Part time working and the social security problems of part time workers

Economic and technologic changes have brought the need for change in arranging work in business life. Accordingly, primarily flexibility and following that, flexicurity concepts have taken place in international area in business life. The sense of flexicurity has brought part time working and on-call working models which are among flexible employment agreement types. Both working models are arranged normatively first in Labor Law number 4857 in our legislation (art. 13, art. 14). Although the arrangement is generally in compliance with Directive 97/81/EC of EU and the Agreement number 175 of ILO, the most significant difference is accepting the criterion of determining weekly working period of a worker working with part time employment contract in our law significantly less than a weekly working period of a precedent worker working full time. In the text of the Law, "significantly less" criterion is stated. In justification of the Law, it is stated as determining weekly working period less than two thirds of a weekly working period of a precedent worker working with full time employment agreement. In the 6th Article of the "Working Periods Regulation Relevant to Labor Law" put into effect after the Law, the definition "A work performed up to two thirds of a precedent work carried out by a full-time employment agreement at a workplace is part time working" takes place in accordance with the justification of the Law. The only difference between the justification of the Law and arrangement of the Regulations is while the justification considers works as part time working by using the expression "less than two thirds of " normal working period, Regulation considers works performed "up to two thirds of " normal working period as part time working. In cases when regular working period is 45 hours at a workplace, a contradiction arises between the justification of the Law and arrangement of the Regulations on considering the determined 30-hour working period either as a part time working or a full-time working, and a result of accepting 30-hour working period as a full-time working according to the justification of the Law and as a part time working according to the arrangement of the Regulations comes up. In the Supreme Court decisions on the other hand, 30-hour and less works are accepted as part time and this is admitted. "Significantly less" working criterion brought in Law and accepting works up to maximum thirty hours as part time working require acceptance of employment agreements of workers working slightly more than thirty hours, for instance weekly thirty-two hours, as full-time. However, this situation breaks equality against workers working forty-five hours a week at a workplace. To avoid such results, we consider that the condition of decrease in weekly working period being significant should be removed by making a legal regulation and making it compatible with the Directive 97/81 of the Law EU shall be suitable. Form requirement is not stipulated in the Law for part time employment contract. Accordingly, part time employment contract is concluded by mutual declarations of intention of the parties as other employment agreements. However, in any case, making the agreement in written have importance in terms of the law of evidence. However, on-call working agreement which is a type of part time employment contract is subject to written form requirement in Law. Moreover, in case a part time employment contract is concluded with a definite duration, the agreement has to be in written as employment agreements of definite duration are arranged to be made in written. In legislation, there is no arrangement restricting a worker to work with more than one employment agreement for different employers. In terms of a part time worker, working for more than one employer is frequently seen due to reduced working period. In case a worker works at more than one part time works, even if the total working periods exceed a regular working period at a workplace or the weekly working period defined in the Law, each of these works shall be deemed as part time working. However, it is stated in the discipline that weekly working period of a worker working with more than one part time employment contract should not exceed the periods stated in Article 63 of the Labor Law to ensure occupational health and safety. In Article 13/2 of the Labor Law Number 4857, there is a statement as: "a worker being worked by a part time employment contract cannot be subject to a process different from a full-time precedent worker only due to his/her employment agreement being part time unless there is a reason enforcing such difference. Divisible benefits of a part time worker relevant to salary and money are paid in proportion to the period he/she works according to a full-time precedent worker." While the Law arranges the equality between part-time and full-time workers, it has drifted away from absolute equality and arranged payment of divisible benefits of a part time worker relevant to salary and money in proportion to the period he/she works according to a full-time precedent worker. According to all these legal arrangements, part time workers shall also benefit from fringe benefits being provided for workers. However, this benefiting shall be in proportion to working periods of a part time worker. In Article 13/4 of the Labor Law number 4857, it is stated that in case of a vacant position which fits the qualifications of a part time worker, vacant positions shall be announced in time considering by the employer his/her desire to pass from part time to full-time. However, this decision has not imposed any sanction. In cases when the offer for a change comes from the employer, substantial alteration procedure is required to be carried out in compliance with Article 22 of the Labor Law. With Bag Bill Number 6663 and paragraph 5 added to the 13th Article of the Labor Law, a right to claim part time working is given to one of the parents until the beginning of the month following the starting date of compulsory primary education of their child. Main difference of this amendment stipulating a change of status from Article 13/4 of the Law is the employer's obligation to accept this request coming from the worker in case of existence of the conditions. In part time working, as a rule, the worker and employer freely determine the amount of the salary. It is possible to determine a part time worker's salary as hourly, daily, weekly or monthly. However, salary to be given to the worker should not be less than the minimum wage to be calculated for the same period. Monetary or in-kind premiums, bonus, fuel allowance, food allowance, child allowance and such rights provided to the worker other than his/her salary are qualified as fringe benefit. Pursuant to the Law arrangement, all other divisible rights and receivables relevant to money of a worker other than his/her salary shall also be determined according to working period. There is no arrangement in the Labor Law on restriction of