Legal and economic basis
Short-time Working Allowance on İŞKUR’s website; It is defined as “an application that provides income support to the insured for the period they cannot work for a period not exceeding three months in cases where the weekly working hours in the workplace are temporarily reduced by at least one third due to general economic, sectoral, regional crisis or compelling reasons, or the activity in the workplace is completely or partially suspended for at least four weeks without the condition of continuity” and is regulated in detail in the Additional Article 2 of the Unemployment Insurance Law No. 4447 and the Regulation on Short-Term Working and Short-Term Working Allowance issued based on this law.
Force majeure (force majeure; force majeure; höhere Gewalt) is an external circumstance that cannot be foreseen when the contract is concluded, cannot be resisted when it occurs and leads to an absolute impossibility in the performance of the contract, and in the presence of a force majeure, Article 24/III of the Labor Law entitles the employee and Article 25/III entitles the employer to terminate the employment contract immediately after a period of one week. If the force majeure is of a temporary nature, the employment contract should be suspended instead of terminating the contract in accordance with the principle of job security and continuity of employment of the Labor Law.
The Coronavirus (Covid-19) outbreak has threatened public health and caused tragic deaths in many countries, caused significant disruptions in the global economy and working life, caused significant disruptions in educational activities, and in this context, it has been accepted as a compelling reason. However, this does not automatically terminate the employment contract. Since the coronavirus outbreak is considered temporary, the suspension of the employment contract will come to the agenda.
Pursuant to Article 9 of the Law No. 7244 on Mitigating the Effects of the New Coronavirus (Covid-19) Pandemic on Economic and Social Life and the Law Amending Certain Laws published on 17.04.2020, temporary Article 10 has been added to the Labor Law No. 4857. Pursuant to this provisional article, terminations to be made by the employer or the employee have been restricted for a period of time and the requirement for the consent of the employee in the application of unpaid leave has been abolished. The employer is prohibited from terminating the employment contract other than Article 25/2 of the Labor Law for a period of 3 months from the date of publication of the Law, and the employer is given the right to unilaterally put the employee on unpaid leave without the need for the employee’s consent for a period not exceeding 3 months following the effective date. The President of the Republic may extend this period up to 6 months.
Businesses will be able to continue to benefit from workplace employment incentives during the short-time working period. Since there is no condition not to benefit from short-time working among the employment incentives, there is no obstacle for businesses to have short-time working and benefit from incentives.
For the employee, short-time working periods are considered as if they were worked in accordance with subparagraph j of Article 55 of the Labor Law and are taken into account in the calculation of the annual leave period. There are also decisions of the Court of Cassation stating that short-time working periods will be taken into account in the calculation of the periods based on severance pay.
The short-time working allowance to be paid to the employee cannot be attached and cannot be transferred or assigned to anyone else, except for alimony debts.
The amount of the short-time working allowance is 60% of the insured’s gross wage for the last 12 months, but the monthly allowance amount cannot exceed 150% (1.5 times) of the gross minimum wage. For this reason, while there is a very small loss for the worker with a low salary, the wage loss is higher for the worker with a high salary.
For example; For a minimum wage worker
For the period between January 2020 and March 2020, the 2020 gross minimum wage of 2,558.40TL and
For the period between April 2019 and December 2019, the gross minimum wage for 2019 of 2,943TL should be taken as a basis.
12-month premium based earnings of the minimum wage earner: [(2.558,40×9)+(2.943×3)]=31.854TL and average daily gross earnings will be 88TL and monthly gross earnings will be 2.654TL.
Since the short-time working allowance is 60% of the gross earnings; it will be 53TL per day and 1.593TL per month. Since stamp tax at the rate of 7.59 per thousand is deducted from this amount, the net short-time working allowance to be deposited into the account is 52.60TL per day and 1,580TL per month.
In the calculation of the upper limit of the short-time working allowance; the gross minimum wage amount (2,943TL) valid in the current period is taken as basis. So the upper limit will be; (2.943×1,5)=4.414TL gross. Since this corresponds to an average gross salary of 7,357TL, those whose average earnings based on the premium for the last 12 months is 7,357TL and above will be able to receive 4,414TL gross and 4,381TL net short-time working allowance.
Short-time working allowance is an allowance from the Unemployment Insurance Fund. The short-time working allowance is applied at the workplace for a period not exceeding three months. By presidential decree, this three-month period can be extended up to six months. The fact that the short-time working allowance will be paid from the Unemployment Insurance Fund raises the following question: Will these payments to the worker be deducted from the unemployment salary to which the worker is entitled?
İŞKUR’s website states that the payments made as short-time working allowance are deducted from the unemployment benefit period, but the President is authorized to determine whether they will be offset or not.
Currently, unemployment allowance is utilized for 6 months when 600 days of premium is paid in the last 3 years, 8 months when 900 days of premium is paid and 10 months when 1080 days of premium is paid.
In this context, the worker who benefits from the short-time working allowance actually receives his/her own unemployment allowance. Because according to the regulation, unemployment allowance will be paid after deducting the period during which the worker receives short-time working allowance.
For example, if a worker with 1080 days of premium in the last 3 years benefited from the short-time working allowance for 3 months and then was dismissed, he/she will be able to receive unemployment benefit for 7 months, not 10 months.
During the short-time working period, there is also a loss of rights regarding the worker’s SSI premium payments. For the period during which the worker receives short-time working allowance, only the general health insurance premium is paid by İŞKUR. No premium is paid for the long-term insurance branches required for retirement.
