Legal News

EFFECTIVE DATE OF SOCIAL SECURITY AGREEMENT BETWEEN TURKEY AND HUNGARY

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Effective date of Social Security Agreement between Turkey and Hungary is determined as 1st April 2018.

As we informed you before, Social Security Agreement between Turkey and Hungary signed in Budapest on 24 February 2015 had been accepted in Parliament and the related Law No. 6961 had been published in the Official Gazette on 3 April 2017.

However, there was some confusion about its enactment date. Now with the Government Decree 2018/11543, issued on 5 June 2018, the effective date of above said agreement is announced as 1 April 2018.

SCOPE OF THE AGREEMENT

This agreement will apply to following legislation:

In relation to Turkey;

  • Invalidity, old age, survivors insurance
  • Work accidents and occupational diseases
  •  Sickness and maternity insurance in the scope of general health insurance
  • Unemployment insurance for employees working under an employment contract.

In relation to Hungary;

  • Insurance obligation and payment of social security contributions covering social insurance benefits; pension, health insurance and unemployment
  • Social insurance pension benefits
  • Health insurance benefits
  • Benefits for the persons whose working capacity is changed.

OUTLINES OF THE AGREEMENT

  • Equal treatment: Persons in the scope of this agreement will, with respect to social security, have the same rights and obligations, as provided or stipulated for a citizen of the contracting country
  •  As Regard to entitlement to social security benefits (retirement etc.) provided by contracting parties, the length of services acquired in both country will be combined
  • Healthcare benefits for insured and their families will be safeguarded by legislation of both countries
  • If a person transfers his residence to other country while receiving income, he will continue to receive this income in the country to which  he transferred his residence
  • Benefits in the scope of temporary incapacity will be provided by both contracting parties.

POSTING – SECONDMENT

Secondment/posting period is 24 calendar months.

  • Employed person: In case an employee is send by the employers to work temporarily on behalf of this employer in the other contracting country, that employee will continue to be subject to the legislation of sending country, on condition that posting period doesn’t exceed 24 calendar months and the posting doesn’t aimed at replacing a previously posted person.
  • Self-employed: In case a self-employed person temporarily transfers his business to other contracting country he will be subject to legislation of the first country, on condition that self-employed activity doesn’t exceed 24 calendar months.

In the above cases, 24 months period may be extended for once up to maximum 60 months by the mutual request of employee and employer, or by the personal request of self-employed person

Cross-Border Transfer Of Personal Data - Part I

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The minimum particulars that must be included in the agreements between transferor (resident in Turkey) and receiver of personal data transferred between countries that have not adequate level of protection are issued in Personal Data Protection Board (The Board) website on 16 May 2018.

TRANSBORDER TRANSFER OF PERSONAL DATA

As per article 9 of Law No 6698 “Personal data cannot be transferred abroad without explicit consent of the data subject.”

Exceptions: The same exceptions specified in Art. 5 and Art. 6 (exceptions related to Processing Personal and Special Categories of Data which are explained below*) are valid for transfer of personal data, but following conditions should also be present;

  • there is an adequate level of protection in the foreign country to which data is sent
  • in case there is not adequate level of protection, data controllers in Turkey and in the concerned country should guarantee the adequate level of protection in writing, and also permission of the Data Protection Board is necessary.

Countries that have adequate level of protection will be determined and announced by the Board.

THE CASES NO EXPLICIT CONSENT IS NEEDED

*Personal data can be processed without seeking the explicit consent of the data subject in the presence of the following conditions:

  • where it is clearly specified by laws
  • where processing is necessary to protect the vital interests of the data subject or of another person where the data subject is physically or legally incapable of giving his consent
  • where processing is necessary for drawing up or for performance of a contract to which the data subject is party
  • where processing is necessary for fulfillment of legal obligation of the controller
  • where the related data are made public by the data subject
  • where processing is necessary for acquisition of, exercising of, or protection of a specific right
  • where processing is necessary for legitimate interests of controller, on condition that fundamental rights and freedoms of the data subject are not violated.
  • Personal data relating to health and sexual life may only be processed without obtaining the explicit consent of the data subject where processing of the data is required for the purposes of preventive medicine, medical diagnosis, the provision of care or treatment or the management of health-care services, and where those data are processed by a health professional and authorized institution and organizations subject to the obligation of professional.

Conditions of cross- border personal data transfer shown in the table below.

