Makalenin Dili
: TR
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.
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