Law Applicable to Foreign Service Contracts
Sibel ÖzelLaw Applicable to individual employment contracts are regulated separately in Article 27 of Turkish Private International and Procedural Law No. 5718 (MÖHUK) in terms of protection for weaker parties. In this respect, the parties are not allowed to choose a law that would deprive an employee of the protection afforded to them by the provisions of the law of the country in which the employee habitually carries out their work. The peremptory norms whose purpose is to protect employees regarding the law of the workplace will indicate employees’ level of protection. In this respect, MÖHUK differs from the Rome I Regulation on laws applicable to contractual obligations. MÖHUK does not allow a choice to be made regarding law that may result in an employee being deprived of the protection afforded to them by provisions that cannot deviate from an agreement under the law of the habitual place of employment. However, while the Rome I Regulation also doesn’t allow the law to be chosen that may result in an employee being deprived of the protection afforded to them by provisions that cannot deviate from an agreement under the law of the habitual place of employment, it also doesn’t allow this for the law in the country where the place of business through which the employee was engaged is situated, with the law of that country being more closely affiliated than indicated in Paras. 2 and 3 of Art. 8. In places where the parties did not choose a law, the applicable law must be determined by the objective criteria of the law of the habitual place of employment. However, when the employment contract is more closely affiliated with the law of another country, the law of that other country can be applied. Foreign service contracts that are concluded between Turkish employees taken abroad to work and their Turkish employers are prepared by the Turkish Employment Agency with regard to terms and conditions. These contracts include provisions related to the application of the law of the country where the employee works regarding certain issues. This article reviews if these provisions are the choice of a law agreement and a reason for applying Turkish law in addition to overriding mandatory rules in employment law and the effects of public policy.
Yurt Dışı Hizmet Akitlerinde Uygulanacak Hukuk
Sibel ÖzelBireysel iş sözleşmelerine uygulanacak hukuk, zayıf tarafı koruma adına MÖHUK m. 27’de ayrı bir hüküm olarak düzenlenmiştir. Bu bağlamda taraflara, mutat işyeri hukukunun işçiyi koruyucu hükümleri ile işçiye sağlanan korumadan onu mahrum bırakacak şekilde hukuk seçimi yapmalarına izin verilmemiştir. İşyeri hukukunun işçiyi koruma amacıyla getirilen emredici kuralları işçinin korunmasındaki sınırı işaret etmektedir. Bu bağlamda MÖHUK, Akdi Borç İlişkilerine Uygulanacak Hukuka İlişkin Roma I Tüzüğünden farklıdır. MÖHUK mutat işyeri hukukunun işçiyi koruma amacıyla getirilen kurallarını bertaraf edecek şekilde hukuk seçimine izin vermemiştir. Buna karşılık, Roma I Tüzüğünde mutat işyeri hukukunun yanında, işçinin işe alındığı işyeri hukuku ve ilişkiyle sıkı bağlantılı hukukun işçiyi koruyan hükümlerinin de hukuk seçimi ile bertaraf edilmesine izin verilmemektedir. Taraflar hukuk seçimi yapmadığında uygulanacak hukuk mutat işyeri hukuku olarak belirlenen objektif kıstasa göre tespit edilecektir. Bununla beraber, iş sözleşmeleri başka bir ülke hukuku ile daha sıkı bağlantılı ise, bu hukuk uygulanabilir. Yurt dışına çalışmaya götürülen Türk işçiler ile Türk işveren arasında yapılan yurt dışı hizmet akitleri genel işlem koşulları formunda, Türkiye İş Kurumu tarafından hazırlanmaktadır. Bu akitlerde bazı meselelerde işçinin çalıştığı ülke hukukunun uygulanacağına ilişkin hükümler bulunmaktadır. Makalede bu hükümlerin hukuk seçimi anlaşması olup olmadığı, Türk hukukunun uygulanma gerekçesi ve ayrıca iş hukukunda doğrudan uygulanan kurallar ile kamu düzeninin etkisi irdelenmektedir.
