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Employers who employ 50 or more staff are subject to a number of legal obligations. These obligations are: the obligation to employ persons with disabilities, former convicts and victims of terrorism; the obligation to have a workplace physician and to employ an occupational safety specialist; the obligation to establish an occupational health and safety board and to implement the board's decisions; the obligation to register with the VERBİS system under the KVKK; the obligation to elect an employee representative; and the obligation to give one month's prior notice of collective dismissals.
Under the Labour Law No. 4857 and the Occupational Health and Safety Law No. 6631, employers become subject to certain additional obligations where the number of workers employed at a workplace exceeds 20, 30, 50, 100 and 150. As the number of employees of companies increases, their responsibilities increase accordingly.
Employers who employ 50 or more staff are likewise subject to a number of legal obligations. These obligations are: the obligation to employ persons with disabilities, former convicts and victims of terrorism; the obligation to have a workplace physician and to employ an occupational safety specialist; the obligation to establish an occupational health and safety board and to implement the board's decisions; the obligation to register with the VERBİS system under the KVKK; the obligation to elect an employee representative; and the obligation to give one month's prior notice of collective dismissals.
For employers who employ 100 or more staff, in addition to these obligations, there is the obligation to establish an Annual Leave Board and the obligation to open a nursing room (where 100 or more female workers are employed). In addition to these matters, employers who employ 150 or more staff are under the obligation to open a dormitory and canteen and the obligation to open a childcare centre (where 100 or more female workers are employed).
Failure to fulfil these obligations gives rise to criminal and administrative sanctions.
IN THIS ARTICLE, WE WILL EXAMINE THE OBLIGATIONS OF EMPLOYERS EMPLOYING FIFTY OR MORE WORKERS UNDER LABOUR LAW NO. 4857 AND OCCUPATIONAL HEALTH AND SAFETY LAW NO. 6631, AS WELL AS UNDER THE PERSONAL DATA PROTECTION LAW NO. 6698 AND THE REGULATION ON THE DATA CONTROLLERS' REGISTRY.
1- OBLIGATION TO EMPLOY WORKERS WITH DISABILITIES AND FORMER CONVICTS
Pursuant to Article 30 of the Labour Law No. 4857, private sector workplaces employing 50 or more workers are under the obligation to employ, in jobs suited to their circumstances, workers with disabilities at a rate of 3%, and public workplaces at a rate of 4%, together with 2% former convicts or victims injured as a result of the causes and effects of terrorist incidents, in such a way that they are not deemed disabled.
Where an employer has more than one workplace within the boundaries of the same province, all employees at the workplaces must be included in the calculation, and the calculation must be made according to the total number of workers. Where a percentage calculation on the total number of workers produces a fractional result, the method of rounding up to the next whole number is applied. That is, fractions up to one half are disregarded, and fractions of one half or more must be rounded up to the whole number. For example, when calculating the number of workers with disabilities at a private sector workplace with 57 employees, the result of 1.71, which is 3% of 57, will be rounded up to 2.
Employers who fail to fulfil the obligation to employ workers with disabilities and former convicts are subject to an administrative fine pursuant to Article 101 of the Labour Law No. 4857, for each worker with a disability or former convict not employed and for each month in which they are not employed. A fine is imposed for each month in which the violation continues, and a separate fine is imposed for each worker with a disability or former convict who should have been employed but was not.
There are certain points to be taken into account when employing staff with disabilities and former convicts. Namely: in determining the number of workers, workers employed under fixed-term and indefinite-term employment contracts are taken as the basis. Those working under part-time employment contracts are converted to full-time work, taking their working hours into account, and are included in the calculation.
Workers with disabilities cannot be employed in underground and underwater work. Those working in underground and underwater work and as security personnel in the field of security will not be taken into account in determining the number of workers and will not be included in the calculation. Likewise, the employed staff with disabilities will not be taken into account in calculating the total number of employees.
