The Law No. 7244 dated April 17, 2020 (“The Law”) The Law No. 7244 entered into force on April 17, 2020. The validity period of the law is between April 17, 2020, and July 17, 2020. The law contains provisions that will significantly impact Labor Law practices. It introduces some new concepts to Labor Law, including the prohibition on the employer's termination of the employment contract, the prohibition on the employee's partial termination of the employment contract, unilateral unpaid leave, and wage-cash support concepts. The validity period of these concepts is limited to three months, but due to the effects of the current pandemic, these concepts will occupy Labor Law litigation for a long time.
1) What is the purpose of the law?
As can be understood from the title of the law, the purpose of the law is to minimize the economic and social impacts of the pandemic. Therefore, when interpreting the law, the main idea of reducing the effects of the pandemic should be adopted. Articles 2, 7, 8, and 9 of the law regulate the impacts of the pandemic on working life.
2) What is meant by the extension of the duration of collective labor agreements mentioned in Article 2 of the law?
The issuance of authority determinations, the conclusion of collective labor agreements, the resolution of collective labor disputes, and the concepts of strike and lockout have all been extended by 3 months. The key point to note here is that this regulation does not impose any prohibition or postponement on these actions. During this period, all the actions listed above can still be carried out, but the deadlines for performing them have been extended by 3 months. For example, during this period, a union can apply for a determination of authority on an issue it considers to be within its competence, or if a determination of authority has been finalized, collective bargaining can begin, and even a collective labor agreement can be signed.
3) The term "Wage-Cash Support" in Article 7 of the Law covers whom?
This provision has been added to the Unemployment Insurance Law No. 4447. Therefore, the regulation is clear in that it applies not only to employees subject to the Labor Law but also to those subject to the Maritime Labor Law, the Press Labor Law, and the Turkish Code of Obligations.
4) What are the conditions for benefiting from the Wage-Cash Support?
The conditions for benefiting from the Wage-Cash Support are viewed from two different perspectives:
- For employees whose employment contracts were ongoing on the effective date of the law, April 17, 2020,
- It should be evaluated for employees whose contracts were terminated or who terminated their contracts between the prohibition of termination for employers starting on March 15, 2020, and the effective date of the law, April 17, 2020.
- Evaluation for employees whose employment contracts continued as of April 17, 2020.
For employees as of the effective date of the law, two conditions must be met in order to benefit from the wage-cash support as outlined below.
- Being placed on unpaid leave, either with or without the employer's agreement (This should be understood according to the temporary Article 10 of the Labor Law. Employees who were placed on unpaid leave before the effective date of the Law will also be able to benefit from the wage-cash support.)
- Not benefiting from short-time work allowance. (If the conditions for an employee to benefit from short-time work allowance are not met, or if the employer has not applied for the short-time work allowance on behalf of the employee, the employee will still be able to benefit from the wage-cash support. If the conditions for short-time work allowance are met, it is more beneficial to place employees on unpaid leave rather than to apply for short-time work allowance. However, there is no legal regulation binding employers to place employees on unpaid leave without applying for short-time work allowance.)
ii. Regarding employees whose contracts were terminated between March 15, 2020 (the date the law's termination ban for employers began) and April 17, 2020 (the date the law came into force):
For employees whose contracts were terminated between March 15, 2020, and April 17, 2020, to be eligible for the wage-cash support, three conditions must be met:
- The employment contract has been terminated according to Article 51 of the Unemployment Insurance Law. (It should be noted at this point that in order for employees to benefit from wage cash support, the conditions for benefiting from the unemployment insurance fund are not sought. Only the termination condition is sought according to Article 51 of the Unemployment Insurance Law. In other words, the termination must occur in a way that can qualify for unemployment benefits. In other words, there is no obligation to be an employer termination. The worker is entitled to wage-cash support in case of termination of the employment contract with notice by the employer, the worker is entitled in case of termination of the employment contract for just cause, the worker is entitled in case of unfair termination of the employer, the worker is entitled in case of termination in accordance with Labor Law 25/III or Labor Law 24/II between March 15 and April 17. In case of resignation of the employee or justified termination of the employer in accordance with 25/II, the employee cannot benefit from wage-cash support. After April 17, 2020, the employer may only terminate the employee pursuant to Article 25/II of the Labor Law, and only in this case the employee will not be eligible for the wage-cash support. In terms of the termination of the employee, the employee will be able to benefit from wage-cash support after the justified termination after April 17, 2020). Translated with DeepL.com (free version)
- Not benefiting from unemployment benefit
- Not receiving old age pension from any social security institution
4) What is the amount to be paid in Wage-Cash support?
It is envisaged that 39.24 TL per day will be paid from the Unemployment Insurance Fund. These payments will also be made for weekends. This corresponds to 1170 TL per month. Employees who benefit from wage-cash support will also be provided with General Health Insurance payments from the fund.
5) How will payments be made under the Short-Time Working Allowance in accordance with the Law?
For short-time working applications made by employers due to the new coronavirus (Covid-19), short-time working payments are made in line with the employers' declaration, without waiting for the completion of the eligibility determination. Overpayments and unwarranted payments made due to incorrect information and documents provided by the employer shall be collected from the employer together with legal interest. In the event that the short-time working allowance paid to the workers as a result of the incorrect information provided by the employer about the employer is later collected from the employer by the institution, it will not be possible for the employer to recourse to the worker (the worker is bona fide unjustly enriched). It is possible to recourse to the employee for the allowances collected from the employer due to the incorrect information provided by the employee.
