The subject matter of this annotation is the assessments which we made under the Law of Unemployment Insurance 4447, the Regulation on Short-Time Working and the Allowance of Short-Time Working amended on 09.11.2018 as well as the views contained in the doctrine on the issue with respect to the conditions of short-time working practice, benefitting from the allowance of short-time working, the amount and payment and deduction of the allowance.

 

appropriateness of this request by the Ministry in where short-time working is required.² Furthermore certain provisions of the Regulation in question have been amended with the Regulation on Amendment to the Regulation on Short-Time Working and the Allowance of Short-Time Working published in the Official Gazette dated 09.11.2018 and numbered 30590.

(i)Existence of General Economic, Sector-Based or Regional Crisis or any Force Majeure Event

The conditions requiring short-time working have been determined in the Law of Unemployment Insurance 4447 as “existence of general economic, sector-based or regional crisis or any force majeure event”. The scopes of the conditions listed have been detailed in article 3 of the Regulation and they are as follow.³

General Economic Crisis; refers to the situations where the incidents arising in the national or international economy seriously affect and damage the national economy and consequently the business place,

Sector-Based Crisis; refers to the situations where the incidents arising in the national or international economy directly affect the sectors and the associated sectors,

Regional Crisis; refers to the situations where the national or international incidents seriously affect the business places operating in a specific province or region in economic terms,

Force Majeure; on the other hand refers to the periodical situations which do not arise from the administration of the employer, which cannot be anticipated, which as a consequence cannot be eliminated, which result in decreasing the working hours temporarily or ceasing the activity fully or partially and which arise from external effects or situations including earthquake, fire, water, flood, landslide, epidemics and mobilization.

Although the general economic crisis exists in the entire country, the significant point is whether the business place or the enterprise is affected by this crisis or not. If any business place is not affected by the severity or adverse effects of the economic crisis thanks to its position in the commercial life or its power, then short-time working shall not be applied to that business place with the justification of existence of economic crisis in the entire country.

Another amendment made in the Regulation is issuing an arrangement stipulating that the applications detected to have been made on the basis of reasons including cash insolvency, difficulty of payment, market shrinkage and stock increase in spite of not according with general economic, sector-based or regional crisis and force majeure shall be rejected. In this case, we are convinced that short-time working application can be performed in the case that the employers suffer from periodical cash insolvency, difficulty of payment, market shrinkage and stock increase arising from external effects. In other words, limitations regarding implementation of short-time working have been constricted.

(ii)Ceasing the Work Fully or Partially or Decimating Work

The abovementioned situations requiring short-time working are not sufficient for short-time working practice and those situations must show effect of certain intensity in the enterprise. Those effects should be as follows;

• Decreasing the weekly working hours in the business place by minimum one third temporarily or

• Ceasing the activity in the business place partially or fully for minimum four weeks without seeking the condition of continuity.

Temporariness of decimating the weekly working hours in the business place and ceasing work activities fully or partially is significant. Short-time working is not a continuous and permanent practice but it is a temporary measure.

The situation of ceasing the activity temporarily in all sections of the work performed in the business place is deemed to be ceasing the work fully and the situation of ceasing only the section of production of the work and continuing the activities of the sales sections is deemed to be ceasing the activity partially. The works of all workers in the business place are ended temporarily through ceasing the activity fully; whereas the works of all workers working in a department in the business place are ended temporarily through ceasing the activity partially. In both cases, it is possible to transit to short-time working practice however the field of practicing shall vary on person basis. In the case of ceasing the activity fully, all workers are affected and in partial ceasing some part of workers are affected.

The working activities of the workers in a business place where short-time working is practiced could be ceased fully or partially for maximum three months without seeking for the condition of continuity throughout the short-time working. The person who will decide how long the short-time working shall continue is the employer. The employer may end the short-time working prior to expiration of the period of three months if he/she wishes so.

