage.