The Regulation on the Procedures and Principles Regarding Short-Term Working and Short-Term Working Allowance
Regulation Publication Date: 11 June 2024
Summary
The Ministry of Labor and Social Security ("Ministry") published the Regulation on the Procedures and Principles Regarding Short-Term Working and Short-Term Working Allowance ("Regulation") in the Official Gazette dated 11 June 2024 and numbered 32573. The Regulation entered into force on the date of publication to be effective as of 1 March 2024. The Regulation repealed the Regulation on Short-Term Working and Short-Term Working Allowance ("Previous Regulation") published in the Official Gazette dated 30 April 2011 and numbered 27920.
Important Details
The most significant amendments introduced by the Regulation are as follows:
- Pursuant to the Regulation, in short-time working implementations with a short-time working commencement date before 1 March 2024, the provisions of the Previous Regulation, which was repealed pursuant to the Regulation, will continue to be applied. If no payment is made to the insured during the short-time working period with a short-time working commencement date before 1 March 2024 and the employer reports that the insured is not actually subjected to short-time working, the entitlement to the short-time working allowance will be revoked.
- With the Regulation, "sectoral crisis," "regional crisis" and "general epidemic," which were not included in the Previous Regulation, are included among the reasons for short-time working. These concepts are defined in Article 3 of the Regulation titled Definitions.
- As per the Regulation, in addition to the requirements set out in the relevant article of the Previous Regulation, employers are obliged to submit a list of the insured individuals who will be subjected to short-time working, including information on the short-time working period and its duration. In addition, if the employer makes more than one short-time working request on different dates with the same application justification, the three-month period stipulated as the maximum period for the short-time working period will be calculated from the short-time working commencement date of the first request. The same article also states that the short-time working commencement dates to be applied by the employer can be determined differently for each insured, provided that they remain within the determined short-time working period. It is also established in the short-time working request that the short-time working period cannot be less than four weeks for the insured, except for the termination or suspension of the employment agreement of the insured, or their transfer to another workplace of the same employer.
- Unlike the Previous Regulation, Article 5 of the Regulation sets out in detail the authorities that will determine and evaluate the request, and the details regarding the determination of eligibility of employers' short-time working requests.
- The conditions for benefiting from the short-time working allowance have been rearranged. The insured who will benefit from the short-time working allowance must have been subject to an employment agreement for the last 120 days prior to the commencement 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.
- In the Previous Regulation, the amount of the daily short-time working allowance, which is determined like the amount of unemployment allowance, is determined as 60% of the average daily gross earnings of the insured calculated considering the last 12 months' premium-based earnings, not exceeding 150% of the gross amount of the monthly minimum salary. In the calculation of the short-time working period, the months in which the shorttime working period commences and ends will be evaluated over the actual number of days. The interim months included in the short-time working period will be evaluated over 30 days, including February. The amount of salaries and short-time working allowance for the weekly holidays, national holidays and general holidays of the insured will be paid jointly by the employer and the Turkish Employment Agency in proportion to the period of short-time working. In addition, the Regulation stipulates that the short-time working allowance shall not be subject to any tax other than stamp tax, and it shall be paid to the insured on the fifth day of each month instead of the end of each month as in the Previous Regulation. To make a short-time working request on behalf of an insured whose employment agreement is suspended at the workplace, the relevant article establishes that the insured must have started to work on or before the short-time working commencement date.
- Under the new adjustment in the Regulation, the short-time working allowance will be granted over the short-time working period actually realized, provided that it does not exceed the period specified in the eligibility determination. In this context, the rule of reducing the weekly working hours by at least one-third will not be sought for the short-time working period actually realized in accordance with the monthly premium and service documents or withholding and premium service declarations submitted to the Social Security Institution.
- Unlike the Previous Regulation, the Regulation introduces a provision on the suspension of the short-time working allowance. According to the relevant article, if the employer is found to have provided erroneous information and documents regarding the working hours of the insured who receive the allowance by the labor inspector during the inspection carried out by the labor inspectors in the workplaces where the short-time working implementation continues, and the labor inspector makes a written request regarding this situation, the short-time working allowance will be suspended considering the number of insured about whom erroneous information was provided.
- With the Regulation, the cases of "interruption of the short-time working allowance" regulated in the Previous Regulation have been regulated in more detail as "interruption and suspension of the short-time working allowance." Pursuant to the relevant regulation, if the employment agreements of the insured who receive a short-time working allowance in the workplace where they are subjected to short-time working are terminated or suspended, or if the insured transfer to a different workplace, start to receive old-age pension, are recruited for any reason, or leave their jobs due to their obligation arising from any law, arrest, conviction, going abroad or death, their short-time working allowance will be interrupted or suspended as of the date of any of the aforementioned situations. In addition, in accordance with the Regulation, unlike the Previous Regulation, if the insured receive a temporary incapacity report, the regulation that the short-time working allowance will be interrupted as of the date of the report has been changed to the short-time working allowance being suspended. Pursuant to the Regulation, the employer is required to notify the Turkish Employment Agency if any of the above-mentioned situations that will cause the short-time working allowance to be suspended or interrupted occur. If the employer violates the notification obligation, the overpayments made will be collected from the employer together with legal interest. If the breach of the notification obligation is caused by the insured's fault, the overpayments made will be collected from the insured with legal interest, except for the overpayments of the deceased insured.
