Legal News

How can You Take the Ramadan Feast 9 Days Holiday?

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This year holy Ramadan Feast will be observed between Tuesday, 4 June and Thursday 6 June, also Monday, 3rd of June is the eve of the feast and half day holiday.

As per the Government announcement many of the public sector employees are allowed administrative leaves for Monday, 3rd June and Friday, 7th June. As a result public employees will have 5 days holiday uninterruptedly between 3rd and 7th July, and many of the public institutions and agencies, schools including SSI departments and tax offices will be closed during this period.

Taking into consideration the two weekends before and after the Feast, the holiday is extended to 9 days for public employees.

Unfortunately, administrative leaves granted by the Government don’t include the private sector employees, who will have 3, 5 days of leave starting from 3rd June, 13.00 o’clock and continuing until 6th June,

However, private sector employees may extend their holiday up to 9 days, provided that their employer consented.

TAKING PARTIAL ANNUAL LEAVE

Though not obligatory, some employers let their personnel to take one or two days of their annual leave and combine them with the Feast holiday in order to enjoy their holidays uninterruptedly.

COMPENSATORY WORK

Compensatory work is arranged in Article 64 of Labor Law No. 4857, and in Article 7 of Working Time Regulations;

“In cases where time worked has been considerably lower than the normal working time or where operations are stopped entirely for reasons of suspending work due to force majeure or on the days before or after the national and public holidays or where the employee is granted time off upon his request, the employer may call upon compensatory work within two months in order to compensate for the time lost due to unworked periods.”

With the employer’s consent you may take the half day of the eve (3rd of June and 7th of June off and can make up unworked hours.

It should bear in mind that compensatory work must be done within sixty days after Feast holiday.

Can You Take Free Time for Hours Worked in Ramadan Feast?

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Bayramda Çalışanlara Serbest Zaman Uygulanabilir Mi?

Some of the employees, especially the ones in services sector, are obliged to work in the Feast of Ramadan due to nature of the business they are in.

In general, employees may receive overtime pay or use free time for overtime or work at extra hours. However, this is not valid for the national and general holidays listed below;

  • New Year’s Day, January 1st (Tuesday)
  • National Sovereignty and Children’s Day, April 23rd (Tuesday)
  • Labor and Solidarity Day, May 1st (Wednesday )
  • Commemoration of Atatürk and Youth and Sports Day, May 19th (Sunday)
  • Ramazan Bayramı* (Feast of Ramadan) June 4th-6th (Tuesday to Thursday)
  • 15 July Democracy and National Unity Day July 15th (Monday)
  • Kurban Bayramı* (Feast of the Sacrifice), August 11th -14th (Monday to Wednesday)
  • Victory Day, August 30th (Friday)
  • Republic Day*, October 28th (half day) and 29th (Tuesday)

* Eves of both feast days and Republic Day are also given as half day holiday.

In above said holidays employees get paid their wage without working. In case they work in these days, they should get another extra payment for each day worked.

WHAT IS OVERTIME WORK?

Overtime work is work which exceeds forty-five hours a week. As employee is deemed to work in general holidays without actually worked, working in these days is considered as exceeding 45 hours.

The wage for each hour of overtime work is paid by raising the hourly rate of the regular working wage by fifty percent. In other words, wages for each hour of overtime shall be remunerated at one and a half times the normal hourly rate.

WHAT IS WORK AT EXTRA HOURS?

In cases where the weekly working time has been set by contract at less than forty-five hours, work that exceeds the average weekly working time which may last only up to forty-five hours weekly is deemed to be work at extra hours. In work at extra hours, the wage for each extra hour is paid by raising the hourly rate of the regular working wage by twenty-five percent; in other words each extra hour shall be remunerated at one and a quarter times the normal hourly rate.

If the employee who has worked overtime or at extra hours so wishes, rather than receiving overtime pay he may use, as free time, one-hour and thirty minutes for each hour worked overtime and one hour and fifteen minutes for each extra hour worked.

