Employment & Labour

SIGNIFICANT LEGAL ARRENGEMENTS IN THE IMPLEMENTING REGULATION OF INTERNATIONAL LABOUR LAW

The Law No. 4817 on Work Permits of Foreigners, which includes the principles regarding the work permits of foreigners and the procedures to be followed in Turkey; has been abolished with the Law on International Labour Force No. 6735 (“Law”), which entered into force in 2016.

Although the regulation of the Law on International Labour Force (“Regulation”) is mentioned under the Article 25 of the Law, the implementing regulation of the Law on Work Permit of Foreigners remained in force until February 2, 2022. Within entry into force of the Law on International Labour Force; undoubtfully, necessitated the existence of an implementation regulation in terms of the reflections of the law on practical life and the procedures to be followed.

The need for a new implementation regulation has been met with the “International Labour Law Implementation Regulation” published in the Official Gazette numbered 31738 and dated February 2, 2022. As a matter of fact, the relevant Regulation deals with the issues specified in the 25th Article of the Law on International Labour Force in detail.

Reflections of the “International Labour Policy” on the Regulation:

Although the phrase “International Labour Policy” in the Second Chapter of the Law on International Labour Force is not included in the Law on Work Permit of Foreigners, it reflects the purpose pursued by the Law and the Regulation. Although there is no definition in the Law regarding the relevant policy, Article 6 of the Regulation clearly describes the purposes pursued by this policy.

Pursuant to the relevant article; international labour policy aims at the sustainability of international employment policies as well as the policies to be developed to meet the labour force needed by Turkey primarily from the domestic labour force. With this goal, a balance of domestic and foreign labour force will be established and qualified foreign labour force will be utilized. In addition, bringing a highly qualified foreign labour force and investor to the country, which has come to the fore in any field of strategic importance, is among the pursued objectives. As a matter of fact, the conditions to be sought in order to determine a qualified labour force and qualified foreign investments are provided under Article 32 of the Regulation.

Since the sustainability of international employment is aimed with the aforementioned policy, it is seen that there are some important and facilitating regulations in the Regulation in order to attract foreign workforce to the country.

Remarkable Factors of the Old Implementation and Regulation:

The regulation involves a new arrangement regarding the objection process in case of rejection of work permit applications. Within the 66th Article of the Regulation, a very significant amendment has been brought in terms of time and procedure. In this context; against the decisions made by the Ministry within the scope of the Law and Regulation, the relevant parties can object within 30 days from the notification date of the decision. Objections will be made via the “system”, and in case of rejection of the objection, it has been made available to apply to the administrative jurisdiction.

Pursuant to Article 11 of the Regulation, all work and transactions regarding the receipt, evaluation and conclusion of foreigners’ work permit, work exemption applications and other applications are carried out via the “system” “electronically”. In addition, provision 11/3 of the Regulation regulates that all data on international labour mobility will be stored on the system. The introduced system arrangement will undoubtedly facilitate the implementation of international labour policy. Thus, the electronic environment of the relevant business and transactions will increase the speed of the processes and create a safe environment concerning the registration of international employment.

Pursuant to Article 15 of the Regulation, foreigners to be determined by the General Directorate, who situated in Turkey, will be able to apply for a work permit through the system without a valid residence permit. The aforementioned regulation is a new amendment that is not included in the implementing regulation of Law on Work Permit of Foreigners. 

At this point, in terms of the applicability of this article, some special conditions will be determined by considering the qualifications of the foreigners mentioned in Article 15 of the Regulation, regarding the characteristics that the employer and/or workplace that employs the foreigner should have, and the compliance of the application with the international labour policy. These conditions will be updated semi-annually and published on the official website by the General Directorate. According to the old Law on Work Permit of Foreigners practice; In order for foreigners to apply for a domestic work permit, they had to have a residence permit valid for at least 6 months. It should also be noted that the restriction on foreigners to be determined by the General Directorate is of an exceptional attribution. Likewise, apart from the aforementioned exception, the residence permit requirement for at least 6 months is still valid for all domestic applications. 

In addition, Article 26 of the Regulation, titled “Change of Branch or Position”, is extremely remarkable in terms of the sustainability of international employment within the country. Within the relevant regulation, it has been made possible for a foreigner, who has been granted a work permit under an employer, to apply for a change through the system so that he can work in a different position at the workplace of the same employer or in other branches of relevant employer in the same business line.

It would also be appropriate to refer to the title of “Suspension of Work Permit” in Article 30 of the Regulation. According to the relevant article, under the work permit given based on the employer; The employer and the foreign employee may mutually agree to suspend the employment contract for a maximum of 90 days, except for situations that make unpaid leave obligatory, such as work accident, illness, maternity, obligatory community service. Occupations and sectors where work permits can be suspended are determined by the General Directorate.

However, Article 28 of the Regulation regulates that, foreigners who have a long-term residence permit in Turkey or a legal work permit of at least eight years can apply for an indefinite work permit under the title of “Indefinite Work Permit”. The relevant regulation, unlike the implementing regulation of the Law on Work Permit of Foreigners, stipulates that the indefinite work permit documents will be renewed at the end of every five years as of the start date of the work permit. The application for renewal of the relevant document must be made 6 months before the expiry of the 5-year period. In the meantime; It should also be noted that in the absence of a renewal application, the indefinite work permit will be suspended and will remain suspended until the document is renewed.

 

Türküm Türkmen, Attorney at Law

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