REVIEW OF THE DRAFT LAW AMENDING THE LABOR COURTS AND MEDIATION LAW
İNTRODUCTİON
With the decision of the Council of Ministers, the draft law (“Draft”) titled “Draft Law on Labor Courts” was submitted to the Presidency of the Grand National Assembly of Turkey on 25.05.2017. If passed by the relevant Commissions and the General Assembly, the draft will become law and enter into force. In this study, attention is drawn to what kind of innovations have been brought in mediation with the draft, and issues that may be objectionable or missing are brought to the attention of practitioners while they are still in the drafting stage, that is, while there is still the possibility of correction. With this draft, the Labor Courts Law of 1950 is repealed and the establishment, duty, authority and trial procedure of the Labor Courts are rearranged. Again, with this draft, some changes are made in the Labor Law No. 4857, the Law on Mediation in Legal Disputes No. 6325, and the Law on Trade Unions and Collective Bargaining Agreement No. 6356. After four years of practice, it is seen that some arrangements have been made to solve the problems that arise in the mediation practice. If the draft becomes law, it will be amended for the first time after the “Law on Mediation in Civil Disputes No. 6325” comes into force.
Basically, there is a change in the definition of mediation. In the current law, the mediator cannot propose a solution to the parties. However, with this amendment, it is stipulated that the mediator can also propose a solution if the parties cannot find a solution. If the draft becomes law, mediators will take a more active role in the negotiation process.
MANDATORY MEDIATION IN TERMS OF LABOR ACTION
The most radical innovation brought by this draft is that the application to the mediator is regulated as a condition of litigation in disputes arising from the employment relationship between the employee and the employer. Accordingly, in disputes arising from the employment relationship between the employee and the employer, it will be mandatory to apply to a mediator before the court. The obligation to apply applies not only to the employee but also to the employer. The draft regulates the application to mediation as a condition of litigation, not only for workers’ receivables, but also for compensation claims and reemployment lawsuits. However, an exception has been made for these cases. It is also material and moral compensation arising from work accident or occupational disease and recourse lawsuits related to them. It will not be necessary to apply to a mediator in these cases.
As it is known, the conditions of the lawsuit are regulated in Articles 114 and 115 of the Code of Civil Procedure No. 6100. Apart from the litigation conditions regulated in the Code of Civil Procedure, a new condition will be sought in terms of business cases with this draft. Since the court can automatically investigate whether the conditions of the case exist at every stage of the case, in labor cases filed without resorting to a mediator, if the court finds this situation, it will decide to reject the case on a procedural basis. In the HMK, there is a provision that a definite time will be given for the completion of the case if it is possible to remedy the deficiency. However, it is stated in the draft law that if mediation is not explicitly applied, the case will be rejected out of procedure. In other words, the fact that mediation was not applied was not seen as a deficiency that could be remedied later.
APPLICATION PROCEDURE TO THE MEDITOR
The draft also regulates the procedure for applying to a mediator within the scope of compulsory mediation. According to the law, the parties are obliged to apply to the Mediation Offices (“Office”) established by the Mediation Department, or to the editorial office to be assigned if it is not established in that province. Upon application, a mediator from the list is appointed by the Bureau. It is stated that if the parties agree on a certain mediator, then the mediator chosen by the parties will be appointed.
The draft also regulates the issue of where the applications should be made to the Bureau. Accordingly, the application must be made to the other party, if there is more than one of the other parties, to the mediation office in the settlement or the place where the work is carried out, and to the appointed editorial office in places where no mediation office is established. In case of unauthorized application, only if the other party objects, the mediator takes the objection into consideration and submits it to the Civil Court of Peace for evaluation, and the court’s decision is final.
The Mediation Department will list the registered mediators who want to mediate within the scope of compulsory mediation arising from the business relationship, according to the courthouses they want to serve. Mediation Bureaus will assign the mediators who request to be included in the list to the Justice Commission. With the amendment made in the law numbered 6325 in the draft, it is stated that a mediator can be registered to a maximum of three justice commission lists.
There is a possibility that the regulation intended to be brought with the draft may cause some problems in practice. Because, according to the draft, in order to be considered as fulfilling the condition of applying to a mediator in terms of employment cases, the application to the mediator must be made through the Mediation Office established in the courthouses. However, there is no such obligation in the Mediation Law regarding the application to a mediator. The current draft brings some questions to mind: If the draft becomes law, will the parties not be able to apply directly to the mediator in disputes arising from the employment relationship? If a mediator is reached and an agreement is reached without applying to the Bureau, will this document not be considered as a verdict? If the parties come to an agreement with a mediator, won’t the courts issue an annotation of enforceability on the grounds that no assignment has been made by the Bureau?
It should also be noted that the obligation to apply through the Bureau instead of applying directly to mediators will make it difficult to apply to mediation. It will be difficult to get all workers to come to the courthouse with the employer, especially if a large number of workers who have a dispute with the same employer want to resolve the dispute with the same mediator at the same time.
MEDIATON ON RE-EMPLOYMENT REQUISITION
The draft makes special provisions regarding reemployment cases, and with the amendment introduced in the Labor Law No. 4857, an “agreement document” must be prepared upon application to the mediator for reemployment request. In the agreement document, it is obligatory for the parties to agree on the date of employment, the amount of wages and other monetary rights, and the monetary amount of the compensation to be paid in case of not reemployment. If the parties cannot agree on all of these three issues, the agreement is deemed not to have been reached. Despite the agreement, if the employer does not start work, he will be obliged to pay the compensation in the agreement document; If the worker does not start work, the termination will be valid.