- According to the Regulation, the employer in whose workplace there are insured individuals subject to short-time working must keep records of the working hours of the insured individuals and submit them upon request.
- The sanction to be applied in case of noncompliance with the 'obligation of the employer to notify the situation within six business days in case of early termination of short-time working, which is included in the Previous Regulation, has been determined in the Regulation. Under the Regulation, if the employer makes a late notification in violation of the notification obligation regarding the early termination of the short-time working, the unwarranted payments will be collected from the employer together with the legal interest.
Constitutional Court Decision on the Violation of the Right to a Reasoned Decision
Decision Publication Date: 13 June 2024
Summary
In the decision dated 7 February 2024 numbered 2019/41969, and published in the Official Gazette dated 13 June 2024 and numbered 32575, the Constitutional Court ("Court") stated that the Court of Appeal's decision, in the case where the applicant ("Applicant") filed a lawsuit for reinstatement, was given without providing sufficient justification regarding the Applicant's claims and objections that could affect the outcome of the dispute. In this regard, the Court ruled that the Applicant's right to a reasoned decision was violated and that the application was admissible.
Important Details
- In the reinstatement lawsuit filed by the Applicant alleging that the employment contract was unjustly terminated, the court of first instance disregarded the objection of the defendant employer ("Defendant") to the hostility and decided to accept the case by evaluating the authorized signature on the termination notice letter given to the Applicant together with the defense request letter previously given to the Applicant and the documents in the Applicant's personnel file and concluded that the Defendant and the notified company are group companies.
- The court of appeals, upon the Defendant's appeal against the court of first instance's decision, overturned the court of first instance's decision and dismissed the case based on the hostility.
- Upon the Applicant's individual application, the Court ruled that the application was admissible on the grounds that the right to a reasoned decision was violated. The Court stated that the court of appeals, while reversing the decision of the court of first instance, solely made an assessment that the Defendant was not the Applicant's employer and made a decision without a detailed legal examination as to why the decision of the court of first instance was not correct. Thus, sufficient reasoning was not provided regarding the Applicant's claims and objections.
New Decision from the Constitutional Court on the Non-Violation of Unionization Right Due to the Rejection of the Request for Union Membership
Decision Publication Date: 12 June 2024
Summary
In the decision dated 28 March 2024 numbered 2021/5841, and published in the Official Gazette dated 12 June 2024 and numbered 32574, the Constitutional Court ("Court") ruled that the decision of the court of first instance rendered in the lawsuit filed by the applicants ("Applicants") requesting the annulment of the rejection of the union membership request and the decision that the union membership was acquired, was given to balance individual union right and collective union right, and decided that there had been no violation of the union right.
Important Details
- The Applicants resigned from their union membership after the expiration of the collective bargaining agreement concluded between their employer and the Defendant Union. Subsequently, after the Defendant Union obtained authorization and began new collective bargaining negotiations with the Applicants' employer, the Applicants re-applied for the Defendant Union memberships.
- The Defendant Union rejected the Applicants' requests for re -membership on the grounds that the Applicants had resigned from membership to avoid paying union fees while benefiting from the new collective bargaining agreement, and that their resignation from membership just before the start of collective bargaining negotiations had damaged the union's bargaining power and harmed unity and solidarity among its members. Following the rejection of their membership requests, the Applicants filed a lawsuit in the court of first instance seeking the annulment of the rejection of their union membership requests and a decision on the acquisition of union membership.
- In its assessment, the court of first instance explained the concepts of individual and collective union rights, stating that the Defendant Union rejected the Applicants' requests for re-membership based on just cause, which is one of the two grounds for restricting the collective union right. The court of first instance decided to dismiss the case, stating that the Applicants' re-application for membership after the beginning of the negotiations for the new collective bargaining agreement, in spite of resigning from the union membership before the collective bargaining negotiations began, contradicted the principle of honesty; that the Applicants' actions caused pecuniary and non-pecuniary damages to the Defendant Union; that the strength of the Defendant Union is directly proportional to the number of its members, and thus the Applicants' behavior reduced the bargaining power of the Defendant Union; that if the Applicants' requests were accepted, it would damage the Defendant Union's obligation; and that the Applicant's behaviors in question were incompatible with the union's purpose of unity and solidarity.
- The Court emphasized that collective union right guarantees the survival of the unions, and that the survival and potential strength of the unions are directly proportional to the number of their members; that the rights of unions to admit and expel members can be exercised in a way that does not interfere with individual union rights; that individual union rights should not be exercised in a collective way that would weaken the union during collective bargaining negotiations; that the court of first instance's decision was made by balancing individual and collective union rights; and that the Applicants' union rights were not violated.
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