DİSK Legal Affairs Director Attorney Necdet Okcan speaks to 12punto: The 'blacklist' trap for workers

Kübra KARASU - 12punto.com.tr

In Turkey, workers face legal problems despite existing regulations. Difficulties in exercising union rights, in particular, are high on the workers' agenda. DİSK Legal Affairs Director Attorney Necdet Okcan explained the problems workers are exposed to and their rights to 12punto.com.tr.

Although workers' rights and responsibilities are protected by current legal regulations, the problems they experience with their employers never end. Forced to endure practices such as mobbing and threats to avoid losing their jobs, workers also struggle with violations of union rights. All of this led to Turkey being ranked among the "10 worst countries for workers" in 2023 in the International Trade Union Confederation (ITUC) report.

Speaking to 12punto, DİSK Legal Affairs Director Attorney Necdet Okcan said, "Workers who are fired are prevented from finding new jobs through blacklists." The answers Okcan gave to our questions are as follows:

THEY ARE PREVENTED FROM FINDING NEW JOBS THROUGH BLACKLISTS

What are the common criminal behaviors that employers in Turkey apply against workers/employees?

"The behaviors that employers in our country commonly apply against employees, which constitute crimes in terms of criminal law, are mainly encountered in the exercise of union rights. Article 118 of the Turkish Penal Code, titled 'Prevention of the exercise of union rights,' contains the provision: 'Any person who uses force or threats against a person to force them to join or not join a union, to participate or not participate in the activities of a union, or to resign from a union or from their position in the union management shall be sentenced to imprisonment from six months to two years.' Since 1961, when union rights were recognized by the constitution, employers have used the same methods against workers who want to unionize or who are in a different union. Employers who learn that workers have joined a union first force them to resign from the union by threatening them. They then fire those who do not resign despite the threats, and prevent them from finding new jobs through blacklists or negative references they create for workers fired for union reasons."

WORKERS ARE UNAWARE THEY ARE EXCEEDING 45 HOURS

What are the rights that workers/employees do not know or know little about?

"Although workers have general knowledge that the weekly working time is 45 hours, due to the work order (disorder) created by employers in workplaces, uncertain break times, etc., they cannot fully calculate the weekly working time, and despite working more than 45 hours per week, they are unaware of this and do not demand overtime pay. The same situation is experienced regarding work on national holidays and general public holidays and the wage rights arising from this work."

PROTECTIVE EQUIPMENT IS SHOWN AS IF IT HAS BEEN PROVIDED

Do you think workers/employees are sufficiently conscious regarding occupational health and safety and all other rights?

"I do not think they are sufficiently conscious. Because I believe that workers, especially regarding occupational health and safety, lack effective training that would enable them to become conscious of perceiving risks and dangers in the work environment and protecting themselves from them. Our country ranks among the top in the world regarding deaths and bodily harm resulting from occupational accidents. According to the provision of Article 4 of the Occupational Health and Safety Law No. 6331, employers are obliged to ensure the health and safety of employees related to the work, and in this context, they are under the obligation to take all kinds of measures, including the prevention of occupational risks, providing training and information, organizing, and providing necessary tools and equipment. However, the picture that emerges in occupational accident case files is that many employers have workers sign many documents upon entry, showing as if they have received this training and have been provided with protective equipment. Yet, the witness workers heard state that such training and protective equipment were not provided."

On what issue do workers/employees most often apply to legal channels against their employers?

"Workers mostly want to claim their rights by filing lawsuits after being fired, for rights dependent on termination such as severance pay, notice pay, and payment for unused annual leave, as well as unpaid overtime pay, weekly holiday pay, and national holiday and general public holiday pay while the employment relationship is still ongoing."

WORKERS ARE EMPLOYED INFORMALLY

What illegal situations do employers force their employees into?

"In our country, where unemployment is intense, employers force workers into uninsured, informal employment by not providing their social security rights. Another form of coercion is the double payroll practice in workplaces. The portion of the workers' real wages up to the minimum wage is shown on their payrolls as earnings subject to premiums and this amount is paid through the bank, while the difference between the real wage and the minimum wage is paid in cash. Workers are forced not to oppose this practice in order not to lose their jobs."

MINIMUM WAGE HAS BECOME THE AVERAGE WAGE

Do you think fair working conditions, fair wage payments, and social rights are offered to workers/employees in Turkey?

