Extended Summary

The minimum wage practice, which is an example of limiting the employment relationship between the employer and the employee for social purposes in order to ensure fair and favorable working conditions, is secured both by the 1982 Constitution and the Labor Law No. 4857, as well as by international agreements to which Turkey is a party. The minimum wage practice aims to prevent employees from working for less than a wage befitting human dignity. In this way, the protection of the employee, who is the weaker party in the employment relationship, is ensured and the exploitation of their labor is prevented.

In Article 4, paragraph (d) of the Minimum Wage Regulation, the minimum wage is defined as “the wage paid to the employees for a normal working day and sufficient to meet the essential needs of the employee such as food, housing, clothing, health, transportation and culture at a minimum level based on current prices.” If you pay attention, a determination has been made in the relevant Regulation that only takes into account the needs of the employee and does not take into account the needs of their family when defining the minimum wage. However, the needs of the employee’s family are also taken into account in international agreements regarding the minimum wage. Our country has made reservations to the relevant provision of the European Social Charter due to this different application. However, no reservations have been made to the regulation regarding the obligation to “provide all workers… with a wage system that will provide them and their families with a humane standard of living in accordance with the provisions of this Convention” in article 7 (a) (ii) of the Convention on Economic, Social and Cultural Rights (ICESCR), another international agreement that we are a signatory to. For this reason, it should be noted that the minimum wage determination in the Minimum Wage Regulation is not in accordance with the ICESCR to which Turkey is bound.

The determination of the minimum wage is a very sensitive issue in terms of ensuring labor peace and social justice, and it is seen that criteria are set in international agreements regarding the institutional organization that will make this determination. In this context, the necessity of a structure that brings together the representatives of the “government”, “worker” and “employer” is emphasized for the determination of the minimum wage. In this way, all parties to the social issue in question will have the opportunity to negotiate around the same table. In our country, in accordance with Article 39 of the Labor Law No. 4857 titled “minimum wage”, the minimum wage is determined by the decision of the Minimum Wage Determination Commission. The Minimum Wage Determination Commission is regulated by Article 522, paragraph (f) of the Presidential Decree No. 1, and it has been seen that all three parties are included in the formation of the Commission. However, the fact that the government is included with seven members in the Commission, where the employee and employer representatives are included with five representatives each, causes the government’s preference to be effective in the decisions of the Commission. The Minimum Wage Determination Commission can be described as a “sui generis” administrative board within the central administration. The “minimum wage determination decision” taken by the Commission is a regulatory administrative action and sets forth the lowest wage that can be agreed upon in the employment contract and collective agreements between the employer and the employee. In this context, the wage that the employers will pay to the employee within the scope of the employment contract cannot be below the minimum wage. In order to ensure the effective implementation of the minimum wage, our domestic law foresees administrative sanctions against employers who pay workers less than the minimum wage.

The minimum wage determination decision may be subject to judicial review pursuant to Article 125 of the Constitution. Within this scope, anyone whose interests are violated due to this decision may file a lawsuit with the Council of State within sixty days from the date of publication of the relevant determination decision in the Official Gazette. In the lawsuit filed, failure to properly establish the Commission and failure to comply with the decision-making procedures may lead to the annulment of the decision taken in terms of authority and formal elements. Again, the fact that the Commission did not properly consider the social and economic situation and living conditions of the country when determining the minimum wage, and that these issues were acted upon with clearly untrue grounds, will necessitate the annulment of the decision in terms of substance.