In the globalizing world, it is seen that working in different countries is becoming increasingly common. The presence of the element of foreignness in employment agreements may cause conflict between the parties, and the issue should be examined in terms of Turkish law.
I. IN GENERAL
In Turkish law, The Code on International Private and Procedural Law (“Code”) regulates the rules which are applied to private law issues that contain foreign elements. In order this Code to be applied to private law issues, there must be a foreign element. In terms of employment contracts, the existence of a foreign element is mentioned in cases such as the employee or employer being a citizen of a different country, the place of work being performed in a foreign country or employment relationship is closely related with a foreign country.
II. THE GOVERNING LAW
a.If the Parties determine the governing law
The Code allows the parties to determine the governing law which will be applied to employment agreement. However, in order to eliminate the inequality between the parties and to provide the balance, the Code has limited the power of parties to choose the law in favor of the employee. If the selected governing law contains provisions that are more unfavorable than the minimum protection that the employee will have under the mandatory provisions of the habitual workplace law, those provisions of the governing law cannot be applied. In other words, according to the employment agreement, if the habitual workplace law of the employee is Turkish law and the selected law contains provisions that are more unfavorable than this, the relevant provisions of selected law will not be applicable.
b. If the Parties do not determine the governing law
As per the Code, if the Parties do not select any country as governing law, the country in which the employee does his/her work habitually, will be applied. The country where the employee actually performs the job and where the work is done mainly in terms of time and content, can be accepted as the usual workplace. If the employee does the job temporarily in another country, this workplace will not be considered as habitual workplace.
In the cases where the employee does not routinely do his job in a certain country and constantly works in more than one country, the law to be applied to the employment contract is determined in the Code as the law of the employer’s main workplace.
The Code also regulates an exception article for the cases where the parties do not select any country law as governing law. Due to special circumstances of the case, if the law of any other country is closely related to the employment agreement, the judge has discretionary power to apply that country’s law. The main issue for determination of closely related country is the benefit of employee.
The general rule for applying the law of foreign country is that the regulation of that country cannot be against Turkish public order. If the law of foreign country is against public order, that law is not applied. In such cases, Turkish law may be applied. Generally, the regulations against Turkish mandatory rules are considered against Turkish public order. However, every case is evaluated within its own special circumstances. For example, if the foreign law allows children to work or discrimination in wages and other rights based on race, is against the public order.
III. THE AUTHORIZED COURT
According to the Code, in disputes arising from an individual employment agreement or employment relationship, the court of the place where the workplace of the employee is in Turkey is authorized. In the lawsuits filed by the employee against the employer, the employee has options to choose. The Turkish courts where the employer’s place of residence, the employee’s place of residence or habitual residence are also authorized.
Att. Dilara KARTALOĞLU KILIÇ
TARLAN-BAKSI LAW FIRM
ATT. AYLİN TARLAN- ATT. DERYA BAKSI