Another situation where short-time working is practiced is decimating the weekly working hours in the business place in accordance with of the Law 4447 supplementary article 2. According to the Regulation, “decimating” refers to temporarily decreasing the working hours applied in the business place temporarily by one third in the entire business place or in any section thereof. For this reason, it is necessary to perform work of maximum 30 hours in any business place where weekly working period is 45 hours. The weekly working period determined as 20 hours in any business place where weekly working period is normally 45 hours because of short-time working could be increased only up to 30 hours with the opportunity to increase the working periods granted to the employer. In the case the period of 30 hours is exceeded, it shall be deemed to have ended the short-time working and turned back to the normal working since one of the founding conditions of the short-time working has disappeared.

Furthermore another issue to be attended is that the condition of minimum four weeks is sought for ceasing the work fully or partially whereas the condition of duration of minimum four weeks is not sought for the situation of short-time working depending on decreasing the working hours.

(iii)Short-Time Working Request

Short-time working request is made by the employer. Any employer who wants to transit to short-time working practice serves a written notification to the units of the Turkish Employment Agency incorporated in the provinces and counties which is the agency unit and (if there is any collective labor agreement signed) to the trade union which is a party to the agreement (Regulation article 4). The obligations of the employer during notification have been listed as follows;

• To specify the effects of the general economic, sector-based or regional crisis and the force majeure on the business place and what the force majeure is,

• To specify the trade name, address of the business place, the trade union which is a party to the collective labor agreement if any, İŞKUR number of the business place and social security business place registry number,

• To deliver the list containing the information about the workers who will perform short-time working, prepared in the magnetic and written environment with the format determined by the Agency to the unit of the Agency.

It is no longer necessary for the employer to submit concrete documents evidencing the claim of the employer upon the amendment made in the Regulation.

(iv)Assessment of the Request

Assessment of the request of the employer for short-time working is assessed by the Agency in terms of reason and form in the phase of assessment of the request. What it meant by form is the application being in writing and existence of the elements obligatory to exist in terms of content listed in the legislation. The examination on whether the events which cause the employer to make an application for short-time working practice exist is an examination in terms of reason. Then in the case of existence of the force majeure arising from periodical situations caused by the general economic, sector-based or regional crisis and external reasons, in the case the confederations of trade unions of workers and employers or there is a strong indication in this regard, it shall be decided by the Board of Directors of the Turkish Employment Agency which is the Board of Directors.

The request for short-time working shall immediately be sent to the concerned unit of the Guidance and Audit Office for performance of conformity detection by the labor inspector following examination by the Board of Directors and the result of the conformity detection shall be notified to the employer by the Agency unit. The employer shall announce the situation in a place visible for the workers in the business place and report the same to the trade union which is a party to the collective labor agreement. In the case that announcement cannot be made to the workers, the workers subjected to short-time working, shall be notified in writing.

We would like to specify additionally that the requests of the employer for modification of the lists of workers to be applied short-time working and/or for extending the period of short-time working applied in the business place shall be deemed to be a new application following completion of the conformity detection in accordance with the amendment to the Regulation and the above procedure shall be followed accordingly.

In accordance with Regulation article 7/4, the time interval when the short-time working shall be performed within the daily, weekly or monthly working period shall be determined by the employer considering the customs of the business place and the nature of the work.

If the request of the employer is rejected by the Agency; the provision of Regulation and Law of Unemployment Insurance supplementary article 2 do not contain any arrangement with respect to the objection to be made. However it has been regulated in article and paragraph 5/1-b of the Labor Courts Law dated12.10.2017 and numbered 7036 that the court authorized for the disputes to which the Turkish Employment Agency is a party and which arises from the legislation of labor and social security are labor courts. Since the short-time working request shall be rejected by the Turkish Employment Agency, the employers whose short-time working request is rejected are required to make application to the labor courts.

In accordance with the provision of article 11 of the Regulation; any employer who decides to resume normal activity prior to the announced date shall be obliged to notify this to the Agency unit, to the trade union which is a party to the collective labor agreement and to the workers six business days before. Short-time working shall end as of the date specified in the notification. Improper payments arising with respect to the late notifications shall be collected from the employer together with the legal interest and the excess payments arising from any fault of the worker from the worker together with the legal interest.

