The Regulation on Part-Time Work Following Maternity Leave and Unpaid Leave Has Been Enacted Today
Following the enactment of the the Law on Amendments to the Income Tax Law and Various Laws numbered 6663 on 10 February 2016 (the “Omnibus Law”), the Regulation on Part-Time Work Following Maternity Leave and Unpaid Leave (the “Regulation”) determining the works to be performed as part-time and the procedure and principles on implementation has been published in the Official Gazette on the date of 8 November 2016.
Article 22 of the Omnibus Law has amended the Article 74 of the Labour Law (the “Labour Law”) which regulated the maternity leave of the mothers. As per the new amendment, female employees may request their employer to give unpaid leave up to half of weekly working time following the end of statutory maternity leave in written provided that the baby/babies is/are not deceased. Since this regulation is obligatory for the employers, whether to give the respective unpaid leave is not at employers’ discretion.
The above stated unpaid leave shall be applied for i) 60 days for the first birth, ii) 120 days for the second birth and iii) 180 days for the third or more births. In case of multiple pregnancy, 30 days shall be added to the respective durations. If the child is born disabled, the leave shall be applied for 360 days. During these periods, the breast-feeding leave shall not be applicable. Accordingly, the female employee may not use both the breast feeding leave and the half day working right at the same time. This amendment is also applicable to one of the spouses or the adopter who adopts a child younger than 3 years of age.
Furthermore, 6-month unpaid leave right of the female employee is reserved under the Labour Law. However, the dispute among the scholarship opinion on as to whether the employees can use 6-month unpaid leave and respective unpaid leave together or choose only one continues.
In the course of this newly brought unpaid leave, a halftime working allowance shall be paid to the female employee from the unemployment insurance fund following the birth or adoption. Therefore, employer shall not be responsible for this allowance.
Article 21 of the Omnibus Law has amended Article 13 of the Labour Law which regulated part-time employment. Accordingly, the employees may work part-time following the completion of the statutory maternity leave (16 weeks of maternity leave + 6 months of unpaid leave or unpaid leave of half day working right). Accordingly, employees wishing to work part-time can make such request at any time as of the completion of the statutory maternity leave until the compulsory elementary education age of the child. The request for the part-time work can be made either by mother or father, but such leave only may be used by one of them. If the mother or the father does not work, then the one that is working under a payroll of an employer may not request to work part-time. Employees whose spouses are unemployed will not benefit from the respective right of part-time employment. One of the parents who adopted or the adopter will have the right to request part-time employment provided that the adopted child is younger than 3 years of age. However, the Regulation has regulated 3 exceptions where the employee may request part-time employment although his/her spouse is unemployed. These exceptions are as follows; i) if the spouse of the employee has a sickness which require nursing and treatment continuously and such sickness can be documented with a health report through a full-fledged hospital or university hospital; ii) if the custody of the child is granted to the employee; and iii) if a child younger than 3 years of age is adopted solely by the employee.
The Regulation further regulates the conditions of request for part-time employment. As per the Regulation, before commencement of the part-time employment, the employee shall i) state the date of commencement to part-time work, start and end time if the employee shall perform part-time work on all working days, the working days if employee shall work on certain days of week under her/his letter of request for part-time employment; and ii) submit the document evidencing that his/her spouse is working. The employer shall keep the letter of request submitted by the employee under her/his personal file. Please note that, in accordance with the Regulation, the daily working time for part-time works shall be determined by the employer by taking into regard the local general customs, nature of the works performed by the respective employee and the employee’s request.
The employers shall not reject the request of the employee and such request shall not be considered as a valid reason for termination of the employment contract provided that the employee starts working on the commencement date. The employee who wants to start to work part-time or revert to full-time work is obliged to notify the employer in writing one month in advance. However, the employee cannot benefit from part-time employment for the second time for the same child.
The Regulation regulates that the request for part-time employment made by the employee duly shall be met by the employer within at least one month as of the request of the employee and the employer shall revert to the employee in writing. If the employer does not respond to the employee, the request of the employee becomes valid on the date mentioned under his/her letter or the next day. Furthermore, the employee’s divisible monetary benefits and wages shall be paid in proportion to the working time.
However, as per the Regulation, following works to be performed by the employee as part-time are subject to the employer’s approval;
a) Works that are predicted to be performed by full-time doctors, medical specialists, nurses, midwife and opticians and employees working in private health institution as responsible manager, doctor in-charge, laboratory supervisor;
b) Industrial works which are performed by successive shifts due to their continuous nature;
c) Seasonal, campaign or contract works which lasts less than one year due to their nature; and
d) Works which cannot be performed as part-time due to their nature.
Nevertheless, as per the Regulation, the parties may agree on the works which may be performed as part-time in collective labour agreements that are concluded in line with the Unions and Collective Labour Agreement Law No. 6356 regardless of the above exceptional part-time works which are subject to the employer’s approval.
It should be noted that, as per the Regulation, part-time employment may start before completion of the unpaid leave, in other words usage of the unpaid leave in full is not required.
During the period of part-time employment, employer may recruit another employee to be employed under an employment contract for definite period. As per the Omnibus Law, such employment contract shall automatically expire when the part-time working employee returns to work as full-time. As per the Regulation, upon the termination of employment contract of the employee working part-time basis, the definite period employment contract of employee who is recruited in substitution of the part-time employee will be deemed as indefinite period employment contract as of the termination date.
With the Article 22 of the Omnibus Law, scope of beneficiaries of the maternity leave has been broadened. The unused maternity leave days due to the death of the female employee during or after childbirth, may be used by the father. The Omnibus Law also regulates that one of the spouses who adopted or the adopter by him/herself can benefit from eight weeks leave provided that the adopted child is younger than 3 years of age. Please note that, the Regulation explicitly states that, the unpaid leave period shall not be taken into consideration while calculating the annual leave period.