The right to
severance pay for members of the press is set out under the Press Labor Law Nr. 5953. Article 6 of
the Law sets out the conditions under which journalists will be entitled to
severance pay, but it has been partially annulled by the Constitutional Court.
Following the
annulment decision of the Constitutional Court, the unfavorable difference
between the workers covered by the Press Labor Law and other workers has been
corrected, and this article will look into the workers covered by the Press
Labor Law and the conditions for entitlement to severance pay as per the related
applicable law.
1. Scope of Application of the Press Labor Law
The scope of
application of the Press Labor Law is set out under Article 1 of the Law. The wording
of the said article reads as follows:
“Scope of the Law
Article 1 – (Amended: 4/1/1961 - 212/1 Art.)
The provisions of this
Law shall apply to all persons working in all kinds of intellectual and
artistic works in newspapers, internet news websites and magazines, and news
and photo agencies published in Türkiye and who are outside the scope of the
definition of “employee” under the Labor Law and their employers.
Those who work
for remuneration in the fields of opinion and art within the scope of this Law
are called journalists.”
According to the wording
of the article, in order to be considered within the scope of the Press Labor
Law, it is necessary to first and foremost be employed in a workplace covered
by the Press Labor Law, to work in any kind of intellectual and artistic field
and to be subject to an employment contract.
Pursuant to
Article 1 of the Press Labor Law, the first condition is that the journalist
must work for newspapers or periodicals or for news and photo agencies
publishing in Türkiye. The requirement that the publication be made in Türkiye
is expressed as such in the doctrine:
“Although the
Press Labor Law does not specify what should be understood by the expression
”publication in Türkiye", it should be understood as the printing and
appearance of the publication in Türkiye. As correctly stated in the doctrine,
it is not necessary to search for the expression “publication in Türkiye” in
terms of internet news websites." [1]
In this context,
it is possible to accept that there is no restriction such as “publication in Türkiye”
for internet publications.
Another matter
that can be considered within the scope of the workplace is the situation of
liaison offices. The situation of journalists working in the liaison offices of
foreign news agencies in Türkiye needs to be evaluated. According to the
decisions of the Court of Cassation, it is accepted that journalists working in
liaison offices may bring actions against said offices and their employment
contract falls within the scope of the Press Labor Law [2].
Pursuant to
Article 23 of the Law Nr. 6112 on Establishment of Radio and Television
Enterprises and their Media Services, employees working in the news department
of radio and television organizations are also considered journalists within
the scope of the Press Labor Law.
Working in a
workplace considered within this scope is not sufficient to be considered an
employee under the Press Labor Law, as the work performed within the scope of
the employment contract must also be within the scope of intellectual and
artistic work. If the work performed is not considered art, it will not be
possible to be included in the Press Labor Law.
In order to be
considered as a journalist, it is not mandatory or sufficient to have a press
card in accordance with the Regulation on Press Cards. There is no obligation
to register anywhere in order to be considered as a journalist, what matters
here is the nature of the work performed.
The last
condition under the law is that there must be an employment contract between
the parties. A press employment contract between a journalist and her/his
employer is a permanent contract that establishes a dependent statutory relationship
and imposes obligations on both parties. The journalist is obliged to perform
work dependent on her/his employer, and the employer is obliged to pay wages to
the journalist.
In the event that
these conditions are all met, the employee will be considered as a journalist
within the scope of the Press Labor Law.
2. Conditions for Severance Pay Pursuant to Article 6
of the Press Labor Law
Article 6 of the
Law sets out the conditions under which a journalist is entitled to severance
pay. The wording of the article reads as follows:
“Termination of
the Contract by the Employer and Severance Pay
ARTICLE 6
Journalists who
have worked in this profession for at least 5 years are entitled to severance
pay. (Annulled paragraph: Decision,
dated 4/5/2023 and bearing the Basis number 2021/62 and the Decision number
2023/89, of the Constitutional Court)
Severance pay is calculated
as of the date of the journalist's first entry into the profession.
In case of termination
of the contract, the journalist is entitled to compensation calculated
according to this period.
Termination of
the employment of a journalist whose service relationship with the employer in
a workplace falling under the scope of the first article has lasted for at
least five years without interruption based on one or more contracts shall be
effective for three months after the written notice. For those with less than
five years of service, this notice period is one month.
The date of the
last day of the notice period shall be the basis for compensation and shall not
be counted as annual leave.
If the journalist
has not used her/his annual leave, s/he shall be paid in advance for the period
of leave in case of termination of her/his employment.
A journalist
whose service is terminated in accordance with the provisions of this article
shall be entitled to compensation in the amount of one month's salary for each
year of service or fraction thereof to which the terminated contract relates,
based on her/his last month's salary. However, less than six months of annual
service shall not be taken into account, and this amount shall not be
calculated in the first contract year. (Annulled second
sentence: Decision, dated 4/5/2023 and bearing the Basis number 2021/62 and the
Decision number 2023/89, of the Constitutional Court)
The severance pay
of a journalist who has received severance pay once shall be calculated as of the
date of her/his new employment. However, any agreement between the employer and
the journalist contrary to this shall be valid.
In the event that
the employer is unable to pay the journalist's compensation at once due to
financial impossibility, the payment shall be made in a maximum of four
installments and the duration of all of these installments shall not exceed one
year. However, this division may be made upon the decision of the finance
department, which accrues the fiscal tax of the place of business, that the
establishment is loss-making.”
The first
paragraph and the second sentence of the sixth paragraph of the article have
been annulled by the Constitutional Court.
Prior to the
Constitutional Court's annulment decision, journalists were required to work
for 5 years in order to be eligible for severance pay, and in the event that
they were entitled to severance pay, the calculation did not include the
remaining periods.
Following the
annulment decision of the Constitutional Court, this difference to the
detriment of journalists has been removed. Upon annulment of the first
paragraph, it is accepted that the period, required for journalists to be
entitled to severance pay, is subject to Article 14 of the Labor Law Nr. 1475.
Following the
annulment decision of the Constitutional Court, residual periods are also
included in the calculation of severance pay for any workers who remain within
the scope of the Press Labor Law in parallel with Article 14 of the Labor Law Nr.
1475.
Accordingly, if
the journalist has one year of seniority, s/he will be entitled to severance
pay. As per Article 6/2 of the Press Labor Law, the seniority period is
calculated as of the date of the journalist's first entry into the profession.
The right to
severance pay arises when the employment contract of a journalist with one year
of seniority is unfairly terminated by the employer or terminated by the
journalist for just cause.
3. Conclusion
Upon the Decision,
dated 4/5/2023 and bearing the Basis number 2023/89 and the Decision number
4/5/2023, of the Constitutional Court, the regulation that was unfavorable for
the workers covered by the Press Labor Law was annulled and journalists are now
entitled to severance pay in accordance with similar conditions with the
workers covered by the Labor Law.
Att. Tuğbanur
Akyıldız
References:
1. Basın İş Kanunu’nda Kıdem Tazminatı Hakkı: Anayasa Mahkemesi’nin İptal
Kararına İlişkin Bir Değerlendirme, Sevde Bulun Tokkaş
2. Decision, bearing the
Basis number 2023/15060, and the Decision number 2023/12580 and dated 21.9.2023,
of the 9th Civil Chamber of the Court of Cessation
