- Obligation to Make the Employment Agreement in Writing
It is stated in Article 4 of the Press Labor Law that the employment contract must be concluded in writing (Art. 4/1). In addition, the points that should be included in the written contract in the law are explained as follows: In the written contract; the type of work, the amount of remuneration and the seniority of the journalist must be included (Art. 4§2). In the event of a change in the type of work or wage, it is obligatory to add these matters to the contract (Art./3). Any employer who fails to fulfil these obligations shall be fined (Art. 26).
When we look at the types of press employment contracts, we can make a distinction as certain duration, non-period, full-time and part-time, trial period and non-period. In fixed-term contracts, there is no need to notice the termination since the expiration date is already known. On the expiration date, the contract terminates automatically. If the journalist devotes all his work to the employer in accordance with the daily and weekly working hours at the workplace, the contract for such work is a full-time contract. Since the contract of the journalist working part-time is also in the nature of a labor contract, the Press benefits from the Labor Law, trade union and collective bargaining rights.
It is also possible to conclude the contract on a probationary period. Article 10 of the Press Labor Law states that there may be a maximum three-month probationary period for journalists who enter the profession for the first time.
- Working in Intellectual and Artistic Works
The intellectual workers covered by the Law No. 5953 are as follows: Employees working in all kinds of intellectual and artistic works such as chief muharrir, muharrir, responsible directorate, editorial office, intelligence chief, reporter, translator, engineer, photojournalism, painter, cartoonist, intelligence radio-radio, newspaper directorate and administrative directorate are included in the scope of the law.
- Working for Wage
In order for a person working in the intellectual and artistic business to be considered a journalist, the work he / she does based on the employment contract must be for a fee. In Article 1, paragraph 2 of Law No. 5953, it is stated that the journalist’s work should be done for a fee. A journalist is a person who makes his living with this wage.
- Remuneration for Work
The amount of remuneration of the journalist shall be specified in the written contract between the journalist and the employer (art.4). The journalist’s initial salary will be increased every 2 years. According to the last paragraph of Article 4, “A journalist who has worked in a newspaper for two years shall be entitled to promotion. The promotion is made at the percentage determined in the contract.Apart from the articles of the journalist’s contract, the employer is entitled to receive additional remuneration for other work, ordered or published articles (art. 15).
- Time of Payment
According to Article 14 of the Press Labor Law; The agreed fee is paid in advance every month. The insurance premium for the additional fees must be paid. Employers who fail to pay journalists on time are obliged to pay them five per cent more for each day that passes. A journalist who has been dismissed without any fault attributable to him before the expiry of the contract period shall not be obliged to return the part of the wage he has received in advance that has not yet been processed. At the end of each year of service, journalists receive a bonus in the amount of a minimum monthly wage in proportion to the employer’s profit for their labor.
Failure to pay the fee entails criminal sanctions (Art. 27). The provision of a 5% increase per day in case of delay in the wage was decided as a public order article by the “Decision of the Court of Cassation to Combine Case Law” dated 1973. Therefore, contracts aimed at reducing or ignoring this rate are invalid (Court of Cassation Case Law Combining T: 24.12.1973, E.4, K.6) (Şakar 2002: 79)
- Normal Working Time
In the Press Labor Law, working hours and overtime are regulated in additional article 1. According to this article, the daily working time is 8 hours in the night and day circuits. Since the weekly holiday of permanent night employees is 2 days (Art. 19), the weekly working time is 40 hours for them; for daytime workers, it is 48 hours with 1 day of vacation and 6 days of work account per week. Working hours can be reduced by contract.
The law does not regulate different working hours for day and night work, nor does it explain what night work is. Although in paragraph 5 of Article 1 of the Annex it is stipulated that overtime shall be paid one times the wage after 24 o’clock at night, this provision relates only to the calculation of the wage of overtime. It was contended that it would be appropriate to fill the gap in relation to night work by applying the provision of Article 69 of the Labour Act by analogy. According to Article 69 of the Labor Code: In working life, “night” is the period starting at 20.00 at the latest and ending at 06.00 at the earliest and in any case lasting a maximum of eleven hours.
