At Solmaz Law & Consultancy Firm, we provide legal services to our clients in the fields of drafting employment agreements with your employees and sub-employees in your business relations, providing regulatory services in the establishment of workplace internal regulations and human resources policies, and harmonizing all these processes with the relevant legislation. Our expert team is at your side with its active litigation experience not only in the drafting of employment agreements, but also in the termination of employment agreements and in employee-employer lawsuits to be filed after termination.
The most common cases and disputes under labor law are as follows:
- Compensation cases arising from work accidents
- Employment termination lawsuits
- Contract interpretation lawsuits
- Re-employment lawsuits
- Social insurance litigation
- Severance and notice pay lawsuits
- Insurance determination lawsuits
- Resolution of disputes arising from the law through litigation,
- Employment termination and salary litigation
- Overtime and night work salaries
- Week holiday pay
- Paid leave and annual leave fees
- Compensation claims arising from occupational disease
- Preparation and drafting of collective labor agreements
- Compensation for malicious damage and trade union compensation
- Employer’s equal treatment obligation and discrimination compensation
- Compensation for wrongful termination
- Non-employment compensation (job security compensation)
- Idle time salary claim
- Premium, premium and salary disputes
- Preparation of the legal infrastructure for the measures to be taken by employers in the field of occupational health and safety,
- Supervision and enforcement of the labor agreement
- Legal aspects of the employer-subcontractor relationship and consultancy on the necessary procedures
- Issues to consider when hiring staff
- Drafting labor agreements and agreements
- Preparation of the termination phase of employment agreements, realization of termination control in accordance with the agreement
- Issuing releases and cease and desist letters in accordance with the law
- Monitoring worker behavior in accordance with the agreement
- Auditing leave books, attendance sheets and salary tables
- Supervision and regulation of the employer’s trade union rights and activities
- Updating labor agreements within the scope of the law
- Preparation of minutes, defense request letters, warnings and termination notices
- We also provide training services on obligations arising from the Social Insurance Law and the Unemployment Insurance Law.
The most frequently asked questions within the scope of labor law are as follows:
What are severance and notice pay?
Severance Pay is a payment made to the employee whose employment agreement is terminated due to the conditions and reasons stipulated in the law or to his/her heirs in the event of his/her death.
What are the Conditions for Severance Pay?
- Seniority Condition; In order to be entitled to severance pay, the employee must have at least 1 year of seniority in the workplace according to the date of termination of the agreement.
- The employment agreement must be terminated for one of the reasons stipulated in the law;
- Cases of termination other than termination; active military service, termination for retirement, termination due to the marriage of a female worker, termination due to the death of the worker.
- Cases of dissolution with termination; when the employment agreement is terminated in the cases specified in the law, the employee is entitled to severance pay.
Notice Pay is an indemnity to be paid to the other party by the party who terminates an indefinite-term employment agreement without a just cause and without giving proper notice period.
Article 17 of the Labor Law regulates termination for a period of time, and notice indemnities will be evaluated within the scope of this article.
- For an employee whose employment has lasted less than six months, two weeks after the notice is given to the other party,
- For an employee whose employment has lasted between six months and one and a half years, four weeks after the notice is given to the other party,
- For a worker whose employment has lasted from one and a half to three years, six weeks after the notice is given to the other party,
- For an employee whose employment has lasted for more than three years, after eight weeks from the date of notification, it shall be deemed to have been terminated.
What is Malicious Intent Damages?
Malicious Intent Compensation is a lump sum compensation, which is not subject to the condition of damages, requested by the employee, whose indefinite-term employment agreement is terminated by the employer with notice (with notice) and who is outside the scope of the job security provisions, by claiming that this termination by the employer is contrary to the rule of honesty in Article 2 of the Civil Code.
What is Worker’s Union Compensation?
Workers Union Compensation is a sanction for the employer’s interference with the employee’s freedom of association.
What is Unjust Termination Compensation?
Due to the immediate termination of the agreement by the employer without just cause, the judge may order the payment of compensation to the employee, the amount of which he may freely determine according to the circumstances and conditions. This compensation is called compensation for wrongful termination.
What is Discrimination Compensation?
Discrimination compensation is a sanction for the violation of the employer’s equal treatment obligation regulated in Article 5/6 of the Labor Law. According to the aforementioned provision, the employee has the possibility to claim his/her rights that he/she has been deprived of in addition to a salary equal to up to four months’ salary.
Labor Claims Arising from Employment Security
Employment security is a concept that arises from the labor law and protects the employee subject to employment security provisions against unfair termination. Accordingly, in the event that the employment agreement of an indefinite-term employee is unfairly terminated by the employer; the employee has the right to file lawsuits for the determination of the invalidity of the termination or reinstatement of the employee to return to work. If there is a special provision in collective labor agreements, the right to apply to arbitration is also open.
Re-employment Lawsuit; If the indefinite-term employment agreement of the employee subject to the provisions of job security has been terminated by the employer and the employee claims that this termination is not based on valid reasons, he/she may file a lawsuit for the determination of the invalidity of the termination and reinstatement to work in the labor court within 1 month from the date of notification of the termination.
What is Employment Security Compensation (Non-reinstatement Compensation)?
Pursuant to Article 21/1 of the Labor Law, when the court decides on the invalidity of the termination and the reinstatement of the employee, it also decides on job security compensation for the failure of the employee to apply to the employer in due time and the employer’s failure to reinstate the employee.
