Severance Pay Right in Press Labour Act: An Assessment Regarding the Constitutional Court’s Annulment Decision

Sevde Bulun Tokkaş

Makale detayları

Severance Pay Right in Press Labour Act: An Assessment Regarding the Constitutional Court’s Annulment Decision

Yazarlar:

Sevde Bulun Tokkaş

Yayıncı:

Erciyes University

Ana Başlıklar:

İş ve Sosyal Güvenlik Hukuku

Dergi:

Erciyes Üniversitesi Hukuk Fakültesi Dergisi Vol.19 Issue 1, pp.149-175

Belge Tipi:

Makale

Yayın Tarihi:

4/2024

Belge Dili:

Türkçe

Document ID (Org No.):

2001316536

pISSN:

1306-3839

Anahtar kelimeler:

Özet:

 The Act About the Arrangement of Relations Among The Workers and Employers on the area of Press, numbered 5953, which encompasses the arrangements regarding the working relationship between journalists and employers, came into effect in 1952. Commonly referred to as the Press Labour Act, it outlines the regulations governing the interactions between journalists and employers. To be considered a journalist under the scope of Act No. 5953 on Press Labour Act, certain criteria must be met. In this context, it is required that the journalist is engaged in intellectual and artistic work. Another condition is that the journalist is performing this work for newspapers, periodicals, news agencies, or photo agencies published in Turkey. With the amendment introduced by Act No. 7418 on October 13, 2022, internet news sites have also been included within the scope of the Press Labour Act. Consequently, journalists working on internet news sites will fall under the application of Act No. 5953 if they meet the specified criteria. One additional criterion for being considered a journalist under the Press Labour Act is that the journalist must be working under an employment contract, without being classified as an employee under the Labour Act. The contract between the journalist and the employer is referred to as the press labour contract. According to Article 28 of Act No. 5953, journalists employed in public institutions and organizations are explicitly stated to be outside the scope of this Act. One of the outcomes arising from the termination of a journalists employment contract after a certain period in the profession is severance pay. The amount of severance pay is determined based on the journalists length of service and salary, and it is paid by the employer. For a journalist to be eligible for severance pay, their contract must have terminated for one of the reasons specified in Act No. 5953 on Press Labour. Notably, the death of a journalist is not considered a reason triggering severance pay according to this act. Additionally, in the event of the journalists death, death compensation is explicitly stated to be provided to the journalists spouse, children, or, if none, the family members supported by the journalist, as per Article 18 of Act No. 5953 on Press Labour. Therefore, providing severance pay to the surviving dependents in the case of a journalists death is not possible. Another requirement for qualifying for severance pay is that the journalist must have a minimum level of seniority in the profession. Prior to the Constitutional Courts annulment decision, Article 61 of Act No. 5953 on Press Labour stipulated that the journalist must have worked in the profession for at least five years. The calculation of this period takes into account the journalists initial entry date into the profession. It is important to note that whether the journalist has spent this period in the same or different workplaces is not relevant; what matters is that the journalist has accrued this period as a journa-list under Act No. 5953 on Press Labour. Additionally, the second sentence of the 7th paragraph of the same article explicitly stated that the portion of the annual service less than six months would not be taken into account in calculating the seniority period. Therefore, no severance pay was made for this portion when the journalists annual service, or surplus duration, was less than six months. Recently, the 21st Labour Court in Ankara referred the provisions related to the journalists severance pay, found in Article 61 and Article 67 second sentence of Act No. 5953 on Press Labour, to the Constitutional Court on the grounds that they were contrary to the Constitution. After conducting an examination, the Constitutional Court decided to annul these provisions on the basis that they were in violation of the equality before the act provision in Article 10 and the right to property provision in Article 35 of the Constitution. As a result of this annulment decision, for a journalist to be entitled to severance pay, it is now sufficient for their contract to have terminated for one of the reasons specified in Act No. 5953 on Press Labour, and like other workers subject to labour acts, journalists need to fulfill a minimum one-year seniority requirement in the profession. This study first outlined the conditions required to be considered a journalist under Act No. 5953 on Press Labour. Subsequently, the conditions for a journalist to be entitled to severance pay were discussed. Finally, a summary of the Constitutional Courts annulment decision regarding the seniority requirement for a journalist to qualify for severance pay and an assessment of this decision were provided.

