Turkish Labor Law
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Ramazan Çanakkaleli
The matter of incurring debt for maternity which is frequently discussed nowadays has been set forth by Social Security Institution under the law no.5510 first and afterwards a circular and a communiqué have been issued to define the enforcement of the said law. The circular and the communiqué have brought additional conditions to the terms and conditions set forth in the law. The respective legal status has been rejected by the Supreme Court lastly.
Applicable legislation with respect to incurring debt for maternity
Currently, an insured woman under 4-a category (social insurant employee affiliated to Social Security Insurance with the former name) entitled to unpaid birth leave and maternity leave periods may incur debt for twice only with respect to the requested periods provided that such period not exceeding two years following the date of birth and only if she doesn’t work at her working place pursuant to her employment contract and the baby is alive.
For incurring debt, the social insurant woman or, in case of her death, her beneficiaries should make a written application. Furthermore, in order to incur debt for two years period in which she couldn’t work due to birth by the social insurant woman subject to 4-a category of Social Security Institution;
· She should have started working before birth and fulfilled the requirements of insurance,
· Birth should take place within 300 days following her leave from her work, and,
· Premium shouldn’t be paid on behalf of her after birth and the baby should be alive during the period for which she would incur debt.
A social insurant woman who gives her second birth after completion of two years as from the date of the first birth and before she starts working as an insured employee shall be entitled to incur debt for the period of two years in which she has not worked due to her first birth, but she shall not be entitled to incur debt for the two years period for her second birth.
How much the insurant woman desiring to incur debt for maternity should pay
A woman desiring to incur debt for maternity or her beneficiaries should pay the premiums which shall be calculated over 32 percent of her daily income to be determined by herself provided that being within the range of the lower and upper limits of daily income constituting basis for premium applicable on application date.
In other words, the woman who gives birth between the range of 729.00 TL – 4738.50 TL for today or in case of her death, her beneficiaries should pay the amount calculated by multiplying the amount determined by the beneficiaries by 32 percent. For instance, if a woman who gives birth wishes to incur debt for the two years period;
She should pay 24.30 TL x 32 percent x 720 days = 5,598.72 TL.
Furthermore, the woman or her beneficiary shall be entitled to incur debt with the condition of making the payment within a month as from the date of the notice for debt. It should be noted that even if the woman or her beneficiary has submitted a written application to incur debt for a two years period, but paid the amount only for one year, than she shall be deemed as she has incurred debt for one year period. If the remaining amount is not paid within a month, she has to make written application again.
Decision of the Supreme Court
Despite the conditions of not working at her working place pursuant to her employment contract and the baby being alive are sufficient in order to incur debt for maternity provided that the period should not exceed two years according to Law No.5510, a legal contradiction has occurred for some additional conditions brought in the circular issued in connection with this matter. Within this scope, a lawsuit filed in Labor Court by a citizen who bears the conditions set forth in Law but does not bear one of the additional conditions specified by the circular has been dismissed. Decision taken by the local court has been referred to the Supreme Court of Appeals. Decision given by the 10th Civil Chamber of the Supreme Court of Appeals on 25.02.2010 is as follows:
“In this concrete case, it should be accepted that the claimant who has been recognized as a compulsory insured initially on 01.06.1982 within the scope of Law No.506 is entitled to incur debt for periods with respect to the births she has given on 3.3.1987 and 21.3.1988 without stipulating any other condition except the conditions of not working at a working place pursuant to her employment contract and the baby being alive provided that such periods should not exceed two years as from the date of birth.
Constituting such a written judgment by the Court with an imperfect investigation and a faulty evaluation without taking material and legal facts into consideration is contrary to procedure as well as law and constitutes a reason for reversal.”
What a person desiring to incur debt for maternity should do
The woman or her beneficiaries meeting the conditions specified in the issued circular in addition to the conditions determined in Law No.5510 on Incurring Debt for Maternity may exercise their right to incur debt whenever they want.
In case your request for incurring debt made to Social Security Institution is rejected due to a failure of meeting any one of the conditions specified in the circular, you should bring an action at Labor Court for the approval of your request for incurring debt for maternity. It is possible to take a dismissal decision by the Court. In case you appeal the dismissal decision of the Labor Court, the Supreme Court of Appeals shall reverse the judgment and you shall be able to acquire the right for incurring debt for maternity.
On the other hand, you may wait since there is a possibility for a new amendment on the enforcement by Social Security Institution and make your application directly to the relevant Social Security Center or to the Provincial Directorate of Social Security when the new amendment is put into effect.