Unworked Time Salary
According to Article 21/3 of the Labor Law, if the court decides that the termination is invalid and the employee is reinstated, the employee may demand a maximum of 4 months’ salary and other related rights for the period of idle time, whether the employee starts work or not.
What are Worker’s Salary and Premiums, which fees can be claimed?
Salary; is the amount provided to a person by the employer or third parties in return for a job and paid in money. The amount found by adding the side payments paid to the worker to the basic (net) salary is called salary in the broad sense (gross salary).
Premium; is an additional salary that rewards the employee and encourages him/her to work efficiently. If the premium payments made by the unilateral application of the employer without an agreement have become a workplace practice, the employee has the right to demand the unpaid premium. The premium is paid in return for a successful service of the employee in order to eliminate the drawbacks of the salary.
Premium; is a general payment that shows the satisfaction of the employer to its employees and is made for some reasons. In Article 405 of the TCO No. 6098, it is stated that the employer may give special premiums to its employees on certain days such as holidays, New Year’s Eve, and birthdays, and if the employment agreement is terminated before the period in which the premium is given, the part of the premium reflected in the period worked will be paid.
A transfer fee is not a salary or an additional payment. A transfer fee is a monetary obligation that is not remuneration for the work performed and is freely agreed between the employer and the employee, taking into account the past achievements of the employee and his/her future contribution to the workplace.
The Minimum Living Allowance is an independent receivable arising from the Income Tax Law, which is not a salary or its supplement, and is not taken into account in the calculation of severance pay.
What are Overtime Work, Night Work and Rest Breaks?
Overtime Work; According to Article 63 of the Labor Law, the weekly working time is 45 hours as a rule. The parties may, by agreement, instead of dividing the working hours equally into working days, determine different working hours on different days through equalization. However, the working time cannot exceed 11 hours per day. Pursuant to Article 41 of the Labor Law and Article 3 of the Regulation on Overtime Work, within the framework of the conditions written in the law, work exceeding forty-five hours per week is considered overtime work.
In no case may the working time exceed 11 hours per day. Nevertheless, if the employee works more than 11 hours a day, even if the weekly working time does not exceed 45 hours, the overtime provisions must be applied for the time exceeding 11 hours. Again, if the employee works more than 270 hours a year despite the prohibition, the entire overtime salary must be paid to the employee.
Night Work; According to Article 69 of the Labor Law, the concept of “night” in working life is the period starting at 20:00 at the latest and lasting until 06:00 at the earliest, and in any case lasting a maximum of eleven hours. Workers’ night work cannot exceed seven and a half hours. Even if the working week in which the worker works at night does not exceed 45 hours, the worker’s night work exceeding 7.5 hours is considered overtime work and his/her salary must be paid with a 50% increase.
Interim rest is one of the indispensable basic rest rights of the worker guaranteed by the Constitution, such as paid week holiday leave, paid national holiday and general holiday leave and paid annual leave, and is a requirement of the principle of social state. In accordance with Article 50 of the Constitution and Article 68 of the Labor Law, it is obligatory for workers to take breaks during their daily working hours in order to rest and meet their needs such as eating and drinking.
What is a Week Holiday and how much does it cost?
A week holiday is a worker’s constitutional right to rest and the worker is entitled to his/her salaries even if he/she does not work on this day. Workers are entitled to at least 24 hours of uninterrupted rest (week holiday) within a period of seven days, provided that they have worked on the working days specified in Article 63 of the Labor Law before the holiday. If the worker works even one hour on a week holiday, he/she is entitled to the salary for that day.
What are National Holiday and General Holiday Pay?
National holidays and general holidays are recognized as social rights within the scope of the employee’s right to paid rest in the Constitution and our laws, taking into account the fact that employees allocate time for their families and relatives and the characteristics of these days. The Law on National Holidays and General Holidays regulates the days and duration of national holidays and general holidays (October 29, April 23, May 19, August 30, New Year’s Day, May 1, Eid al-Fitr, Eid al-Adha). According to this law, national, public and religious holidays, as well as New Year’s Day and May 1, are holidays for public offices and organizations. On October 29, private businesses must be closed. State economic enterprises are considered private workplaces in this sense.
According to Article 44 of the Labor Law, the principle is that workers should not work on holidays. However, if there is a provision in the agreement or even if there is no provision in the agreement, if the employee consents, he/she may work on holidays. According to the Labor Law, even if the employee has not worked on national holidays and general holidays, he/she is entitled to the salary of that day. If the worker is employed on these days, the salary for the period worked must also be paid.
What are Paid Leave and Annual Leave Pay?
The right to annual paid leave is a constitutional right to rest for all employees. According to Article 53 of the Labor Law, in order to be entitled to annual leave pay, an employee must have worked in the workplace for 1 year from the date he/she actually started working, including the trial period. As soon as the worker completes one year of seniority, he/she is entitled to annual leave for that year. The leave must be used in the following year.
What are Other Labor Claims?
Balance Duration Fee
Article 325 of the Code of Obligations No. 818 states that the employee has the right to demand the remaining time salary by stating the following rule: “If the employer defaults in accepting the work, the employee may demand the salary in the agreement without being obliged to do the work undertaken.” Turkish Code of Obligations No. 6098 entered into force on 01.07.2012 and in Article 408, it is explained that the employee has the right to salaries in case the employee cannot work due to the employer’s default in accepting the work. It is also stipulated that in the event that the employee is unable to fulfill his/her duty to perform his/her work, the expenses that he/she has been saved from incurring and the benefits that he/she has earned or deliberately avoided by doing another job will be deducted.