In the Press Labor Law, the daily working time is determined as 8 hours in workplaces where day and night are worked. Work over these 8 hours should be considered overtime. In the annex 1, there is a provision to protect the journalist that overtime cannot exceed 3 hours. If, despite this provision, the journalist has worked more than 3 hours a day, he will be entitled to overtime pay for all of his overtime work
Overtime pay is 50% more than the normal hourly rate. The journalist receives a 100% increase in the pay for the hours of overtime work after 24:00. Overtime wages must be paid together with the corresponding wages. In case of non-payment of overtime wages, it is obligatory to pay a 5% increase as in the wages for each passing day. Again, according to Annex 1, in the calculation of overtime hours, periods of less than half an hour are half an hour, more
is counted as 1 hour.
- Week Holiday
At the end of every six days of work, the journalist must be granted one day of paid weekly leave. If the journalist is constantly working at night, the weekly holiday is two days (Art19).
According to Article 2 of the Law on Weekly Holidays dated 2.1.1924, it is forbidden to employ the employee more than 6 days a week. According to this law, the weekly holiday day, which was previously determined as Friday, was changed to “Sunday” day by the Law No. 2739 dated 27.5.1935. Accordingly, the journalist has the right to take a holiday on Sunday. However, he may also use the weekly holiday leave on a day other than Sunday (Annex 1). A journalist who takes a weekly holiday on a day other than Sunday while working during the week break is engaged in overtime work is not considered to have done overtime work (Annex 1).
- Termination of the Agreement by Agreement of the Parties
The journalist and the employer, who are parties to the press employment contract, can always terminate the contract in case of agreements. It does not matter whether the contract is for a definite or indefinite period.
- Termination of the Agreement with Notice of Termination
Certain press employment contracts automatically expire upon the expiry of the period without the need for notice of termination unless otherwise agreed (Art. 338 of the Code of Obligations). In such a contract that ended automatically, the law did not give the journalist the right to any claim against the employer.
According to Article 339 of the Code of Obligations, if the journalist continues to work and the employer continues to work against the expiration of the period specified in the contract, the contract shall be renewed for the same period but for a maximum of 1 year. If the contract is renewed in the same way for the second time, the contract must be considered for an indefinite period from the beginning and the relevant termination rules must be applied. In the event that the publication is suspended for any reason, the employees shall receive their wages for a period of 2 months from the date of the holiday (Art. 17/4 of the Press Labor Law). At the same time, Article 17 states that journalists’ compensation shall be paid preferentially.
Article 347 of the Code of Obligations According to paragraph 1 of the article, the press employment contract ends in the event of the death of the journalist. According to Article 347, paragraph 2, the death of the employer does not automatically terminate the contract.
- Termination of the Contract with Notice of Termination
Termination is the declaration of the will of one of the parties to the contract to terminate the contract. Termination is a right that breeds disruptive innovation. Therefore, the will statement needs to be clear and specific. However, if it is understood from the attitude and behavior of one of the parties that he terminated the contract, then the termination is considered to have taken place. The declaration of termination must reach the other party. Declarations of will that do not reach the other party do not give rise to their provisions and consequences. The declaration of termination received by the other party cannot be reversed. It is possible to withdraw from the notice of termination that has not yet reached the other party.
- Termination of the Agreement at the End of the Notice Period
The premise of notice in terms of termination of the employer is as follows: If the journalist’s service is less than 5 years, the premise of the notice is regulated as 1 month in Article 6, paragraph 4 of the Press Labor Law. Priority duration In determining the journalist’s term of service under the supervision of the employer who terminated the contract, the period of service shall be taken into account. If the service of the journalist is 5 years or more, Article 6, paragraph 4 of the Press Labor Law.The notice period is determined as 3 months. However, for this, the journalist’s service relationship with the employer must be uninterrupted.
