The new Labor Courts Law No. 7036, which includes radical changes in Labor Law proceedings, was published in the Official Gazette on 25.10.2017 and entered into force partially.
With the fundamental changes in the Labor Law No. 4857 and the current labor law legislation, especially in some business cases, applying to the mediation institution from the case, game-changing innovations in practice have come to the fore.
In this study, which we prepared on the subject of ” Changes Coming with the New Labor Courts Law No. 7036 “, the innovations brought by the Labor Courts Law No. 7036 dated 12.10.2017. and how it will affect the practice with a general framework are discussed.
application oriented important changes are ;
- As of 01.01.2018, all kinds of labor receivables (for example, workers will receive overtime wages, employers will receive notice pay, etc.)
- As a result of reemployment lawsuits, local court decisions were removed from the Supreme Court’s control.
- The amount of wage to be taken as a basis for the calculation of the idle time wage and job security compensation will not be the precedent wage, but the wage on the date of the lawsuit.
- Workers whose employment contracts have actually ended will not be able to file a complaint with the Provincial Directorates of Labor and Employment Institution, and will seek their rights before the mediator and then the court. The inspection authority of the Provincial Directorates of Labor and Employment Agency is now limited to workers whose employment contract continues.
- By expanding the mandate of the labor courts, many examinations previously made by other courts have been included in the jurisdiction of the labor court.
- From labor receivables; Severance pay, notice pay, bad faith compensation, claims arising from the violation of the principle of equal treatment and claims arising from annual leave fees were previously subject to a 10-year statute of limitations.
- The Supreme Court of Appeals was closed for many cases, especially the reemployment case, and it was regulated that the decision of the Courts of Appeal, which decided as the upper court, would be final.
1 – The condition of “Application to a Mediator” has been introduced as a condition of lawsuit:
With the Labor Courts Law No. 7036 The biggest change is that the application to a mediator is made a condition of action in lawsuits filed with employee or employer claims and compensation and reemployment claims. With this regulation, in the Labor Courts Law No. 5521, the court encouraged the parties to peace in the first session and if they can’t agree The procedure for continuing the trial was abolished. 3 of the newly adopted law. According to the article:
based on law or employment contracts employee and employer and compensation with requesting reinstatement It is a condition of the lawsuit to apply to a mediator in the lawsuits filed.
In the new law, application to a mediator is a condition for lawsuits in cases of labor claims and reemployment, but there is no obligation to apply to a mediator for pecuniary and non-pecuniary compensation arising from work accident or occupational disease and the cases of determination, objection and recourse related to these.
In cases eligible for mediation, upon reaching an agreement at the end of the mediation activity, no lawsuit can be filed by the parties on the matters agreed upon. As a result of the mediation activity, it is possible to resolve the conflict by more peaceful means by reaching an agreement, but it is also possible not to reach an agreement.
In the event that an agreement cannot be reached as a result of the mediation activity, a lawsuit may be filed in the labor courts, again with the time and procedure stipulated in the law. In this case, the plaintiff has to attach the original or a copy approved by the mediator to the petition of the final report stating that no agreement has been reached at the end of the mediation activity. This issue is extremely important for the new system. In case of non-compliance with the obligation, the court gives a definite period of one week to the plaintiff. If the report is still not submitted after one week, the case will be dismissed as procedural immediately.
The mediation application will be made to the mediation offices in the defendant’s place of residence or in the place where the work is done, just like in employment cases. The process foreseen for mediation applications in the Labor Courts Law No. 7036 It has been kept short and is finalized within 3 weeks as a rule, but it can be extended for 1 more week in compulsory cases.
In the event that the mediation activity is terminated due to the failure of one of the parties to attend the first reconciliation meeting without a valid excuse, the party that did not attend the meeting will be responsible for all the expenses incurred, even if it is justified in the subsequent lawsuit.
Another important issue for the parties in terms of implementation is that all employers must be present in the mediation negotiations, if there is a request for reemployment if there are sub-employers together with the main employer.
If the parties come to an agreement before the mediator, the mediation fee is paid equally, unless otherwise agreed. In the event that a settlement cannot be reached, the mediation fee is counted among the litigation expenses and is borne by the parties accordingly.
The obligation to apply for mediation meetings was introduced not only for workers subject to the Labor Law, but also for journalists regulated by the Law on the Regulation of Relationships between Employees and Employees in the Press Profession, and for seafarers regulated by the Maritime Labor Law.
Finally, if the mediation documents bear the necessary and sufficient signatures, the court does not require an annotation of enforceability. will be considered as a writ and may be subject to enforcement proceedings.
2 – The new litigation system envisaged for reemployment cases:
Law No. 7036 brings some important changes in the trial process regarding reemployment cases. As a matter of fact, 11 of the relevant law. The worker who wants to file a lawsuit with a request for reemployment, with the regulation made under the article, has to apply to the mediator within 1 month from the notification date of the termination notice. Therefore, the period of deprivation given to the employee to file a reemployment lawsuit is now granted to the mediator for application. If an agreement cannot be reached at the end of the mediation activities, a lawsuit can be filed in the authorized labor court within two weeks from the date of the last report.
With the new law, an important change was made regarding the legal remedy in reemployment cases, and local court decisions as a result of reemployment cases were excluded from the supervision of the Supreme Court. In other words, as a result of the appeal of the local court’s decision, the decision of the Regional Court of Justice will result in a final judgment.
3 – Financial Provisions of Reemployment Cases:
With the new law, the confusion regarding the determination of the amount of wages to be taken as a basis for the calculation of the idle time wage and job security compensation has been ended, and it has been regulated that the amount of the receivable will be determined based on the wage of the worker on the date of the lawsuit regarding these items.
