New International Workforce Law and New Horizons for Foreign Employment in Turkey
Introduction
International Workforce Law No. 6735 (“ International Workforce Law” or “Law”) published in the Official Gazette (No. 29800) on 13 August 2016 entered into force as of the date opens new horizons for employment of foreigners in Turkey. Rightfully so, the purpose of the Law is stated to increase the foreign investments by promoting entry of qualified foreign[1] workforce into the market and strike a balance between domestic and foreign employment in the current demographics of the workforce in Turkey.
It is intended with this article to provide the reader an insight and roadmap of the significant legal, procedural and institutional milestones introduced with the new Law by analyzing specific provisions.
Purpose and Scope
The purpose of the International Workforce Law is set forth under Article 1 where it is stated that the Law shall identify, implement and monitor policies regarding international labor and regulate the procedures and principles, competent authorities and responsibilities and rights and liabilities in relation to work permit and work permit exemptions to be granted to foreign nationals. The scope of the Law applies to foreign nationals who wish to apply for work or currently work in Turkey and those foreign nationals who wish to apply for occupational training or internship with an employer in Turkey and foreign cross-border service providers resident in Turkey rendering services on temporary basis and real and legal persons currently employing or intending to employ foreign nationals.
Application for Work Permit, Process and Extension
The Law in Articles 6 to 15 set forth principles concerning work permit applications and assessment on the applications by the Ministry of Labor and Social Security (“Ministry”) which is identified as the decision making institution. In principle, the Law requires all foreign nationals subject to this Law to have a work permit to be employed in Turkey where an exemption is granted to foreign nationals who are permitted to be employed in Turkey without a work permit pursuant to bilateral or multilateral agreements or international conventions of which Turkey is a signatory. Turkish citizens who intentionally denounced their citizenship pursuant to the permitted circumstance under Article 18 of the Turkish Citizenship Law (No. 5901) will be subject to the work permit requirement under the Law[2]. The procedure for application and extension of work permits shall be submitted directly to the Ministry or to or Consular Offices of the Turkish embassies or Turkish Consulates General in the residency of the foreign applicant. The period for evaluation shall be completed and the decision on the work permit application shall be rendered within 30 days upon the date of the application provided however the application file is complete[3].
Article 8 of the Law classifies certain professions in healthcare and education services requiring certain specialized competence and training and requires a “pre-permit” for foreigners in such professions with the purpose of evaluating the competence and eligibility of the foreign applicant by authorized governmental authorities (i.e. The Council of Higher Education; Ministry of Science, Industry and Technology). The Ministry may, pursuant to Article 9, reject work permit applications which (i) do not comply with international labor policy; (ii) are submitted for jobs and occupations which are restricted to be performed by Turkish nationals; (iii) the applicant does not possess any qualification or (iv) the applicant is subject to Law on Foreign Nationals and International Protection (No. 6458).
As for the duration of the work permits are concerned, Article 10 limits the duration of the work to a maximum of one (1) year provided that this period does not exceed the duration of their service contract. The Article 10 also entitles foreign nationals who have long term residence permits or already employed with a work permit for a minimum of 8 years to apply for a permanent work permit. It is also noteworthy to mention that the directors (managers) who are shareholders of limited liability companies in Turkey and executive board members who are shareholders of joint stock companies shall be entitled to be employed with a work permit.
The work permit may be extended up to maximum of 2 years in the first request of extension. In the subsequent application for extension of work permit, the extension is granted for a maximum of 3 years in each application.
Turquoise Card
The purpose of the Law is mentioned to promote the access and integration of qualified foreign workforce to enter Turkish workforce based on vocational qualifications, educational background and professional experiences by introducing “Turquoise Card”, a facilitated work permit system. The holders of Turquoise Card shall be entitled to a permanent work permit whereby their dependents shall be granted long term residency permits[4].
General Exemption
The general principles under Article 13 identified cases of exemptions for work permits. Foreign nationals who are holders of residency permits are exempted from work permit requirement.
One significant introduction by the Law is that the executive board members of the joint stock companies not resident in Turkey and shareholders of companies other than joint stock companies (i.e. limited liability, simple partnership) who are not directors (managers) shall be considered to be exempted from work permit requirement.
Termination of Work Permits and Statutory Exemptions
Article 15 of the Law lists circumstances under which the work permit will be terminated and also sets forth terms and conditions for exemptions on work permit applications for certain foreign nationals.
Article 16 of the Law regulates work permit exemptions. Accordingly, the nationals of Turkish Republic of Northern Cyprus and the European Member States are subject to work permit exemption. Foreign nationals with international protection status or conditional refugee status or those under temporary protection or stateless person or victims of human trafficking under victim support in accordance with the Law on Foreign Nationals and International Protection (No. 6458) shall be kept exempt from work permit requirements. Articles 19 and 20 of the Law bring exemptions for foreign students and foreign engineers and architects.
Review, Inspection and Penalties
Article 22 of the Law regulates administrative objection and judicial remedy. The decisions of the Ministry could be challenged by an objection within 30 days upon the date of the notification. In the event the objection is rejected, the applicants are entitled to recourse under law and seek remedial action. The Law further states that, foreign nationals with work permits or work permit exemptions as well employers of foreign nationals are under the obligation to fully adhere the requirement of social security legislation and shall fulfil all obligations under the Law on Social Securities and General Health Insurance (No. 5510) whereby the failure of which shall result in administrative penalties.
Conclusion
The New International Workforce Law is landmark legislation that is designed to set policies with a view to strengthen and improve Turkish workforce by creating a structured integrated system for access to Turkish labor market for foreign nationals and help employment in new fields in accordance with global workforce policies and international conventions.
It is noteworthy to mention that the Law specifically aims to attract qualified foreign workforce or potential workforce (trainees and interns) by setting more facilitative and fast-track processes to be employed in Turkey particularly for foreign directors (managers) and shareholders of companies in Turkey, EU nationals and refugees and protected individuals under international conventions.
The specific guidelines and rules for implementation of the Law concerning application process, duration, consequences of termination, extension of work permits, exemptions and appeal procedures is expected to be introduced by a specific regulation (yönetmelik) in the near future.
[1] Please note the direct translation is “international” based on the original wording of the Law. However it is intended to be “foreign” workforce where it is referred throughout this article and use of “international” and “foreign” is used interchangeably.
[2] Article 6 of the Law.
[3] Article 7 of the Law.
[4] Article 11 of the Law.
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