Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Termination of Employment Convention, 1982 (No. 158) - Türkiye (Ratification: 1995)

The Committee notes the observations of the Turkish Confederation of Employers’ Associations (TİSK), communicated together with the Government’s report.

Article 2(3) of the Convention. Adequate safeguards against recourse to contracts of employment for a specified period of time. The Committee recalls the concerns raised by the Confederation of Turkish Trade Unions (TÜRK-İS) in 2013 indicating that, although the Labour Code establishes clear provisions regulating the use of fixed-term employment contracts, in actual practice, such contracts are used to evade employers’ statutory obligations. The Government indicates that employment contracts of an indefinite duration are the typical form that employment relationships take in Turkey. TİSK points out that specific objective reasons must exist at the outset when a fixed-term contract is agreed for the first time. Pursuant to section 11 of the Labour Law, the objective reasons include: jobs with a specified term, completion of a certain job, or the occurrence of a certain event. In the absence of objective reasons justifying the conclusion of a fixed-term employment contract, the contract is deemed to be concluded for an indefinite period. Moreover, according to section 11, a fixed-term employment contract may not be concluded more than once consecutively, unless reasons exist that necessitate the use of successive fixed-term contracts. Apart from this exception, a fixed-term contract that is concluded more than once is deemed to have been concluded for an indefinite period from the beginning. The Government indicates that Turkish courts often interpret the use of fixed-term contracts very strictly and only uphold the use of these contracts in exceptional situations. The Committee notes the examples of court decisions referred to by the Government in this context. According to TİSK, Turkish legislation considerably limits the possibility of concluding fixed-term employment contracts, adding that Turkish legislation is stricter than the principles applied in European Union Directive 99/70 EC since, in contrast to the Directive, Turkish law requires the objective reason justifying the use of a fixed term contract at the beginning of the employment relationship.

TİSK further indicates that since contracts are presumed to be for an indefinite duration, the burden of proof rests upon the party claiming that the employment contract is for a fixed term. In its previous comments, the Committee requested further information on the safeguards against abusive recourse to contracts of employment for a specified period of time, especially for subcontracting arrangements for auxiliary jobs. TİSK indicates that, while it is possible for auxiliary tasks in the workplace to be subcontracted out by the principal, subject to the restrictions set out in section 2 of the Labour Law, this does not mean that the employer can give preference to the use of fixed-term contracts to hire workers employed in auxiliary jobs. If the objective reasons required in the Labour Law have not been met, the employment contract will be deemed to be for an indefinite period from the outset. In addition, unskilled labourers are generally employed in auxiliary jobs. TİSK refers to a 2008 ruling of the Court of Cassation which construed an employment contract as being for an indefinite period because the objective reasons required for a fixed-term contract did not exist. The worker in that case was providing unskilled labour for the employer and occupied a position that required continuity. TİSK considers that it is not possible to use fixed-term contracts in auxiliary jobs, according to the relevant legislation and case law. The Committee requests the Government to continue to provide information on the application of safeguards provided in section 11 of the Labour Law against abusive recourse to contracts of employment for a specified period of time, including relevant court decisions in this regard. It also requests the Government to provide further information on the application in practice of section 11, including data on the total number of fixed-term employment contracts compared with contracts for an indefinite duration.

Article 2(4)–(6). Categories of workers excluded from the Convention. The Committee recalls that section 18 of the Labour Law excludes from its employment protection provisions: workers employed in businesses employing less than 30 workers; workers with less than six months’ employment; and workers in managerial positions. Notwithstanding this provision, section 17 of the Labour Law provides that if the contracts of these categories of workers are terminated in bad faith, they are entitled to compensation equal to three times the amount of wages they would have received during the notice period, plus compensation in lieu of notice if the notice period was not respected. The Government indicates that the Turkish Code of Obligations (No. 6098) also applies to workers who are excluded from the scope of the Labour Law. According to section 434 of the Code of Obligations, in cases where the service contract is terminated in bad faith, the employer is obliged to pay an indemnity to the worker equal to three times the amount of wages due during the period of notice of termination. In its observations, TİSK refers to court decisions examining the issue of bad faith dismissals. It adds that workers excluded from the scope of the protections in the Labour Law may nevertheless benefit from the labour safeguards in collective labour agreements. TİSK also indicates that there are provisions in many collective labour agreements that provide safeguards applicable to those employed in workplaces with fewer than 30 workers. The Committee notes the data provided by the Government indicating that the number of insured employees in workplaces with fewer than 30 workers totalled 6,131,494 in 2011 (51.35 per cent of all workers) and 6,493,090 (49.60 per cent of all workers) in 2015. The Committee requests the Government to continue to provide updated information on the application of the Convention in small and medium-sized enterprises that may be excluded from the employment protection provisions of the Labour Law, including statistical data on the number of establishments employing fewer than 30 workers in comparison with other establishments, and examples of court decisions that have examined allegations of bad faith dismissals. Please also provide copies of collective agreements that extend protection afforded by the labour legislation to workers employed in workplaces with fewer than 30 workers. The Committee also requests the Government to provide further information on the number of non-insured workers and the manner in which Article 12 of the Convention would apply to such workers.

Articles 4 and 5. Valid reasons for termination. The Committee notes the joint statement of the European Trade Union Confederation (ETUC), International Trade Union Confederation (ITUC), Confederation of Turkish Trade Unions (TÜRK-İS), Confederation of Turkish Real Trade Unions (HAK-IS), Confederation of Progressive Trade Unions of Turkey (DISK) and Confederation of Public Employees’ Trade Unions (KESK), referring to a “massive wave of dismissals” in Turkey by the Government since July 2016, primarily in the public sector, and to a meeting in October 2016, with representatives of the ILO. The Committee recalls that Article 4 of the Convention provides that the employment of a worker shall not be terminated unless there is a valid reason connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service. The Committee requests the Government to provide detailed information in this regard by providing information on the practical effect given to Articles 4 and 5 of the Convention in relation to the reported “massive wave of dismissals” that has taken place since July 2016.

The Committee is raising other matters in a request addressed directly to the Government.