But as it is explained above this is not applicable for the days worked in general holidays, and employees must be paid overtime pay.

IS COLLECTIVE VACATION LEAVE POSSIBLE IN RAMADAN?

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İşveren Ramazanda Zorunlu Yıllık İzin Uygulayabilir mi?

Yes. Planning and scheduling the annual vacation is at the employer’s discretion. Employer is not bounded by the start and end dates of the annual leave demanded by employee, and may determine different dates. In Ramadan, the holy month of fasting, workplaces may choose to go to annual shutdown.

In the establishments that have more than 100 employees, planning must be done by “Annual Leave Committee” comprised of representatives of employers.

COLLECTIVE VACATION

Collective vacation or annual shutdown is applied usually by manufacturing companies between start of April and end of October.

Employer may choose a total or partial shutdown, meaning some employees are sent to vacation while some others carry on working for reasons of security, repair of and maintenance of machinery and equipment etc..

REGULATION

Principles of collective vacation are arranged in the “Regulation on Paid Annual Leave,” article 10-11.

  • Employer may schedule collective vacation for all or some of employees between start of April and end of October every year. The schedule of the employees leave, with start and end dates, should be announced beforehand.
  • In collective vacation or shutdown periods, even the employees, who aren’t entitled for paid annual leave, may take their vacation.

OUT OF SCOPE EMPLOYEES

Some of the employees continue to work in the establishment for the following purposes;

  • Security
  • Cleaning
  • Repair or maintenance of machinery and equipment.
  • These employees may take their vacations, on their own preference, out of collective vacation period.

Missing Day Notification for Foreign Employees

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As per the SSI announcement, dated 18 March 2019, missing day reasons are widened for foreigners.

In Turkey’s legislation, number of working days within a month is considered 30 regardless of the actual number of days in the month.

Apart from maternity leave days, foreign employees were considered to work 30 days within the month regardless of the sick leaves, or any other compulsory leaves they have taken. As a result 30 days’ social security premium used to be deducted from them.
Now with the above said announcement new reasons added to maternity leave.

The unworked days that can be declared as missing days for foreigners are as follows.

-Leaves during maternity periods,
-Sickness reports obtained from the authorized healthcare organization and workplace doctor (the periods of temporary incapacity),
-The periods of detention or arrest of the employee,
-The periods of participation a strike or the lockout of employer,
-The periods related to foreigners’ not starting  work or starting late,
-In case the work permit is cancelled and the foreigner goes abroad,
-In case the foreigner temporarily goes abroad: two days for going abroad and two days coming into Turkey (including the leaving and returning days) can be declared as missing days.

The above mentioned periods will be considered as unworked (missing) days and no social security premiums and income tax will be applied for these periods.

Work Permit Quota and Reduced Minimum Wage in Tourism Sector

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As per the announcement of International Labor Force General Directorate, dated 26 April 2019, between 1 January - 1 July 2019, minimum wage paid to foreigners can be equal to current minimum wage applied to Turkish citizen employees (gross 2558.40 TRY) in the following tourism establishments:

-Establishments licensed or not licensed by the Ministry of Culture and Tourism, and their licensed facilities (SPA, beauty parlour, sports center, coiffeur, jeweler, leather, carpet, textile etc.) operating within these establishments,
-Tourism travel agencies,
-Licensed holiday villages,
-Tourism animation organizations and firms,
-Separate entertainment venues.

FOREIGN QUOTA

For occupations requiring expertise and proficiency in the tourism-animation organization firms and in the licensed entertainment venues, there will be no need for separate quota application, on condition that at least 10 Turkish citizens are employed in these firms. In other words, 1 to 5 quota will not be applied until 1 July 2019.
Work permit foreign labor quota will not be applied for up to two foreigners in licensed or contracted facilities (SPA, beauty parlour, sports center, coiffeur, jeweler, leather, carpet, textile etc.) operating within Establishments whether or not licensed by the Ministry of Culture and Tourism.

