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What Are The Rights of Foreigners Working in Turkey?
Especially in recent times, with the influence of globalization, there has been a noticeable increase in the number of foreign employees in Turkey. The first question that comes to mind regarding foreigners working in Turkey is how they will obtain a work permit or residence permit in Turkey.
Our article titled “Work Permit For Foreigners in Turkey” contains detailed information about the work and residence permits for foreigners who will work in Turkey; in this article, we will focus on the situations of foreign employees in terms of Labor Law, such as their rights to receivables and compensation.
In examining the situation of foreign employees in terms of Labor Law, it is necessary to determine first under which Law foreign employees are subject. The provisions related to the employment relationships and working periods of foreign employees living in Turkey are regulated by the International Labor Force Law (ILFL). Generally, it can be said that in cases where there is no provision in the ILFL regarding the employment relationships of foreign employees working in Turkey, the Labor Law will be applicable, except for the exceptions in Article 4 of Labor Law No. 4857.
Foreign Employment Relationship
The establishment of an employment relationship is regulated in Law No. 4857; Article 8, titled “Employment Contract, Types, and Termination“, stipulates that the employment contract is not subject to any special form unless otherwise stated in the Law but that employment contracts lasting one year or more must be made in writing.
Although there is no special regulation within the scope of the Labor Law regarding the establishment of an employment relationship by foreigners, foreigners must fulfill the regulations and restrictions found in other laws. For example, the fact that a work permit is not obtained at the time the employment relationship is established means that the employment fact has not yet occurred. The Supreme Court of Appeals 9th Civil Chamber has decided as follows on the subject:
Supreme Court of Appeals 9th Civil Chamber 2006/20061 Case, 2006/24888 Decision:
“The defendant applied to the relevant ministry for obtaining a work permit on 07.06.2004, and the ministry requested the completion of missing documents. No action was taken after this letter, and the relevant application documents were sent back by the ministry. The plaintiff did not fulfill his/her obligations regarding obtaining a work permit. As a result, the defendant notified the plaintiff by a notary warning letter dated 18.06.2004 that the contract was terminated as of 21.06.2004, as no work permit had been granted by the date the plaintiff was required to start work. Although this warning letter was served on the plaintiff on 22.06.2004, it has been established with the file content that the plaintiff was not admitted to the workplace on 21.06.2004. Essentially, the court also accepts this matter. Therefore, although there is a written employment contract between the parties, the employment fact has not occurred, and a de facto employment relationship has not been established. Since the penalty stipulated in the contract is not a return penalty, the plaintiff cannot demand it because the employment contract has not been established.“
As stated, although the work permit has a restrictive effect on foreigners’ employment, there are not many restrictive provisions in other laws regarding the establishment of an employment relationship with foreigners.
The Invalidity of Employment Contracts Made With Foreign Employees
The invalidity in employment contracts made with foreign employees arises for two reasons. The first is the invalidity related to foreigners’ work permits and work permit exemptions, and the second reason is the invalidity related to professions where foreigners are prohibited from working.
The sectors and professions where foreign employees cannot work are regulated by the ILFL (International Labor Force Law). According to the relevant regulation, examples of professions where foreigners cannot work include dentistry, veterinary medicine, Law, notary public, tour guide, and the sale of state-specific items. In addition, there are also professions and sectors where some special legal provisions prohibit foreign employment.
The second reason for invalidity is foreigners’ work permits and work permit exemptions. As a rule, foreigners cannot work in Turkey without a work permit or work permit exemption; administrative fines will be imposed on both the employee and the employer for work performed contrary to this, as stipulated in Article 23 of the ILFL.
From this, it can be said that working in Turkey without a work permit or work permit exemption, and working in professions and job groups that are prohibited for foreigners, will render the employment contract invalid. Apart from this, situations that will render the employment contract invalid, as stated in Law No. 4857 and other legal provisions, are also valid for foreigners.