2- OBLIGATION TO EMPLOY A WORKPLACE PHYSICIAN AND AN OCCUPATIONAL SAFETY SPECIALIST
Article 5(2) of the Regulation on Workplace Health and Safety Units and Joint Health and Safety Units, entitled “Obligations of employers”, provides: “Employers are obliged, in workplaces where they employ at least 50 workers on a continuous basis, to establish a workplace health and safety unit in order to provide this service and to assign one or more workplace physicians and, where necessary, other personnel and, in work classified as industrial, one or more occupational safety specialists. Employers may also fulfil these obligations by obtaining all or part of the occupational health and safety services from joint health and safety units established outside the workplace.”
Accordingly, in workplaces within the scope of the Labour Law No. 4857 that are classified as less hazardous or very hazardous and that continuously employ at least 50 workers, there is an obligation to employ an occupational safety specialist, a workplace physician and other health personnel. Although this is mandatory, under Article 6 of the Occupational Health and Safety Law No. 6331, employers who do not have an occupational safety specialist and a workplace physician at their workplaces will be obliged to pay administrative fines that vary according to the hazard category (less hazardous or very hazardous) and the number of employees.
3- OBLIGATION TO ESTABLISH AN OCCUPATIONAL HEALTH AND SAFETY BOARD AND TO IMPLEMENT THE BOARD'S DECISIONS
Employers have obligations arising from the Occupational Health and Safety Law No. 6631, and the obligation has been imposed on employers to establish an Occupational Health and Safety Board and to implement the board's decisions so that they carry out work relating to occupational health and safety.
Article 22(1) of the Occupational Health and Safety Law No. 6331 provides: “In workplaces with fifty or more employees where continuous work lasting more than six months is carried out, the employer shall establish a board to carry out work relating to occupational health and safety. The employer shall implement the board's decisions that comply with the occupational health and safety legislation.”
According to the provision of the said article, employers are under the obligation to establish an occupational health and safety board in order to carry out work relating to occupational health and safety in workplaces with 50 or more employees where continuous work lasting more than six months is carried out. Employers must also implement board decisions that comply with the occupational health and safety legislation. If this board is not established, administrative fines varying according to the less hazardous, hazardous and very hazardous classes are imposed on employers.
Article 22(2) of the Occupational Health and Safety Law No. 6331, on the other hand, contains a provision on cases where there is a principal employer-subcontractor relationship lasting more than six months. According to the said provision:
- If the number of employees of the principal employer and the subcontractor is 50 or more and, for that reason, a separate board has been established by each of the principal employer and the subcontractor, cooperation and coordination regarding the conduct of activities and the implementation of decisions shall be ensured by the principal employer.
- If the number of employees of the principal employer at a workplace is fifty or more and a board has therefore been established by the principal employer, the subcontractor, which is not required to establish a board, shall appoint an authorised representative by proxy to ensure coordination.
- If the number of employees of the subcontractor is 50 or more, the principal employer, which is not required to establish a board at the workplace, shall appoint an authorised representative by proxy to the board established by the subcontractor to ensure cooperation and coordination.
- If the numbers of employees of the principal employer and the subcontractor are each below fifty and the total number of employees of the principal employer and the subcontractor, who are not required to establish a board, exceeds fifty, a board shall be established jointly by the principal employer and the subcontractor, with coordination carried out by the principal employer.
- Where there is more than one employer in the same work area and more than one board has been established by these employers, the employers shall inform the other employers about board decisions that may affect one another's work.
4- OBLIGATION TO REGISTER WITH THE VERBİS SYSTEM UNDER THE KVKK
The Data Controllers' Registry (VERBİS) is a registration system in which data controllers are required to register and in which they declare information on their data processing activities. Companies determined within the scope of the Personal Data Protection Law No. 6698 and the Regulation on the Data Controllers' Registry must register with the Data Controllers' Registry Information System. The procedures and principles relating to the VERBİS registration obligation set out in the Law and the Regulation, and the deadlines set for registration, are announced by the Personal Data Protection Board. The Board, by amending its decision dated 11.03.2021 and numbered 2021/238, most recently by its decision dated 06.07.2023 and numbered 2023/1154, decided to extend until 31.12.2021 the period set for natural and legal person data controllers with more than 50 annual employees or an annual financial balance sheet total of more than TRY 100 million, and for natural and legal person data controllers resident abroad, to fulfil their obligation to register with the Registry.
