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Insurance of Those Who Work With an Employment Contract Before The Age of 18 at Workplace of His/Her Mother Or Father Under The Scope Of Law Number 5510

ABSTRACT

There is no regulation in the Social Insurance and General Health Insurance Law No. 5510 regarding the insurance of children working under an employment contract at their mother’s or father’s workplace. Instead, the issue is regulated in the Circular No. 2013/11 of the Social Security Institution. In accordance with the regulation in the Circular, in order for children who work under an employment contract at their mother’s or father’s workplace before reaching the age of 18 to be considered insured, their employment contracts must be made in writing with the participation of the guardian and the contract must be approved by the judge. If there is no employment contract that meets the specified conditions, the work done by the child is not considered insured work. The source of the regulation in the Circular is Article 345 of the Turkish Civil Code No. 4721. This regulation of the Social Security Institution creates unfair results in practice and does not comply with both the basic regulations in Law No. 5510 and the jurisprudence of the Court of Cassation. For this reason, our study aims to examine in detail the Social Security Institution practice, which creates problems for employees under the age of 18 to access the benefits they request, especially from long-term insurance branches.
Keywords : Insurance of persons under the age of 18, Insurance of contributing family workers, Those who are not considered insured, Working with an employment contract, Law No. 5510

EXTENDED SUMMARY

In the Social Insurance and General Health Insurance Law No. 5510, various issues regarding those who are considered insured and those who are not, when social insurance begins and ends, and the duration of insurance are regulated in detail. However, Law No. 5510 does not include any regulation regarding the insurance of children who work under an employment contract at their mother’s or father’s workplace before reaching the age of 18. Instead, a regulation was made on this issue with the Social Security Institution Circular No. 2013/11, and minors working in their mother’s or father’s workplace were required to work with an employment contract made in writing with the participation of the guardian and approved by the judge, in order to be considered insured. In case of an employment contract that does not meet these conditions, the Institution excludes the minor from the scope of social insurance on the grounds that the conditions set out in the Circular are not met, without examining whether the minor who works in his mother’s or father’s workplace has actual and real employment. However, the implementation of the Circular provision based on Article 345 of the Turkish Civil Code No. 4721 is incompatible with the fundamental principles of Social Security Law in many respects.

First of all, it must be stated that this regulation does not coincide with the purpose of referral of Article 345 of the Turkish Civil Code, which is to protect the child even against his/her own mother and father. Because, as a result of the implementation of the provision, the fact that the minor’s work is not considered within the scope of social insurance even though she/he is actually working, results in the exploitation of her/his labour rather than her/his protection. In addition, the regulation included in the Circular is incompatible with the implementation of Law No. 5510. Because people who are not considered insured in Law No. 5510 are counted. Among these people, there are no children who work under an employment contract at their mother’s or father’s workplace before reaching the age of 18. In addition, among the criteria sought in terms of gaining insurance qualification in Law No. 5510, the criterion of “working with an employment contract in accordance with Article 345 of the Turkish Civil Code” is not included. On the other hand, even if it is accepted that the employment contract will be deemed invalid if it does not meet the conditions stated in Article 345 of the Turkish Civil Code, the application of the Social Security Institution will not be justified. Because, in accordance with doctrinal opinions, the jurisprudence of the Court of Cassation and Article 394/3 of the Turkish Code of Obligations No. 6098, the invalidity of employment contracts is not considered retroactive. For this reason, it will not be possible to ignore the right to social security by eliminating the fact of actual and real work performed by the minor.

It is also possible for children to work unpaid at their mother’s or father’s workplace. In Law No. 5510, since children who work unpaid at workplace of their

parents are not included among those who are not considered insured.

It should be noted that the regulation in the Social Security Institution’s Circular No. 2013/11 only binds the Social Security Institution. Therefore, the regulation does not prevent those who have lost their rights from applying to court. For this reason, those who work in the workplace belonging to their parents before they turn the age of 18 and without an employment contract made in writing with the participation of the guardian and approved by the judge, have the right to file a lawsuit in the Labour Court if they are not considered insured. In addition, in the event of the death of the insured, the remaining beneficiaries have the right to file a lawsuit in the Labour Court regarding their requests for death pension. However, since the decisions obtained through the judiciary are only of individual nature, the minor who suffers from the decision of the Institution or the beneficiaries in case of his/her death will need to apply to the judiciary in each case. This causes people to receive their requests arising from Social Security Law unnecessarily late. Instead, it would be appropriate for the Social Security Institution, which is a public institution, to make changes to Circular No. 2013/11, taking into account the recommendations of the Ombudsman Institution and the jurisprudence of the Court of Cassation on the subject, and to abolish this regulation, which expands the scope of those who are not considered insured in a way not foreseen in Law No. 5510 and creates unfair results in practice.

5510 Sayılı Kanun Kapsamında Anne veya Babasına Ait İşyerinde 18 Yaşını Doldurmadan Önce İş Sözleşmesi ile Çalışanların Sigortalılığı

ÖZ

: 5510 sayılı Sosyal Sigortalar ve Genel Sağlık Sigortası Kanununda, anne veya babasına ait işyerinde iş sözleşmesi ile çalışan çocukların sigortalılığına dair bir düzenleme yer almamaktadır. Bunun yerine konu Sosyal Güvenlik Kurumunun 2013/11 sayılı Genelgesinde düzenlenmiştir. Genelgedeki düzenleme uyarınca, anne veya babalarına ait işyerinde 18 yaşını doldurmadan önce iş sözleşmesi ile çalışan çocukların sigortalı sayılabilmeleri için iş sözleşmelerinin vasinin katılımı ile yazılı olarak yapılması ve sözleşmenin hakim tarafından onaylanması gerekmektedir. Belirtilen şartları taşıyan bir iş sözleşmesinin bulunmaması durumunda ise çocuğun yapmış olduğu çalışmalar sigortalı çalışma olarak kabul edilmemektedir. Genelgede yer alan düzenlemenin kaynağını ise 4721 sayılı Türk Medeni Kanununun m. 345 hükmü oluşturmaktadır. Sosyal Güvenlik Kurumunun bu düzenlemesi uygulamada adaletsiz sonuçlar doğurmakta ve hem 5510 sayılı Kanundaki temel düzenlemelerle hem de Yargıtay içtihadı ile uyum göstermemektedir. Bu nedenle çalışmamızda 18 yaşından küçük çalışanların özellikle de uzun vadeli sigorta kollarından talep edecekleri yardımlara ulaşmalarında problem yaratan Sosyal Güvenlik Kurumu uygulamasının ayrıntılı bir şekilde incelenmesi amaçlanmıştır.
Anahtar Kelimeler : ÖZ18 yaşından küçüklerin sigortalılığı, Ücretsiz aile çalışanlarının sigortalılığı, Sigortalı sayılmayanlar, İş sözleşmesi ile çalışma, 5510 sayılı Kanun

Cite This Article

APA
YARDIMCIOĞLU, D., & . ( ). Insurance of Those Who Work With an Employment Contract Before The Age of 18 at Workplace of His/Her Mother Or Father Under The Scope Of Law Number 5510. Çalışma ve Toplum, 1(84), 85-116. https://doi.org/10.54752/ct.1624194