According to Article 8 of the Turkish Labor Law No. 4857 (the “Labor Law”), an employment contract “is an agreement whereby one party (the employee) undertakes to perform work in subordination to the other party (the employer) who undertakes to pay him remuneration.” Article 393 (General Service Agreement) of the Turkish Code of Obligations numbered 6098 (“TCO”) defines the employment contract as “an agreement in which the employee is obliged to perform a work for a limited or unlimited time in the service of the employer and the employer is obliged to pay a salary based on the amount of time the employee works or the amount of work the employee performs.” As can be deduced from these definitions, the main elements of an employment contract are performance of work, remuneration and subordination. The work referred to includes all kind of works of a natural person that can be defined as work in economic terms.
Under Turkish Laws, there are seven different types of classifications for employment contracts:
Employment Contracts for a Fixed or an Indefinite Term
Employment Contracts Made for a Minimum or Maximum Term
Employment Contracts Having Trial Period
Employment Contracts Based on “Gang Contracts”
Seasonal Employment Contracts
Part-Time Employment Contracts
Works at Call
1. EMPLOYMENT CONTRACTS FOR A DEFINITE (FIXED) OR AN INDEFINITE (OPEN-ENDED) TERM
In Article 9 of the Labor Law, it has been stated that employment contracts can be concluded for a definite or indefinite amount of time, and the contract types are defined in Article 11. According to Article 11 of the Labor Law, employment contracts for indefinite periods are the rule, employment contracts for definite periods are the exception. If there is any hesitation about whether an employment contract is for an indefinite or definite period, the employment contract shall be deemed to be for an indefinite period.
Definite termed contracts shall be made in written form as a legal obligation.
An employment contract for a definite period must not be concluded more than once, except for essential reasons which may necessitate repeated (chain) contracts. Otherwise, the employment contract is deemed to have been made for an indefinite period from the very beginning.
One of the major differences between definite termed and indefinite termed employment contracts is the rights each of which grant for the employee. For example, whereas indefinite termed contracts (under specific conditions mentioned below) necessitate a notice to be made prior to termination, payment of severance if employee had worked for more than one year, as the case may be, definite termed contracts expire automatically (without any notice) upon the lapse of definite term and employee will not have the right of severance pay, except for unjustified early termination.
2. EMPLOYMENT CONTRACTS MADE FOR A MINIMUM OR MAXIMUM TERM
Employment contracts are possible to be concluded having minimum or maximum terms.
Under employment contracts for a maximum term, the parties determine a maximum term for the effectiveness of the employment contract, without prejudice to their right to terminate the contract by means of notice of termination any time during this term. At the end of the maximum term determined, employment contract terminates automatically, similar to those having definite terms. Besides, in cases where this contract is terminated by notice, which is permissible at any time from the entry into force until the end of the maximum term, provisions regarding indefinite termed employment contracts apply.
On the other hand, employment contracts for a minimum term requires parties not to terminate the contract by notice until the end of a certain minimum time period (for instance, six months or one year) fixed by them under the contract. In other words, the right to terminate this contract would arise only after the expiration of this minimum time. Unlike the employment contracts made for a maximum term, this type of employment contract will not terminate per se (automatically) at the end of the minimum term. Notice of termination by the parties is required in any manner whatsoever.
Still, it should be noted that, the parties’ right for termination by default is, at all times and in any cases, reserved both for the employment contracts for a maximum or a minimum term.
3. EMPLOYMENT CONTRACTS HAVING TRIAL PERIOD
Parties of the employment contract may require a period for trial before they are precisely bound by the contract. Therefore, they are granted to include a clause for trial in the employment contract. This clause can be contemplated into all and any types of employment contracts.
Trial period commences together with and at the date of which employee starts to work in actual manner.
In accordance with Article 15 of the Labor Law, in the cases where the parties prescribe a clause for trial period in the employment contract, the duration of this period shall not exceed two months. However, this trial period may be extended up to four months through collective labor agreements. Trial periods prescribed for more than this period shall be null and void.