"In our country, only 10 percent of all employees are covered by collective bargaining agreements, can benefit from the social rights included in these agreements, and receive higher wages compared to other employees. According to research conducted by DİSK-AR, the minimum wage has become the average wage in our country, and half of the employees receive the minimum wage or wages very slightly above the minimum wage. Accordingly, it cannot be said that a fair wage is paid to employees. In workplaces without collective bargaining agreements, workers have no social rights other than travel and meal allowances. Turkey is in the position of being the country with the longest working hours among OECD countries. There are serious problems in the use of annual leave that workers should use within the framework of their constitutional right to rest, and workers are made to use their leave incompletely or not at all for many years."

CORRESPONDENCE AND MEETINGS SHOULD BE KEPT ON RECORD

What should a worker who is subjected to mobbing do?

"Mobbing has found a place in Article 417 of the Turkish Code of Obligations under the heading 'Protection of the Worker's Personality' with the expression 'psychological harassment.' Article 417/1 of the TCO states: 'The employer is obliged to protect and respect the personality of the worker in the employment relationship and to ensure an order in the workplace in accordance with the principles of honesty, and in particular to take the necessary measures to ensure that workers are not subjected to psychological and sexual harassment and that those who have been subjected to such harassment do not suffer further harm.' If workers file a lawsuit because they are subjected to mobbing in the workplace, they experience various difficulties in proving this. According to the precedents of the Court of Cassation, if the worker presents signs and traces indicating that they have been subjected to mobbing, the burden of proof shifts and passes to the employer. For this reason, from the moment the worker is subjected to psychological harassment in the workplace, they should take detailed notes of what happened, the events, and the psychological state they fell into as a result of the mobbing they were subjected to. All e-mails, WhatsApp correspondence, and phone calls related to this should be kept on record. Support should be sought from a psychologist/psychiatrist regarding the psychological trauma experienced, and a report should be requested regarding this. Especially for mobbing experienced in an environment without witnesses, in order to leave a clue, a complaint should be filed through channels such as the Ministry of Labor and Social Security communication line ALO 170, CİMER, and the Human Rights and Equality Institution of Turkey. In corporate workplaces, if the mobbing originates from employer representatives or colleagues, it is beneficial to file a complaint with the company board of directors and senior managers, and to remind the employer of the obligation to prevent mobbing in Article 417 of the TCO."

TERMINATION MUST BE DONE IN WRITING AGAINST SIGNATURE

Do the ways employers fire workers/employees take place under appropriate conditions?

"It cannot be said that employers fulfill their obligations under the law when terminating workers' employment contracts. Article 19 of the Labor Law No. 4857, titled 'Procedure in Termination of the Contract,' requires that the termination notice be made in writing and that the reason for termination be stated clearly and precisely. In addition, Article 109 of the same law requires that notifications that must be made according to this law (including termination) must be made in writing against a signature. However, in many employment contract terminations, employers fire the worker from the workplace with a verbal notification they make, and contrary to the provision of Article 32 of the Labor Law No. 4857, they do not pay the workers' receivables and compensation arising from the employment relationship and termination."

LONG TRIAL PERIODS

As a result of all this, how does the court process proceed for workers/employees and employers who apply to the courts? What are the steps they should follow in this process?

"For workers whose employment contracts are terminated for invalid or unfair reasons, according to the provision of Article 3 of the Labor Courts Law No. 7036, it is a condition of the lawsuit to have applied to a mediator in lawsuits filed for worker or employer receivables and compensation based on law, individual or collective labor agreements, and for reinstatement. If a lawsuit is filed without fulfilling this condition, the case will be dismissed on procedural grounds. Unfortunately, we are facing long trial periods in cases heard in labor courts. In a debt collection case, labor courts make a decision in an average of two years. If an objection is made against this decision in the regional court of justice, the duration of the regional court of justice review approaches four years. If the decision given in the Regional Court of Justice is subject to appeal review by the Court of Cassation and in cases where a retrial is required if the local court decision is overturned by the regional court of justice or the Court of Cassation, the trial periods become even longer. Considering that the default interest applied to labor receivables is far below inflation, we are faced with the reality that workers' compensation and receivables are defeated by inflation and melt away at the end of long trial periods."

News Source: Kübra Karasu