After 1 July 2019, work permit applications will be processed in line with general procedures and criteria.

Equality of Foreign Employees in Labor Legislation

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According to Turkish Constitution and Labor Law “No discrimination based on language, race, sex, political opinion and religion or similar reasons is permissible in the employment relationship”.

In principle, foreign national and Turkish citizen workers are equal before the law, however some restrictions aimed at protecting native labor force may apply to foreigners.

CAN FOREIGN NATIONAL EMPLOYEES BENEFIT FROM MINIMUM LIVING ALLOWANCE?

According to Income Tax Law No. 193, minimum living allowance (MLA) is applied on the taxation of wages with the "actual method of taxation."

If the foreign employee in your company's payroll is "settled" in Turkey, he is deemed as a "full liability tax-payer" and will benefit from the MLA.

But firstly we should clear the above judicial definitions.

Settlement at Turkey:

Real persons who have legal domicile and stay for more than 6 months continuously within one calendar year in Turkey are considered as residing in Turkey. Temporary leaves don't break duration of stay.

Full Liability Tax-Payer:

Persons residing in Turkey will have full tax liability status and will be taxed on their income earned both in and outside Turkey.

Actual Method of Taxation:

In Turkey's practice wages of employees (withholding tax) and many other earnings are taxed by actual earning basis.

In this respect the employees have legal domicile and are staying for more than 6 months continuously within one calendar year at Turkey are considered full liability tax-payer and will be benefiting from MLA.

Exception:

As foreign currency wages paid to employees from the revenue earned outside Turkey by the non-resident limited liability tax-payer employers without a legal business office at Turkey are completely exempted from income tax, there will be no question of MLA.

UNEMPLOYMENT BENEFITS FOR FOREIGNERS IN TURKEY

Unemployment benefit, also called "Jobseekers Allowance" or "Dole," is an allowance granted to insured employees who lost their jobs against their will. In Turkey, it is simply referred as “unemployment salary” and paid to eligible workers in the scope of mandatory unemployment insurance in line with the Law on Unemployment Insurance No. 4447.

Foreign employees are also subject to unemployment insurance premium in case they are working against wage under an employment contract, and are entitled to unemployment salary.

CAN FOREIGN EMPLOYEES RETIRE IN TURKEY?

Labor legislation of Turkey is applicable to Turkish citizens and foreign employees alike. Also, the Turkish Constitution contains provisions concerning equality, and guarantees the right to social security for everyone.

Anyone who is working against wage under an employment contract and paying their social security premiums will be entitled to retirement from SGK/SSI. In practice, social security premiums of an employee are deducted from their salary and paid to SSI by the employer. Even in case of entitled employee’s death, dependent spouse and children will benefit from the pension.

It should be noted that SGK don’t grant old age pension automatically; entitled Turkish or foreign employee or their representatives must apply to SGK/SSI after they leave the work.

The retirement age depends on the date of entrance into SSI (Social Security Institution) in Turkey. There are several eras determined by the issuance of consecutive legislation that made the age of eligibility very complex; also alternative eligibility conditions exist within these eras.

PROHIBITED OCCUPATION FOR FOREIGNERS IN TURKEY

The following occupations cannot be performed by foreigners:

  • Dentistry (dentist, dental surgery)
  • Nursing (midwife, nurse)
  • Pharmacist
  • Veterinary
  • Managing director in private health institutions
  • Lawyer (Judge, public prosecutor)
  • Notary
  • Security staff
  • Exportation of fish, abalone, mussel, sponge, pearl, coral

Turkey Plans a Severance Payment Fund

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The “severance payment fund,” a longstanding issue of Turkey, has been brought to agenda again in the presentation of new reform packet revealed by the Finance Minister on 10th of April.