According to the Court of Cassation, a penalty clause is a separate performance with a financial value that must be paid in case of non-performance or incomplete performance of the existing debt. In parallel with the practice of the Court of Cassation, Article 420 of the Turkish Code of Obligations No. 6098, which entered into force on July 1, 2012, stipulates that “Penalty clauses included in service agreements only against the employee are invalid.” In this respect, penal clauses included in employment agreements only against the employee should be considered invalid, while penal clauses included in favor of the employee should be considered valid. The penalty clause unilaterally imposed against the employer is valid, and its limit is determined by the rule of honesty in Article 2 of the Civil Code.
Employers may allow their employees for vocational training when hiring them or in the future in order to increase their efficiency and adaptation to the job. However, in the event that the employment agreement is terminated before the expiry date, employers may be in the position of having wasted expenses since the expected benefit of the employer is not realized. In order to eliminate this drawback, the employer will have the opportunity to claim back the training expenses from the employee with a provision to be included in the employment agreement.
What are the Compensation Claims Arising from Occupational Health and Safety?
According to Law No. 6331, employers are obliged to take all necessary measures to ensure occupational health and safety in the workplace as a result of the obligation to take care of the worker, to keep the tools and equipment complete, to inspect whether the measures taken in this regard are complied with in the workplace, to inform the workers about the occupational risks they face, the necessary measures to be taken, their legal responsibilities and to provide the necessary training. In addition, employers are obliged to report occupational accidents and occupational diseases occurring in the workplace to the relevant regional labor directorate in writing within 3 working days at the latest. Employers are obliged to compensate the pecuniary damages incurred by the workers due to the failure to take the necessary measures in the workplace and which cannot be covered by the social security institution and the non-pecuniary damages of the workers.
What are the Compensation Claims arising from Work Accidents and Occupational Diseases?
According to Article 3 of the Occupational Health and Safety Law No. 6331, an occupational accident is an event that occurs in the workplace or due to the execution of the work, which causes death or makes the body integrity mentally or physically “disabled”. In the sense of Labor Law, an accident is an accident suffered by an employee as a result of an external and sudden event due to the work he/she performs while under the authority of the employer.
In order for the employer to be held liable for the damages suffered by the employee as a result of an occupational accident, the accident must have occurred while the employee was under the orders and instructions of the employer. According to the Court of Cassation, the employer is held liable for the occurrence of an occupational accident or occupational disease, even if there is no fault on the part of the employer and the event is unavoidable, if there is a causal link.
What is the Concept of Occupational Disease?
According to Article 3 of Law No. 6331, occupational disease is a disease that occurs as a result of exposure to occupational risks. According to Article 14 of Law No. 5510, an occupational disease is a temporary or permanent illness, physical or mental disability suffered by the insured due to a repeated reason due to the nature of his work or due to the conditions of work.
What are the Pecuniary Compensation Claims arising from Work Accidents and Occupational Diseases?
The worker who has suffered damage in an occupational accident or occupational disease may sue for compensation. If the worker has died, those who are deprived of his/her support have the right to sue. The worker whose bodily integrity has been violated as a result of the work accident or those who are deprived of his/her support may claim hospital expenses, damages arising from the loss of working capacity and damages arising from the shaking of his/her economic future as pecuniary compensation.
What are the Claims for Non-pecuniary Compensation Arising from Work Accidents and Occupational Diseases?
Non-pecuniary compensation is defined in the doctrine and judicial decisions as a form of compensation that is compensated with money or an amount other than money, which is introduced to compensate for non-pecuniary damage, which is a phenomenon that does not have a direct effect on assets, is not monetary and has no commercial value.
Workers who have suffered an occupational accident or occupational disease, or their relatives, who have been harmed thereby, may claim non-pecuniary damages from the employer or third parties who caused the accident. Even if the disability rate of the insured is 0%, if the employer is at fault in the incident, the court should award an appropriate amount of non-pecuniary compensation.
What are a Release and its consequences?
The termination of the debt in the labor relationship through release is stipulated in Article 420 of the Turkish Code of Obligations No. 6098. According to the aforementioned provision, the release agreement regarding the employee’s receivables from the employer must be in writing, at least one month must have elapsed since the termination of the agreement as of the date of the release, the type and amount of the receivable subject to the release must be clearly stated, and the payment must be made in full compared to the amount of the right and through a bank. Release agreements or releases that do not have these elements are absolutely null and void. Release agreements that do not contain the actual amount of the payment of the right or other payment documents containing the statement of release shall be deemed as receipts limited to the amount they contain. Even in this case, the payments must have been made through a bank.
The Court of Cassation Principle Decision regarding the release letter is as follows
“There is a dispute about the validity of the release agreement between the parties. In Turkish Law, the release agreement is regulated in the Turkish Code of Obligations No. 6098, which entered into force on 01.07.2012, and Article 132 of the adopted Law states that “Even if the operation giving rise to the debt is subject to a certain form by law or by the parties, the debt can be completely or partially eliminated by the release agreement that the parties will make without being bound by the form.”
The above-mentioned concepts have been prepared to provide brief information, and our detailed articles on the subjects studied are available in the blog section. The texts published on our website are for general information and you can contact us for consultancy.
