| Reading Time: 12 Minutes

Turkish Labour Law Regulations Relating Women

Women’s Workplace Regulations in Turkey

As in various parts of life, legal regulations have been made to equal opportunity for men and women and increase women’s participation in business life. In this study, the legal arrangements for women employees in Turkish Labour Law (TLL) were examined in the context of women’s rights (as human rights) in a broad way, and it was discussed whether these provisions were changes made in “favour” of women or were a manifestation of a male-dominated (patriarchal) mindset.

A Review in The Context of Women’s Rights

Regulations regarding women’s employment and working conditions have always been debated. Whether women can participate adequately in business life, the efficiency of the adjustments made for women related to working conditions, whether it is correct to apply positive discrimination is still up to date.

This article will briefly touch on the concept of positive discrimination, discuss whether positive discrimination is applied to women’s employment and mention the women’s working conditions. Contrary to the traditional view, we will discuss whether these provisions are made in the “favour” of women or appear in the androcentric (male-dominated) view.

Is Positive Discrimination a “Privilege?”

In TLA Dictionary (Turkish Language Association), positive discrimination is defined as “supporting certain groups, who are considered to be not living under equal conditions with others in the society, by giving them various privileges.“[1] In the Oxford Dictionary, the term takes place as “the practice or policy of making sure that a particular number of jobs, etc. are given to people from groups that are often treated unfairly because of their race, sex, etc.”[2]

Some academics say positive discrimination is an oxymoron (using opposite words together), a self-contradictory word.[3] It is stated that inequality cannot be resolved with a “new kind of discrimination” and thus does not contribute to the solution. According to the opposite opinion, positive discrimination is appropriate and useful in some areas of life; it makes a non-radical and practical contribution to resolving the problem of inequality. Accordingly, it should be possible to make arrangements to improve the situation of disadvantaged groups in favour of them, excluding fields that require special skills such as art or science.

In our opinion, positive discrimination would not be possible in an ideal world where there is absolute equality (a parity) between men and women (physical condition should not be considered in this context). But today, most women are forced to live in relationships which are needed some dependence where they do not have economic or social freedoms. We consider it important to support any initiative that improves the living conditions of women, and we disagree with the view that perceives positive discrimination as a form of privilege.

However, it should be remarked that positive discrimination is not a suitable instrument to eliminate the equality problem determinately. Even if the incentives called positive discrimination serve a current and positive purpose, they are not enough to solve the problem radically.

Is The Principle of Equal Treatment an Implementation of Positive Discrimination?

There are provisions in The Labour Law indicating “no gender-based discrimination can be made in the business relationship” and “a lower wage cannot be determined for the same job because of the gender of employees.“[4] So, an employee cannot be treated separately from the other just because she is a woman, and women cannot be paid less than male employees just because of their gender.

We think it is impossible to evaluate these provisions as part of positive discrimination. The principle of equality is an institution that takes part in the Constitution and universal law; it is a concept born from fundamental human rights and is a natural outcome of being human.

Stating where human rights end and positive discrimination begins is important in protecting and improving women’s rights. Whether basic human rights are positive discrimination hinders the women’s movement (feminism for sure) and is essentially the output of a mentality that deprives women of their most basic human rights.

Here is an article for further reading that might interest you: What is Labour Law and The Principle of Equal Treatment?

Are The Restrictions Imposed on Women Employees Regarding The Workplace Reasonable?

The Labour Law regulates that women are not allowed to be employed in underground or underwater works such as mines and cable laying, sewer, and tunnel construction.[5] This provision has been transferred from the Turkish Labour Law No. 1475 (former) to the new labour law, which is still in force. Accordingly, even if the woman employee wants to work in the jobs listed in the article, the employer will not have to employ her in such workplaces. The employer who acts contrary to this is faced with administrative fines.

What is protected by this provision? Why does the legislator not allow women employees to work underground or underwater? In our opinion, this provision is an appearance of one of the oldest biases against women, the notion of “physical disadvantage.” In our opinion, although it can be accepted that working in the sewer or underground may not be a convenient job for everyone, the regulation that all women cannot work in these jobs is against fundamental human rights, especially the principle of equality anyway.

Article 72 of the Labour Law, which is stated in footnote number 5, states that women of all ages and men under the age of 18 are also within the scope of the prohibition in the jobs mentioned above. It is not possible to say that the provision that indirectly equates women to minor boys positively affects women, which should not be evaluated within the scope of positive discrimination. The idea of “perceiving women as individuals in need of protection” lies in the intellectual background of such legal regulations and practices[6] which coincides with the idea that the women’s movement is confronting.

Just as equality cannot be achieved by banning employment opportunities for women in certain fields of work, it is also not possible to enhance the number of woman employees by such means. Whether or not to labour in such works should be the woman’s own choice.

How is The Night Shift Applied For Women?

According to the Labour Law, night means the period between 20.00 at the very latest and 06.00 at the very earliest.[7] It is possible to say that the regulations of night work of women include more reasonable formation than the practice in terms of the banned workplace we have mentioned above. During Law No. 1475 in force, night work was completely prohibited for women, just like underground work. Even it is impossible to talk about an absolute ban for women in the current practice, there are still some restrictions.

First of all, according to the provisions of the “Regulation on Employment Conditions of Female Employees in Night Shifts,” the term “woman” means “women over the age of eighteen.” So, night shifts are prohibited for women under the age of eighteen by all manner of means.

Women (who are over the age of eighteen) can’t work more than 7.5 hours for a day under any normalcy. However, with an amendment made in 2017, it was determined that women working in tourism, private security and health services could be employed for more than 7.5 hours a day. But in this situation, written consent of the woman who will work for more than 7.5 hours is mandatory.[8]

It is also mandatory for a woman to obtain a medical report indicating suitable working night shifts.[9]

What are The Practices For Pregnant Women and Women Who Have Children?

