Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Termination of Employment Convention, 1982 (No. 158) - Türkiye (Ratification: 1995)

Other comments on C158

Observation

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The Committee notes the Government’s report which includes observations made by the Turkish Confederation of Employers’ Associations (TISK), the Confederation of Turkish Trade Unions (TÜRK-IS) and the Confederation of Turkish Real Trade Unions (HAK-IS). In addition, the Committee notes the observations made by the International Organisation of Employers (IOE) and TISK, received in August 2013, and the information provided by the Government in reply to these observations in March 2014. It also notes the communication received in August 2014 whereby the IOE included Turkey in its observations concerning the application of the Convention.

Article 2(3) of the Convention. Adequate safeguards against recourse to contracts of employment for a specified period of time. The Committee previously noted TÜRK-İS’s concern that, some employers tend to resort to contracts for a specified period of time with the aim of avoiding employment protection provisions. In its observations of August 2013, TISK and the IOE state that this concern seems to be unjustified since auxiliary jobs are widely performed by subcontractor employees in Turkey. TISK and the IOE add that an employer may recruit a subcontractor upon restrictions set forth by the Labour Code. The Government refers to section 11 of the Labour Law which regulates contracts for a definite and indefinite duration. TISK recalls in its November 2014 observations that this provision requires that there must be objective reasons the first time a fixed-term employment contract is concluded. TÜRK-IS is of view that, although the Labour Code lays down clear provisions, fixed-term contracts are used to evade statutory obligations in practice. The Committee recalls that the Convention provides that adequate safeguards shall be provided against recourse to contracts of employment for a specified period of time the aim of which is to avoid the protection resulting from this Convention (see also Paragraph 3 of the Termination of Employment Recommendation, 1982 (No. 166)). The Committee requests the Government to provide further information on the observations of the social partners. It also requests the Government to provide updated information on the use of safeguards provided in section 11 of the Labour Law against abusive recourse to contracts of employment for a specified period of time, especially for auxiliary jobs.

Article 2(4)–(6). Categories of employees excluded from the Convention. The Committee recalls that, under section 18 of the Labour Law, employees in businesses employing less than 30 workers, employees with less than six months’ employment and employees holding a managerial position are excluded from the employment protection provisions of the Law. Under section 17 of the Labour Law, if the contracts of these categories of workers are terminated in bad faith, they are entitled to compensation equal to three times the notice period plus the compensation in lieu of notice if the notice period has not been respected. The Committee refers to its previous comments and notes the information provided by TISK in November 2014 on the provisions of the Code of Obligations that apply to workers who are excluded from the scope of the Labour Law. HAK-IS indicates that the number of establishments employing fewer than 30 workers with a view to taking advantage of the legislative exemption is rising in the country. It adds that establishments which ought to be employing more than 30 workers try to shirk their responsibilities by dividing the establishments on paper. The Committee notes TÜRK-IS’s indication that the vast majority of undertakings in Turkey are small and medium-sized enterprises and it is therefore clear that a relatively large number of workers do not enjoy job security. The Committee notes that the Constitutional Court, in a judgment of 22 October 2014, declared unconstitutional certain provisions of the Labour Law that denied employees in establishments employing fewer than 30 workers the right to initiate legal proceedings for unfair dismissal on grounds of anti-union discrimination. The Committee requests the Government to provide updated information on any developments concerning the application of the Convention in small and medium-sized enterprises that may be excluded from the employment protection provisions of the Labour Law, including data on the increase of establishments employing fewer than 30 workers in comparison with other establishments and examples of court decisions on bad faith dismissals.

Seafarers. The Committee recalls that, in its conclusions adopted in November 2000, the tripartite committee set up by the Governing Body to examine a representation under article 24 of the ILO Constitution noted that the laws regulating the employment of seafarers did not require a valid reason related to capacity, conduct or operational requirements for termination. In its report the Government refers to Article 2(5) of the Convention and recalls that Maritime Labour Law No. 854 was adopted in accordance with the opinions of the social partners. The Committee notes that, in their observations, TISK and the IOE are of the view that excluding seafarers from the application of the Convention is in conformity with Article 2(5). The Committee recalls that the exclusion permitted by Article 2(5) only applies if the Government lists the exclusion in the Government’s first report, after consultation with the social partners. It recalls in this regard that the exclusion of seafarers was not listed in the first report. It notes however that the Government had listed the provisions of the Maritime Labour Law, describing the conditions in which an employment contract may be terminated. The Committee recalls that it is permissible for a Member to give effect to the Convention in more than one law and it is unnecessary to regard them as exclusions. The Committee therefore requests the Government to provide further information on the position of law and practice regarding the termination of the employment contract of seafarers.

Article 10. Remedies in case of invalid termination. In its previous comments, the Committee noted that the Turkish Employment Agency (İŞKUR) required workers who win their lawsuits for unfair dismissal to pay back the unemployment benefits they received during adjudication. The Committee noted the decision of the Court of Cassation of 5 April 2010 stating that when an appeal procedure for unfair dismissal lasts more than four months, the repayment by the worker winning the lawsuit of unemployment benefits received during adjudication is unlawful as it contravenes Unemployment Insurance Law No. 4447 and the principles of social security. TISK and the IOE indicate that the April 2010 ruling was decided by a majority of judges and add that the Court of Cassation handed down a unanimous decision on 30 November 2010. Both organizations are of the view that the decision of the Court of Cassation has become a precedent and conflicts arising out from unemployment insurance are expected to be resolved similarly by the judiciary. The Government indicates that a draft law is on the agenda of the National Assembly which was prepared to eliminate situations in which unemployment benefits would be requested to be paid back when individuals went back to work. The Committee requests the Government to continue to provide information on the application of Article 10 of the Convention, including information on the eventual adoption of legislation.