Amendments Brought by Law on Labour Courts
The new Law on Labour Courts numbered 7036 (the “Law”) has been published in the Official Gazette on October 25, 2017. While certain provisions of the Law have entered into force on the date of the Law’s publish, some others shall be in force as of 1 January 2018.
Applying to a mediator for mediation process prior to filing labour lawsuits before labour courts has become mandatory with the Law and the below mentioned substantial changes in the articles of the Labour Law numbered 4857 (the “Labour Law”) regulating the reinstatement to work lawsuit have been brought.
➢ “Mediation” as Mandatory Lawsuit Obligation
As per the Law, application to a mediator before filing lawsuits arising from employee or employer receivables and compensations and reinstatement to work lawsuits due to individual employment contract or collective labour agreement has become mandatory lawsuit obligation. It is not required to apply to mediation process before filing lawsuits with regards to material and/or immaterial compensation claims due to work accident or occupational disease or declaratory, objection and recourse lawsuits related to these lawsuits.
Upon settlement of the parties following the mediation process held for the claims which shall initially be brought before mediator due to the mandatory lawsuit obligation, the parties shall not file any lawsuits on the issues agreed by the parties. In case the parties do not settle during the mediation process, the relevant lawsuit may be filed before the labour courts in line with the term and procedure regulated under the Law. Besides the lawsuit petition to be submitted to the labour court, the claimant shall also submit the original copy or the copy certified by the mediator of the mediation minute stating that the parties could not settle at the end of the mediation process. In the contrary, the judge grants 1 week definitive period to the claimant and if such minute would not be submitted to the labour court by the claimant at the end of this 1-week period, the lawsuit shall be rejected from procedural perspective.
Application for mediation shall be made to the mediation offices where the plaintiff’s registered address is in or the work was performed as is the case with labour lawsuits. According to the Law, the mediation process shall be finalised within 3-week period and only be extended for 1-week period in unavoidable circumstances.
If a party does not attend to the first meeting before the mediator without any excuse and the mediation process is concluded due to such reason without any settlement, the party that does not attend to the mediation process shall meet all the expenses made during the lawsuit even if the lawsuit would be concluded in favour of such party.
In case the employee applies for mediation for a claim of reinstatement to work and there is a subcontractor – principal employer relationship in the employer side, it is expected for both the subcontractor and the principal employer to attend the mediation process together and their intentions to be consistent.
When the parties reach an agreement during the mediation process, the mediator fee shall be paid by the parties equally. However, the parties may also agree to pay the mediator fee in different arrangements. In case of lack of contact with the parties, or not having a meeting due to in attendance of parties or not coming to an agreement during the meetings which took less than two hours, two hours’ fee will be paid by the Ministry of Justice’s budget.
If the parties do not come to an agreement at the end of a meeting which lasted more than two hours, mediation fee corresponding to the period that is exceeding the two hours will be deemed as litigation fee and will be paid equally by parties unless decided otherwise.
Mandatory application to mediation has been also imposed for occupation of journalism which is regulated under Law on the Employee-Employer Relations in the Journalism Profession No. 5953 and seafarers who are regulated under Maritime Labour Law No 854 along with employees who are subject to the Labour Law.
Documents to be prepared by the mediator at the end of the mediation process will have the same legal consequences of a verdict and may be subject to enforcement process without the need of executory stamp provided that they bear the necessary and sufficient signatures.
➢ Amendments on Reinstatement to Work Lawsuits
Employee who desires to initiate reinstatement to work lawsuit shall apply to the mediator within one month as of the notification date of the termination notification document prior to initiating a lawsuit before the labour courts. In other words, lapse of time granted to the employees for initiating the reinstatement to work lawsuit is now granted for mediation process. In case the parties cannot come to an agreement at the end of the mediation process, employees may initiate reinstatement to work lawsuit before competent labour courts within two weeks as of the preparation date of the last minute by the mediator.
One of the conflicts that the employers com up against frequently and increases the work load of the labour courts is lawsuits initiated with the claims of deficient payment of reinstatement to work compensations and wages. To put an end to the determination of the base wage for unemployment period wage and job security compensation, the Law regulates that the wage of the employee at the time of initiation of reinstatement to work lawsuit will be the base wage for determination of receivables’ amount.