Both labor and employer representatives have being expressing their reservation about the proposed scheme during last 40 years. However, the Minister strongly stressed the need of a new fund, which will support the Turkey’s inadequate savings.

Arguments over severance payment system have a long background in Turkey; and it still constitutes the most controversial issue. Starting from 1975 a severance payment fund, intended to reconstruct the still prevailing system, occupied the agenda during the last 42 years.

Nowadays, the Government looks more decisive to integrate the severance pay fund with the private retirement insurance fund, through agreement with the social partners.

CURRENT SEVERANCE SYSTEM

  • Severance payments of the entitled employees are paid by employer.
  • In Turkish Labor Law there are many types of entitlement conditions, such as retirement, military service for men, marriage for women, being dismissed for unjust causes and so on.
  • Employee should work at least one year in the same workplace to entitle severance payment. In case the employee resigns, changes his workplace, or is dismissed by employer for valid reason, he/she cannot receive any severance pay, and his length of service that taken as a base in calculation of severance is set to zero.
  • Qualified employee is paid a severance pay equal to last 30 days’ gross wages for each full year of employment, and pro rata payment for a portion of a year.

 OUTLINES OF PROPOSED SEVERANCE FUND

For the time being, there is not a prepared draft, and nothing much shared with the public. The following points are the ones discussed in the media and business world.

  • The newly-hired persons will be compulsorily included in new system, but the current employees may continue with the previous one,
  • The acquired rights will be reserved and existing funds will be transferred to new employee's individual account
  • Severance will be paid through a Fund that will be established for each individual employee,
  • All employees who even left the work by their own wish (resignation) or are dismissed for just cause, and whatever their length of service, will be able to receive their severance pay from their individual severance pay account,
  • Contribution: The employers will contribute to employee's severance account, though the ratio of contribution is highly controversial.
  • It is not clear yet whether the Government will contribute or not.

We will be following this revolutionary arrangements closely and will keep you updated on the matter.

Time in Lieu in Turkish Labor Law

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An employee may choose to take off (time in lieu) instead of receiving overcharged wages for the over-time or extra works he/she has performed.

As per article 63 of Labor Law No. 4857, standard weekly working time is maximum 45 hours. Working time for miners working underground is maximum 7.5 hours daily and 37.5 hours weekly.

Weekly working hours can be determined as less than 45 hours in the employment contracts or by the collective agreement.

WHAT IS OVERTIME WORK?

Overtime is the work, which exceeds 45 hours a week, and remunerated in hourly basis with higher rates.

As per the Labor Law, No. 4587, Article 41, overtime work may be performed for purposes such as the country’s interest, the nature of the operation or the need to increase output.

COMPENSATION OF OVERTIME WORK

  • The wage for each hour of overtime work is paid by raising the hourly rate of the regular working wage by fifty percent. In other words, wages for each hour of overtime should be remunerated at one and a half times the regular hourly rate.
  • Alternatively, employee may use, as time in lieu, one-hour and thirty minutes for each hour worked overtime.  

WHAT IS WORKS AT EXTRA HOURS?

In cases where the weekly working time has been set by contract at less than forty-five hours, work hours up to forty-five hours weekly considered as works at extra hours. 

COMPENSATION OF OVERTIME WORK

  • The wage for each extra hour is paid by raising the hourly rate of the regular working wage by twenty-five percent; in other words each extra hour shall be remunerated at one and a quarter times the regular hourly rate.
  • Alternatively employee may use one hour and fifteen minutes for each extra hour worked.

WHEN TO APPLY FOR FREE TIME?

  • Employee should apply in writing before any overtime or extra worked hours are remunerated. If these hours were already paid as wage, employee cannot use time in lieu.
  • Employer is bound to accept the employee’s request of time in lieu.
  • On the other hand, employer cannot choose to allow for time in lieu instead of paying, if this is against employee’s wish.
  • In case the employment contract is terminated before the employee uses the gained time in lieu, he/she must be paid his/her overcharged wage.  

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