CONDITION/IN THE PRESENCE OF CROSS-BORDER TRANSFER
Explicit consent Yes
Exceptions (in art. 5 and 6) + Adequate level of protection Yes
Exception + No adequate level of protection + Written undertaking between transferor and receiver in both country yes

THE MINIMUM PARTICULARS THAT MUST BE INCLUDED IN THE AGREEMENTS

  1. Data Controller To Processor
  • Obligation of Data controller
  • Obligation of Data Processor
  • Common Provisions

  1. Data Controller To Controller
  • Obligation of Data Transferor
  • Obligation of Data Receiver
  • Common Provisions

Full translation of above agreements will be published as an “Employer Bulletin” in our website.

TERMINATION DUE TO DEATH OF EMPLOYEE

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In case of death of an employee the employment contract will be terminated automatically. As a consequence of employee’s death there will be three type of payment.


1. FUNERAL BENEFIT
Funeral benefit is a lump-sum payment made to the right holders of the insurance holder who deceased when;
- receiving incapacity income due to work accident or occupational disease or
- receiving permanent incapacity income, invalidity, duty disability or old - age pension.
- minimum 360 days of invalidity, old - age and survivors insurance premiums should be notified for the deceased.
Funeral benefit shall be granted to the insurance holder's spouse, if not to children, if not to parents, if not to siblings.
Funeral benefit is paid by SSI.


2. SEVERANCE PAY
In case the deceased employee worked at least one year at the workplace his/her dependents will be paid a severance pay equal to last 30 days’ gross wages for each full year of employment. Date of death will be taken as a base.


3. DEATH INDEMINTY

Death compensation is paid to right owner of the employee who died while his/her employment contract is continuing.

- Reason of death is not important; it can be work accident or suicide.
- Employment contract can be open ended or fixed term.
- In calculation of the death compensation the last salary will be taken as a base.
- For employee whose length of service is less than 5 year, one month’s salary will be paid as compensation.
- For employee whose length of service is more than 5 year, one month’s salary will be paid as compensation

Withholding Tax And Monthly Premium Service Document Application Postponed To 1 October 2018

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We informed you that “Withholding Tax and Monthly Premium Service Document” application will start as of 1st of July 2018; however the start date is determined as 1st October 2018 by the Finance Ministry’s General Communique issued in Official Journal number 30435, dated 29 May 2018.

As is known, it is stipulated by the Law No. 6728 that “withholding tax returns and SSI e-declarations will be combined in a single form under the name of Withholding Tax and Monthly Premium Service Document and submitted only to the tax offices until the 23rd of the following month.

Regulation On Data Controller Registry Issued

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The Regulation on Data Controller Registry has been published in Official Journal numbered 30286, dated 30 January 2017.

As is known, according to Law on The Protection of Personal Data, No. 6698 all natural and legal persons, collecting, processing and transferring personal data are deemed as “Data Controller” and shall be registered in “Data Controller Registry” (VERBİS) before starting personal data processing with some exceptions determined by Personal Data Protection Board (The Board).

NOTICE PAY AND JOB SEEKING LEAVE

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As per article 17 of Turkish Labor Law 4857, both employee and employer can terminate an open-ended employment contract, provided that required notice period is given to other party. In case fixed-term employment contract is concluded only for a defined period of time (with a specified end date) there will not be a notice of termination/notice pay obligation.

The minimum notice periods depend on the length of service as shown below;

* Less than 6 months 2 weeks

* 6 month to 1.5 years 4 weeks

* 1.5 years to 3 years 6 weeks

* More than 3 years 8 weeks.

Notice periods can be substituted by payment in lieu. The employer may terminate the employment contract by paying in advance the wages corresponding to the term of notice. Employee as well may pay the notice payment for terminating the contract (by resignation).

In the presence of just cause for termination parties doesn’t have to observe notice periods.

JOB SEEKING LEAVE

Employee, whose contract is terminated, should be allowed at least two hours job seeking leave within working hours during the notice period. Employee may use these hours as total provided that he/she informs the employer before the termination date.

Job seeking permission is arranged in article 27 of Labor Law;

“During the term of notice the employer must grant the employee the permission to seek new employment within working hours without any deduction from his wage. The time devoted to this purpose should not be less than two hours daily and if the employee so requests such hours may be added together and taken at one time. But if the employee wishes to take these hours at one time, he must do so on the days immediately preceding the day on which his employment ceases and must inform the employer in advance.

If the employer does not grant the permission to seek new employment or allows less time than that stipulated in this Article, he must pay the employee the wages corresponding to the time to which he was entitled.