Within the trial period, each party has the right to terminate the employment contract without notice and without it being necessary to pay any compensation. However, the employee’s right to receive salary pertaining to the term of his/her actual work as well as other rights arisen wherefrom are reserved.
4. EMPLOYMENT CONTRACTS BASED ON “GANG CONTRACTS”
In accordance with Article 16 of the Labor Law, the employment contract concluded between an employer and a gang (team) of employees represented by one of the employees acting as the gang leader is called a gang contract.
Once each employee specified in the gang contract commences to work, an employment contract is deemed to have been concluded between the employer and each of those employees under the conditions specified in the gang contract.
Gang contracts are required to be concluded in written form. The identity and wage of each employee shall be separately identified in the gang contract. Similarly and naturally, the wage will be paid to each employee in a separate manner.
Although not frequently encountered and advised in practice, such contracts may be concluded in the fields of construction and carriage of goods on the ports or seasonal works.
For the gang leader’s acting as an intermediary or for any other reason, no deductions may be made on behalf of the gang leader from the salaries of employees who form the gang.
In case any of the employees fail to start working after the signature of the gang contract, gang leader is held liable before the employer, as though they are the person undertaking the act of third persons.
5. SEASONAL EMPLOYMENT CONTRACTS
Seasonal employment contract type is not contemplated specifically under Labor Law; however, there exist some references to the same under numerous provisions thereof.
Seasonal works could be defined as works performed only at a specific period of the year or those that are performed in a higher level at certain periods of time at the work places where operates all through the year. The length of such periods may vary depending on the nature of the work. In practice, seasonal employment contracts may be concluded in hotel business, nourishment, construction, agricultural and forestry sectors.
Under seasonal employment contracts, salaries are paid to employees only in those periods that are prescribed in the contract, in return for actual working. No salary is paid during the term when works are not performed by employee or wholly at the work place. Furthermore, during the same, the contract is considered not to have been terminated but to have been suspended. However, the termination takes place in cases where employee is not called for worked at the end of the suspension period, i.e. at the beginning of the seasonal work period.
Seasonal employment contracts can be concluded for a definite or an indefinite term, based on each concrete case.
6. PART-TIME EMPLOYMENT CONTRACTS
The employment contract shall be considered as a part-time contract where the normal weekly working time of the employee has been fixed considerably shorter in relation to a comparable employee working full-time.
As per the settled judicial precedent and doctrine, the part-time working period cannot be prescribed more than 2/3 of full-time working. Thus, considering the fact that the weekly working hours of full-time working employees can be 45 hours maximum, part-time employee may be employed for utmost 30 hours, a week.
In accordance with Article 13of the Labor Law, unless there is a reason justifying the discrimination, an employee employed on a part-time employment contract cannot be subjected to any different treatment compared to a full-time equivalent worker merely on the grounds that his/her employment contract is a part-time employment contract. Seniority calculation of the employee or the social security premium payment may constitute examples for the reasons justify different treatment. Likewise, divisible benefits of the part-time worker pertaining to wage and other monetary benefits shall be paid in proportion to the length of his working time compared to the full-time equivalent worker.
7. WORKS AT CALL
Employment relationship which foresees the performance of work by the employee upon the emergence of the need for his services, as agreed to in the written employment contract, qualifies as a part-time employment contract based on work on call.
In the event the length of the employee’s working time has not been determined by the parties in terms of time slices such as a week, month or year, the weekly working time is considered to have been fixed as twenty hours. The employee is entitled to wages irrespective of whether or not he is engaged in work during the time announced for work on call.
Unless the contrary has been decided, the employer who has the right to request the employee to perform his obligation to work upon call must make the said call at least four days in advance.
The employee is obliged to perform work upon the call communicated to him within the said time limit. If the daily working time has not been decided in the contract, the employer must engage the employee in work for a minimum of four consecutive hours at each call.
Last Update: 08.05.2020
This article was first published on Turkish Law Blog.
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