4 – All statute of limitations arising from the Labor Law have been rearranged:
On the other hand, with the new law, a 5-year statute of limitations has been introduced for all claims and compensation claims arising from employment contracts, and the differences between the statute of limitations arising from the Labor Law No. 4857 have been eliminated. As a matter of fact, while the claims for severance, notice, bad faith compensation, claims arising from violation of the principle of equal treatment and annual leave fee were subject to a 10-year statute of limitations, with the amendment made, the statute of limitations for all claims and compensation claims was reduced to 5 years by ensuring uniformity.
5 – Changes in the Duties of Labor Courts:
With the Law No. 7036, some cases before the general courts have been expanded and included in this scope by expanding the jurisdiction of the labor court. With the new arrangement;
- Lawsuits arising from the service contract of journalists subject to Law No. 5953,
- Lawsuits arising from the service contract of seafarers subject to Law No. 854,
- Lawsuits arising from all kinds of legal disputes arising from the contract or the law due to the employment relationship between the workers working with a service contract subject to the Turkish Code of Obligations No. 6098 and the employer or employer’s representatives subject to this law,
- Objections to administrative fines,
- Lawsuits arising from disputes arising from labor and social security issues to which the Social Security Institution or the Turkish Employment Agency is a party, with the exception of some exceptions determined by law,
- Cases and works related to disputes specified in other laws that labor courts are in charge,
- Lawsuits regarding disputes arising from the contract or the law between the personnel working outside the scope of the collective bargaining agreement in the State Economic Enterprises and its subsidiaries and the employer they work with,
will be heard in business courts.
6 – Non-Appealable Decisions:
With the new law numbered 7036, the judicial review of the disputes arising from the labor law and some related legislation was closed before the Court of Cassation, and the decisions of the courts of appeal on these issues are accepted as final and final . The cases mentioned are as follows;
- 20 of the Labor Law No. 4857. Decisions rendered in reemployment lawsuits filed pursuant to Article
- Decisions made in lawsuits filed by the employer for the annulment of disciplinary punishments given to the employee in accordance with the collective bargaining agreement or workplace regulations,
- 18/10/2012 of the Trade Unions and Collective Bargaining Agreement Law dated and numbered 6356;
one) Lawsuits regarding termination of employment contract of workplace union representatives,
2nd) In cases where there is an Enterprise Collective Bargaining Agreement, lawsuits arising from disputes regarding the nature of the workplace,
3) Collective Bargaining Agreement interpretation cases,
4) Cases regarding the determination of the legality of a strike or lockout,
25/6/2001 Law No. 4688 on Public Servants Unions and Collective Bargaining;
one) Lawsuits to be filed regarding unlawful Trade Union General Assemblies,
2nd) Objection cases regarding the refusal of union membership,
As a result, no appeal can be made against the decisions of the local court.
7 – Implementation Regulations
Although the law numbered 7036 was published in the Official Gazette dated 25.10.2017 and entered into force, it has not yet been clarified how these changes will materialize in practice, as explained in detail above. For this reason, a number of date ranges have been determined for the implementation of various articles of the law in terms of the recognition of the system by both the doctrine and the implementing judicial authorities, the completion of the establishment of the institutions brought with the new system, and most importantly, preventing the loss of rights;
7.1 . Lawsuits filed before the date when the radical changes introduced by Law No. 7036 came into force (published in the Official Gazette) will continue to be heard in the courts where they were filed.
7.2 . Provisions regarding mediation sought as a condition of litigation will be applicable as of the effective date of these provisions (01.01.2018), and will not be applied to the cases currently pending at the Courts of First Instance, Regional Courts of Appeal and the Supreme Court.
7.3 . Cases and works that were currently pending and were included in the jurisdiction of other courts in the previous legislation, even if they were included in the jurisdiction of labor courts with Law No. 7036, they are not transferred to labor courts; Until finalized, it will continue to be carried out by the relevant courts.
7.4. Decisions made by the courts of first instance before the effective date of Law No. 7036 are subject to the provisions of the law on the date of the decision.
7.5. The regulation of the Law No. 7036 that claims for labor claims are subject to a 5-year statute of limitations will be applied to receivables and indemnities arising from employment contracts that expire after the effective date of this regulation. The statute of limitations for annual leave fees and indemnities, which began to run before the effective date of the said regulation, will continue to be subject to the provisions before the amendment. However, If the unexpired portion of the statute of limitations is longer than 5 years, the statute of limitations will be deemed to have expired after 5 years have passed.
7.6- The investigation procedure carried out by the personnel of the Provincial Directorates of Labor and Employment Agency regarding the complaints of “workers whose employment contract has actually been terminated”, which was previously known as workers’ complaints among the public, has been abolished. Thus, workers whose employment contract has expired were prevented from requesting their claims and complaints through the Labor and Employment Agency, these people were referred to mediation.
7. 7 – Except for the articles whose effective date is stated above, the effective date of all articles of the Law on Labor Courts No. 7036 is 25.10.2017, which is the publication date of the law in the Official Gazette.
As a result ; Although some articles of the Labor Courts Law, which includes radical and important changes in terms of Labor Law practice, will come into force in the future, It has officially entered our lives by being published in the official newspaper. The general framework of the amendments brought by the Law No. 7036 and its effect on the application have been examined by us, however, as the special regulations regarding the said innovations are published and the regulations, communiqués and similar special regulations to be put into effect, the implementation will be further clarified.
Hunting. Itır KAVASOĞLU – Atty. Eda KIRPINAR
K&P Legal Law Firm