The premise of the notice in terms of the termination of the journalist is as follows: Article 7 of the Press Labor Law states that “at least one month in advance” the journalist may terminate the contract of service by notifying the employeredited. Thus, the length of service of the journalist is not decisive. Regardless of the duration of the contract, the notice for the termination of the journalist is 1 month.
- Immediate Termination for Just Cause
According to Article 11 of the Press Labor Law, whether the duration of the contract is uncertain or specific, if there is one of the justifiable reasons specified in the law, the period of notice by the journalist or the employer maybe terminated immediately without notice.
- Termination by Journalist
According to Article 11, it is possible for a journalist to terminate the contract without complying with the notice period written in Article 7 of the Law. According to Article 11, “when there is a situation in the worldview of a person that violates the honor or reputation of the journalist or the moral interests of the person in general.The journalist may terminate the contract without waiting for the notice period. In order for this article to be applicable, a new situation must arise that is detrimental to the honor and reputation of the journalist or to his moral values. Accordingly, the journalist cannot terminate the contract in accordance with Article 11 by citing a situation that existed when he entered the workplace.
In a judgment of the Court of Cassation rendered in 1964 (Court of Cassation 9.H.D. 26.10.1964. E.1964/6723,K.7191), if the journalist has broken his employment contract as a result of the employer’s fault 5953 Stating that compensation is not regulated in the Law No.in cases where there is no general law, and Articles 325 and 345 of the Code of Obligations agreed that it would be taken into account in resolving the dispute.
- Termination by Employer
The Press Labor Code states that in two cases the employer may terminate the contract immediately for just cause.
Specifies: First, as a result of the journalist’s intentional or gross negligence in matters related to the performance of the duty.
is to commit an act that will harm the reputation and reputation of the media organ. (Art. 11/3) This In this case, there is no notice compensation and no severance pay is paid. In addition
the journalist must also return the unprocessed part of the fee he has received in advance. This conclusion follows from the concept of its counterpart in Article 14, paragraph 3 of the Act.
The presence of the journalist’s actions and actions that will cast a shadow on the reputation and reputation of the organ is necessary. These actions and actions should not be related to the profession of the journalist. For example
Even if the fact that the journalist is a gambler, alcoholic, etc. casts a shadow on the honor and reputation of a media organ, it does not give the employer the authority to terminate the contract since it is not related to his profession. On the other hand, the action and the action do not have to be the result of the work created by the journalist. For example, a picture of a reporter his excessive drunkenness at a press conference is a reason to follow Article 11. In addition, the defective or non-performance of a service does not give the employer the authority to terminate the contract on the basis of Article 11.
The second is that the journalist’s illness is prolonged for more than six months. According to Article 12, the employer may terminate the contract by paying compensation in such a case. Since the issue is immediate termination, no notice compensation is paid. If the journalist’s illness does not prevent him from performing his duties, the employer cannot terminate the contract for this reason. If the journalist who was fired due to illness recovers within 1 year, the employer must first hire the journalist (art.12/2)
- Immediate Termination During the Trial Period
The maximum period of study for journalists who start their profession is three months. During this time, the parties work they may terminate the contract without being subject to the notice period and the obligation to indemnify (Art. 10/1).
- Procedure for Termination of the Agreement and Objection to Termination
According to Article 19 of the Labor Law No. 4857, the employer must give the notice of termination in writing and clearly and unambiguously state the reason for the termination. Without obtaining his defense against the allegations against him, an employee’s employment contract for an indefinite period, the conduct or efficiency of that worker cannot be terminated for reasons related to.
According to Article 20 of the Labor Law, the employee whose service contract has been terminated may file a lawsuit in the labor court within one month from the date of notification of the termination notice with the claim that the reason is not given in the termination notice or that the reason shown is not valid. If there is a provision in the collective bargaining agreement or if the parties agree, the dispute is taken to the special arbitrator within the same period.
- Consequences of Invalid Termination
According to Article 13 / D of the Job Security Law No. 4773;
When the employer does not give a valid reason or if the court finds that the reason given is not valid and the termination is invalid, the employer shall employ the employee within one month.