What is a seafarer?
Seafarer is regulated in both national and international legislation; the Maritime Labor Law defines seafarers as the captain, officers, crew and other persons working on the ship based on a service contract. The Commercial Code, on the other hand, defines seafarers as the captain, ship’s officers, crew and other persons employed on board the ship.
The concept of seafarer covers only the persons who are employed on the ship, except for those who work on land, such as those who work in the mooring port, those who work in the ship owner’s business on land are also excluded from the concept of seafarer.
Captain The most authorized person working on board. He undertakes the management of the whole ship and is the seafarer who acts as the highest superior of the ship. The master is also defined as the seafarer appointed by the ship owner to manage the ship.
Officer: Ship officers can be defined as seafarers, ship doctors, radio operators, ship electricians and electronic technicians, and ship accountants who perform maritime or technical duties with a certificate of authorization issued by the state. In general terms; they are the people who assist the captain.
Crew: refers to the persons working in the deck, machinery and cabin sections of the ship, except for the ship captain, ship officer, assistant officers and trainees.
Other seafarers: other persons employed on board other than the master, officers and crew; cooks, waiters, stewards can be defined as other seafarers.
Who is the employer in maritime law?
According to the Maritime Labor Law; it is defined as the ship owner or the person who operates a ship that is not his/her own on his/her own behalf and account. In the Labor Law No. 4857, while defining the concept of employer, an employment contract and the condition of employing employees are required between the employee and the employer; in addition to this, the Maritime Labor Law stipulates the condition of working on the ship.
What are the obligations of the ship owner or employer?
Although the obligations of the ship owner towards the seafarers employed under the employment contract are similar to the labor law, there are additional obligations due to the necessity of working on board.
- Salary payment obligation
- Obligation to protect and look after the seafarer
- Equal treatment obligation
- Obligation to issue work and identity cards and work certificates
What are the ships covered by Maritime Labor Law?
The ships covered within the scope of Maritime Labor Law can be counted as ships operating in the seas, lakes and rivers, and ships sailing with the Turkish flag. However, there are exceptions to this. These are; the hoisting of a foreign flag by a Turkish ship, the hoisting of the Turkish flag by a ship that is not a Turkish ship, and ships with a gross tonnage of one hundred or more is within the scope of the exception. The ships within this scope will be subject to the Turkish Maritime Law and legislation.
What should be included in a maritime labor contract?
Article 6 of the Maritime Labor Law lists the matters that must be included in a written employment contract.
- Name, surname and residential address of the employer,
- Seafarer’s name, surname, date and place of birth, registration number and residential address,
- The name, registry number, gross tonnage and the registry office where the seafarer will work (If there is a possibility that the seafarer may work on several ships of the same employer, this shall be stated separately in the service contract).
- Place and date of the contract,
- The work to be performed by the seafarer,
- The date and place where the seafarer will start service,
- Whether the service contract has been concluded for a certain period of time, and if for a certain period of time, for how long, or if on a voyage, on which voyage,
- The agreed fee basis and amount,
- The time and place of payment of the salary and the bank special account number where the seafarer’s salaries, premiums, bonuses and all kinds of rations of this nature will be paid for the obliged employers,
- Advance terms,
- Other business conditions,
- Summary of the contract approved by Law No. 7292 dated 25/5/1959 on the service contracts to be concluded with trim men and stokers
What are the types of contracts according to Maritime Labor Law?
According to Article 7 of the Maritime Labor Law, three types of contracts are mentioned. Accordingly, the employment contract to be concluded with the seafarer
1) For a certain period of time,
2) For expedition or
3) It can be done indefinitely.
What is a Fixed Term Employment Contract?
Although Article 11 of the Labor Law requires objective and substantial reasons for both the initial and renewal of a fixed-term employment contract, there is no such limitation in the Maritime Labor Law. In short, seafarers may conclude a fixed-term employment contract without any reason.
An employment contract concluded for a certain period of time expires at the end of that period. If the contract ends while the ship is underway, it will continue until the ship arrives at the first port and is secured.
It is stated in Article 8/2 that if the seafarer continues to work with the consent of the employer or the employer’s representative at the end of the employment contract made for a certain period; the employment contract will be deemed to be extended for the same period.
The employment contract concluded with the seafarer for a definite period of time will be transformed into an indefinite-term employment contract unless there is a substantial reason for its renewal for the second time.
What is a Labor Contract for Expedition?
This contract is generally for a definite period of time and is voyage-dependent. It is an employment contract concluded between the seafarer and the employer to work during a certain voyage of the ship. It terminates automatically and without any notice upon the end of the voyage. This contract for a specific voyage continues until the ship arrives at the port of mooring at the end of the voyage specified in the contract and unloads its cargo.
What is an Indefinite Term Employment Contract?
In the Maritime Labor Law, as a rule, the contract made with the seafarer is for an indefinite period of time, unless an employment contract is made for a specific period or voyage.
However, the Maritime Labor Law stipulates a minimum duration for indefinite-term employment contracts. According to Article 16/A of the Law, “a service contract of indefinite duration cannot be terminated unless six months have elapsed since the seafarer was recruited, except for the lawsuits written in Article 14”
In the event that the employment contract between the seafarer and the employer is terminated without just cause before the expiration of the six-month period, the parties may claim the damages suffered and the rights they have been deprived of until the minimum period.