 

II.ALLOWANCE OF SHORT-TIME

The party who will benefit from the allowance of short-time working is the worker. The period of benefitting from the allowance has been defined in the Law as maximum three months. The employer does not have to use this period of three months at one time. For example, if the conditions in the business place change after the employer benefits from the short-time working practice for two months or if the short-time working practice is completed within a period shorter than expected; the balance one month could be reused by the employer.

Furthermore, one should remember that the maximum period of three months is a limitation imposed for the employer rather than the worker. Namely if the worker is included in the short-time working practice of three months while he/she is working for any employer and in the case that he/she starts to work for any other employer he/she could benefit from the allowance of short-time working within the scope of the enterprise of the second employer this time.

(i)Conditions for Benefitting from the Allowance

In order the worker to be able to benefit from the allowance;

1. The request of the employer for short-time working should be found to be proper.

2. The worker should have been entitled for unemployment allowance in terms of working periods and the number of days of payment of unemployment insurance premium on the date of start of short-time working in accordance with article 50 of the Law #4447. Consequently the worker;

3. Should be within the coverage of unemployment insurance. Namely the persons who are not within the coverage of unemployment insurance and who pay social security support premium shall not be able to benefit from this allowance.

4. The worker should have worked as insured and paid unemployment insurance premium for minimum 600 days for the last 3 years retrospectively from the date of start of short-time working and should have worked continuously for 120 days again retrospectively paying premium.⁴

 

(ii)Amount and Payment of the Allowance

The daily allowance of short-time working is 60% of the daily average gross income of the insured calculated by considering the incomes basis for premium for the last twelve months. The amount of the allowance of short-time working calculated in this manner cannot exceed 150% of the gross amount of monthly minimum wage. This determination is valid for the situations where no working is performed in the period when the short-time working is practiced. In other words, the allowance of short-time working shall be calculated on monthly basis for the non-worked periods allowing to complete the weekly working period applied in the business place.⁵

The provisions of article 2/5 of the Law 4447 and article 7/6 of the Regulation stipulate that in the case short-time working is performed in the business place because of force majeure no allowance could be given for the first week and the allowance of short-time working shall be paid from the second week. The worker shall be paid half wage by the employer for the first week in accordance with article 40 of the Labor Law.

The reason for missing payments is notified as “18- Allowance of Short-Time Working” for the periods of performing short-time working in the SGK Monthly Premium and Service Certificate on behalf of the workers subjected to short-time working. The insurance premium to be paid for the period when the worker is paid allowance of short-time working in accordance with the Law of Social Insurances and General Health Insurance #5510 is transferred by the Unemployment Insurance Fund to the Social Security Institution. Within this period, the worker is paid general health insurance premiums. Short and long term insurance premiums are not transferred within the period in question.

Provided that the period of the allowance of short-time working does not exceed three months, it is equal to the short-time working period and the allowances of short-time working are deducted from the unemployment allowance entitled. The period of the allowance of short-time working was extended with the Resolution of President numbered 1198 published in the Official Gazette dated 26^th June 2019 and numbered 30813. With this Resolution, the period of the allowance of short-time working shall have been extended for three months in the case that an application for extension is made till 31.12.2019 for the business places where short-time working is applied with the justification of force majeure within the periodical situations arising from external effects. However it is necessary to perform a new detection of conformity for other requests of extension except for the requests of extension for which short-time working practice continues and which covers the same persons.

Furthermore one should specify that the condition of waiting for the period of one week stipulated in the Labor Law #4857 for payment of the allowance of short-time working in the case that short-time working is performed and the period of the allowance of short-time working is extended for 3 months due to force majeure reasons in accordance with the provision of supplementary article 2 of the Law of Unemployment Insurance #4447 has been removed. In this case, the one-week period for payment of the allowance of short-time working shall not be waited in the extended period.

