Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

Minimum Wage-Fixing Machinery Convention, 1928 (No. 26) - Türkiye (Ratification: 1975)

The Committee notes the Government's report, the information provided orally to the Conference Committee in June 1995 and the ensuing discussions in that Committee. It also notes the observations made by the Turkish Confederation of Employers' Associations (TISK) and the Confederation of Turkish Trade Unions (TURK-IS).

Homeworkers. The Committee refers to the above comments by the TURK-IS to the effect that homeworkers are excluded from the scope of minimum wage-fixing machinery. It requested the Government to indicate the texts governing the terms and conditions of employment of homeworkers and the measures taken to determine the minimum wages applicable to them.

In its report, the Government recalls that the Labour Act No. 1475 applies to all persons working under an employment contract in return for remuneration in any type of employment, and that the term "contract of employment" is defined not by the above Act, but by the Code of Obligations as an agreement whereby the worker undertakes to perform work, with or without an indication of time, and the employer undertakes to pay remuneration. The Government states that homeworkers who principally perform piece-work are not, by virtue of case-law established by the Supreme Court, covered by Act No. 1475, on the grounds that the work is not performed at the premises of the employer, who is not therefore able to exercise authority and control. The Government also states that, although homeworkers are considered to be workers under the terms of the Code of Obligations, they do not benefit from statutory minimum wages, but do have the right to establish and join occupational organizations to defend their interests and can negotiate the minimum wage rates applicable to them.

The TISK states that the nature of home work is such that it is not possible to apply a minimum wage due to the fact that in Turkey this type of work is not paid at an hourly rate, but at piece-work rates. The TISK also refers to an ILO report on home work (ILC, 82nd Session, Report V(1)) in which emphasis is placed on the difficulties involved in supervising this form of employment. The TISK draws the conclusion that the workers concerned must not be considered as falling within the scope of labour legislation.

In its observations on this matter, the TURK-IS states that there are two categories of homeworkers: those who work at home under the terms of a contract providing for the payment of a wage, who are covered by labour legislation, and those who work at home under the terms of a contract which is not legally a contract of employment, but a contract for services. Although the latter are considered under the law to be self-employed workers, in practice they are regarded as employees, although they are not covered by Act No. 1475 and are not covered by minimum wage rates.

It can be deduced from this detailed information that as to the homeworkers, even though they are considered to be workers under the terms of the Code of Obligations, the existing minimum wage-fixing machinery does not apply to them. In the first place, the Committee recalls that Article 1 of the Convention requires that machinery be created or maintained "whereby minimum rates of wages can be fixed for workers employed in certain of the trades or parts of trades (and in particular in homeworking trades) in which no arrangements exist for the effective regulation of wages by collective agreement or otherwise and wages are exceptionally low". The fact that homeworkers, although they might be considered workers under the terms of the Code of Obligations, are excluded from the scope of Act No. 1475, is an additional reason for measures to be taken by the Government to achieve the objective of the Convention. The Government is free to decide upon the means of achieving this aim, subject to holding the consultations provided for by the Convention and respecting the principle of equality of representation of employers and workers. In the second place, the Committee recalls that the method of calculating minimum wage rates, on an hourly or piece-work basis, is not covered by the Convention and that minimum wage rates can be fixed for piece-work rates. With regard to the difficulties of supervising home work, the Committee also recalls that Article 4, paragraph 1, of the Convention provides for the adoption of the necessary measures to ensure that wages are not paid at less than the applicable minimum wage rates.

The Committee requests the Government to indicate the measures which have been taken to ensure the existence of minimum wage-fixing machinery and the effective fixing of minimum wages for categories of homeworkers considered to be workers under the terms of the Code of Obligations.

Domestic workers. The Committee notes the information provided concerning domestic staff working at the residence of the employer, who are not covered by Act No. 1475 and who do not therefore benefit from minimum wages. With reference to the information that it provided above, the Committee requests the Government to indicate the measures which have been adopted to ensure the existence of minimum wage-fixing machinery and the effective fixing of minimum wages for domestic workers who respond to the criteria set out in Article 1, paragraph 1, of the Convention (absence of arrangements for the effective regulation of wages and the low level of wages).

Supervisory machinery. The Committee notes from the Government's report that during the course of 1994 a total of 58 workplaces were inspected under the legislation respecting minimum wages and that fines were imposed to a total amount of lira 27,500,000. The Government states that a Bill to multiply by five the amounts of the fines set out in Act No. 1475 has been included on the agenda on the National Assembly. It also notes the observations of the TURK-IS to the effect that in September 1993 there were a total of 610,127 workplaces registered with the authorities and paying social security contributions in respect of their employees. The TURK-IS considers that there are not enough inspectors and that they do not have sufficient powers to ascertain that the requirements of the Convention are being met.

The Committee requests the Government to supply information on the system of supervision and the sanctions established to ensure compliance with the provisions respecting minimum wages.