Law No. 4857
CHAPTER ONE General Provisions
Purpose and Scope:
Article 1. The purpose of this Act is to regulate the working conditions and work-related rights and obligations of employers and employees working under an employment contract.
With the exception of those cited in Article 4, this Act shall apply to all the establishments and to their employers, employer’s representatives and employees, irrespective of the subject matter of their activities.
Establishments, employers, employer’s representatives and employees shall be subject to this Act irrespective of the date of the notification to be made to the regional directorate of labour under Article 3.
Definitions:
Article 2. The employee is a real person working under an employment contract; the employer is a real or corporate person or a noncorporate institution or organisation employing employees; and the relationship established between the employee and employer shall be referred to as the employment relationship. The unit wherein the employees and material and immaterial elements are organised with a view to ensure the production of goods and services by the employer is called the establishment.
All premises used by reason of the nature and execution of the work and organised under the same management, including all facilities annexed to the establishment such as rest rooms, day nurseries, dining rooms, dormitories, bathrooms, rooms for medical examination and nursing, places for physical and vocational training and courtyards as well as the vehicles are deemed to be part of the establishment.
The establishment is an integrated organisational entity within the meaning of the annexed and adjunct facilities and vehicles.
The employer’s representative is the person acting on behalf of the employer and charged with the direction of work, the establishment and enterprise. The employer is directly liable towards the employees for the conduct and responsibilities of his representative acting in this capacity.
Any obligations and responsibilities for which the employer is liable under this Act shall also be borne by the employer’s representative. Bearing the status of an employer’s representative does not abrogate the rights and obligations which one has as an employee.
The connection between the subcontractor who undertakes to carry out work in auxiliary tasks related to the production of goods and services or in a certain section of the main activity due to operational requirements or for reasons of technological expertise in the establishment of the main employer (the principal employer) and who engages employees recruited for this purpose exclusively in the establishment of the main employer is called “the principal employer-subcontractor relationship”. The principal employer shall be jointly liable with the subcontractor for the obligations ensuing from this Labour Act, from employment contracts of subcontractor’s employees or from the collective agreement to which the subcontractor has been signatory.
The rights of the principal employer’s employees shall not be restricted by way of their engagement by the subcontractor, and no principal employer – subcontractor relationship may be established between an employer and his ex- employee. Otherwise, based on the notion that the principal employer- subcontractor relationship was fraught with a simulated act, the employees of the subcontractor shall be treated as employees of the principal employer. The main activity shall not be divided and assigned to subcontractors, except for operational and work- related requirements or in jobs requiring expertise for technological reasons.
Declaring the establishment:
Article 3. The employer who sets up or takes over an establishment covered by this Act, who completely or partly changes the nature of his business, or who permanently closes down an establishment due to the completion of work or for any other reason must, within one month, notify the regional directorate of labour of the name and surname or trade mark and address as well as the names, surnames and addresses of employer representatives, if there are any.
The subcontractor must also make notification for his own establishment set up in order to produce goods or services in his capacity as subcontractor, according to the stipulations envisaged in the first sentence of this Article
Exceptions:
Article 4. The provisions of this Act shall not apply to the activities and employment relationships mentioned below.
Sea and air transport activities,
In establishments and enterprises employing a minimum of 50 employees (50 included) where agricultural and forestry work is carried out.
Any construction work related to agriculture which falls within the scope of family economy,
In works and handicrafts performed in the home without any outside help by members of the family or close relatives up to 3 rd degree (3 rd degree included),
Domestic services,
Apprentices, without prejudice to the provisions on occupational health and safety,
Sportsmen,
Those undergoing rehabilitation,
Establishments employing three or fewer employees and falling within the definition given in Article 2 of the Tradesmen and Small Handicrafts Act,
However, the following shall be subject to this Act;
Loading and unloading operations to and from ships at ports and landing stages,
All ground activities related to air transport,
Agricultural crafts and activities in workshops and factories manufacturing implements, machinery and spare parts for use in agricultural operations,
Construction work in agricultural establishments,
Work performed in parks and gardens open to the public or subsidiary to any establishment,
Work by seafood producers whose activities are not covered by the Maritime Labour Act and not deemed to be agricultural work.
The principle of equal treatment:
Article 5. No discrimination based on language, race, sex, political opinion, philosophical belief, religion and sex or similar reasons is permissible in the employment relationship.
Unless there are essential reasons for differential treatment, the employer must not make any discrimination between a full-time and a part-time employee or an employee working under a fixed-term employment contract (contract made for a definite period) and one working under an open-ended employment contract (contract made for an indefinite period).
Except for biological reasons or reasons related to the nature of the job, the employer must not make any discrimination, either directly or indirectly, against an employee in the conclusion, conditions, execution and termination of his (her) employment contract due to the employee’s sex or maternity.
Differential remuneration for similar jobs or for work of equal value is not permissible.
Application of special protective provisions due to the employee’s sex shall not justify paying him (her) a lower wage.
If the employer violates the above provisions in the execution or termination of the employment relationship, the employee may demand compensation up his (her) four months’ wages plus other claims of which he (she) has been deprived. Article 31 of the Trade Unions Act is reserved.
While the provisions of Article 20 are reserved, the burden of proof in regard to the violation of the above – stated provisions by the employer rests on the employee.
However, if the employee shows a strong likelihood of such a violation, the burden of proof that the alleged violation has not materialised shall rest on the employer.
The transfer of the establishment or one of its sections:
Article 6. When, due to a legal transaction, the establishment or one of its sections is transferred to another person, employment contracts existing in the establishment or in the section transferred on the date of the transfer shall pass on to the transferee with all the rights and obligations involved.
In the calculation of all the entitlements based on the employee’s length of service, the transferee (new employee) must act, in regard to the transactions concerning the employee, according to the date on which the employee had started work under the transferor (previous employer).