Social Policy and Labour Law Journal
Social Policy and Labour Law Journal
The determination of the applicable law in the lawsuits filed by Turkish workers, who are mostly taken abroad to work in construction, to obtain their rights arising from the employment relationship after their employment ends in the country where they work has caused intense debate in doctrine and practice.
The main reason for this situation is an article in the contracts signed by the employee and employer with İŞKUR before going abroad, which determines the law to be applied to the dispute as the law of the country where the work is performed. Since it is a common fact that Turkish workers taken from Turkiye to work in construction sites in countries that provides lower rights than the minimum protection provided in Turkiye in terms of employment law. After their return to Turkiye, these workers claim their benefits such as seniority payment, at the Turkish courts depending on Turkish Labour Law. In the vast majority of disputes brought to court, the application of the law of the country where they work has caused a loss of rights for the workers.
Different decisions have emerged due to different interpretations among the judicial bodies, and this situation has brought the issue to the Constitutional Court as a higher instance. Three different courts have applied to the Constitutional Court requesting the annulment of the first two paragraphs of Article 27. The Constitutional Court ruled on 5.11.2024 to annul the provision of MÖHUK 27/1 and for the annulment decision to enter into force six months later, and the decision was published in the Official Gazette dated 10.03.2025.
The legislator enacted a new regulation for the provision of MÖHUK 27/1, which was annulled by Article 18 of Law No. 7550, and also changed the fourth paragraph. Law No. 7550 was published in the repeated Official Gazette dated 4.6.2025 and entered into force.
Therefore, considering the reasons stated in the Constitutional Court’s annulment decision, it is necessary to examine the provisions of MÖHUK 27/1 and 27/4 introduced by Law No. 7550.
In the justifications of the regulations and the Constitutional Court decision, the purpose of labor law to protect the worker and the unique characteristics of labor contracts are emphasized, and the principle that the choice of law to be made regarding labor contracts will be exceptional and valid to the extent that it does not harm the purpose of protecting the worker is strongly emphasized.
After the Constitutional Court’s annulment decision, the application of Article 27 of the MÖHUK will mainly be shaped by the interpretation of the fourth paragraph and the interpretation of its purpose. It can be stated that the amendment made with Law No. 7550 will be far from solving the problems in practice and will not make any difference since it does not introduce a new regulation. The important point here is the establishment of a regulation and application where the principles and rules of International Private Law and Labor Law can coexist. It will not be possible to apply the law of the country where the worker is a citizen in every case by leaving aside the possibility of choosing law or conflict of laws rules regarding labor contracts containing a foreign element, and it will not be defended to apply the legal rules specified in the contract in every case by leaving aside the principle of protecting the weaker party, which gives the unique structure of labor law and is its most distinctive feature.
Therefore, in the implementation of Article 27 of the MÖHUK after the Constitutional Court’s annulment decision, both the justifications in the annulment decision and the justification of Article 18 of Law No. 7550 will always be taken into consideration and the interpretation of the said article will be required according to the concrete case. Another material fact that should not be forgotten is that in the process leading up to the Constitutional Court’s annulment decision, the vast majority of disputes that were the subject of judicial decisions were related to workers who were “taken abroad” to be employed. This situation is different from workers who found and went abroad with their own means to work. In the first case, workers are taken to work at construction sites abroad by firms that are resident here, that they have worked with before or that they know as Turkish employers even if they have not worked there, by signing a standard contract with İŞKUR, with all travel expenses covered by these employers, these facts create a trust on the workers’ that should be protected under law.
It should be stated again that the main purpose of the legislator in introducing the regulation of Article 27 of MÖHUK is to create an article that protects workers more and allows for the choice of law to be limited and only in favor of the worker.
