- General
The Law Amending the Social Security and General Health Insurance Law and the Decree Law No. 375 (Law No: 7438) was accepted to the Turkish Grand National Assembly on 01/03/2023 and was published in the Official Gazette dated 03/03/2023. As of its publication in the Official Gazette, all the details of the “YET” regulation have been determined and the applications have started as of March 3, 2023.
With the amendment made in the Law, it is aimed that all citizens who were insured on or before 8 September 1999 and who completed their legal insurance period with the number of premium days are entitled to retirement. In our article, the effect of the Law Amendment on Labor and Social Security Law and how the applications to be made within the scope of the law change will be examined.
- Innovations Brought with the Law Amendments
The innovations brought with the regulation are as follows;
- Those who started to work within the scope of invalidity, old-age and burial insurance before 08.09.1999 (inclusive),
- Although they started to work within the scope of impairment, old age and death insurance after 09.09.1999 (inclusive), only the age limitation for those whose insurance start date is brought back to be before 08.09.1999 (inclusive) with the borrowings they have made according to the provisions of the relevant legislation allowing to bring back the insurance start date has been removed without changing the conditions for the number of premium payment days and / or insurance period. In the continuation of the introduced regulation, it is regulated that “no retroactive payment can be made and no retroactive right can be claimed” and that it will only have consequences as of the date of entry into force of the Law.
In this context, those who are insured before 8 September 1999 (inclusive) and who have completed the insurance period with the number of premium days but are still waiting for the completion of the age requirement and those who started to work within the scope of impairment, old-age and death insurance after 09.09.1999 (inclusive), but whose insurance start date is brought back so that the insurance start date is before 08.09.1999 (inclusive) with the borrowings they made according to the provisions will be able to benefit from the regulation. As a result, with the Law Amendment, the age requirement has been abolished and it is planned to be entitled to retirement with the completion of the number of bonus days and the insurance period.
With the Law No. 7438, the age requirement added to our legislation on September 8, 1999 was abolished. In this regulation insured women and men who subject to SSI (“SSK”) will be able to retire under the EYT regulation, provided that they meet the 5000 days condition and insurance period of 20 years for women, 25 years for men. The 5000-day premium condition is valid for people whose insurance entries were made until 23 November 1980, and the number of premium days for people whose insurance entries were made after this date gradually increases up to 5975 days. The relevant gradual changes are included in Subparagraph (B) of the first paragraph of the Provisional Article 81 of the Social Insurance Law No. 506. The age requirements in the relevant subparagraph have been abolished with the new regulation. In addition, those who started to work after 9 September 1999 (inclusive), but whose insurance start date is backdated before 8 September 1999 (inclusive) will also be able to benefit from this regulation.
- How Will Retirement Application Procedures be Carried Out?
With the amendments introduced within the scope of Law No. 7438, employees who meet the conditions for the number of premium payment days and / or the insurance period, can firstly inquire about the retirement conditions they are subject to, the dates they will fulfil these conditions and whether they have fulfilled these conditions through the “SSI Registration and Service Document” (“SGK Tescil ve Hizmet Dökümü”), “When Will I Retire Under Normal Conditions” (“Normal Şartlarda Ne zaman Emekli Olurum” ) and “My Working Life” (“Çalışma Hayatım”) applications through the E-Devlet application. Following the inquiry, people who have the conditions to retire with the changes introduced within the scope of Law No. 7438 will be able to apply through the e-government system.
Application to be made via E-Devlet;
“Income, Monthly Allowance, Issuance of the Request Document” (“Gelir, Aylık Ödenek, Talep Belgesinin Verilmesi”) section> “Old Age Pension” (“Yaşlılık Aylığı”) > “New Application”(“Yeni Başvuru” ) > “Old Age Pension” (“Yaşlılık Aylığı” ) in the Allocation Request Type section > Insured Type 4/a SSK and 4/B “Bağkur” is preferred > Application is made by logging in to the Apply section.
Pension applications can be made via e-devlet as well as by handing over documents or by mail. Applications to be made by handing over or by mail should be made to the Social Security Centre/Provincial Directorate to which the insured is affiliated (to which their last workplace is affiliated).
- How Will The Severance Panyment Request Be Carried Out By The Employee ?
Although in the previous practice, severance pay was requested due to retirement in the form of forwarding the “may retire” letter given by SSI “SGK” to the Employer, according to the announcement dated 03.03.2023 published by the Presidency of the Social Security Institution, the issuance of the “may retire” letter by the SGK was stopped in practice. According to this regulation, the “portal document” obtained through the e-Devlet application can be used in applications. After the employees submit the document showing that they are entitled to retirement and their request for retirement due to retirement, they will be entitled to severance pay and then the necessary transactions within the scope of labor and social security law will be carried out.
At this point, the right of termination due to retirement is a right that can only be used by employees. For this reason, it should be noted that employers are not obliged to terminate employment contracts solely on the grounds that the personnel are entitled to retirement.
- Can The Employee Continue To Work Even If He/She Retires?
After the employee is entitled to retirement; it is possible to request severance pay due to the termination of the employment contract due to retirement or the employee can continue to work without terminating the employment contract. In addition, it is possible for the employee to continue working after requesting severance pay as a result of an agreement with the employer. In this context, according to precedent jurisprudence, it is said that the previous working period is liquidated if the employer pays the labour receivables (severance pay, wages, leave pay for unused annual leave and other wage type receivables) to the employee in full. However, after the EYT, it is necessary to take into consideration the possibility that the case law regarding liquidation may change.
On the other hand, it is also possible that the employment relationship may continue after the retirement of the employee without liquidation of the previous period (payment of all wages and receivables to the employee). In this context, severance pay can be requested in the following period with the highest bank deposit interest operating from the date of termination of the employment contract with the retirement of the employee until the date of payment. It may be possible to encounter claims that the first period of work ended with retirement is not liquidated and therefore the two periods of work should be combined.
In this context, in line with the decisions to be made by the judiciary in the disputes that will arise after the EYT; the case law regarding the liquidation of the pre-retirement period is of great importance if an employee continues to work in the same workplace after retirement.
- What Is The Discount Provided To The Employer With The New Regulation?
With the new amendment, if the employees who were insured before 08.09.1999 (inclusive) and fulfil the conditions of premium days and insurance period, and who left their jobs for the first time after the effective date of Law No. 7438 by applying for old age or pension for the first time, continue to work subject to social security support premium (“SGDP”) by applying to the private sector institution where they last worked within 30 days following the date of leaving the job, the amount corresponding to the five-point portion of the SGDP employer’s share will be covered by the National Treasury. Pursuant to Law No. 7438, private sector employers will be able to benefit from the 5-point SGDP employer’s share discount in the event that those who are entitled to retirement and leave their jobs and start working as insured in the same workplace again within the specified period. With this regulation, it is aimed to prevent fluctuations in the labor market, to eliminate the additional cost that will be created by people who will work in retired status by supporting registered work subject to SGDP, and to reduce the SGDP cost of private sector employers in this way. In order for the employer to benefit from the relevant discount, both the 30-day rule must be complied with and the employee who left the job must start working again with the same employer.
Harun Demir, Attorney At Law
