Extended Summary

Act No. 2828 on Social Services regulates social service organizations. These organizations include home-type social service units. Home-type social service units are residential social service units that provide services to children, women, disabled and elderly people, and people in need of care and shelter.

The acts regulating the employment relationship in our legal system are Labor Act No. 4857, Maritime Labor Act No. 854, Press Labor Act No. 5953, and the sixth chapter of the Turkish Code of Obligations No. 6098 regarding the service contract. In Article 4 of the Labor Act, domestic services are listed among the jobs excluded from the scope of the Act. Act No. 854 on the Maritime Labor Act and Act No. 5953 on Press Labor also define the scope of these acts. The Turkish Code of Obligations applies to labor relations that are not covered by these three special acts. In Act No. 2828, it is accepted that home-type service units are outside the scope of the Labor Law. This regulation is problematic in terms of law-making techniques and contrary to the envisaged system.

Article 4 of the Labor Act excludes domestic services from the scope of the Act. The rationale for excluding domestic services from the scope of the Labor Law is that domestic services do not constitute an economic activity for employers and have the title of employer only by employing workers for the household’s daily needs. The employer in home-type social service units is the Ministry of Family and Social Services. Considering that the employer is the Ministry, it cannot be said that there is an employer that needs to be protected. It contradicts the principle of equality to subject care personnel working in home-type service units to different acts from those doing the same job in other workplaces affiliated with the Ministry. Workers subject to the Turkish Code of Obligations cannot benefit from the labor protection provisions adopted by the Labor Act No. 4857. These provisions include the right to job security and severance pay.

In the decisions of the Court of Cassation, it is ruled that employees working in domestic service units under Act No. 2828 are subject to the Turkish Code of Obligations. The decisions include the preamble of the Act No. 2828. In the preamble, it is stated that by establishing home-type service units, it is aimed at raising children in smaller units, in structures similar to the family environment. The Court of Cassation emphasized that the care staff should not change constantly for the child to be securely attached. In our opinion, this justification does not constitute a legitimate justification for excluding workers from the protective provisions of the labor law.

ILO Convention No. 189 on Decent Work for Domestic Workers and Recommendation No. 201 provide for equal rights for domestic workers. These rights include respect for fundamental rights and principles, including minimum wages, reasonable working hours, overtime pay, uninterrupted rest periods of at least 24 hours per week, limitation of payment in kind, paid annual leave, occupational health and safety, social security rights, open information about working conditions, and respect for fundamental rights and principles, including association and collective bargaining.

The labor contracts between the Ministry of Family and Social Services and workers employed in domestic service units are standard forms of contracts. The provision of working time in the contracts is problematic. According to the contract, “Domestic social service units are a 24/7 workplace. The worker works one full day, rests for 48 hours, and works 11 days in a month”. In the article of the contract regulating overtime work, “In case of working more than 11 days in a month, overtime pay is paid. It is carried out according to the provisions of the collective labor agreement and other relevant legislation. 24 hour working personnel shall have rest hours when their children are at school or sleeping, which is at least 7.5 hours”. According to this provision, the daily working time may reach 16.5 hours.

Since domestic service units are subject to the Turkish Code of Obligations under Law No. 2828, the provisions of the Turkish Code of Obligations shall apply in terms of working hours and overtime work. The Turkish Code of Obligations refers to labor laws in terms of overtime work. According to the Act No. 4857, work exceeding 45 hours per week is overtime work and the daily working time is limited to 11 hours. The provision in the labor contracts is contrary to the Turkish Code of Obligations.

In a relevant judgment of the Court of Justice of the European Union, the working time of a parental care assistant in a children’s village in Finland was evaluated. The Court of Justice of the European Union first stated that Directive 2003/88 on Working Time does not exclude domestic work. It then recognized that the worker has a certain autonomy in determining his/her free time within the 24-hours, but that waiting periods are also counted as working time as the starting and finishing times of the work are fixed. According to the Court, the employer’s difficulty in supervising the daily activities of its employees is not sufficient to establish that working time cannot be measured or predetermined. This is because the employer has determined the starting and ending times of the work.