Turkish Labor Law
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Şeyda Aytekin.
MESS Chamber Counselor
The highly disputed issue of temporary employment relationship still occupies the agenda. As is known, enacted by Turkish Grand National Assembly, article 7/A was included in Labor Law no 4857 with “Law no 5920 on the Amendment of the Unemployment Insurance Law and of the Social Security and General Health Insurance Law.” Dated 26 June 2009, article 7/A was formulated to regulate temporary employment. However, issue of the above mentioned law was deemed inappropriate by The Presidency of Republic of Turkey in relation to articles 89 and 104 of the Constitution and the law was sent back to Turkish Grand National Assembly for review.
{mosimage}Seyda Aytekin.
MESS Chamber Counselor
The highly disputed issue of temporary employment relationship still occupies the agenda. As is known, enacted by Turkish Grand National Assembly, article 7/A was included in Labor Law no 4857 with “Law no 5920 on the Amendment of the Unemployment Insurance Law and of the Social Security and General Health Insurance Law.” Dated 26 June 2009, article 7/A was formulated to regulate temporary employment. However, issue of the above mentioned law was deemed inappropriate by The Presidency of Republic of Turkey in relation to articles 89 and 104 of the Constitution and the law was sent back to Turkish Grand National Assembly for review.
The general preamble of Law no 5920 sent back to Turkish Grand National Assembly by the Presidency stated that nearly all EU countries have made legal arrangements with regard to temporary employment relationship and that issue should be set in a legal framework in compliance with the process of adaptation to EU.
Indeed, agencies establishing temporary employment relationships have been operating in European countries since 1950’s. However, temporary employment relationship was not introduced to national legislations until 1990’s.
Establishing temporary employment relationship is an atypical employment type, which has shown the highest increase in the last twenty years. Especially since the beginning of 1980’s, temporary employment has gained greater importance as European establishments have embarked on a quest for more flexibility. Metal and electronic sector are among the sectors in which temporary employment became rapidly widespread. Temporary employment rates in new EU countries Poland, Slovakia, Slovenia and Hungary, which have data on the subject, vary between 0,5% and 1,4 %.
One of the reasons why International Labor Organization Convention no. 181 on the private employment agencies revising Convention no 96 was enacted is that Temporary Employment Agencies became widespread. At present, the abovementioned Convention is ratified by 20 countries, 8 of which are members of EU.
International Labor Organization Ratifies and Promotes
After temporary employment became truly widespread and its positive influence on employment became clear, ILO Board of Directors included an additional workshop to “Programme of Sectoral Meetings for 2008-2009” to promote ratification of Private Employment Agencies Convention no 181. The workshop aims at increasing awareness of the government, the employer and the employees about the Convention, sharing opinions on the advantages of temporary employment, underlining good practice of the Convention in the countries, which ratified it, and promoting ratification of the Convention.
In addition to this, Directive on temporary employment relationship, which has been on EU agenda for nearly ten years, was adopted by European Parliament; and Directive 2008/104/EC was issued in Official Journal of the European Union no L 327/9 by 05.12.2008 and went into effect. Article 11 of the Directive titled “Implementation” obliges the member states to comply their national legislation with the Directive by 5 December 2011.
In the face of these developments in ILO and EU; regulating temporary employment relationship with Law no 5920 to make up a great deficiency is an extremely positive development. However, as stated in the preamble of the Presidency, although there were references in the Law’s general preamble to its basic foundation, Directive no 2008/104/EC, the principle of equal treatment was included. Article 5 of the Directive titled “The Principle of Equal Treatment” regulates that “the basic working and employment conditions of temporary agency workers shall be, for the duration of their assignment at a user undertaking, at least those that will apply if they had been recruited directly by that undertaking to occupy the same job.” Article 6 titled “Access to Employment, Collective Facilities and Vocational Training” states:
1. Temporary agency workers shall be informed of any vacant posts and given the same opportunity as other workers to find permanent employment.
2. Temporary agency workers shall be given access to the amenities or collective facilities in particular any canteen, child-care facilities and transport services.
3. Member States shall improve temporary agency workers’ access to professional training.
Creates an Opportunity for Permanent Employment
In European Union, temporary employment has an increasing importance as an employment type. This employment type makes up 1%-2% of total employment in many EU 15 countries. One of the reasons why there is a tendency towards setting up a legal framework for temporary employment, which flourished especially in 1990’s as a means of flexibility and effective impact on the increase of employment. It is a generally accepted fact that the objective of finding longterm employments for the workers through temporary employment is achieved.
There is no doubt that temporary employment relationship will make economic and social contributions to our country. Application of this system is a requirement of EU adaptation process. This system will also contribute to Turkish labor market in issues such as having a modern labor market, creating additional employment opportunities, introducing especially women and children into labor market, creating a stepping stone to permanent employment, and preventing illicit working.
Moreover, as defined in article 1 of Law no 5920, with the legalization of temporary employment, operations of the temporary employment agencies will be legalized under the name of consultancy services.
For this reason, Law no 5920 should be urgently re-regulated in the light of Presidency’s notifications and provisions of EU Directive. To relieve the concerns about the Law, social parties should be included in the process; the subject should be carried to EU-Turkey Joint Consultative Committee and the Law should be issued with the compromise of the social parties.
Source: Mess İşveren Gazetesi, August 2009.