By the Law, labour courts’ decision will no longer be appealed before the Court of Appeals. In this context, the local labour courts’ decisions be will finalized before the Regional Administrative Courts’ final verdicts.
➢ New Statutes of Limitations
Claims for receivables and compensations arisen from employment contract are now subject to 5 years of statute of limitation. Severance and notice payment, Bad-faith compensation, terminations against equal treatment principle and claims regarding the annual leaves are subject to 5 years of statute of limitation whereas previous statute of limitation was 10 years. However, if the employer’s acts against the equal treatment principle did not result in termination, employee’s compensation claim for employer’s such acts will be subject to 10 years of statute of limitation.
➢ Amendments on Labour Courts’ Duties
As per the new regulation brought by the Law, the below mentioned lawsuits shall be examined before the labour courts.
• Lawsuits arising from employment contracts of journalists subject to law numbered 5953,
• Lawsuits arising from employment contracts of seamen subject to law numbered 854,
• Lawsuits with respect to any kind of disputes arising from employment relationship between the employees working under employment contract subject to the Code of Obligations numbered 6098 and employers or employer representatives subject to same law,
• Objections against administrative fines,
• Lawsuits with respect to disputes arising from labour and social security legislation where the Social Security Institution or Turkish Labour Agency are parties, excluding the exceptions mentioned under the Law,
• Lawsuits and works related to the disputes where the labour courts are regulated as the competent courts under other laws,
• Lawsuits with respect to disputes arising from the law or contracts between the employees outside the scope of collective labour agreements working in Government Business Enterprises and subsidiaries and their employers.
➢ Local Court Decisions which cannot be appealed before the Court of Appeals
The Law has ceased the right to appeal certain decisions before the Court of Appeals which are related to conflicts arisen from the Labour Law. In this regards, the decisions given by the Regional Administrative Court will be deemed as the final verdict for below matters:
• Decisions regarding the reinstatement work lawsuits initiated in line with the Article 20 of the Labour Law,
• Decisions regarding cancellation of disciplinary sentences given by the employer as per the collective labour agreement or workplace policies,
• Decisions of lawsuits initiated as per the Law on Unions and Collective Labour Agreements No. 6356 regarding;
• Termination of workplace union representatives’ employment contract,
• Lawsuits arising from disputes related to the type of workplace where enterprise level collective labour agreements are in force,
• Interpretation of collective labour agreement,
• Determination of legality of strike or lock-out.
• Decisions of lawsuits initiated as per the Law on Unions of State Employees and Collective Agreement No. 4688 regarding;
• Unlawful Union Boards,
• Objections regarding the rejection of union membership.
➢ Crucial Matters regarding the Practice
Lawsuits initiated before the enforcement date of the respective amendments will continue to be heard before the same courts which were competent at the time of the initiation.
Regulations regarding the mediation will be in force as of January 1, 2018. However mediation will be not applied to the on-going lawsuits which are before the local courts, Regional Administrative Courts and Courts of Appeals.
Even if certain on-going lawsuits and acts in law are included in the Labour Courts’ competency by the Law which were previously within the competency of other courts as per other legislations, such lawsuits and acts in law cannot be assigned to the Labour Courts and shall be heard by the current courts until the finalization of the decision.
Decisions given by the local courts before the enforcement date of the Law will be subject to the remedies which were competent at the time of the ruling.
The Law’s regulation on 5 years of statute of limitation for employment receivables will be enforceable for the claims of receivables and compensations arisen from employment contracts which are terminated after the enforcement date of the Law. Statute of limitation for annual leave payment and compensations which were in force before the enforcement date of the Law’s enforcement date will remain to be subject to the previous regulations. However, if the remaining part of statute of limitation is more than 5 years, then it will be accepted as the statute of limitation is expired following the completion of 5 years.
The inspection made by the Provincial Directorates of Labour and Employment Agency in line with the employees’ complaints whose employment contracts are terminated is ceased. Thus, remedy to requests of receivables and to lodge a complaint through the Provincial Directorates of Labour and Employment Agency are precluded and such requests are limited to the employees whose employment contracts are in force.
The articles of Law will be in force as of October 25, 2017 except for the mandatory mediation obligation and the articles that amended the Articles 20 and 21 of the Labour Law.