Turkish Labor Law
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Dr Aykut Engin ,Mess Director of Education
With a change in Labor Law, it is regulated that workers without vocational training cannot be employed on arduous and dangerous work. The effective date was determined as 01.01.2009. Hereafter, the Communiqué on Arduous and Dangerous Works was issued in Official Journal dated 21.05.2009.
The Communiqué is ambiguous
The ambiguities regarding the communiqué raised questions. For instance, the situation of the employees working on arduous and dangerous duties before the date of 01.01.2009 is not clarified. Moreover, there is no explanation regarding the procedure between 01.01.2009 and issue date of the Communiqué as well as which date will be taken into consideration for applying administrative fines.
Transition clauses should have been put in the Communiqué regarding the training of employees working in the establishment before the date of 01.01.2009 and who need essential certificate for the work they have been performing. Regulation without transition clauses inevitably caused trouble.
The Communiqué obliges that the employees take vocational training to gain knowledge, skill and ability for the job and they must certify this vocational training.
We should clearly express that our member establishments operating in metal sector certainly employ qualified workforce. Within the scope of lifelong education, our members competing in international arena make the necessary investments on workforce required by the circumstances.
Our members provide orientation, business development and updated trainings through a program and increase the knowledge, skill and ability of the existing workforce. We can say that employees working in our member establishments constitute the most valuable human resources in terms of the abovementioned abilities.
However, the clauses of Communiqué aim at identifying the uncertified employees as unqualified and training all of them through formal education programs.
Our Employees have the Required Competency
In Turkey, the studies to develop a National Competency System are at an early stage. For that reason, on the job training or unofficial training cannot be documented. However, these employees acquired the necessary competency through on the job training or programs carried out by the establishments. Only some of them are obliged to document their knowledge, skill and competency urgently and imperatively.
Training courses for the employees within the scope of the Communiqué are not flexible or sufficient to meet the necessities and expectations and they are open to conflicts. For instance, modular structure of formal education is not suitable for employees. Contents and duration of development, compliance and vocational training programs presented by Ministry of National Education and Turkish Employment Organization are constraining for employees. In that situation, the workforce is transferred to schools which in turn cause loss of production.
Ministry approved training materials presented in these courses are another matter of contradiction. It cannot be understood how these publications which are way beyond the technology and process provided in establishments could help an employee to acquire knowledge, skill and competence.
The aim of the Communiqué is to burden the establishments while the employees in question already possess the required knowledge, skill and competence. It is not hard to assess the employability of a person who does not possess these qualifications. As regards with the documentation obligation, the Ministry of Education is expected to fulfill its duty and responsibility.
The situation of employees who attended training programs to get the documentation required by Communiqué and failed in the exams. What is to be done as regards of their employment contracts?
It is clear that the Communiqué does not serve the initially envisaged goals and aims. This situation causes the establishments that have been waiting for a solution for months loss of work, time and resource. Struggling with the economic crisis and global rivalry, the establishments expect an urgent solution to the matters that are not clarified in the Communiqué.
Academic Ideas Should be Taken into Consideration
The academicians agree that Communiqué on Arduous and Dangerous Works is binding for those who are employed after the issue date, 31.05.2009.
Fifth and sixth provisions of the Communiqué are asserted to support this idea. Those provisions are: “The employees hired to work on arduous and dangerous duties shall receive vocational training before employment.”(V) and “Employees hired to work on arduous and dangerous duties must have one of the documents listed below.” (VI).
Academicians express that a contrary interpretation conflicts with the definition of a constitutional state. It is stated that the change regarding vocational training obligation defined in article 85th of Labor Law was made in the midst of 2008 and the date of effect was determined as 1.1.2009. However, the secondary legislation was issued before 1.1.2009 and transitional clauses were introduced.
It is also stated that labeling the employees as “incompetent” without taking the necessary measurements cannot be associated with certainty and predictability of law.
Source: Mess İşveren Gazetesi, 2009, November