Employment Contracts of Foreigners to Work in Turkey and Types of Employment Contracts
As we mentioned above, the laws to which foreign employees are subject in terms of Labor Law are the ILFL and Labor Law No. 4857. There is no specific regulatory or restrictive provision in the relevant laws regarding the type of contract to be made with a foreign worker. Therefore, it should be noted that the employer who will enter into an employment contract with a foreign worker can determine the type of contract according to the general provisions found in the Labor Law.
In this regard, it should be noted that foreign workers may be entitled to severance pay or notice pay according to the types of contracts they make and may also fall under job security.
However, an important point here is the nature of the work permit in determining the type of employment contract. Indeed, whether the employment contract is for a definite or indefinite period may vary depending on whether a temporary or permanent work permit is obtained.
As is known, making a fixed-term employment contract is subject to certain conditions, one of which is the existence of an objective situation, such as a specific job for a specific period, the completion of a certain job, or the emergence of a certain fact. The conditions for a fixed-term employment contract regulated in Article 11 of Labor Law No. 4857 are not limited, and it is assumed that it meets the necessary condition for a fixed-term employment contract in cases where other situations also constitute an objective condition.
According to the ILFL, work permit periods are regulated. According to Article 10 of the ILFL, foreigners are granted a work permit valid for a maximum of one year, provided that it does not exceed the duration of the employment contract.
The duration of work permits to be obtained after the first year also varies, and it is anticipated that these varying work permit durations will meet the objective condition for making a fixed-term employment contract. In a relevant decision, the Supreme Court of Appeals ruled that:
“…since the plaintiff worked with temporary permits, there is a substantial reason to make a fixed-term employment contract, and the renewed fixed-term employment contract will not become indefinite…“.
In conclusion, if the foreign worker has obtained a temporary work permit, the relevant employment contract will not turn into an indefinite-term employment contract. However, if the foreign worker has a permanent work permit, the contract made in this case will be accepted as an indefinite-term employment contract. If the existence of a fixed-term employment contract is accepted, the foreign worker will be deprived of certain rights. Indeed, severance and notice pay will not be possible when the fixed-term employment contract ends, and it should also be noted that a worker employed with a fixed-term employment contract is not covered by job security.
In conclusion, if it is accepted that a fixed-term employment contract must be made in cases where the foreign worker has a temporary work permit, the consequences mentioned above of the fixed-term employment contract will be valid for the foreign worker.
Also Read: What Are The Documents Required in an Employee’s Personnel File in Turkey?
Part-Time Work of a Foreign Employee
Part-time work, regulated in Article 13 of Labor Law No. 4857, is a type of employment contract where the worker works significantly less than a comparable full-time worker. In Article 6 of the Working Hours Regulation, work performed up to two-thirds of the comparable full-time work made with a full-time employment contract is considered part-time work.
When part-time work is examined under the ILFL (International Labor Force Law), there is no restriction regarding part-time work by foreigners within the scope of the ILFL. However, the main point to consider here is the matter of foreigners obtaining a work permit. Indeed, foreigners’ work permit applications are finalized by checking many criteria, including the foreigners’ sources of livelihood in Turkey.
In this context, it should be noted that foreign employees’ insurance premiums are calculated based on the monthly wage declared during the work permit application and according to the full-time employment contract. Therefore, an assessment will be made according to the sector in the work permit application that the foreign employee will make for part-time work; also, the condition that the monthly insurance premium to be paid for the foreign employee must not be less than the declared premium amount is sought.
Foreign Employee Working in Turkey With a Probationary Employment Contract
As is known, the probationary period is the period during which the worker’s performance, etc., is tested, and a decision is made whether to continue the employment contract accordingly. The probationary period is limited to 2 months and can be extended to 4 months with a collective employment contract.
When the provisions of the ILFL are examined, there is no provision regarding whether foreigners can make a probationary employment contract in Turkey. However, the point to be considered here is that the foreigner must also have a work permit while working during the probationary period.
In other words, the probationary period does not give the foreign employee the right to work without obtaining a work permit. Apart from this, there is no extra provision for foreign employees regarding the probationary period, and foreign employees are subject to the provisions related to the probationary period found in Labor Law No. 4857.
