Status of female workers in Turkish labor law
| Autor | Özgür Oguz |
| Páginas | 231-239 |
Page 231
Because of the female workers’ incapacity on physical and natural slumping of their performance in term of their pregnancy and maternity, they undergo discrimination of gender while working relationship and dealings. Especially, via ranking female workers among business life, protection of female workers as a group of abuse-liable, becomes an essentiality in order to implement the principles of equality which is appeared in international conventions and Turkish constitution.
4857 numbered Labor Law which is introduced in 2003, and many other regulations in Turkish positive law, are prepared in defiance of female protector regulations in ILO conventions and European Union Directives1. So, prohibition of discrimination has been accepted in labor law at recruit, ending of labor contract and determination of working conditions and wages. But also, risk groups such as female labors, juvenile labors and handicapped as physical or mental, requires prohibition or restriction of working on some line of business, for those risk groups. And also, pregnant and breastfeeding maters have been protected by some protective regulations.
Page 232
Basis of regulations for protection of female workers and ensuring of gender equality in labor law, is the international conventions which Turkey also is a party to and Turkish constitution which is accepted in 1982. Regulations of Turkish constitution, international conventions and labor law for ensuring gender equality, has forbidden gender discrimination. For ensuring gender equality in labor law, it has been needed not only saying that male and female workers are equal at recruit, ending of labor contract and determination of working conditions and wages, but also forbidden female workers to work in some business line and ordering some special protective conditions because of their biological differences2.
a. Prohibition of Discrimination
Labor Law no. 4857, orders absolute prohibition of discrimination and aims preventing of gender discrimination for female workers as Turkish constitution’s principle of equality3. It is indicated that anyone is equal under the law without any discrimination of language, faith or religion, color, gender or any kind of discrimination, at the article 10 of Turkish constitution; and also it is emphasized that women and men have same rights. At the same article, ensuring gender equality is ordered as an obligation of state. Because of this state obligation, attaching particular importance to women doesn’t constitute a contradiction to prohibition of discrimination4.
There are lots of conventions and directives for protection of female workers in international area. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which is accepted by United Nations in 1981 for ensuring equality of gender on political, economic, social, cultural and civil rights, is an example of that5.
Principle of equality which is mentioned at constitution, is ordered similarly for working relations which is mentioned at article 5/1 of Labor Law. According to article, discrimination of language, political thought, race,
Page 233
faith or religion, color, gender or any kind of discrimination is forbidden. Via “any kind of discrimination” expression, it is understood that types of discrimination are not just numerus clausus6.
i. Gender Equality at Recruit and Determination of Working Conditions
It has been mentioned above that gender discrimination is forbidden according to article 5/1 of Labor Law because of the basis constitution According to the same article’s 3rd paragraph, at recruit, determination of working conditions and practicing, direct different treatment because of pregnancy or gender is forbidden except obligations because of biological reasons or nature of business.
Some authors in doctrine say that employer doesn’t have to behave equal at the recruit because of the principle of freedom of contract which is defined at the constitution7. On the other hand, employer cannot behave different direct or indirect to workers because of gender or pregnancy except obligations because of biological reasons or nature of business even at the recruit8. Especially, it can be said that there is gender discrimination when many workers will be recruit, but only male workers are recruit even there are female workers who are appropriate for work9.
At the article 5/6 of Labor Law, sanction of employer’s behaving against principle of equality is regulated. According to that, when employer behaves against principle of equality at working relation or ending of it, worker may demand compensation up to amount of 4 months’ wage and his/her rights which is bereft. At recruit, if employer behaves unequal, worker cannot demand discrimination compensation but can demand compensation according to general regulations10. Turkish Penal Code no. 5237 is regulated discrimination at recruit as a crime and it says perpetrators of that crime will be punished as imprisonment for 1 to 3 years11.
Page 234
Another problem at recruit is if employer can pose questions about female worker’s pregnancy12. Posing questions about pregnancy except about workplace and work which is in the scope of employer’s right to information about worker and work, is violation of privacy according to doctrine and judicial decisions13. If employer asks that kind of questions, female workers can answer wrong or can no respond; and that is not a reason for termination of the contract by employer. However, according to article 5/3 of labor law, if posing that kind of questions are obligation because of nature of business, employer can pose that questions14. As an example, if female worker who will be recruit, will be assigned as a sportswoman or a fashion model or there would be risk of radiation at the job, asking questions about her pregnancy is not violation of privacy and also, even employer doesn’t ask any question about it, female worker must inform employer about her pregnancy15. Otherwise, female worker would mislead employer about principle points of work and employer would have right to rightful termination according to article 25/2-a of Labor Law16.
ii. Equality on Wage
As a reflection of principle of equality in labor law, employer must look out for gender equality about wage, social relief, prizes and bounties17.
According to article 5/3 of Labor Law, low wage cannot be determined for same or equal level works because of gender. Also, low price is in applicable because of gender protector special regulations (paragraph 4). According to article 74/4 of Labor Law, if doctor deems necessary that pregnant female worker must work at easier work which is more appropriate for her health, it would not be a reason for knocking her wage off.
Regulations for preventing of gender discriminations and ensuring wage equality in labor law, are for yielding to “Equal Remuneration Convention” ILO convention number 10018. It must be also known...
Para continuar leyendo
Solicita tu prueba