What are the Freedom and Limits of Maritime Labor Contracts?
The principle of protection of the seafarer lies at the basis of the limitations imposed on the freedom to conclude a maritime labor contract. Ship safety and the safety of life and property of those on board are other important reasons for such limitations.
1) Age Restriction
Law No. 7292 on the ratification of Convention No. 15 on the determination of the minimum age of persons to be employed on board ships in the capacity of seafarer and stoker and according to Article 2 of Convention No. 15 “Persons under 18 years of age may not be employed on board ships in the capacity of seafarer and stoker”
Pursuant to Convention No. 58 on the determination of the minimum age of children to be employed in maritime work, ratified by Law No. 7293, children under the age of 15 shall not be employed in work on other ships, except for ships where only the same family members are employed.
According to the Maritime Labor Convention, it is forbidden to employ or assign or employ persons under the age of 16 on board a ship.
2) Education Limitation
Especially since ship transportation works are important and require qualification, a seafarer must have the necessary qualification in accordance with the provisions of the Seafarers Regulation and have a seafarer’s wallet in order to work on ships.
According to the Maritime Labor Convention, “To work on board a ship, a seafarer must be trained, have a certificate of competence or other qualification to perform his duties. Seafarers should only be allowed to work on board if they have successfully completed training to ensure their personal safety.
3) Health Restriction
In order to become a seafarer and therefore to be able to conclude a maritime employment contract, the seafarer’s health condition must be suitable for maritime transportation service and this must be documented.
According to the Maritime Labor Convention, “No seafarer shall work on board a ship unless he is medically certified as fit to perform his duties”
4) Foreign Employee Restriction
Pursuant to Article 16 of the Law No. 4817 on Work Permits for Foreigners, if the seafarer sailing with the Turkish flag and within the scope of the Maritime Labor Law is of foreign nationality, “Unless otherwise stipulated in bilateral or multilateral agreements to which Turkey is a party, he/she must obtain permission before starting to work.” Article 4 of the Maritime Labor Law stipulates that “The provisions of this law shall also apply to seafarers who are nationals of states that grant the same rights to Turkish seafarers on the basis of reciprocity and who work on ships covered by this law.”
What is Invalidity and Cancellation of Maritime Labor Contract?
An employment contract is invalid if the parties do not have capacity at the time it is concluded, or if it has not been concluded in accordance with the formal requirements of the law, or if it is contrary to the mandatory rules of law, public order, personal rights, non-pecuniary, or if its subject matter is impossible.
What is Salary in Maritime Labor Law?
According to Article 29 of the Maritime Labor Law, “Salary is the amount paid in cash to the seafarer by the employer or the employer’s representative in return for his work.”
The Maritime Labor Convention includes definitions related to salaries in the provisions of the directive in the section on salaries under Title 2. According to this
Basic pay or remuneration: Means payment for normal working hours only and does not include payment for overtime, bonuses, and per diems, paid leave or any other consideration.
Combined remuneration means remuneration that includes basic remuneration and salary-related benefits and other bonuses; combined remuneration includes all overtime worked and all other salary-related benefits or, in the lawsuit of partially combined remuneration, may include only some benefits.
What is the working time of seafarers?
Standard A2.3.1/a states that working hours shall mean the time when a seafarer performs work for a ship for which he is responsible.
According to Article 26/2 of the Maritime Labor Law, “working time is the period during which the seafarer works on the job and keeps shifts”
The Court of Cassation, while determining the working time of the seafarer due to the clear regulation of the article, takes the time spent on the job as a basis, not the time he is on board (at the workplace).
1) Normal Working Time
According to Article 26/1 of the Maritime Labor Law, “In general, working hours are eight hours a day and forty-eight hours a week. This period is applied by dividing it equally to the working days of the week.
2) Seafarers Held Outside Normal Working Hours
In Article 27 of the Maritime Labor Law, some seafarers are excluded from the normal working hours. These are the persons who do not have a continuous working order besides the nature of their duties and jobs, whose actual work does not show continuity, but whose presence on board is mandatory. These are:
- In ships where there is more than one master, the first master or the person acting for him as written in paragraph C of Article 2 of the law (including pilot captains),
- Chief engineer on ships with more than one engineer,
- Doctors and health officers,
- Nurses and orderlies,
- Seafarers working on rescue ships whose primary duty is to save lives, property and ships,
- Those working on board on their own behalf and account.
* These persons may be employed without being subject to the daily or weekly working hour’s regime in Article 26.
The rules determining the working time in the Maritime Labor Law are relatively mandatory. Therefore, they may be amended by individual or collective labor agreements in favor of the seafarer.
3) Overtime Work
According to Article 28/1 of the Maritime Labor Law, “Work performed by exceeding the working hours determined in accordance with this law is considered as overtime work. The Maritime Labor Law accepts exceeding both daily (8) hours and weekly (48 hours) working hours as overtime work.
According to the Maritime Labor Convention, “overtime means working hours in excess of normal working time.”
What is the rate of overtime pay?
The amount of the salary for overtime work performed by seafarers outside the overtime working hours is explained in Article 28/2 of the Maritime Labor Law. Accordingly, “The salary to be paid for each hour of overtime work to be performed cannot be less than the amount to be found by increasing the amount of the normal working salary per hour by 25%”
What are Rest Periods?