Wages Earned by a Foreign Worker
There are some different provisions for foreign employees regarding wages, which is the essential obligation of the employment contract. These different provisions are more about the amount and wage declaration rather than the existence of the wage. According to Article 13 of the UIGM (Directorate General of International Labor) Implementation Regulation, it is stated that an appropriate wage must be determined by considering factors such as the position in which the foreign employee will work and its impact on the economy.
Therefore, it is observed that the wages to be paid to foreign employees are determined as the minimum wage and its multiples, taking into account the minimum wage in effect on the date of the foreigner’s work application. According to the latest increase in the minimum wage in July 2023, the wage amounts determined for foreigners in work permit applications are as follows:
- For top executives and pilots – 6.5 times the minimum wage – 194.25 TL
- For unit or branch managers, engineers, and architects – 4 times the minimum wage – 658 TL
- For those who will work in jobs requiring expertise and mastery, teachers and doctors – 3 times the minimum wage – 243.50 TL
- For foreigners who will work in tourism-animation organization companies as acrobats and similar titles, and foreigners who will work as masseurs, masseuses, and SPA therapists – 2 times the minimum wage – 829 TL
- For foreigners who will work in other professions (such as sales staff, marketing, export officers, staff status working foreigners) – 1.5 times the minimum wage – 121.75 TL
- For foreigners to be employed in domestic services – the minimum wage – 414.50 TL
(Note: The currency is given in Turkish Lira (TL))
Annual Leave and Break Rights of Foreign Employees
Since foreign employees are subject to Law No. 4857, as mentioned earlier, there is no difference between foreign employees and Turkish citizen employees regarding annual leave. According to Law No. 4857, the annual leave that the employee is entitled to is determined by seniority.
Accordingly, each employee who completes a year will be entitled to annual leave; an employee with a seniority of 1-5 years will earn at least 14 days, an employee with a seniority of 5-15 years will earn at least 20 days, and an employee with a seniority of more than 15 years will earn at least 26 days of annual leave.
Foreign employees also have the right to leave on public holidays regulated in Law No. 4857. Also, foreign employees can earn rights to leaves such as maternity leave, motherhood leave, and breastfeeding leave, which female employees can earn, and being a foreign employee does not make any difference in this regard.
Break times are also regulated in Law No. 4857, and break times are arranged as 15 minutes for jobs lasting 4 hours or less, 30 minutes for work between 4 and 7.5 hours, and 1 hour for work lasting more than 7.5 hours. Foreign workers, like Turkish workers, have the right to break times according to the periods specified in Law No. 4857.
Working Hours of Foreign Employees
Article 69 of Labor Law No. 4857 states, “the working time is a maximum of 45 hours“. A shorter working time can be agreed upon in the contract. However, even if the contract determines a working time longer than 45 hours, the part exceeding 45 hours will be considered overtime.
As a rule, employees earn overtime pay for work they do more than 45 hours, while in some cases, workers may consent to this situation. According to the relevant regulation, the employer can obtain the employee’s consent for overtime work during the making of the contract or when the need for overtime work arises. However, the point to be noted here is that the employee can revoke the consent for overtime work. This consent will take effect 30 days later.
In conclusion, there is no additional provision in Law No. 4857 and other legislation regarding the working hours of foreign employees, and the provisions to be applied regarding the working hours of foreign employees will also be subject to the general rule.
Foreign Employees Earning Overtime Pay
There is no additional provision in the relevant legislation regarding foreign employees working overtime and the wages they earn after overtime work. Therefore, the overtime pay calculations of foreign employees subject to Law No. 4857 will also be calculated according to the relevant provisions.
In the arrangement of Law No. 4857, work exceeding 45 hours a week is considered overtime. In cases where the contract determines a shorter working hour, work done more than what is stated in the contract will also be considered overtime work.
In calculating overtime, if the working time specified in the employee’s contract is less than 45 hours, the employee will earn the hourly wage increased by 25% for the extra hours worked up to 45 hours. For the part exceeding 45 hours, overtime pay is earned at a rate increased by 50%.
In conclusion, overtime calculations for foreign employees will also be made according to the regulations specified in Law No. 4857, and there is no significant issue for foreign employees. The statute of limitations to be applied to overtime payments is again the 5-year statute of limitations specified in Law No. 4857.