It has to. If the employer does not start work within one month upon the application of the employee, he shall be obliged to pay compensation to the employee in the amount of at least six months and at most one year’s wages. When the court decides that the termination is invalid, the amount of compensation to be paid if the employee is not reinstated also determines. The wages and other rights of the employee arising up to a maximum of four months during the period in which the employee is not employed until the finalization of the court decision shall be paid to him. Notice period if the wage has been paid to the employee in advance, this amount shall be deducted from the payment to be made in accordance with the above provisions. If the employee has not been given a notice period or if the wage for the notice period has not been paid in advance, the amount of the wage for these periods shall be paid separately.
The employee must apply to the employer to start work within six working days from the notification of the final court decision. If the employee does not submit an application within this period, the termination made by the employer shall be deemed to be a valid termination and the employer shall be liable only for the legal consequences thereof. The provisions of the first, second and third paragraphs shall not be replaced by contracts under any circumstances; otherwise, the provisions of the contract are invalid.
- Mass Dismissal
Article 24 of the Press Labor Law No. 4773 has been amended. “When the employer wishes to terminate the employment contract of at least ten workers collectively or within a month as a result of economic, technological, structural and similar business, workplace and work requirements, it should be notified to the workplace union representatives or worker representatives, the relevant regional directorate and Turkey Employment Agency with a letter at least thirty days in advance.” In this notification, it is mandatory to include information on the reasons for dismissal, the number and groups of workers to be dismissed, and the timeframe for termination of employment.
After the notification, in the meetings to be held between the representatives and the employer, the issues of preventing mass dismissal or reducing the number of workers to be dismissed or minimizing the negative effects of dismissal for workers are discussed. At the end of the meetings, a document showing that the meeting was held is prepared. Notices of termination become effective thirty days after the employer notifies the regional director of the collective dismissal request.
In the event that the workplace is completely and permanently ceased to operate, the employer is only obliged to notify the relevant regional directorate and the Turkish Employment Agency at least 30 days in advance of the situation and to announce it at the workplace. The same regulations were introduced in Article 29 of the Labor Law No. 4857, which entered into force on 10.6.2003.
- Legal Consequences of Termination of the Contract
- Notice Compensation
It is a compensation paid to the journalist in case of termination of the contract by the employer and arising from the termination of the contract. The date the journalist entered service is not important in calculating this compensation. The date on which the journalist started to work in that workplace is taken as a basis and compensation is given over the last wage he received. If the employer cannot pay the compensation at once due to financial difficulties, it can pay the compensation in 4 installments within a year.
- Death Compensation
In the event that the employment contract is terminated due to the death of the journalist, it is stated in Article 18 of the Law No. 5953 that the spouse and children, in the absence of these to the family members who make a living for him will be given death compensation in the amount of the severance right, not less than three times the monthly wage of the deceased journalist
In the Collective Labour Agreements, besides the severance pay to be paid to the beneficiaries in case of death, the funeral expenses and death benefit payment of the bearer are also emphasized.
- Severance Pay
Severance pay is the money that must be paid by the employer as a legal obligation to the journalist who has worked for a certain period of time and whose contract has been terminated for one of the reasons specified by law, or to the right holders in the event of the journalists death.
One of the regulations regarding the severance pay of journalists is included in article 6 and the other one in article 11 of the law. While Article 6 provides for the termination of the contract by the employer, Article 11 regulates the termination by the journalist.
- Conditions for Entitlement to Severance Pay
Journalists who have worked in the profession for at least 5 years are entitled to seniority (Art. 6/1). The seniority of the journalist based on severance pay is calculated from the date of the first entry into the profession (Art. 6/2). This date shall be determined according to the records in the registry within the Prime Ministry General Directorate of Press and Information, where the information in the declaration submitted by the employer in accordance with Article 9 is processed.
Article 6 of the Law took into account the entry of the journalist into service as the basis for the severance pay it regulated. In this case, if a journalist works in a workplace for 25 years and in another workplace for five years, the employer will pay compensation over 30 years in case of termination of the contract here. According to the views of the doctrine, the employer who has paid the compensation of these thirty years may apply to the previous establishments to pay his shares in this compensation. So there is a right of recourse.