1) Interim Rest
According to the Maritime Labor Convention, “hours of rest means time not included in working time; the term does not include short breaks.
The minimum duration of rest hours shall not be less than the following, 10 hours for a 24-hour period and 77 hours for a seven-day period.
Rest periods must not be divided into more than two periods of at least six hours each, and the interval between two consecutive rest periods must not exceed 14 hours.
2) Week Vacation
It is regulated in Articles 41 and 42 of the Maritime Labor Law No. 854. While Article 41 introduces a special regulation for some seafarers, Article 42 is the norm that applies to all seafarers and introduces a rule under the name of week holiday pay. The Maritime Labor Law differentiates the week holiday according to the place where the seafarer works. These are
a) Those working on port service and city line ships:
Pursuant to Article 41, “It is forbidden for seafarers to work more than six days a week in port service and city line ships. Those of them who work on a week holiday shall be given leave in shifts on another day of the week. ”
b) Those working on short, close and distant voyages:
According to the last paragraph of the same article, “Seafarers working on ships on short, close and distant voyages are paid by the employer or the employer’s representative for the week holiday days that coincide with the period when the ship is on voyage, without the above conditions and without any work, also a week holiday salary in the amount of one day.
3) How is the salary calculated on National Holidays and General Holidays?
In the Maritime Labor Law No. 854, in the event that the seafarer is employed on national holidays and general holidays, Article 43 states that “holiday pay in the amount of one day’s salary shall be paid separately, regardless of the method of payment”.
4) What is a Week Holiday according to the Maritime Labor Convention?
Each Member agrees that the standard working time for seafarers shall be eight hours, including one day off per week and other holidays, as for other workers.
5) What is the duration of Annual Paid Leave?
In the Maritime Labor Law, two conditions are generally required to be entitled to annual paid leave.
First; working with an employment contract subject to the Maritime Labor Law
The second is the expiry of the waiting period to be examined.
According to Article 40/1 of the Maritime Labor Law, a seafarer who has worked under the same employer or on the same ship for at least six months within a calendar year based on one or more service contracts is entitled to annual paid leave. The waiting period for entitlement to leave is set as six months. There is no requirement for the waiting period to be uninterrupted in order to qualify for leave.
The duration of leave for employees working for one year or more is set at one month. The Convention No. 146 on Annual Paid Leave for Seafarers, which has been ratified by Turkey, and the provisions of the 2006 MCL Maritime Labor Convention, which incorporates this Convention, should also be taken into account. The provisions of this convention stipulate that a seafarer may be granted a minimum of 30 days of annual paid leave in the year determined by the convention, and that a seafarer whose length of service in any year is less than the required period shall be entitled to annual paid leave in proportion to his length of service in that year.
If the seafarer has worked for less than one year and more than six months, he/she will take 15 days of annual leave.
Annual Leave Fee
According to Article 40/last article of the Maritime Labor Law, “If the service contract is terminated according to paragraphs II, III, IV of Article 14 before the seafarer has used the annual paid leave he deserves, the employer or the employer’s representative must pay the seafarer the salary for the leave period.” In order for the seafarer to claim the salary for the unused leave;
Employment contract must be terminated:
- By the seafarer for the reasons specified in Article 14/last II,
- Termination by either party for the reasons set forth in Article 14/last III or
- Automatically for the reasons stated in Article 14/last IV.
What are the Termination and Consequences of Maritime Labor Contract?
REASONS FOR TERMINATION OTHER THAN TERMINATION
1) Rescission (Breach of Contract)
In general, it is the termination of the relationship with the agreement of the parties. The transaction to terminate the contract with the common will of the parties is considered as rescission.
2) Expiration of a Certain Period or Expedition
An employment contract concluded for a definite period of time shall expire at the end of the period unless the employer or the employer’s representative consents. If the employment contract for a definite period of time expires on the date of expiry while the ship is underway, the contract will continue until the ship arrives at the first port and is secured.
The contract concluded for the voyage shall terminate automatically and without any notice upon the expiration of the voyage, unless a new voyage contract is concluded or consent to this effect is given.
3) Automatic Breach of Contract
This fact is regulated in Article 14/IV of the Maritime Labor Law. For this reason, the parties are not obliged to give a notice of termination and do not require notice pay. Circumstances that cause the employment contract to be automatically terminated;
-Loss of the ship (sinking, wrecked, blown up or destroyed without leaving usable wreckage
– Abandonment of the ship
-Declaring the ship a spoil of war, or
-Separation of the ship from the Turkish flag. In these lawsuits, the workplace (ship) where the maritime transportation business is carried out has disappeared.
4) Death of Seafarer (Worker)
In the event of the death of the seafarer or the death of the ship owner or operator, Articles 440 and 441 of the Turkish Code of Obligations will be applied in maritime labor relations since there is no explicit provision in the Maritime Labor Law. Accordingly, in the event of the death of the seafarer, the surviving spouse and minor children, or if there is no surviving spouse and minor children, the dependents should be paid a death indemnity equal to one month’s salary if the seniority is up to five years and two months’ salary if the seniority is more than five years.
What is Termination of Maritime Labor Contract?
1) Termination declaration and its consequences
Termination ends the employment contract immediately or prospectively at the end of a notice period with a unilateral declaration of will without the acceptance of the other party. The termination declaration takes effect and results as soon as it reaches the other party. However, in the Maritime Labor Law, it is not immediately possible for the termination declaration to take effect while the ship is underway. Article 17 of the Law regulates this issue and it is stated that “the termination shall take effect and result at the end of securing the ship at the agreed port if the ship is under navigation, and at the first port of call if the agreed port is changed” in both unprecedented and precedent terminations.
