LEGAL OBLIGATIONS TO BE FULFILLED REGARDING THE LAW ON HEALTH AND SECURITY AT WORK
The Law on Health and Security at Work (in Turkish “İş Sağlığı ve Güvenliği Kanunu” and hereinafter referred to as the “Law”) has been adopted on 20 June 2012 under the number 6331, tremendously changes the health labor security legislation in Turkey, with preventive rules and committee and stiff penalties for companies in breach of the Law.
The Law aims at reducing the number of labor accidents, roughly 63,000.- in 2010, 80% of them being realized in small and middle size companies.
The Law is detailed by secondary regulations.
This Law entered into force on 30 June 2012. However, subsequent enforcement dates are foreseen in the Law as explained hereinafter.
1) THE AIM
The aim of the Law is to prevent to the utmost the occurrence of labor injuries and accidents.
2)THE SCOPE
The Law aims to cover all workers in Turkey irrespective of the size of the company and the status of the workers (including trainees and apprentices). However, the provisions of the Law are not applied to the following operations and individuals in accordance with the Article 2/2: the operations of the Turkish Armed Forces, general police force and the secretariat of the national intelligence organization (except the factories, maintenance facilities, tailoring workshops and other work places etc); the intervention activities of the disaster and emergency units; the home services; the self-employed persons in the manufacture of goods and services without employees; the operations of the employment, education and security in correctional services of the detainees and sentenced prisoners.
3) THE MAIN CONTRIBUTIONS OF THE LAW
The main contributions of the Law are staggered as follows:
- First of all, the Law foresees the setting up of labor and security committees, in all work places with at least 50 employees; in the event of sub employment, the sub employees shall also be integrated in the calculation and the sub employer shall take part to the committee under the coordination of the main employer; this committee shall include representatives of the workers; and these representatives shall be the workers union representatives in unionized work places; the number of representatives of the workers union increases as the number of workers increase;
- The Law identifies three groups: dangerous, very dangerous and less dangerous work places, that are identified as per their sectors. The Article 3/1/r of the Law defines the hazard class as the hazard group in which a workplace is identified to fit in, taking into account the nature of the work performed, substances used or produced at every stage of work, work equipment, production methods and types as well as other issues related to work environment and working conditions in terms of occupational health and safety.
- The employees where a danger is identified can refuse to work until the security measures are adopted, meanwhile they keep their rights to be paid; if such measures are not adopted, they have now the right to terminate their employment contracts with their indemnities;
- The Administration can stop activities in work places where a danger has been identified; only the activity presenting a danger shall be stopped; not all the work place;
- The Article 7 states that small work places in dangerous and very dangerous groups with less than ten employees can benefit from a State support provided that they comply with their obligations and that they do not employ unrecorded employees;
- The Law foresees the status of Health Labor Security Experts duly certified by the Labor and Social Security Ministry.
4) DUTY, AUTHORITY AND RESPONSIBILITIES OF THE EMPLOYER AND EMPLOYEES
In pursuance with the Article 4/2, the employer cannot be discharged from his responsibilites when resorting to outsourcing from the competent external services or persons.
Besides, as per the Article 6/1/a, in order to provide occupational health and safety services including activities related to the protection and prevention of occupational risks, the employer shall designate workers as occupational safety specialist, occupational physician and other health staff.
Furthermore, the Article 8/5 of the Law foresees to obtain the following certificates in order to be able to be designated as an occupational safety specialist: Class (A) certification to be considered as qualified enough to work in enterprises classified as very hazardous, at least Class (B) certification to work in enterprises classified as hazardous and at least Class (C) certification to be hired in less hazardous enterprises. Please note that, the Labor and Social Security Ministry (hereafter the “Ministry”) is empowered to introduce sector-specific arrangements for the designation of occupational safety specialists and occupational physicians.