Time spent without working or working in another profession should not be counted towards seniority. If there is no record in the register proving otherwise, the journalist is considered to continue his work continuously. The probationary period is also included in the seniority of the journalist.
The 5-year period required by the law can be reduced to 1 year with Collective Labor Agreements.
- Termination of the Contract by the Employer
As can be understood from the title of Article 6 and paragraphs 3 and 7 of the Press Labor Law, the journalist will be entitled to severance pay in case of termination of the service contract by the employer. Since the article stipulates that the employer must terminate the contract with the notice of termination and that the severance pay is arranged, the service contract, the duration of which is not certain, must be terminated by the employer with the notice of termination in order for the journalist to receive severance pay. Whether the employer terminates the contract in accordance with the procedure or irregularly (without complying with the premise of the notice), the journalist must be paid severance pay. If the employer terminates the contract of service for just cause, for example, on the basis of the right written in Article 11/3 of the Press Labor Law, he is not obliged to pay severance pay to the journalist.
- Termination of the Contract by the Journalist
The title of Article 6 of the Press Labor Law, which regulates severance pay, is “Termination of the contract by the employer and severance pay” and the termination of the journalist is not included in this article. Article 7 of the said law and the title of “Termination of the contract by the journalist” do not regulate severance pay here. In this regard, in the first two paragraphs of Article 11, there are rules on the right of the journalist to terminate and the right to compensation without waiting for the deadline for notice. Although it is debatable whether the compensation mentioned in the article is severance pay or not, it is accepted by the Court of Cassation that it is severance pay. Although Oğuzman acknowledges that the journalist who terminates the contract himself will not be entitled to severance pay, he considers that the compensation in Article 11 is not severance pay but a compensation to be calculated according to Article 345 of the Code of Obligations.
- Amount and Calculation of Severance Pay
The wage, which is a decisive factor in the calculation of severance pay, is the last wage on the date of termination of the contract. The wage referred to in Article 6 of the Press Labor Code is not the so-called “dressed wage” but the “basic” (root) wage on the date of termination.
There is no question that the severance pay will be calculated on the basis of the final wage. However, there are a number of practical problems in terms of what this last wage is, and while some employers treat this wage as the last wage included in the payroll, the Supreme Court accepts that this is the actual wage that is not reflected in the payroll. As is often the case in practice, the amount of wages on the payroll and the actual wage received by the employee are different; some malevolent employers keep non-real records in order to alleviate their liabilities. In the decision of the Supreme Court, which put a stop to this misuse, it was ruled that the wage in the payroll, which does not reflect the reality, could not be taken as a basis in the calculation of severance pay.
A journalist whose contract of service has ended in such a way that he is entitled to seniority shall be compensated for each year of service or for each year of service related to the terminated contract in the amount of one month’s wages based on his last month. However, less than six months of annual service shall not be taken into account (Art. 6/2).
The Press Labor Law did not impose a ceiling limitation on calculation. In the severance calculation, only the time worked in the profession of journalism within the scope of the Press Labor Law No. 5953 will be taken into account. Work in labor or within the scope of the exceptions of the Press Labor Law is not taken into account for severance pay.
- Payment of Severance Pay
Severance pay is paid at once and immediately. If the employer is unable to pay the compensation at once due to financial difficulties, the payment shall be made in a maximum of 4 installments upon the decision of the tax office to which the workplace is affiliated that the enterprise is in a loss, and the duration of all these installments shall not exceed one year (Art. 6/last).
Supreme Court 9. H.D. 27.09.2000.E.8155,K.12627: In this decision it is stated that the highest bank deposit interest cannot be applied to the severance pay to be paid for journalists and that there is no such provision in the Press Labor Law.
Supreme Court 9. H.D. 10.10.2001. E.12273, K.15701: In this decision it stipulates that a journalist who is entitled to severance pay can send a notice to the employer and receive what he will receive after defaulting on it, together with his legal interest.