Employers are required to notify the institution of the workers who can benefit from the short-time working allowance by making the necessary examinations while making the applications or before the payments are made in an application made, and to ensure that the workers who cannot benefit from the short-time working allowance benefit from the wage-cash support by taking unpaid leave in order not to pay full wages.
6) How to evaluate the situation where the employer puts the workers on unpaid leave without applying for short-time working allowance despite the existence of the conditions for short-time working allowance?
As it is known, the short-time working allowance is between 1752-4380 TL and the wage-cash support to be paid to those who are on unpaid leave is 1170 TL, although it is not certain. It is clear that the short-time working allowance is more beneficial for workers. In this context, the workers do not have the right of termination according to Article 24/II of the Labor Law in terms of the employer who does not apply for the short-time working allowance when there is a chance to apply for the way that is beneficial to the workers and condemns the workers to benefit from wage-cash support within the scope of unpaid leave The most important reason for this is that there is no regulation that obliges employers to apply for the short-time working allowance first. However, if the employer makes a distinction between its employees and allows some of them to benefit from the short-time working allowance while other employees benefit from the wage-cash support, at this point, both the right to termination for just cause and the right to demand the wage difference from the employer come to the fore.
The most important issue to be considered in this regard for employers is the obligation of equal treatment. In the event that the employer does not notify an employee who meets the conditions to benefit from the short-time working allowance within the scope of the application for short-time working allowance and the employee benefits from wage-cash support within the scope of unpaid leave, the employee may demand the difference between the wage-cash support and the short-time working allowance from the employer, and may terminate the employment contract for just cause in accordance with Article 24/II of the Labor Law against the employer who violates the obligation to act equally. Or, if the employer hires new employees despite the unpaid leave application, the employer will also violate the concept of prohibition of contradictory behavior.
7) Should the wages paid by the State within the scope of the short-time working allowance be supplemented by employers within the scope of the real wages of the workers?
In this context, employers are not obliged to make up the short-time working allowance and the worker's real wage.
8) Can employers supplement the remaining wages of workers who are on unpaid leave and benefit from wage-cash support?
As it is known, the concept of unpaid leave is the suspension of the employment contract. In this context, employers officially declare that they do not benefit from the employees they take on unpaid leave during this period. Therefore, the main purpose of unpaid leave by employers is to avoid paying the employee. In this context, if the employee is paid during the unpaid leave, the employee will not be able to benefit from the wage-cash support.
9) Does the workplace need to be affected by the pandemic or any other condition need to be met in order for employers to exercise their right to take unpaid leave by unilateral decision?
There are no preconditions for employers to initiate unpaid leave by unilateral decision. As mentioned above, the main and ultimate purpose of the Law is to combat the pandemic and reduce its impact on social and economic life. Therefore, the main objective is to allow employers flexibility in this context so that more people can stay at home.
10) How should the employer evaluate the prohibition of termination under the Law?
The prohibition of termination under the Law is a very comprehensive prohibition for employers and the Law only grants employers the right to terminate pursuant to Article 25/II of the Labor Law. In addition, administrative fines are imposed on employers and their representatives for terminations made during the prohibition period. Therefore, it would be more beneficial for employers to put employees on unpaid leave with a managerial decision instead of terminating the employment contract.
In the event that employers terminate the employment contract pursuant to Article 25/II of the Labor Law, if the employee takes the termination to a court of law and the court of law concludes that the employer's termination was not justified, the employer may be liable to the employee for both severance and notice pay and compensation within the scope of wage-cash support that the employee could not benefit from due to the termination.
11) How should the prohibition of termination under the Law be evaluated in terms of the employee?
Under the Law, the prohibition of termination for employees is only against the unpaid leave decision taken by the employer. In this context, Article 24/III of the Labor Law also limits the right of termination for compelling reasons around the employer. Namely, if the employer does not take the employees on unpaid leave despite compelling reasons, the employees have the right to terminate the employment contract. However, if the employer decides to take unpaid leave, the employees do not have the right to terminate the employment contract within the scope of the Law.
The scope of the prohibition of termination is limited to this and other termination rights of the employee are not prohibited. For example In case of non-payment of overtime wages, the employee may terminate the contract during this period.
10) Should employers pay full or half wages to workers on curfew days?
In the event of a curfew or quarantine, workers should be paid full wages and then compensatory work (not exceeding 11 hours a day) should be carried out for a period of 4 months to ensure balance.
11) How should employers allow workers to use their annual paid leave during the pandemic and can workers be granted advance leave?
During this period, the employer may allow the employees to use their annual paid leave within the scope of the right of management. However, it will be useful to obtain consent from the employees in this context. Due to the difficulty of obtaining written consent due to the pandemic, employers will be able to use electronic systems in accordance with Article 119 of the Code of Civil Procedure.
In the event that the concept of annual paid leave, which is a constitutional right to rest, is used in advance, care must be taken. In this context, it would not be proportionate to allow the employee to use 3-5 annual leaves all at once. The concept of annual leave should be used in advance by foreseeing the reasonable rest of the employee every year.