Retirement of Foreign Employees
There is no different regulation regarding the retirement of foreign employees in Turkey. Foreign employees, like Turkish employees, will be able to benefit from retirement status in Turkey. The conditions sought for retirement in Turkey are reaching the age of 58 for men and 60 for women and reaching 7200 premium days.
Status of Foreign Workers in Terms of Insurance
The insurance of foreigners with a work permit in Turkey is also subject to general regulation and is mandatory. There are no distinctions between foreign workers and Turkish citizen workers in terms of the premiums to be paid and the rights provided by insurance. Indeed, we have already mentioned above that there is no distinction for foreign workers in terms of the periods spent on insurance and the premiums to be paid, as well as in terms of qualifying for retirement.
One point to be noted for foreign workers is the provision in the third paragraph of Article 11 titled “Beginning of Insurance and Notification Obligation” of the Social Insurance Transactions Regulation, which stipulates that “…it is mandatory to notify the Social Security Institution that the insurance has started within 30 days from the start date of the work permit or within 30 days from the notification date of the work permit to the employer if the work permit date is different…“. Both the employer and the employee may face administrative fines in case of notifications that are not made on time or at all.
In terms of foreigners’ insurance, both Article 22 of the International Labor Law No. 6735 and Article 25 of the International Labor Law Implementation Regulation will be applicable. It should be noted that according to Article 25 of the International Labor Law Implementation Regulation. At the same time, it is mandatory to start working within 30 days from the start date of the work permit for domestic applications; a 30-day period is foreseen for applications made abroad.
Foreign Workers’ Refusal to Consent to Substantial Changes in Working Conditions
The regulation in Article 22 of Law No. 4857 regarding making substantial changes in the working conditions of employees is also applicable to foreign workers. Indeed, there is no separate provision for foreigners on this matter and no restriction in the article.
In the relevant article of the Law, it is clearly stated that “…the employer can only make a substantial change in the working conditions that have been formed by the employment contract or by sources such as personnel regulations and similar sources or workplace practices by notifying the worker in writing. Changes that are not made in this form and are not accepted in writing by the worker within 6 working days do not bind the worker…“.
According to the text of the article, making substantial changes in working conditions depends on the worker’s consent, and the worker naturally has the right to refuse consent. The worker’s decision to reject the change is not a reason for termination by the employer alone. Still, if the employer is justified in making the change and the worker does not accept the change, this situation will be a valid reason for termination by the employer.
Foreign Workers’ Eligibility for Unemployment Insurance
The Social Security Institution (SGK) has published some bulletins on foreign workers’ insurance, and questions of interest are answered from there. In one of the bulletins on the subject, SGK stated that “…foreign workers who meet the conditions for earning unemployment insurance can apply to the Institution and benefit from unemployment insurance…“. There is no difference in the unemployment allowance determined and given by ISKUR within the scope of unemployment insurance, and foreign workers can also qualify for unemployment allowance.
In situations such as insurance and unemployment, some rights and opportunities are offered to employees by SGK or other public institutions. As can be seen, foreign workers are not treated separately and are subject to general regulations.
Foreign Workers’ Equality Rights
Many Laws and International Agreements have regulated the right to equality, and there are also additional regulations in terms of Labor Law. Indeed, the right to equality, which is regulated in Article 10 of the Constitution as “everyone is equal before the law without discrimination based on language, race, color, gender, political thought, philosophical belief, religion, sect, and similar reasons“, has also been regulated in labor law by Law No. 4857.
Article 5 of Law No. 4857 states that “…no discrimination based on language, race, color, gender, disability, political thought, philosophical belief, religion, sect, and similar reasons can be made in the employment relationship…“. When the relevant article and constitutional regulations are evaluated together, the prohibition of discrimination and the right to equality for foreign workers have been clearly regulated in the Turkish Legal System.
In terms of Labor Law, discrimination contrary to Article 5 of the Labor Law is both specified as a reason for justified termination for the worker and entitles the worker to discrimination compensation.