In other words, the comments that the short-time working allowance will not be deducted from wages and that this allowance is in favor of workers are not correct. Both the wages of the worker are deducted from the wages of the worker, the worker receives the unemployment benefit before he/she becomes unemployed, and the SSI premiums for retirement are not paid.
APPLICATION CONDITIONS FOR SHORT-TIME WORK ALLOWANCE
1) CONDITIONS IN TERMS OF WORKPLACE
In order to benefit from the short-time working practice, the employer must not dismiss any workers during the period of short-time working in the workplace, except for “situations that do not comply with the rules of morality and good faith and similar” reasons within the scope of Article 25 of Law No. 4857. Short-time working applications are made by employers on behalf of workers. Workers cannot apply for short-time working.
In enterprises or workplaces, short-time working allowance can be applied for if the weekly working time, which is normally 45 hours, is reduced by at least 15 hours, or if the working time, which is 6 working days, is reduced by 2 days (i.e. at least 4 days a week and 30 hours or less) or if there is no work at all (such as closure by the decision of the governorate).
The application can be made to the İŞKUR unit to which the address where the workplace operates is connected at http://www.iskur.gov.tr/.
The employer is required to prepare a Short-Time Working Request Form and a list containing the information on the workers to be employed for short-time working and to notify the title and address of the workplace, the trade union party to the collective labor agreement, if any, the workplace İŞKUR number and the social security workplace registration number. The short-time working employer is obliged to keep records of the working hours of the workers and submit them upon request.
Normally, as a result of the eligibility determination made by the Labor Inspectors, it should be determined that the workplace is affected by the general economic, sectoral, regional crisis or compelling reason. However, in the determination of the eligibility of short-time working applications made within the scope of COVID-19, all examinations will be carried out at the Guidance and Inspection Directorate or Group Directorates without going to the workplace, only on the relevant application documents and annexes and without issuing a determination report.
Short-time working allowance applications to be made under Covid-19 will be finalized within 60 days from the date of application.
2) CONDITIONS FOR THE WORKER
With Article 41 of the Law No. 7226 published in the Official Gazette dated 26.3.2020 and numbered 31080, temporary Article 23 was added to the Law No. 4447 and within the scope of the said article; the conditions for employees to benefit from the short-time working allowance have been facilitated. Accordingly, to be valid until 30/6/2020, in order for employees to benefit from the short-time working allowance in short-time working applications made on the grounds of compelling reasons arising from Covid-19;
The last 60 days before the short-time working start date,
450 days in the last three years for those subject to a service contract
The duration of insured employment and payment of unemployment insurance premiums is deemed sufficient (these periods were previously 120 and 600 days, respectively).
There is no limit to the number of personnel to be applied for short-time working allowance for eligible workplaces. Even if the personnel applying for short-time working allowance has previously received short-time working allowance, they will be able to benefit from short-time working allowance due to Covid-19.
SSI and Tax Office debts are not taken into account in the short-time working allowance. Foreign employees can also benefit from short-time working allowance.
III. TERMINATION OF SHORT-TIME WORKING ALLOWANCE
In the event that the recipients of short-time working allowance get a job, start to receive old-age pension, take up arms for any reason, leave their jobs due to the work obligation arising from any law, or in the event that the temporary incapacity allowance starts, the short-time working allowance is discontinued as of the date of the medical report subject to the temporary incapacity allowance.
STATUS OF WORKERS NOT COVERED BY SHORT-TIME WORKING ALLOWANCE
It was announced that workers who are not covered by the short-time working allowance will receive cash wage support from the Unemployment Fund. Minister Selçuk said, “We provide 1,177TL monthly income support to our workers who are on unpaid leave and cannot benefit from the Short-Time Working Allowance and to our workers whose employment contracts were terminated after March 15, for the period they are on unpaid leave or unemployed.”
According to Provisional Article 24 added to the Unemployment Insurance Law:
Workers on unpaid leave in accordance with Provisional Article 10 added to the Labor Law,
Workers who cannot benefit from short-time working allowance,
Those whose employment contract was terminated after March 15, 2020 within the scope of Article 51 of the Unemployment Insurance Law,
Workers who cannot benefit from unemployment benefit according to other provisions of the Labor Law,
Provided that they do not exceed the period of non-termination specified in Provisional Article 10 and do not receive an old-age pension, they will receive cash wage support amounting to 39.24 Turkish Liras per day from the Unemployment Insurance Fund for the period they are on unpaid leave or remain unemployed. People who receive wage support in this context will be considered as General Health Insured.
Minister Selçuk also stated that due to the new type of Coronavirus (Covid-19) outbreak, the income criterion and severe disability requirement for the elderly and disabled who need institutional care have been temporarily abolished for 3 months and the President has the authority to extend the article of the law for up to 1 year. However, those who are retired and do not have long-term insurance premiums deducted from their premium payments will not be able to benefit from the short-time working allowance.
V. Sanctions
In case it is determined that short-time working allowance is paid to the workers although short-time working is not actually applied in the workplace; the payments made due to the employer providing incorrect or incorrect information and documents will be collected from the employer together with the legal interest and an administrative fine will be imposed on the employer.
In the event that it is determined that the worker who has been on unpaid leave and benefited from cash wage support is actually employed, the employer will be imposed an administrative fine in the amount of monthly gross minimum wage, separately for each worker employed in this way and for each month of employment. In addition, the cash wage support paid will be collected from the employer together with the legal interest to be accrued from the date of payment.
