Law on “Reducing the Impacts of Coronavirus Pandemic on Economic and Social Life and, Law on Amending of Some Laws” (“Law”) was published in the Official Gazette on April 17, 2020. Within the scope of the fight against COVID-19, some laws have been amended as a precaution. In this article, we will examine the changes introduced by this Law, limited to:
(i) the provisions about merchant ships under Law on Protection of Life and Goods at Sea (Law No.4922) and
(ii) Turkish Labour Law (Law No.4857)
The Seaworthiness Certificates, issued to merchant ships in accordance with Article 4 of Protection of Life and Goods at Sea (Law No.4922) and expiring between 11/03/2020 - 31/07/2020, duration has been extended until 01.08.2020 due to Coronavirus pandemic.
Annual statutory audits for the hull, machinery, boiler, general equipment, tools and materials for lifesaving, fire protection and fire extinction etc. of merchant ships, based on Article 3 of Law No.4922, are also extended until 01.08.2020. The Ministry of Transportation and Infrastructure is authorised to extend the duration for 3 more months at the expiration date.
The Law Numbered 7244 has crucial amendments on employee-employer relations under Labour Law. Accordingly, Provisional Article 10 is added to the Labour Law (Law No.4857) and temporary termination ban of employment contracts entered into force.
According to the new regulation, Employers shall not be able to terminate their employment contracts for three months from publishing date of the Law Numbered 7244, i.e. until 17.07.2020, for any reason other than the circumstances listed in the Article 25/II of Labour Law Numbered 4857. The scope of the temporary termination ban of employment contracts is not only for employment contracts under Labour Law but for all job or service contracts under Maritime Labour Law, Media Labour Law and Law of Obligations.
On the other hand, in the same regulation, Employers have been granted authority to send part or all of their employees to non-paid leaves until 17.07.2020 unilaterally and it is accepted that unilaterally sending an employee to unpaid leave may not grant the employee a legitimate termination right of the employment contract.
As a rule, employee’s non-paid leave is a subject to Article 22 of Labour Law. According to Article 22 of Labour Law non-paid leave is only possible if the employer submits a written proposal about this matter and employee gives written consent in 6 following working days. So, under normal circumstances reserving an employee to a non-paid leave unilaterally, i.e. without written consent, grants employee the legitimate termination right of the employment contract. However, employees shall not be able to use this right due to the temporary prohibition of termination of employment contracts under article Temporary Article 10 added to Labour Law by the Law Numbered 7244.
However, the Law does not contain any provision or explanation about what if in case of not extending the duration at the end of the three months. Do employers need to get written consent of the employee to continue the duration of non-paid leave at the end of the duration or does continuing to non-paid leave without written consent grant legitimate termination of the employment contract for employees? Thus, it is highly recommended to the parties to follow recent developments about rules and principles which will be imposed at this period.
Finally, Employer or Representative of the Employer who terminates an employment contract in contrary to the Temporary Article 10 – i.e. those who terminate the employment contract for the reasons other than circumstances listed at the Article 25/II of the Labour Law (situations that do not comply with the rules of morality and goodwill and similar reasons)- will be punished with an administrative fine for each of the employee whose contract is terminated, equal to the monthly gross minimum wage at the date of termination. The President of the Turkish Republic has authorised to the extent these three months duration to six months.
With the Provisional Article 24 added to the Unemployment Insurance Law No. 4447 dated 25.08.1999 by Law No. 7244 the terms of benefiting from the cash fee support are as follows:
- In terms of those who work on the date of entry into force of Law No. 7244;
- To be sent to non-paid leave unilaterally by the employer in compliance with the Temporary Provision 10
- Not benefitting from short-time work allowance,
- In terms of those whose employment contract terminated after 15.03.2020;
- Termination of the employment contract in compliance with article 51 of the Unemployment Insurance Law No. 4447,
- Not benefitting from unemployment insurance under the Unemployment Insurance Law.
39,29 Turkish Liras will be paid from the fund as cash fee support for each day passed in non-paid leave or unemployed to those who provide these conditions, on condition that not receiving retirement pension pay from any Social Security Institute, limited to three months from 17.04.2020. Except for the stamp tax, no other deduction will be made from these payments.
If it is detected that employees who benefit from the cash fee support according to the Temporary Article 24 are actually employed in this period, The Employers will be punished with an administrative fine for each employee as separately, equal to the monthly gross minimum wage at the date of the action. These administrative fines will be collected from these employers with the statutory interest to be charged starting from the payment date of the cash wage support.
The same provision also regulates that employees those who benefit from the cash fee support will be deemed as an insurance holder under the Article 60 paragraph one item (g) of the Social Insurance and General Health Insurance Law (Law No.5510) and their insurance premium will be covered from the fund.
The Law numbered 7244 also started immediate payment system for short-time working allowance by Temporary Article 25 added to the Unemployment Insurance Law. The short-time working allowance will be paid instantly right after the applications for short time working by Employers, due to compelling reasons because of COVID-19, without any compliance audit, just based on the employer’s declaration. In case of detection that over and improper payments have been made due to wrong information and document, all payments made will be recharged with their statutory interests from the employer.