Foreign Workers Working Through Temporary Employment Relationships and Subcontracting
In Law No. 4857, the temporary employment relationship and subcontracting relationship have no special effect on foreign workers. Indeed, neither Law No. 4857 nor the International Labor Law (UIK) has subjected this situation to special regulation for foreigners. At this point, what foreign workers and employers need to pay attention to is the duration of the work permit.
Indeed, suppose the work permit is obtained for a limited period. In that case, the worker will again be limited by this time constraint and will be able to work until the end of the current work permit period without needing to obtain a separate work permit to work with a temporary employer or subcontractor.
Another point to mention here is that the temporary employer or subcontractor’s line of business should not be one where foreign workers are prohibited, and the foreign worker should not perform prohibited professions.
The Effect of Workplace Transfer on Foreign Workers’ Work Permits
There is also no separate regulation for foreign workers regarding the transfer of the workplace, and the effect of the workplace transfer on the foreign worker’s employment contract does not constitute any difference from the general regulation in Law No. 4857.
The effect of workplace transfer on foreign workers is related to the work permit. There is no provision regarding how the workplace transfer will affect the existing work permits. However, as a result, workplace transfers, mergers, acquisitions, changes in type, etc., result in a change of employer for the employees.
The change of employer requires the foreign worker to obtain a new work permit. Therefore, it is possible to say that foreign workers need to reapply for a work permit in situations subject to regulations related to workplace transfer in terms of labor law. One point to note is that the extension application to be made in the extension application of the foreign worker whose workplace is transferred will be evaluated as the first application.
Termination of Foreign Workers’ Employment Contracts
Foreign workers are also subject to the relevant provisions of Law No. 4857 regarding terminating their employment contracts. According to these provisions, the compensation that will arise in the case of termination of the employment contract with or without just cause, applications for reinstatement, etc., will be subject to the provisions of Law No. 4857.
In cases of termination for valid reasons and job security, as mentioned above, there is no special provision for foreign workers; cases of termination for valid reasons, reinstatement, compensation arising from reinstatement, etc., will be applied in their general form as regulated in the Law.
At this point, what needs to be noted is the nature of the work permit, as explained above. Indeed, the Supreme Court has ruled in some decisions that there is an objective reason to make a fixed-term employment contract when the work permit is temporary. In these cases, if the employment contract is made with the foreign worker for a fixed term, it will not be possible for the foreign worker to be under job security according to the general provisions of the Labor Law, and the foreign worker will also not be entitled to notice compensation.
In cases where the employment contract is made in this way for a fixed term, the foreign worker will be entitled to compensation for the idle period in case of unfair termination by the employer. In other words, since the foreign worker’s work permit determines the type of employment contract to be made with the foreign worker, the termination of the employment contract may vary according to the type of employment contract. However, apart from this, there is no regulation that will create a difference for foreign workers; the compensation that the worker will be entitled to, reasons for termination, etc., all regulations will be determined according to the general provisions of Law No. 4857.
In cases of just termination, in addition to the general regulations, a situation specific to foreign workers is related to the foreign person’s inability to obtain or renew a work permit. The rejection of the foreign worker’s work permit application or the expiration of the work permit will be a compelling reason originating from the worker. It will give the employer the right to terminate for just cause. In such a termination, the worker will not be entitled to severance pay and the existence of a just cause for the employer will be accepted.
Conclusion
The main regulation that finds application in relation to the increasing foreign employment in recent times is Law No. 4857. In addition to the general framework drawn by the Law, some situations may differ for foreign workers, and most situations that show differences are related to the foreign worker’s work permit.
Indeed, the basic relationship between workers and employers is the employment contract, and the nature of the employment contract to be established also varies according to the type of the foreign worker’s work permit. Accordingly, the type of employment contract creates differences in the provisions to be applied. In some cases, there are also some different provisions for foreign workers regarding the termination of the work permit.
In conclusion, foreign workers will be able to work in Turkey by obtaining a work permit. There is no limit in this regard except for the sectors and professions where foreigners are prohibited. The UIK also regulates the conditions for foreign workers’ work permits, and both the UIK and the provisions of Law No. 4857 will find applications in disputes between foreign workers and their employers.
