Draft Code of Labour Courts accepted at TBMM (Grand National Assembly of Turkey)
The Draft Code of Labour Courts issuing the foundation, duty and proceeding of the labour courts was accepted and legalized at the Grand National Assembly of Turkey.
According to the Law, labour courts will be founded in the places considered necessary in the nisi prius and inferior courts thereby obtaining the positive opinion of the High Council of Judges and Prosecutors.
The judicial locality of these courts shall be determined in accordance with the provisions of the Law on Foundations, Duties and Authorities of the Court of Original Jurisdiction and Regional Courts of Justice.
When deemed necessary by work state, more than one office of labour court can be created. These offices will be numbered. HSK will take the intensity and quality of the coming works for the purpose of specialization and perform the work distribution among the offices.
In the places where no labour court is found, the civil court of first instance in that place will be dealing with the cases and works in the area of duty of this court.
Mediation as cause of action
By the Law, the institution of “mediation as cause of action” enters the law for the first time and it is made obligatory to the mediator to apply before filing a suit in the disputes found in the regulation.
In the suits filed with the demand of return to job, employee, employer liability, compensation based on the Law or individual or collective labour agreement; consulting to the mediator will be a cause of action. For the obligation to consult to a mediator, liability and compensation demand should be originating from labour relationship.
The employee will be consulting to the mediator for severance and notice pay and overtime, annual leave etc. payments; and the employer will be consulting to the mediator for liability and compensation items.
The compensation demands originating from the employee and employer insulting to each other within the scope of labour relationship or the employee’s damaging the properties and equipments belonging to the employer at the workplace before filing a suit.
The plaintiff will be including the original last report regarding whether the mediation activity was finally agreed upon or a sample thereof approved by the mediator to the lawsuit petition. In case of failure to abide by this obligation, the court will be sending an invitation including the warning that the last report would be submitted to the court within one week in certain, otherwise the lawsuit petition would be duly rejected without issuing a notice to the other party.
The lawsuit will be duly rejected due to the absence of cause of action without making anything if the lawsuit is filed without consulting to the mediator.
No mediation in occupational accidents and occupational diseases
No mediation term will be sought for lawsuit for monetary damages, mental anguish, recourse suits in relation to such.
Head of Department of Mediation shall list those who want to act as mediators among the registered mediators thereby stating their areas of specialization if any by the court of original jurisdiction justice commissions that they want to work for and report them to the directorates of commission.
The directorates of commission shall send those lists to the mediation offices around them, and to the court of peace registry of the court where they will be commissioned in the places where no mediation offices are found.
The mediator will be determined by the office from the list reported to the directorates of commission. The parties will be commissioning the mediator that they agree upon in the list.
The mediator will not be able to take into account if the commissioning office is authorized or not. The other party will be able to reject the authority of the mediation office thereby submitting the documents regarding the settlement area and the place where the job is performed at the first meeting at the latest. In this case, the mediator will be delivering the file to be immediately sent to the respective court of peace.
The court will make a final decision about the authorized office at the end of the review made over the file without charging a fee and return the file to the office. The same mediator will be commissioned in case the authority objection is rejected. If the authority objection is accepted, it will be possible to consult to the authorized office within one week as of the date of the notice of the decision.
The mediator will be concluding the application within 3 weeks as of the date when the mediator is commissioned. This time might be extended for maximum one week by the mediator in obligatory cases. The mediator will put an end to the mediation activity if the parties cannot be reached, if no meeting can be made because the parties do not participate or if no agreement can be made, the mediator will immediately report the situation to the mediation office thereby issuing the last report.
The nonparticipants will be paying the litigation expenses
If one of the parties fails to participate in the first meeting without showing a valid excuse, the nonparticipating party will be responsible for all litigating expenses even if they are partially or wholly right in the suit if the mediation activity ends. Moreover, they will not be judged by counsel’s fee in favour of this party.
In the suits filed on the mediation activity which comes to an end because both parties fail to participate in the meeting, the parties will be paying the litigation costs themselves. If the parties agree at the end of the mediation, the mediation price will be equally paid by the parties if otherwise agreed according to the specified tariff.
If the parties fail to agree in the meetings made upon the return to job demand; if they do not start employee in the job, the total wage and other rights to be paid to the employee for the time not worked along with the amount of compensation to be paid in the determination of the payment to be made to the mediator.
In case the parties cannot be reached at the end of mediation, in case the meeting cannot be made because the parties do not participate or in case the parties fail to agree as a result of the meetings lasting less than 2 hours; the amount of wage for 2 hours will be paid from the budget of the Ministry of Justice to be collected from the party who will turn out to be wrong in the future. Since the amount of wage for one hour is 120 Turkish Liras based on Mediation Wage Tariff in 2017; this will not be less than 240 Turkish Liras.
Return to job in subcontracting
If mediator is sought with the demand of return to job in case of the presence of main employer-subemployer; the employers will be participating the mediation meetings so that the contract can be implemented and the wills will be in compliance with each other.
The mandatory expenses to be paid by the mediation office will be paid by the parties pursuant to the contract if they reach to an agreement at the end of the mediation, and it will be paid from the allowance put in the budget to be collected from the party who will turn out to be wrong in the future.
The time-out will stop from the date of consulting the mediation office till the date when the last report is issued, lapse of time will not be processed.
The parties will be able to participate in the mediation meetings in person, via their legal representatives or lawyers. The employee who is authorized with a written document by the employer will also be able to represent the employer and sign the last report.
Mediation meetings will be carried out under the realm of authority of the court of original jurisdiction justice commission to which the office commissioning the mediator is commissioned unless otherwise decided by the parties.
Journalists and ship’s crew will consult to the mediator in the employee or employer liability, compensation, return to job suits based on the individual and collective labour agreements to be filed.
In case such provision is found in the article stipulating the mediator consultation as a cause of action; the provisions of the Mediation Law in Law Disputes will be applied when it is appropriate for the quality.
Source : Anadolu Ajansı