 Gazeteciler ile işverenleri arasındaki iş ilişkisine ait düzenlemeleri içeren 5953 sayılı Basın Mesleğinde Çalışanlarla Çalıştıranlar Arasındaki Münasebetlerin Tanzimi Hakkında Kanun 1952 yılında yürürlüğe girmiştir. Bu Kanun kısaca Basın İş Kanunu olarak ifade edilir. Basın İş Kanununa tabi olan işçiler gazeteci, gazeteci ile işvereni arasında yapılan sözleşme basın iş sözleşmesi olarak adlandırılır. Mesleğinde belirli bir süre çalışan gazetecinin iş sözleşmesinin sona ermesine bağlı olarak ortaya çıkan sonuçlardan biri de kıdem tazminatı alma hakkıdır. Gazetecinin kıdem tazminatına hak kazanabilmesi için öncelikle sözleşmesinin Basın İş Kanununda belirtilen hallerden biri ile sona ermiş olması gerekir. Bu kapsamda sözleşmeyi sona erdiren bir sebep olarak gazetecinin ölümünün kıdem tazminatına hak kazandırıp kazandırmayacağı hususu ele alınmıştır. Kıdem tazminatı için aranan diğer şart ise gazetecinin mesleğinde asgari bir kıdeme sahip olmasıdır. Anayasa Mahkemesi 202162 E., 202389 K. ve 4.5.2023 tarihli kararıyla gazetecinin kıdem tazminatı hakkına ilişkin düzenlemelerin yer aldığı Basın İş Kanunu m.61 ve m.67 2. cümlesini Anayasaya aykırı oldukları gerekçesiyle iptal etmiştir. Bu çalışma kapsamında öncelikle Basın İş Kanunu kapsamında gazeteci sayılmak için aranan şartlara yer verilmiş, gazetecinin kıdem tazminatı hakkına ilişkin düzenlemeler ele alınmıştır. Son olarak, Anayasa Mahkemesinin gazetecinin kıdem tazminatı hakkı için aranan kıdem şartına yönelik verdiği iptal kararı özetlenerek, karara ilişkin değerlendirmeye yer verilmiştir.

 The Act About the Arrangement of Relations Among The Workers and Employers on the area of Press, numbered 5953, which encompasses the arrangements regarding the working relationship between journalists and employers, came into effect in 1952. Commonly referred to as the Press Labour Act, it outlines the regulations governing the interactions between journalists and employers. To be considered a journalist under the scope of Act No. 5953 on Press Labour Act, certain criteria must be met. In this context, it is required that the journalist is engaged in intellectual and artistic work. Another condition is that the journalist is performing this work for newspapers, periodicals, news agencies, or photo agencies published in Turkey. With the amendment introduced by Act No. 7418 on October 13, 2022, internet news sites have also been included within the scope of the Press Labour Act. Consequently, journalists working on internet news sites will fall under the application of Act No. 5953 if they meet the specified criteria. One additional criterion for being considered a journalist under the Press Labour Act is that the journalist must be working under an employment contract, without being classified as an employee under the Labour Act. The contract between the journalist and the employer is referred to as the press labour contract. According to Article 28 of Act No. 5953, journalists employed in public institutions and organizations are explicitly stated to be outside the scope of this Act. One of the outcomes arising from the termination of a journalists employment contract after a certain period in the profession is severance pay. The amount of severance pay is determined based on the journalists length of service and salary, and it is paid by the employer. For a journalist to be eligible for severance pay, their contract must have terminated for one of the reasons specified in Act No. 5953 on Press Labour. Notably, the death of a journalist is not considered a reason triggering severance pay according to this act. Additionally, in the event of the journalists death, death compensation is explicitly stated to be provided to the journalists spouse, children, or, if none, the family members supported by the journalist, as per Article 18 of Act No. 5953 on Press Labour. Therefore, providing severance pay to the surviving dependents in the case of a journalists death is not possible. Another requirement for qualifying for severance pay is that the journalist must have a minimum level of seniority in the profession. Prior to the Constitutional Courts annulment decision, Article 61 of Act No. 5953 on Press Labour stipulated that the journalist must have worked in the profession for at least five years. The calculation of this period takes into account the journalists initial entry date into the profession. It is important to note that whether the journalist has spent this period in the same or different workplaces is not relevant; what matters is that the journalist has accrued this period as a journa-list under Act No. 5953 on Press Labour. Additionally, the second sentence of the 7th paragraph of the same article explicitly stated that the portion of the annual service less than six months would not be taken into account in calculating the seniority period. Therefore, no severance pay was made for this portion when the journalists annual service, or surplus duration, was less than six months. Recently, the 21st Labour Court in Ankara referred the provisions related to the journalists severance pay, found in Article 61 and Article 67 second sentence of Act No. 5953 on Press Labour, to the Constitutional Court on the grounds that they were contrary to the Constitution. After conducting an examination, the Constitutional Court decided to annul these provisions on the basis that they were in violation of the equality before the act provision in Article 10 and the right to property provision in Article 35 of the Constitution. As a result of this annulment decision, for a journalist to be entitled to severance pay, it is now sufficient for their contract to have terminated for one of the reasons specified in Act No. 5953 on Press Labour, and like other workers subject to labour acts, journalists need to fulfill a minimum one-year seniority requirement in the profession. This study first outlined the conditions required to be considered a journalist under Act No. 5953 on Press Labour. Subsequently, the conditions for a journalist to be entitled to severance pay were discussed. Finally, a summary of the Constitutional Courts annulment decision regarding the seniority requirement for a journalist to qualify for severance pay and an assessment of this decision were provided.