Law applicable to individual employment contracts are regulated under Article 27 of the Turkish Private International and Procedural Law No. 5718 (MÖHUK) in terms of the protection of a weaker party. In this respect, the parties (employer and employee) are not completely free to choose any law they want. Thus, the parties can only choose the law that does not deprive the employee of the protection afforded to them through the legal provisions of the country in which the employee habitually carries out their work. The connecting factor adapted for application to employment contracts is affiliation to the place where the employee habitually carries out his work. The peremptory norms whose purpose is to protect the employee regarding the law of the workplace will indicate the employee’s level of protection. In this respect, MÖHUK differs from the Rome I Regulation on law applicable to contractual obligations. MÖHUK does not allow the law to be chosen that may result in the employee being deprived of the protections afforded to them by contractual provisions that cannot be deviated from regarding the law of the habitual place of work. However, while the Rome I Regulation also does not allow the law to be chosen that may result in an employee being deprived of the protection afforded to them by contractual provisions that cannot be deviated from regarding the law of the habitual place of work, this also applies to the law of the country where the place of business through which the employee is engaged is situated, with the law of the country being more closely affiliated than is indicated in Paras. 2 and 3 of Art. 8 in Rome I Regulation.
In cases where the parties did not choose a law, the applicable law must be determined by the objective criteria, which is the law of the habitual place of work (lex loci laboris). However, in cases where the employment contract is more closely affiliated with another law, that law may be applied (MÖHUK, Art. 27, Para. 4). Para. 4 of Art. 27 is not an escape or exception clause but rather a main rule that is subject to the judge’s discretion. The general precedent is that the judge must apply this provision in favor of the employee.
In cases where both parties are Turkish, or domiciled or residents in Türkiye, where the contract is written in Turkish, or when the wage is paid in Türkiye, the employment contract will be assumed to be closely affiliated with Turkish law. Foreign service contracts that have been prepared by the Turkish Employment Agency in particular are assumed to be closely affiliated with Turkish law and to be due to Turkish employees being taken abroad from Türkiye by Turkish employers. Thus, the applicable law under Art. 27 of MÖHUK would be Turkish law.
These contracts include provisions stipulating that some issues will be governed by the legislation of the country where the employee works. Turkish writers argue that these provisions involve the choice of law, and this choice of law as stipulated in the Terms and Conditions that are the only mode for foreign service contracts, is valid under Turkish law.
In my opinion, the provisions in a contract regulating issues such as official holidays, work hours, and overtime pay are to be governed by the legislation of the country where the employee works and such provisions shall not be qualified as choice of law agreements in terms of private international law. These are contract provisions and incorporate the law of the workplace by reference. Thus, the validity of these contract provisions and the applicability of the law of the workplace will be subject to the law applicable to foreign service contracts.
Foreign service contracts are prepared as Terms and Conditions by the Turkish Employment Agency. A contract involving choice of law through terminology or by incorporating some workplace rules by reference as included in the contract must comply with the Turkish Code of Obligations (Act No. 6098 dated January 11, 2011). Under foreign service contracts, employers again are obliged to inform employees about the work conditions and situations that are subject to the law of the workplace in writing. Thus, the employee must know about foreign law. When an employer fails to inform an employee, the terms regarding a choice of law or an incorporation of some rules by reference will not be binding.
In the absence of choice of law foreign service contracts will be governed by the law of the country where the employee habitually carries out their work. However, these contracts are more closely affiliated with Turkish law due to both parties being Turkish, domiciling in Türkiye, the contract being written in Türkiye and prepared the Turkish Agency, or the payment being transferred to Türkiye. In this respect, I argue that a judge will have no need to find out the content of the law of a workplace in order to make a comparison and figure out which law is in favor of the employee unless the employee in particular claims that law.
On the other hand, in cases where Turkish law is applied to a foreign service contract, Arts. 31 and 33 of MÖHUK will be taken into consideration. Under Art. 31, the ruling to override the mandatory rules of a third country that is closely affiliated with the contract may occur. Again, the law of the country where performance is to be rendered will be taken into consideration with regard to an act of performance under Art. 33 of MÖHUK.
Under Art. 6 of MÖHUK, Turkish rules that qualify for overriding mandatory rules will additionally apply to an employment contract irrespective of applicable law as long as the place of work is situated in Türkiye. In cases where the workplace is abroad, however, the Turkish override of mandatory rules will not directly apply. Still, the policy underlying these provisions will reflect the public policy of Türkiye. Moreover, the constitutional values, economic and social regime of Turkish employment law, and policies safeguarding the social state will indicate the scope of Turkish public policy. Accordingly, in cases where a foreign law contradicts Turkish public policy, that law will not apply in Turkish courts. Turkish law will be applied when necessary under Art. 5 of MÖHUK.