Additionally, the Article 13 foresees the right for the employee to abstain from the work. In accordance with the first paragraph of said Article, employees exposed to serious and imminent danger shall file an application to the Labor Health and Security Committee (hereafter the “Committee”) or to the employer in the absence of such a committee, requesting an identification of the present hazard and measures for emergency intervention. The committee shall convene without delay and the employer shall make a decision immediately and write this decision down. The decision shall be communicated to the representative of the employer and the employee in writing. The second paragraph of the Article sets forth that the employee may abstain from work until necessary measures are put into practice. Besides, the Article 13/3 envisages that the employees shall leave their workplace or dangerous area and proceed to a place safety without any necessity to comply with the requirements in the first paragraph in the case of serious, imminent and unavoidable danger. Furthermore, as per the Article 13/4, employees can terminate their employment contract in accordance with the provisions of the Law applicable to them in case the necessary measures are not taken despite the requests by employees.
In accordance with the Article 14/2/a, the employer shall notify the Social Security Institution of the occupational accidents within three working days of the date of the accident or after receiving the notification of an occupational disease from health care providers or occupational physicians.
In pursuance of the Article 15, the employer shall ensure the health examination to the employees in the following situations: pre-assignment, job change after the assignment, in case of return to work following repetitive absence from work due to occupational accidents, occupational diseases or health problems upon request, and regular intervals recommended by the Ministry upon the employer, the nature of work and hazard class of the enterprise.
Article 17/6 indicates that the employer of the temporary employment relationship shall ensure that the employee receives training on health and safety risks.
In addition, as per the Article 19, the employees are responsible to take care as far as possible of their own safety and health in accordance with their training and the instructions related to the occupational health and safety given by his employer.
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Finally, the Article 20 set forths that the employer shall designate an employees’ representative considering the risks present at work and the number of workers with special attention to balanced participation of workers. The number of representatives shall be determined as follows: One representative for enterprises between 2 and 50 employees, two representatives for enterprises between 51 and 100 employees, three representatives for enterprises between 101 and 500 employees, four representatives for enterprises between
501 and 1000 employees, five representatives for enterprises between 1001 and 2000 employees, six representatives for enterprises with 2001 or more employees.
5) THE COMMITTEE AND COORDINATION
As per the Article 22, the employer shall establish an occupational health and safety committee in enterprises where a minimum of fifty employees are employed and permanent work is performed for more than six months. Employers are under the obligation to enforce the decisions of the occupational health and safety committees taken in accordance with the legislation on occupational health and safety.
In pursuance of the Article 23, the employers shall cooperate in the implementation of the measures related to occupational health and safety and occupational hygiene if there is more than one employer in the same work environment. Besides, the employers shall work in cooperation to prevent occupational risks and offer protection against such risks and inform each other and employees’ representatives on these risks. The management shall ensure cooperation in the field of occupational health and safety if there is a business centre, office block, industrial zone or an industrial estate with more than one workplace and the management shall also advise the employers to take necessary measures against hazards that might affect occupational health and safety in other workplaces. In addition, the management shall notify the Ministry of the employers failing to take these measures.
6) CONTROL AND ADMINISTRATIVE SANCTIONS
The Article 24 states that the authorized Ministry labor inspectors carry out the implementation of the Law. As per the Article 25, in case of any hazardous situation identified within the premises, working methods or equipment, operations which affects employess’ life shall be stopped in the premises or any part of it, taking into account the nature of the hazard and the part of the premises and the workers to be affected by the hazard, until such hazard is eliminated. Additionally, Article 26 lays down the administrative fine for the employer in case of not fulfilling the said obligations.
7) ENFORCEMENT
As per the Article 38, the provisions of the Law are currently in force, excluding that the enforcement dates for the provisions the Articles 6 and 7 shall be as follows:
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- 1 January 2014* for workplaces in dangerous and very dangerous class with less than fifty employees;
- 1 July 2016 for workplaces in less dangerous class with less than fifty employees;
Our Firm remains at your disposal for any further clarifications you may require.
*Please note that there is a pending legislative proposal in the Parliament, proposing to postpone the enforcement date of the Articles 6 and 7 to 1 July 2016 (although these articles already became effective as of 1 January 2014), for workplaces in dangerous and very dangerous class with five or less employees.