Nevertheless, in the case that the period of the allowance of short-time working is extended within the scope of this Resolution of President, the payments made in the first quarter when short-time working is practiced shall not be deducted from the predetermined period of unemployment allowance.

The amount of wage and allowance of short-time working of the worker who performs short-time working for weekly holidays, national holidays and general holidays is paid jointly by the Agency and the employer in proportion with the period of short-time working.

According to the Regulation, the allowance of short-time working cannot be attached, transferred or assigned to others except for the alimony debts. 1/4 of the wage could be subject of assignment and attachment according to the Labor Law whereas the allowance of short-time working cannot be attached or transferred except for alimony debts. On the contrary the transactions performed shall be deemed invalid.

(iii)Auditing and Ceasing of the Allowance

Short-time working practice is audited by labor inspectors. In the case of detection of submission of false information and documents by the employer with respect to the working periods of the workers receiving allowance, during the inspection conducted in the business places and written request of the labor inspector, the allowance of short-time working is ceased considering the number of workers about whom false information is provided. As a matter of fact, the employer who performs short-time working in accordance with article 10 of the Regulation has to keep the records on the working periods of the workers and submit the same upon request. The arrangement in question is understood to be stipulated in line with retrieving the unjust payments. Moreover those records shall assist with detection of whether the employer or the worker has made false declaration.

(iv)Interruption of the Allowance

The conditions where the allowance of short-time working shall be interrupted are listed in article 9 of the Regulation. According to the relevant article, the allowance of short-time working of those who receive allowance of short-time working shall be interrupted as of the date of the health certificate subjected to temporary incapacity allowance, in the case he/she;

• is recruited,

• starts to be paid old age pension,

• is called to arms for any reason,

• resigns due to any working task arising from any law or

• starts to be paid temporary incapacity allowance.

It is the responsibility of the worker to report the above situations to the Agency. Consequently the excess payments made due to false notifications to the Agency contrary to this obligation shall be collected from the worker.

If the employer decides to resume normal operation prior to the date announced, he/she has to notify this to the Agency unit, to the trade union which is a party to the collective labor agreement and to the workers six business days before. The improper payments arising from failure to make the necessary notification shall be collected jointly from the worker and the employer together with the legal interest in accordance with the provision of article 7/11 of the Regulation because in this case the worker shall have failed to notify that he had started to be employed and the employer shall have failed to inform about early expiration of the short-time working.

(v)Sample Table of Allowance of Short-Time Working

The sample table of allowance of short-time working published in the official internet site of İŞKUR (Turkish Employment Agency) is as follows.

	Monthly Average of the Incomes Basis for the Premium of the last 12 months	Amount of Allowance of Short-Time Working Calculated	Stamp Duty	Amount of Allowance of Short-Time Working to be Paid
Employee who worked for minimum wage in the last 12 months	2.943,00	1.765,80	13,40	1.752,40
Employee who worked for TL 4.000 in the last 12 months	4.000,00	2.400,00	18,22	2.381,78

(*) Since the amount of allowance of short-time working calculated cannot exceed 150% of the monthly minimum wage, the amount of allowance of short-time working to be paid has been calculated in this manner. The gross minimum wage in 2020 is TL 2.943,00 TL.

III.COMMENT AND ASSESSMENT

In order to assess the issue within the abovementioned remarks; since the short-time working practice and allowance is a support provided for preventing aggravation of workers in the case that the working periods of the business places are decimated because of general, sector-based or regional crisis or force majeure, a detailed inspection shall be performed in your business place by the Agency unit if a request for this purpose is created by the employer.

In the case that the conditions are matured and the request is accepted as a consequence of the inspection, the allowance of short-time working in question shall be paid to the workers rather than the employer. Those payments shall only be provided to the workers to be entitled for unemployment allowance again by the unemployment allowance. In this case, one should not ignore that the workers who are not entitled for unemployment allowance shall be aggrieved.