All companies that meet the above conditions must register with VERBİS and take all the measures required by the law. The fact that the date of 31.12.2021 stated in the decision we have cited has passed does not mean that the registration obligation has ceased to exist; the said obligation still continues. Accordingly, even if the date has passed, failure to fulfil the registration obligation may be established ex officio or upon complaint. Since an administrative fine may be imposed if it is established that the obligation has not been fulfilled, the companies subject to the obligation must register without losing time.
5- OBLIGATION TO ELECT AN EMPLOYEE REPRESENTATIVE
Article 20 of the Occupational Health and Safety Law No. 6331 provides: “(1) The employer shall assign employee representatives in the numbers indicated below, by election among the employees or, where this cannot be determined by election, by appointment, taking care to ensure a balanced distribution by having regard to the risks in the different sections of the workplace and the number of employees.” The employee representative is regulated in the provision of the said article. The same provision also specifies how many employee representatives must be appointed according to the number of employees.
- One in workplaces with two to fifty employees.
- Two in workplaces with fifty-one to one hundred employees.
- Three in workplaces with one hundred and one to five hundred employees.
- Four in workplaces with five hundred and one to one thousand employees.
- Five in workplaces with one thousand and one to two thousand employees.
- Six employee representatives must be assigned in workplaces with two thousand and one or more employees. Where there is more than one employee representative, the chief representative must be determined by election among the employee representatives. This obligation was introduced with the aim of reducing occupational accidents by taking into account employees' requests and complaints. Employers must assign employee representatives by election among their employees, or, where this cannot be determined by election, by appointment, taking into account the risks in the different sections of their workplaces and the number of employees and taking care to ensure a balanced distribution.
6- OBLIGATION TO GIVE ONE MONTH'S PRIOR NOTICE OF COLLECTIVE DISMISSALS
Article 29 of the Labour Law No. 4857, entitled “Collective dismissal” : “ Where the employer wishes to carry out a collective dismissal as a result of economic, technological, structural or similar requirements of the enterprise, the workplace or the work, it shall notify the workplace trade union representatives, the relevant regional directorate and the Turkish Employment Agency (Türkiye İş Kurumu) in writing at least thirty days in advance.
Where the number of workers employed at the workplace is:
a) between 20 and 100 workers, at least 10 workers,
b) between 101 and 300 workers, at least ten per cent of the workers,
c) 301 or more, at least 30 workers,
the termination of their employment pursuant to Article 17, on the same date or on different dates within a period of one month, shall be deemed a collective dismissal.”
As is understood from the relevant article of the law, the employer is under a notification obligation in these cases, which are deemed collective dismissals. In this case, the employer is obliged to notify, in writing and at least 30 days before the date of termination, the workplace trade union representatives, the relevant Regional Directorate of the Ministry of Labour and Social Security and the İŞKUR Directorate.
However, when calculating the number for collective dismissal, the following are not included in the calculation: workers dismissed from seasonal and campaign work, workers whose employment contracts are terminated by resignation, termination of the employment contract by mutual agreement (ikale), workers dismissed during the probationary period, workers dismissed because of the employer's transfer to another workplace, and workers dismissed where the employer terminates the employment contract for just cause under Article 25 of the Labour Law.
Under Article 100 of the Labour Law No. 4857, where the provisions on collective dismissal are contravened, a separate administrative fine is imposed on the employer or the employer's representative for each worker dismissed.
In addition, the employer may not use the provisions on collective dismissal for the purpose of preventing the application of the provisions of Articles 18, 19, 20 and 21; otherwise, the employer may face lawsuits brought against it by the worker.
