Turkish Labor Law Perspective: Flight Personnel’s Status and Training Expenditures
The status of flight personnel under Turkish Labor Law is exceptional since they have been exempted from the Turkish Labor Law numbered 4857 (“Law No. 4857”) by its 4th Article. Accordingly, provisions of the Law No. 4857 shall not apply to flight personnel unless they fall into the scope of the Law No.4857 with a collective labor agreement as conducted in practice by certain airlines. Underlying this exempted status, in principle, the applicable law in practice which flight personnel are subject to is the Turkish Code of Obligations numbered 6098 (“Law No. 6098”). However, one must state that pursuant to the 5th Article of the Labor Courts Law numbered 7036, labor-related disputes of flight personnel shall be settled by labor courts without regard to relevant legislation.
Monetary Rights of the Flight Personnel at a Glance
The severance pays as an employment right is regulated under Law No. 4857, thus the flight personnel that is subject to Law No. 6098 is not entitled to receive severance pay when his/her labor contract is terminated. On the other hand, the notice pay is regulated by both Law No. 4857 and Law No. 6098 and therefore, may be required to be paid to the flight personnel depending on the type of labor contract by the employer.
In the event where the labor contract is signed for an indefinite duration, flight personnel may be entitled to claim for the notice pay when the notification period for the termination has not been duly implemented. As per stipulated by the 432nd Article of Law No. 6098, indefinite termed labor contracts must be terminated by a notification between 2 and 6 weeks in advance in compliance with the length of service of the employee in question.
With regards to fixed term labor contracts one must highlight the 438th Article of Law No. 6098 where the remaining receivable income amounts to the sum of money that could be earned if the contract was/to be performed in accordance with the determined duration. While a fixed-term labor contract does not entitle a notice pay for the party that terminates the contract, exceptionally flight personnel may demand its remaining receivable income from the employer in case of early termination even without a justifiable reason. Inarguably, both the airline companies and the flight personnel may terminate the contract by asserting a reasoned written notification on the condition that performing the contract has become contrary to the principle of good faith. In this respect, it is not possible to provide a general rule defining the phrase justified reason since the matter is generally evaluated through expert opinions during the judicial process.
Another disputed issue regarding monetary rights is considered as the overtime payments. To clarify, flight personnel may be required to perform overtime as long as such overtime complies with the work performed and as per the rulings stipulated by the Directorate General of Civil Aviation’s relevant communique. Flight personnel working overtime is entitled to claim overtime payment up to the value of 150% of its hourly wage as stipulated under the 432nd Article of Law No. 6098, unless its labor contract frankly allows and/or necessitates overtime payments within the determined wage.
Letter of Undertaking Regarding Training Costs
Since aviation training is considerably costly compared to other industries, airline companies often cover such expenses on behalf of their employees. Although some of the trainings appears to be “free” to participants, naturally the companies expect fair returns for their investments and in some cases, they oblige the participants to do so.
Therefore, labor contracts contain compulsory service clauses or annexes with respect to training costs. In general, as stipulated through penal clauses under the employment contracts of the flight personnel, in case an employee, the flight personnel in the case, does not work for the company for the minimum determined term, the employer, company may claim the cost of training provided for the employee. Even though labor contracts do not normally embody one-sided penalty clauses which are to the detriment of the employee in accordance with Article 420 of the Law No 6098, pursuant to the settled judicial opinions training costs are not regarded within this context therefore considered as an exemption to the general employee-employer perception. Accordingly, these undertakings are valid and applicable in principle and may be imposed under certain circumstances.
As a primary condition for claiming the training costs by the employer, this provision must be agreed by both parties, the employer and employee, in writing. Even then such penalty clause does not provide an absolute implementation guarantee. If the employee terminates the contract without providing justifiable reason the penalty clause becomes applicable. Additionally, employers may also enforce the penalty clause if the labor contract has been terminated by them based on a justified reason.
The employer may only demand documented amounts that paid to training institutions, educators, training material, travel and accommodation expenses on the employee’s behalf. Accordingly, an employee may not be forced to return the wage that was paid during duration of the education period. In addition to this, all expenses should be collected proportionately by considering the length of the service performed until the termination.
 The term flight personnel refer to pilots, first officers, cabin attendants, etc. and ground personnel of an airline is not regarded as flight personnel from the perspective of Turkish labor law.
 The employment security brings responsibilities for employers that employ thirty or more employees. Pursuant to 18th Article of Law No. 4857, employees are entitled to benefit from the employment security when they complete six months long length of service. Last but not least, only indefinite employment contracts are within the scope of the employment security provisions. There are two general reasons that may be argued for termination of an employment contract in accordance with employment security principles: employee’s lack of performance or business necessity.
The notice period is regulated as 2 weeks in the matter of those who are employed for less than a year. If an employee has completed his/her first year but worked for less than 5 years the period of notice increases to 4 weeks. An employee gains the right to expect a termination notification at least 6 weeks in advance after fulfilling its 5th year of service. Please keep in mind that longer notice periods may be provided by the labor contract itself.
Turkish Court of Cassation General Assembly of Civil Chambers, 2015/9-2885 2017/2033, dated 20.12.2017
Turkish Court of Cassation 9th Circuit, 2016/6769 2019/16999, dated 30.09.2019
Turkish Court of Cassation 13th Circuit, 2013/7402 2013/16101, dated 13.06.2013
Turkish Court of Cassation 13th Circuit, 2016/3172 2018/2642, dated 01.03.2018
Author: Kaan Erdoğan