2) Form of Termination
According to Article 18 of the Maritime Labor Law, “if the employment contract is terminated by the employer or the employer’s representative, the seafarer must be notified in writing together with the reasons. In cases where there is no possibility of notification, the situation is determined with a report. “The written notification requirement here is a condition of proof.”
What are the Types of Termination in Maritime Labor Law?
Termination without notice (Termination for just cause): The right to terminate for just cause is a right that gives the right to immediately terminate a fixed or indefinite term employment contract to the party who cannot be expected to continue the employment relationship in accordance with the rules of honesty. Here, each party to the employment contract may terminate the contract immediately for just cause.
Reasons for Justified Termination for the Employer (Ship Owner or Operator)
In the Maritime Labor Law, there are two restricted reasons similar to Article 25 of the Labor Law. One is absenteeism and the other is detention. In the Maritime Labor Law, the justifiable reason for absenteeism is that the seafarer is absent even once before the departure of the ship. The Maritime Labor Law does not stipulate a certain period for detention.
- Termination due to the seafarer not returning to the ship before the departure of the ship at any port or not returning to the ship at all; this situation essentially refers to the failure of the seafarer to fulfill his obligation to work by absenteeism and to violate this obligation. According to this paragraph, the seafarer’s not coming to work at all or leaving the ship at any port and not returning constitutes absenteeism.
- Termination due to the impossibility of the seafarer to perform services on board the ship due to reasons such as arrest, imprisonment or being prohibited from working on board the ship: This reason for termination without notice is related to the impossibility of the seafarer to perform work due to the seafarer’s refraining from the obligation to perform work or a defective act. In cases such as arrest of the seafarer at the port of departure or at the port of call while on voyage, imprisonment of the seafarer due to the fact that he/she has a sentence binding the freedom, or prohibition of the seafarer from working on the ship by the local security organization or port administration for any reason, since it will become impossible for the seafarer to fulfill his/her employment obligation, the right of termination without notice and without compensation will arise for the employer or his/her representative.
- Termination due to the seafarer’s violation of the law, service contracts, other work and working conditions against the employer or employer’s representative: Failure of the seafarer to fulfill his duties by acting in violation of the contract, other work and working conditions requires termination of the employment contract for just cause without prior warning. Seafarers must comply with the provisions of the employment contract, the ship’s internal regulations and maritime customs (which have generally become written rules). Violation of the rules in these regulations may be grounds for just cause termination.
- Termination due to the seafarer acting against the employer or the employer’s representative in violation of maritime rules and customs or non-moral and manners: Every ship has an internal instruction manual showing the customs and rules. The content of the ship’s internal instructions constitutes how and by whom the ship’s services are to be performed. It is the absolute inevitable duty of every seafarer to comply with this procedure. Failure to fulfill this duty, incomplete performance, incorrect performance, negligence, fault, intent is some behaviors that require termination of the employment contract for just cause.
What are the reasons for justified termination for seafarers?
1) Failure to pay the seafarer his salaries in accordance with the provisions of the law or the service contract gives the seafarer the right to terminate the maritime employment contract without notice.
Failure to pay the seafarer’s salaries in accordance with the provisions of the contract and the law is a just cause for the seafarer.
2) Termination due to the employer or the employer’s representative acting against the seafarer in violation of the law, service contracts or other terms and conditions of employment: Violations of the employer’s basic obligations other than the obligation to pay salaries, such as protecting the personality of the employee, ensuring occupational safety, ensuring the use of annual leave, and violations of the duty of observation should be considered as just cause for termination within this scope. In particular, violations of the law and the employment contract, such as exceeding overtime working hours, not giving the opportunity to rest, not providing the seafarer with shelter and food, may be grounds for termination.
3) Termination due to the employer or employer’s representative acting against the seafarer in violation of maritime rules and customs or non-morality and decency: This reason is foreseen for both parties. Not only the seafarer but also the employer must comply with the maritime customs and rules determined by the ship’s internal instructions. The employer’s or the employer’s deputy’s making work outside of these rules, aggravating the working conditions are the employer’s behaviors that will be considered as a reason for termination of the employment contract without notice for the seafarer.
Justified Grounds for Termination for Both Parties for Compelling Reasons
Either party may exercise the right to terminate without notice in the following two circumstances.
1) Termination due to the ship being removed from voyage for more than 30 days for any reason; in this lawsuit, the seafarer is unable to fulfill his/her works for a compelling reason occurring outside of him/her. The ship may be removed from voyage for some reasons such as repair, maintenance, quarantine. Sea transportation activities may not be carried out for a certain period of time. If this situation continues for more than 30 days, the parties to the employment contract have the right to terminate the contract without notice.
2) Termination due to the seafarer suffering from a disease or disability that prevents him/her from working on the ship permanently for any reason; If the seafarer is no longer able to work on the ship due to a permanent illness or disability he/she has contracted and this situation is fixed by a doctor’s report, then the parties may terminate the employment contract without notice.
*The disease must be incurable or the disability must be permanent.
Limits of the Right of Termination without Prior Notice
Like any other right, the right to terminate has certain limits.
1-The most important rule is the rule of honesty.