 The Act About the Arrangement of Relations Among The Workers and Employers on the area of Press, numbered 5953, which encompasses the arrangements regarding the working relationship between journalists and employers, came into effect in 1952. Commonly referred to as the Press Labour Act, it outlines the regulations governing the interactions between journalists and employers. To be considered a journalist under the scope of Act No. 5953 on Press Labour Act, certain criteria must be met. In this context, it is required that the journalist is engaged in intellectual and artistic work. Another condition is that the journalist is performing this work for newspapers, periodicals, news agencies, or photo agencies published in Turkey. With the amendment introduced by Act No. 7418 on October 13, 2022, internet news sites have also been included within the scope of the Press Labour Act. Consequently, journalists working on internet news sites will fall under the application of Act No. 5953 if they meet the specified criteria. One additional criterion for being considered a journalist under the Press Labour Act is that the journalist must be working under an employment contract, without being classified as an employee under the Labour Act. The contract between the journalist and the employer is referred to as the press labour contract. According to Article 28 of Act No. 5953, journalists employed in public institutions and organizations are explicitly stated to be outside the scope of this Act. One of the outcomes arising from the termination of a journalists employment contract after a certain period in the profession is severance pay. The amount of severance pay is determined based on the journalists length of service and salary, and it is paid by the employer. For a journalist to be eligible for severance pay, their contract must have terminated for one of the reasons specified in Act No. 5953 on Press Labour. Notably, the death of a journalist is not considered a reason triggering severance pay according to this act. Additionally, in the event of the journalists death, death compensation is explicitly stated to be provided to the journalists spouse, children, or, if none, the family members supported by the journalist, as per Article 18 of Act No. 5953 on Press Labour. Therefore, providing severance pay to the surviving dependents in the case of a journalists death is not possible. Another requirement for qualifying for severance pay is that the journalist must have a minimum level of seniority in the profession. Prior to the Constitutional Courts annulment decision, Article 61 of Act No. 5953 on Press Labour stipulated that the journalist must have worked in the profession for at least five years. The calculation of this period takes into account the journalists initial entry date into the profession. It is important to note that whether the journalist has spent this period in the same or different workplaces is not relevant; what matters is that the journalist has accrued this period as a journa-list under Act No. 5953 on Press Labour. Additionally, the second sentence of the 7th paragraph of the same article explicitly stated that the portion of the annual service less than six months would not be taken into account in calculating the seniority period. Therefore, no severance pay was made for this portion when the journalists annual service, or surplus duration, was less than six months. Recently, the 21st Labour Court in Ankara referred the provisions related to the journalists severance pay, found in Article 61 and Article 67 second sentence of Act No. 5953 on Press Labour, to the Constitutional Court on the grounds that they were contrary to the Constitution. After conducting an examination, the Constitutional Court decided to annul these provisions on the basis that they were in violation of the equality before the act provision in Article 10 and the right to property provision in Article 35 of the Constitution. As a result of this annulment decision, for a journalist to be entitled to severance pay, it is now sufficient for their contract to have terminated for one of the reasons specified in Act No. 5953 on Press Labour, and like other workers subject to labour acts, journalists need to fulfill a minimum one-year seniority requirement in the profession. This study first outlined the conditions required to be considered a journalist under Act No. 5953 on Press Labour. Subsequently, the conditions for a journalist to be entitled to severance pay were discussed. Finally, a summary of the Constitutional Courts annulment decision regarding the seniority requirement for a journalist to qualify for severance pay and an assessment of this decision were provided.

Makale detayları

Severance Pay Right in Press Labour Act: An Assessment Regarding the Constitutional Court’s Annulment Decision

Yazarlar:

Sevde Bulun Tokkaş

Yayıncı:

Erciyes University

Ana Başlıklar:

İş ve Sosyal Güvenlik Hukuku

Dergi:

Erciyes Üniversitesi Hukuk Fakültesi Dergisi Vol.19 Issue 1, pp.149-175

Belge Tipi:

Makale

Yayın Tarihi:

4/2024

Belge Dili:

Türkçe

Document ID (Org No.):

2001316536

pISSN:

1306-3839

Press Labour Act

Journalist

Labour Contract

Severance PaymentBasın İş Kanunu

Gazeteci

İş Sözleşmesi

Kıdem Tazminatı

Ölüm Tazminatı

Sayı

Makale detayları

Yazarlar: Sevde Bulun Tokkaş

Yayıncı: Erciyes University

Ana Başlıklar: İş ve Sosyal Güvenlik Hukuku

Dergi: Erciyes Üniversitesi Hukuk Fakültesi Dergisi Vol.19 Issue 1, pp.149-175

Belge Tipi: Makale

Yayın Tarihi: 4/2024

Belge Dili: Türkçe

Document ID (Org No.): 2001316536

pISSN: 1306-3839

Sayı

Yazarlar:

Sevde Bulun Tokkaş

Yayıncı:

Erciyes University

Ana Başlıklar:

İş ve Sosyal Güvenlik Hukuku

Dergi:

Erciyes Üniversitesi Hukuk Fakültesi Dergisi Vol.19 Issue 1, pp.149-175

Belge Tipi:

Makale

Yayın Tarihi:

4/2024

Belge Dili:

Türkçe

Document ID (Org No.):

2001316536

pISSN:

1306-3839