In addition, according to the draft, if there is a subcontractor-principal employer relationship, employers must attend the meetings together and come to an agreement if a mediator is applied with a request for reemployment.
TIME OF MEDIATON
According to the draft, the application made within the scope of compulsory mediation must be finalized within three weeks from the date on which the mediator is assigned. It has been stated that this period can be extended by the mediator for a maximum of one week in compulsory cases. According to the draft, the mediator terminates the mediation activity and immediately informs the mediation office of the situation by drawing up the final report, in cases where the parties cannot be reached, negotiations cannot be held because the parties do not attend, or an agreement is reached or not reached as a result of the negotiations.
NOT ATTENDING THE MEETING DESPITE THE INVITATION TO MEDIATE
A sanction is foreseen in the draft for the party who does not attend the meeting upon invitation. Accordingly, in the event that the mediation activity ends due to not attending the first meeting without a valid excuse, the party who did not attend the meeting will be held responsible for all of the litigation expenses in the lawsuit to be filed, even if the party is partially or completely right in the lawsuit. In addition, this party will not be able to receive attorney’s fees even though he/she wins the case.
In the draft, it is stated that the mediator informs the parties about the assignment by using all kinds of communication methods and invites them to the first meeting, documents the procedures regarding the informing and invitation. However, since the mediator is not authorized to make a notification in accordance with the provisions of the Notification Law, the issue of whether a duly invitation has been made may lead to hesitations and discussions in practice.
EXPENSES AND MEDIAMENT FEE IN MANDATORY MEDIATION
It is stipulated that office expenses will be collected pursuant to the agreement if the parties have agreed on this issue, and if an agreement cannot be reached, it will be collected from the party who will be wrong in the future. However, it is not specified how these expenses will be collected or who will be held responsible in the event that a lawsuit is not filed despite the absence of an agreement.
According to the draft, if the parties come to an agreement, the mediation fee is paid over the rate according to the Fee Schedule. In the draft, a lower limit was determined for the wage and it was stipulated that the wage cannot be less than the two-hour wage determined in the first part of the tariff.
With the draft, a regulation is made that the two-hour fee will be paid from the Treasury if the parties cannot be reached at the end of the mediation activity within the scope of compulsory mediation, if the parties cannot be reached because the parties do not attend, or if the parties cannot reach an agreement after the negotiations lasting less than two hours. If the parties cannot come to an agreement at the end of the negotiations lasting more than two hours, the fee for the part exceeding two hours shall be paid equally by the parties unless otherwise agreed. It is also stipulated that the mediation fee paid by the treasury and borne by the parties will be counted as litigation expenses.
WILL THE CONDITION FOR APPLICATION TO MEDIATION APPLY TO CONTINUING CASES?
The provisions of the draft law regarding mediation, which are regulated as a condition of action, will not be applied to the lawsuits pending as of the effective date of these provisions, but will only be applied to the lawsuits filed after the date of entry into force of this law. In addition, the mediation provisions regulated as a litigation clause will not enter into force immediately, but will enter into force 3 months after the law’s publication date. Thus, a time was given to the head of the department for preparation and infrastructure works.
EXECUTIVE STATEMENT
With the Draft, fundamental changes are made regarding the issuance of an enforceability annotation to the mediation agreement document regulated in the Law No. 6325. In its current situation, an annotation of enforceability can be requested from the court, which will be determined according to the rules of duty and jurisdiction regarding the actual dispute, while it is stated in the draft that the mediator will be requested from the civil court of peace where the mediator works.
In practice, the current provision, which causes conflicts in terms of duty and authority, has been changed in this way, and the power to issue an enforceable annotation regardless of the nature of the dispute has been given to the peace courts. In addition, while it is at the discretion of the court whether to make a decision on the basis of the file in the current regulation, this right of discretion given to the court by the draft has been abolished, and it has been stated that the requests for annotation of enforceability will be given over the file, that is, completely without a hearing, excluding the examination of disputes regarding family law.
One of the innovations brought about the enforceability annotation is that if the parties and their lawyers have signed the agreement document together, this agreement document will be considered as a verdict without the need for an enforceability annotation.
OTHER CHANGES BRINGED BY THE DRAFT
-One of the innovations brought with this bill is the opportunity to benefit from legal aid in order to meet the mediation fee. Accordingly, the party that needs legal aid to meet the mediation fee can benefit from legal aid with the decision of the civil court of peace in the place where the mediation office is located. In the draft, it is stipulated that the articles of the Code of Civil Procedure No. 6100 on legal aid will be applied by analogy. This is an important innovation.
– In order to facilitate participation in the meetings for the employer, it is stated that the employee authorized by the employer can also participate in the meetings.
– With the draft, it is stipulated that the statute of limitations will cease and the period of disqualification will not run in the period from the application to the mediation office within the scope of labor lawsuits until the last minute is drawn up.
– The confidentiality rule will be valid not only for the parties but also for the other persons participating in the meetings. The amendment also paves the way for experts to attend the meetings.
– Mediators will be able to specialize in various branches and use their areas of expertise without being subject to advertising bans.
– It has been clearly emphasized that if an agreement is reached with the draft, no lawsuit can be filed by the parties on the agreed matters.
– The number of members of the Mediation Board has been increased, and it has been decided that one member from each of the workers’ and employers’ unions will take place in the board.