2-Other limiting reason is the principle of proportionality
3-One limitation to be taken into consideration for the employer is the violation of the equal treatment obligation.
Termination with Notice (Termination with Notice)
The employment contract concluded between the seafarer and the employer or the employer’s representative cannot be broken until six months have passed since the seafarer’s employment. This six-month limit has been introduced for termination with notice, and this period is not required in case the contract is terminated for just cause.
What are the notification periods?
Seafarer’s job (seniority);
- 2 weeks if it lasted 6 months,
- 4 weeks if it lasted from six months to one and a half years,
- 6 weeks if it lasted from one and a half to three years,
- If it has lasted more than three years, 8 weeks’ notice must be given.
What are the consequences of failing to comply with the notification period?
Notice pay: Notice pay is an indemnity payable by the party who terminates an indefinite-term employment contract without just cause and without giving a proper notice period. Pursuant to Article 16/D of the Maritime Labor Law No. 854, “The party who does not comply with the notification requirement must pay compensation in the amount of salaries in accordance with the above-mentioned periods.”
Bad Faith Compensation: Compensation for misconduct is a regulation introduced in favor of the employee in the article and is generally a compensation that can be requested in case the employer abuses the right of termination. In the event that the employee abuses the right of termination, the employer does not have the opportunity to request such compensation.
Compensation (pecuniary and non-pecuniary) : One of the consequences of failure to comply with the notice period is that the parties are faced with the risk of paying compensation for non-pecuniary damages due to the damage to their personal rights and compensation for pecuniary damages, as well as compensation for notice (compensation for bad faith for seafarers).
What are the Consequences of Termination of Maritime Labor Contract?
1) Severance Pay
A seafarer who is covered by the Maritime Labor Law and whose employment contract is terminated will be entitled to severance pay if he/she meets the conditions stipulated in the law. Conditions stipulated in the law;
*First of all, one must work on a ship covered by the Maritime Labor Law with an employment contract.
*At least one year of seniority at the date of termination of the minimum employment contract.
* The employment contract must be terminated for one of the reasons listed in the Maritime Labor Law.
-Termination of the employment contract for certain reasons:
According to the article, termination of employment contracts of seafarers
- Except for the reasons specified in Article 14, Paragraph 1 of this law (for unjustified reasons),
- By the seafarer;
- aa) Pursuant to Article 14, paragraphs II and III of this Law (for justified reasons),
- bb) Due to active military service,
- cc) Termination for the purpose of receiving old age, retirement or invalidity pension or lump sum payment from the institutions or funds established by law to which they are affiliated,
- Death of the seafarer or
- Termination due to Article 14, Paragraph 4 (spontaneous termination of the employment contract)
In such lawsuits, the seafarer or his heirs should be paid a severance payment equal to 30 days’ salaries for each year.
What is the repatriation (return to country) of a seafarer?
In maritime labor relations, the seafarer has the right not to be left behind and one of the consequences of termination is the right to repatriation of the seafarer.
What are the conditions for repatriation?
The seafarer’s right of repatriation and the employer’s obligation arises in cases where the maritime employment contract is terminated in accordance with Article 14 of the Law. According to the regulation in Article 21 of the Law, “in the event of termination of the seafarer’s employment contract abroad by both the employer and the seafarer in accordance with the provisions of Article 14 of the Law, the employer or the employer’s representative (captain) shall return the seafarer to the port of mooring, and all facilities shall be provided until he arrives at the port of mooring, including travel money.
According to Article 25/2 of the Law, in the lawsuits set out in Articles 21, 22 and 23, the seafarer must request repatriation within one week of the termination of his/her employment or the termination of his/her employment contract.
What is the obligation to issue a work reference certificate?
The obligation to issue a certificate of employment to a seafarer whose employment contract has been terminated is one of the consequences of termination and is another of the employer’s obligations. According to Article 12 of the Maritime Labor Law; “the seafarer who leaves his job is given a document by the employer or the employer’s representative showing the type and duration of his work.
What is the balance time fee?
According to Paragraph 1 of the Article, “if the employer terminates the service contract immediately without just cause, the employee may claim as compensation for failure to comply with the termination notice period in the lawsuit of indefinite-term contracts and the contractual period in the lawsuit of fixed-term contracts, the amount that he/she would have earned if these periods had been complied with.”
In order to claim the remaining period salary, which is one of the consequences of termination in fixed-term employment contracts following is required;
Termination of a fixed-term employment contract by the employer before its expiry,
The termination must be based on just cause.
What is Termination Compensation?
1. Termination indemnity for seafarer
In the last paragraph of the aforementioned article, whether it is a fixed-term or indefinite-term employment contract, “The judge, taking into account all the circumstances and conditions, may also decide to pay a compensation to the employee, the amount of which he will freely determine; however, the amount of compensation to be determined cannot be more than six months’ salary of the employee”. This compensation is characterized as termination compensation.
2. What is the termination indemnity for the employer?
According to the provision, whether the seafarer has signed an indefinite-term, fixed-term or voyage-based employment contract, the employer has the right to demand compensation equal to ¼ of the monthly salary if the seafarer does not start work without just cause or suddenly quits work.
Compensation for unemployment – What is the status of compensation for seafarers in case of loss or sinking of the ship?
The rule is that seafarers are entitled to appropriate compensation for injury, loss or unemployment resulting from the sinking or loss of the ship.