extra labor or overtime work for part time workers. However, in the 8th Article of the Extra Labor and Overtime Work Regulations relevant to the Labor Law, workers worked by part time employment contract are listed among workers which extra labor is prohibited and in the last sentence of the Article, it is stated that overtime work is also prohibited for part time workers. A prohibition not set forth in the Law being arranged by Regulations is not compatible with hierarchy of norms. However, there is no doubt that salary of the worker who has been worked as extra labor or overtime work despite the prohibition has to be paid against his/her work. As a period below weekly working period is decided mandatorily in part time working, despite it is prohibited by Regulations, works of the worker exceeding this period should be considered as overtime work, not as extra labor, and an overtime work salary should be paid by increasing the hourly wage by twenty-five percent. In Labor Law, there is no difference according to agreement type in terms of having right for national holidays and general vacation pay. Accordingly, in case a worker working with part time employment contract works on national holidays and vacations, there is no doubt that he/she shall be entitled to the wage stated in Article 47. In Article 46 of the Labor Law, it is stated that at least twenty-four hours of uninterrupted weekend vacation shall be given to workers within seven-day time period provided that they have worked on workdays determined according to Article 63 of the Law. Due to this arrangement, it should be discussed in the discipline whether part time workers deserve right for weekend vacation. However, the Supreme Court has decided that a part time worker cannot deserve right for weekend vacation because he/she works below legal weekly working period regardless of working days and hours. It is explicitly stated also in Article 13/1 of Annual Paid Leave Regulations that part time and on-call working workers cannot be subject to an application other than those applied to full-time workers in terms of right of leave. Within this scope, workers who work with a part time employment contract and complete one annual working period shall also benefit from annual leave right as a full-time worker. If a worker working on specific days of a week has fulfilled his/her act of working on working days, he/she shall be entitled to annual paid leave when he/she completes one annual period as of the date he/she has started working actually. A part time worker shall use his/her right of annual leave by not working on workdays within his/her leave period and his/her salary for workdays within leave period shall be paid completely by his/her employer. Pursuant to Article 27 of the Labor Law, an employer has to give a worker job seeking leave for at least 2 hours every day within notice period to find a new job. Although how a part time worker shall benefit from this right is not clearly arranged, requirement of giving job seeking leave by proportioning weekly working period to working period of a full-time worker is accepted in the Supreme Court decisions. There is no difference between a part time working worker and full-time worker in terms of expiry of an employment contract. Considering the number of days which a part time worker has actually worked in determination of the seniority period shall result in not being entitled to get severance pay despite the worker has worked for years. Accordingly, also in Supreme Court decisions, seniority period of a worker is accepted as the calendar period starting from the date which he/she has started working actually until the expiry date of the employment agreement. Severance pay of a part time worker shall be calculated over his/her last monthly vested gross salary as a full-time worker. In justification of Article 13 of the Labor Law, it is stated that notice periods in part time employment contracts cannot be different from notice periods in full-time agreements. Within this scope, provisions on notice periods and notice pay shall be applied the same for part time workers. Length of notice period is arranged in accordance with the seniority period of a worker, and seniority period of a worker shall be calculated over the period from the date the worker has started working actually until the moment of termination, and within the notice period, the worker shall execute his/her performance only on the days he/she has to work. Notice pay shall be found by multiplying a daily vested salary to be found by dividing monthly vested salary of a worker by 30 by notice period. Part time workers shall benefit also from employment security provisions as full-time workers provided that they provide the conditions. In Press Labor Law and Maritime Labor Law no special arrangement is given on part time working. In Turkish Code of Obligations, there is an arrangement as "a service agreement where a worker undertakes to fulfill a service to an employer part time regularly". As a clear arrangement is not given relevant to part time working in Press Labor Law and Maritime Labor Law, the discipline on how to determine the maximum working period to accept an employment agreement as part time should be discussed. However, as there is no arrangement in Turkish Code of Obligations on working periods, applying Labor Law by comparison shall be the most proper method. Supreme Court decisions are likewise. There is no obstacle for part time workers to be a member of a union. An exception is brought to uniqueness principle in union membership for part time workers and the principle is arranged to allow a part time worker to be a member of more than one union in the same sector at the same time. Part time workers shall be included in the number as full-time workers in authority determination of the union. There is no obstacle for part time workers to benefit from the provisions of a collective labor agreement (CLA) as long as they are not excluded from the scope of collective labor agreement. Unless it is determined how to apply the provisions of a collective labor agreement for a part time worker, it shall be suitable to evaluate each right according to its nature. Within the scope of the law number 5510, part time workers are also mandatorily insured. However, number of premium payment days is determined on the basis of monthly working period / 7.5. Part time workers benefit from all long and short-term insurance branches as full-time workers. However, as the number of premium payment days are high and as it is very difficult and sometimes impossible to reach this premium number for part time workers, part time workers are in disadvantageous condition in terms of retirement pension-pay, unemployment insurance and general health insurance. Part time workers are able to benefit from healthcare service only by paying general health insurance premiums outside. Consequently, it is clear that additional regulations are needed both in labor legislation and social security legislation in terms of all flexible working models, primarily part time working.