Novalties introduced to Turkish Labor Law by the Law No 6663

The Law No.6663, amending the Income Tax Law and certain other laws, was published in the Official Gazette number 29620 on 10.02.2016 and entered into force on the same day (“Amending Law”). The Amending Law has introduced many changes amongst other laws, to the Labor Law No 4857 (“Labor Law”).  Below is a brief summary of novelties introduced by the Amending Law specifically to the Labor Law.

AMENDMENTS REGARDING UN-PAID LEAVE RIGHT AND THE PART-TIME WORKING RIGHT FOR FEMALE EMPLOYEES

• The “paid maternity leave” period before and after childbirth, the “un-paid leave right” that female employees are entitled to use at the end of the paid maternity leave up to 6 months and the “breast-feeding leave right” amounting to 1.5 hours until the child reaches 18 months of age regulated under the article 74 of the Labor Law remain the same.

In addition to the above rights, a female employee may, following the end of the paid maternity leave, take un-paid leave for up to half of her weekly working hours at the following terms upon their request:

- 60 days for the first birth

- 120 days for the second birth

- 180 days for the third or more births (“Part Time Working”).

30 days will be added to the above mentioned periods in case of multiple births and the period will be 360 days in case the child is disabled. Provisions as to breast-feeding leave cannot be applied within such periods.

At this point, the question arises whether the female employee may still use her un-paid leave right up to 6 months following the end of part time working rights or not. It is still not clear how such leave rights will be used and in which order.

• One of the amendments introduced by the Amending Law is that if a female employee wants to use her un-paid leave right within the above mentioned periods, a part-time working monthly allowance will be granted to such female employee by the Unemployment Fund provided that the following conditions are fulfilled:

- the female employee shall apply to the Turkish Employment Organization within 30 days after the end of her maternity leave,[1]

- 600 days Unemployment Insurance premium shall have been paid before childbirth in the name of the female employee,

- the female employee shall be working for at least half of the weekly working hours.[2]

• The Part-Time Working allowance term will be half of the weekly working hours (22.5 hours) regulated by laws; the daily wage will be gross daily minimum wage. The Amending Law is not clear yet on how the 22,5 weekly part-time working hours will be split among the days of the week. From the letter of the Amending Law on “ un-paid leave right for up to half of the weekly working hours”, we understand that such period is deemed to apply as the half of the daily working hours or deem to correspond to the half of the weekly working hours.
• Another point which requires clarification is how the payment from the Unemployment Fund which is set as the gross daily minimum wage amount will apply to employees who get higher wages than the minimum wage. This novelty will for sure not cause any loss of right for employees who receive minimum wages but employees with salaries higher than such minimum wage will be facing loss of rights.
• In addition to the foregoing amendments, another amendment introduced by the Amending Law is that in the case the female employee dies during or after the childbirth, the unused maternity leave will now be granted to the father. Whether the word “unused leave” refers solely to the maternity leave or female employee’s un-paid leave up to 6 months remains still unclear.

[1]Save for compelling reasons, in the case that the female employee does not apply within 30 days as of the date when the paid maternity leave ends, the payment will be made by deducting the amount of the time elapsed during the application period from the total amount of the time, for which part-time working allowance is deserved. 

[2] The part-time working stated herein should not be confused with the part-time employment known in practice as part-time employment model. The part-time working stated herein is introduced newly by the Amendment Law and only female employees have the right to benefit from it.  

PART-TIME WORKING RIGHT FOR PARENTS[3]

• After the end of above mentioned periods, one of the parents may request from his/her employer to work part-time until the beginning of the month after the child’s compulsory education begins.  Such requests are met by the employers. Employers cannot use such a request as a justifiable reason for termination. 

• The employee who is working part-time as stated above, may return to his/her job with full-time working period provided that she/he informs the employer in writing with a one month prior notice at the latest on the condition that the employee will not be entitled to benefit from the same rights for the same child. In such a case, if there has been a replacement in the position, the agreement of the employee who has replaced the part-time employee will be terminated automatically. With this novelty, it becomes evident that the employer should be making a definite term employment contract with the replacing employee up to the time when the replaced employee will be turning back to her/his job and such employment contract should emphasize that the replacing employee is in fact recruited for the position of the replaced employee.  

• Another important point is that in case one of the parents is un-employed, the other working parent cannot ask for part-time work. 

[3]Procedures and principles as to which sectors and jobs are suitable for part-time working and practice will be specified by regulations to be announced by Ministry of Labor and Social Security. 

EMPLOYEES ADOPTING A CHILD UNDER THREE YEARS OF AGE

• One of the parents or adoptive parents adopting a child under three years of age may use the paid maternity leave for eight months as of the date on which the child has been adopted. 

• The person adopting a child who is under three years of age, individually or together with its spouse, may request to work part-time as of the date on which the child has been adopted. 

• Female or male employees adopting a child – under three years of age- may use un-paid leave right which amounts to the half of the weekly working hours upon their request. They may also take part-time working allowance within this period if the above stated relevant conditions are met.

• Lastly, a person adopting a child under three years of age individually or together with its spouse may benefit from un-paid leave up to six months as of the date on which the child has been adopted.

ENFORCEMENT PERIOD OF MENTIONED AMENDMENTS AND IMPLEMENTATION

Although the amendments look positive at the first glance, it is criticized on the grounds that it will cause several difficulties and confusions for employers.

It will be possible to further interpret the procedures and principles of implementation of recent amendments in detail once the regulations are issued by the Ministry of Labor and Social Security, Ministry of Finance, Social Security Institution, Institution and Secretariat of Treasury.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.