If the employer makes the employee work during the time to be allowed for seeking new employment, he must compensate the employee twice the amount of wages he is entitled to even for no work during the time which should be allowed for seeking new employment.”

Another important point is that taking the job seeking leave in total doesn’t change the actual the leaving date in SSI..

For example end of notice pay is 31 May 2018 and employee used 3 days leave as total. So he can cease to work on 28 May, but the actual leaving date will be 31 May 2018 from the point of SSI.

 

MEAL ALLOWANCE AND OTHER BENEFIT IN KINDS DURING RAMADAN

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This year’s holy fasting month of Ramadan has started on May 16; and like previous years we are having questions about meal allowances and other benefits provided in Ramadan.

While fasting employees are fasting and not having lunch, some employees are not fasting and continue to have their lunch during the month.

First of all there are no special arrangements for fasting and non-fasting employees in Turkey’s legislation. And it should be bear in mind that as per the Turkish Constitution and Labor Law there can be no discrimination amongst people or employees based on religion and sect. i.e. no discrimination between fasting and non-fasting employees.

SUPPLYING FOODSTUF / RAMADAN PACKAGES

* Meals provided by employers in the premises of a company or through a restaurant or a caterer are exempt from income tax and not subject to social security premium contribution. However as fasting employees don’t have lunch, some companies stop giving meal in their premises and chose to provide their fasting personnel with what can be called "Ramadan Packets" which consist of basic food items.

* In this case, providing Ramadan Packets are regarded as benefits in kind according to Social Insurance and General Health Law, Article 80 and should not be taken into account in calculation of earnings subjected to SSI premium. But total net invoice amount of supplied foodstuff is subjected to income tax, as per Income Tax Law, Article 63.

PAYING CASH FOR MEALS

* If an employer chooses to pay in cash for the meal, this payment is considered as part of the wage and is subject to income tax as per Income Tax Law, Article 61.

* Mail cash allowance is reducible only from daily earning subjected to premium up to an amount not exceeding 6% of daily gross minimum wage valid in relevant month (4,06 TRY for 2018). Exceeding part is subject to premium contributions.

MEAL VOUCHER/CHECKS

* Instead of providing meal allowance in cash or supplying foodstuff, employer may choose to provide employees with meal vouchers or checks enabling them have their lunch outside of workplace. And again these vouchers or checks regarded as benefits in kind are not subject to premium contribution.

* With regard to tax liability there is an exemption, for the virtually worked day in the year 2015, daily amount of meal voucher/check up to 13.00 TL is exempted from tax. (Not including the amounts paid for meal voucher/check not related to virtually worked day.)

* This exemption is applicable only for the meal vouchers/checks used on meals and belonged to virtually worked days. Where they are spend on products other than meals and foods, the amounts paid for them must be considered as part of the wage and must be subject to income tax.

WORK PERMISSION FOR GUEST STUDENTS

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President Erdoğan, speaking in an ınternational student gathering last week, announced that all guest students will be granted work permit, and they can renew the residence permits in their permit own universities.

Also they can get their general health insurance without waiting three months.

Erdoğan point out that there are 115.000 visiting student in the country in the scope of Turkey Scholarship Program, and Turkey aims to increase that figure up to 350.000, and also wants to continue the relationship with these students after graduation.

The promises for the guest students are briefly as follows.

* Both the students and graduates can obtain work permit,

* Guest students have to wait to renew their residence permits; however they will be able to renew these permits in the universities they are studying in.

* They can be registered in general health insurance without waiting three months

WORK PERMIT FOR FOREIGN STUDENTS - IN GENERAL

Work permit for foreign students are arranged in article 19 of International Workforce Law No. 6735.

* Foreign students enrolled in formal education programs at universities or higher education of Turkey may work provided that they obtain work permit.

* Those receiving education at the level of two-year degree or undergraduate study may apply for a work permit after completing their first year and work part time in accordance with Labor Law No. 4857 of 22 May 2003. This restriction is not applicable to postgraduate students enrolled in formal education programs.

* Work permits granted to foreign students will not cancel their valid student residence permit and the rights it provides

INTERNS FROM FOREIGN UNIVERSITIES

* Foreigners applied to receive or already receiving vocational training with an employer are in the scope of work permit legislations.

* Students arriving within the scope of the European Union Education and Youth Programs are exempt from work permit.

* Foreigners who are specified as exempt from work permit in other laws and international bilateral and multilateral agreements and conventions to which Turkey is party may work or be employed without obtaining work permit.

* The foreign students who wish to receive vocational training have to bring their internship file from their school, and not exceed the determined training period.

 

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