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March 2007
Some Characteristics
of Turkish Law on Foreign Employees and Employers
In General
About the “Working Rights of Foreigners,” a general rule
is introduced both by the Turkish Constitution and the 15th Article
of Law on Foreigners’ Residence and Travel.” Upon this
rule, the foreigners are allowed to work in fields if and only if it
is not forbidden by law. There are different regulations about this
matter in numerous laws (for example, for the moment, there is a
working ban for foreign doctors, pharmacists, vets, lawyers, notaries
and dentists). As for the foreign lawyers, there is an exception
regulated by the Article 44 of Law on Attorneyship. Accordingly, the
foreign lawyers are only allowed to offer services at the fields of
consultancy for international law and foreigners law. However, the
“reciprocity principle” is still considered here.
Requirement
of Obtaining a Work Permit
Upon the Law on Work Permits of Foreigners, which has come into
effect on 27.02.2003, the foreigners are obliged to obtain a work
permit before starting to work in Turkey, for the first time.
(Article 4/1). This permission is given by the Ministry of Labour and
Social Security in Turkey and abroad, by the Turkish Consulates.
There are four types of work permits imposed by law:
a)
Time Bound Work Permit: As a rule, it is given at most for a
year, for the conduct of a specific job at a specific work place. The
decision to give work permit is taken by considering the general
situation of labour market, improvements at the business life,
conjunctural changes at the related sector and economics. Such a work
permit can be extended up to 3 years, for the same job and the
activity in the same work place. After the expiry of 3 years time,
then this permit can be extended up to 6 years. For children and
spouses, they can get a work permit after lawfully residing in Turkey
for 5 years.
b)
Transient Work Permit: The foreigners can obtain a transient work
permit, after lawfully residing and working 8 years in Turkey.
c)
Independent Work Permit: Those who wish to work on their own
behalf and account can obtain the related work permit after lawfully
residing 5 years in Turkey.
d)
Excetional Work Permit: Those who posses the special
characteristics stated at law can obtain the exceptional work permit
(for example, upon the Law on Citizenship, those who got married with
Turkish citizens, who has begun to reside in Turkey before turning
lawful age, who has completed his university education in Turkey and
those who are defined as “key staff” can obtain the
exceptional work permit).
1.3.
Requirement of Obtaining a Work Permit for the Key Staff
The
bylaw named as the “Bylaw on Employment of Foreign Staff at
Direct Foreign Investments” have come into effect on
06.09.2003. At this bylaw, the regulations especially on staff who
will work at direct foreign investments and representative offices
are enacted. At Article 4/e of the bylaw, what should be comprehended
from the term of “Key Staff” is explained. Accordingly,
those who work at the executive management of companies, who function
as the auditor, who is entitled to charge and discharge new staff
members are defined as key staff. In this context, for example:
a)
Company’s shareholders,
b) The
president and members of the executive board,
c)
Managers,
d) Vice
managers,
e) The
delegates of main company at the representative offices, for whom a
certificate of authority is drawn up,
are
considered as the key staff.
The key
staff working at the direct foreign investments should apply to the
Ministry of Labour and Social Security for the work permit (Article 5
of the bylaw). However, they can also apply to the Turkish Consulates
at their home countries. (Article 7 of the bylaw). The applications
made to the Consulates are delivered to the Ministry and the
assesment is carried out there. The conditions required for the
permission are listed at Article 10 of the bylaw. After the work
permit is given, it should be applied for a “work visum”
within 90 days and after they arrive in Turkey, it should be applied
for a “residence permit” within 30 days.
Those
who wish to apply for the ordinary work permits should have residence
permits for 6 months at least and they should apply for a work permit
before the expiry date of this permit. For the assessment procedure
of these applications, please refer to the explanations stated above.
1.4.
Expenses of Work Permit
At the
applications for work permit, fees of
50
YTL for permissions up to a year
150
YTL for permissions up to 3 years
250
YTL for transient work permits
500
YTL for independent work permits
is
charged.
1.5.
Competent Authority to Give Work Permit
Abroad :
Turkish Consulate
In
Turkey : Ministry of Labour and Social Security
If the
applicant wants to reside in Turkey for a long time with the purpose
of working here, it is recommended to apply for a work visum, after
obtaining a work permit from the Turkish Consulates.
After
starting the foreign employee into work, this fact has to be informed
to the Ministry by his employer. However, an exception of this
obligation is imposed by the Article 4/2 of Law on Work Permits of
Foreigners. Accordingly, “when the country’s benefits
make it necessary or depending on the forces majeures, provided that
the competent authority is informed before starting to work, by not
extending a month of the unpermitted working period and obtaining the
consent of the Ministry, the work permit can be given after the work
has started.” The primary components of this exceptional
regulation is as follows:
Actuality
of a condition which is made necessary by the country’s
benefit and a force majeure
Application
for a work permit before starting to work
A
month of unpermitted work in Turkey shouldn’t exceed a month
The
consent of the Ministry
Social
Security of the Foreign Employees
At Article 1 of Law on Social Security, the term of “covered
employee” is defined. Accordingly, for the existance of a
covered employee relationship, the nationality status of the employee
or the work permit’s being lawful or unlawful do not matter.
Those who work dependent to an individual or a legal entity with a
work contract should be covered by social security insurance,
irrespective from his nationality. To be accepted as a covered
employee, a work permit should be obtained.
For
those employers who do not fulfill the obligation of informing the
employee after starting to work, relatively high fines are inflicted.
However,
for those employers who work on account of a foreign legal entity and
who are accepted as covered employees upon the home country’s
legislation of this legal entity, they do not have to be informed to
the Turkish Social Security Institution. However, those who are
covered according to their home country’s legislation should
certify their social insurance policies at the Turkish Consulates.
Upon the
Law on Social Securuties, the foreign employees should be covered by
all branches of social insurance (Insurance for Work Accident and
Professional Illness, Health Insurance, Maternity Insurance,
Disability and Old Age Insurance).
Moreover,
there are some provisions for foreign employees at the Law on
Unemployment, however they are not very practicable and complex,
therefore, the explanations about them are not covered here.
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