According to the Labour Law, women cannot be employed for 8-week periods before and after birth. However, if the employee wills, she can continue to work with the doctor’s approval up to 3 weeks before birth. This is called “maternity leave” in legal practice. Once the employee has used her maternity leave, now can only use one of her “half-work” or “unpaid leave” rights at the end of her leave. These rights should be considered “optional” after the maternity leave; using one of these once, the possibility of using the other right disappears.

Half-time work is the unpaid leave given to women or men who adopt a child under the age of three, under certain conditions, between 60 and 360 days, for the care and upbringing of their child, from the end of maternity leave.[10] While working in half of the weekly working hour in half-work, part-time means working less than 2/3 of the weekly working hour.

In accordance with the provisions of the “Regulation on Part-Time Work to be Performed After Maternity Leave or Unpaid Leave,” woman employees can request part-time work at any time from the end of the unpaid leave until the beginning of the month following the beginning of the compulsory primary school age of the child.[11]

If the employee wills, the employer must meet part-time work requests within one month at the latest from the notification. The employee must be notified in writing that the request has been met.[12]

Is Severance Pay Due to Marriage Against The Principle of Equality?

Per the relevant provisions -those still in force- of the former Labour Law No. 1475, a woman who terminated her employment due to marriage is entitled to severance pay.[13] This right is granted only to women. So, can we explain this situation within the concept of positive discrimination, or could it be said this is following the principle of equality?

This issue has been concluded with a Constitutional Court decision in the past. In 2006, an application was filed against the provisions regarding the entitlement to severance pay of married women because the regulation is against the principle of equality.[14]

In our opinion, the justification of the Izmir 6^th Labour Court, which applied for the annulment of the regulation, is all right. In the reasoning of the application, the court stated that equality between women and men (husband and wife) is guaranteed by the provisions of the Turkish Civil Code; it cannot be claimed that the main duty of the woman is the care and services of the house, she has to accept the residence chosen by her husband, and therefore a compulsory and inevitable reason arises for the termination of employment due to marriage and the court stated that it was unconstitutional to grant women the right to severance pay, which is not granted to male employees.[15]

The case that the Constitutional Court does not find the relevant regulation unconstitutional and rejects the annulment request by the majority is a matter of research in itself, reflecting society’s perspective on women. It is understood from the details of the court that women being entitled to severance pay due to marriage is seen as an example of positive discrimination.[16]

In addition, the Constitutional Court assigns a different role and mission to women in family unity; it essentially repeats some of the opinions contained in the former Civil Code numbered 743.[17]

On the other hand, the justification for the opposing vote of the woman members of the Court (Fulya Kantarcıoğlu and Zehra Ayla Perktaş) is extremely accurate. The members are summarized in the grounds of dissenting votes in terms of the positive discrimination practices aimed to prevent the loss of rights of women due to their gender; the marriage union is based on equality between spouses and entitlement to severance pay; it is stated that one of the members of the marital union cannot be superior to the other.[18]

In our opinion, granting only one side of the relationship the right to severance pay due to marriage is a provision that prevents women’s employment and contains some biases regarding the role of women in society and family life. Trying to justify this with concepts such as “social facts” or “Turkish family structure” does not contribute to the solution. It would be best to expand the severance payment application due to marriage to all parties. Men should also be granted this right.

Here is an article for further reading that might interest you: Marriage in Turkey For Non-Turkish Citizens.

A Former Practise: Menstruation leave

Another issue that has been discussed recently is allowing women during their period of menstruation. Lastly, “Zomato,” an international organization, put this application into effect and the menstruation leave started to be discussed again.[19]

Menstrual leave has been applied in Turkey. Article 6 of the former “Heavy and Dangerous Work Regulation” No. 25494 published in the Official Gazette dated 16.06.2004 included menstrual leave under the name of “menstruation”.[20, 21]

Accordingly, women working in heavy and dangerous works were able to take menstrual leave for five days a month and even longer with a doctor’s report. However, at first, some sectors in which women mostly work were removed from the dangerous class of workplaces, and the possibility of practising menstrual leave was eliminated directly.

After all, in 2013, the relevant regulation was abolished. Thus, there had been a concise period in which menstrual leave is applied and not experienced properly in Turkey.

It is a scientific fact that the menstrual period affects women physically and mentally intensely. Even some women describe this period as an unsuitable time for work, and this situation repeats at certain intervals due to women’s nature. In our opinion, menstrual leave should be seen and implemented as a natural human right, just like the right to live. In the current situation, although it is not realistic to expect an initiative from the State, private corporations should be able to take the initiative. Women employees should not deprive this vital right.

Conclusion: Regulations Regarding Women in Turkish Labor Law

In Labour Law, there are many regulations for women, but honestly, related legislations seem an output of the classical and patriarchal perspective on women. As we have studied under application and severance pay in the workplace and time (night shifts), these regulations do not constitute positive discrimination. Some of them are also against the principle of equality. For thousands of years, the stereotypical roles attributed to women also found a place in the legal order.

In the current situation, positive discrimination is an acceptable phenomenon regarding women’s working conditions and participation in business life. However, positive discrimination alone is not enough to achieve equality. In our opinion, it is necessary to acknowledge that women’s rights are “human rights” and reshape both society and legal practices according to this idea.

Despite all, the rights granted to working women should be recognized as an achievement of the women’s movement. Employers should take an active role in developing and implementing these rights. Women’s rights are an achievement of the women’s movement and struggle. In terms of protecting these achievements and adding new ones, supporting the women’s movement is essential for social peace and absolute equality between women and men.

---

Related Articles