Wage Claims of Employees Working in Air Transportation and Problems Encountered in Practice (Pilot, Flight Attendant, Cabin Crew, Radio Operator)

Intern Lawyer Selin BİRDALI. ABSTRACT

Since air transport is excluded from the scope of the Labor Law, and there is no specific law applicable to employees in this sector, those working in air transport are subject to the general law, the Turkish Code of Obligations.

Since flight crew workers such as pilots, flight attendants, and cabin crew employed in air transport are not covered by the Labor Law, their employment contracts are considered service contracts, and the provisions relating to service contracts regulated in Articles 393-447 of the Turkish Code of Obligations apply.

In practice, case law has developed indicating that flight crew personnel are subject to labor law if their collective bargaining agreements or contracts include provisions within the scope of labor law. Furthermore, even if such a provision is not explicitly stated in the contracts, flight crew members are considered subject to labor law if they are members of a collective bargaining agreement or a union.

The fact that an airline worker who is not covered by a collective bargaining agreement or is not a member of a union is subject to the Turkish Code of Obligations creates certain difficulties in practice, leading to two airline workers with the same title not having the same rights because they are subject to different laws.

This study will examine the rights and limitations of flight personnel subject to the Turkish Code of Obligations and those subject to the Labor Law, and will address the problems encountered in practice.

II. INTRODUCTION

According to Article 4 of the Labor Law No. 4857, certain workers are excluded from the scope of the law. While special laws have been enacted to apply to jobs and workers excluded from the Labor Law, some jobs and workers do not have such special provisions. Therefore, workers who are outside the scope of the Labor Law and for whom there is no specific law are subject to the general law, the Turkish Code of Obligations No. 6098, and their contracts are considered service contracts as regulated in the Turkish Code of Obligations. One group of workers excluded from the scope of the Labor Law are those working in air transport. While workers employed in all ground facilities of aviation are covered by the Labor Law, air transport workers excluded from its scope by Article 4, paragraph 1, subparagraph a of the Labor Law are flight personnel such as pilots, flight attendants, cabin crew, and radio operators.

Those employed in airports, ticket sales, warehouses, workshops, and hangars, excluding flight crews, as well as those who manufacture, repair, and maintain vehicles—in short, all those employed in ground facilities—fall within the scope of the Labor Law. Since there is no specific law applicable to those working in air transport, which is excluded from the scope of the Labor Law, air transport workers are subject to the general law, the Turkish Code of Obligations No. 6098. The contracts of air transport workers are considered service contracts, and the provisions regulated in Articles 393-447 of the Sixth Chapter of the Turkish Code of Obligations under the heading "Service Contract" are applicable.

Similarly, the 7th Civil Chamber of the Court of Cassation, in its decision dated June 19, 2013, numbered 2013/15340 E. and 2013/115396 K., stated that "according to Article 4, paragraph 1, subparagraph a of the Labor Law No. 4857, the provisions of this law do not apply to those working in maritime and air transport. The Maritime Labor Law No. 854 applies to those working in maritime transport. However, since no special regulation has been made for those working in air transport, the general provisions of the Turkish Code of Obligations apply. Article 4, paragraph a of the Labor Law No. 4857, as a rule, excludes those working in air transport from the scope of this Law."

In contrast, the Labor Law applies to those working in all ground facilities of aviation. Therefore, pilots, flight attendants, radio operators, mechanics, and cabin crew are flight personnel who fall outside the scope of the Labor Law. Those working in warehouses, airports, hangars, and workshops, those who manufacture, repair, and maintain aircraft—in other words, those employed in all ground facilities—fall within the scope of the Labor Law.” Thus, the court ruled that air transport workers who are outside the scope of the Labor Law are subject to the Turkish Code of Obligations.

The amendments made to the articles of the Turkish Code of Obligations (TBK) concerning employment contracts aimed to avoid creating a significant difference between workers subject to this law and those subject to the Labor Law (HR). In other words, the amendments to the TBK aimed to bring them closer to the HR Law. The rationale behind the articles of the TBK No. 6098, which amends the repealed Code of Obligations No. 818 concerning employment contracts, clearly states that attention was paid to the HR Law, and some articles were even drafted in parallel with it.

Although the amendments made to the Turkish Code of Obligations (TBK) have attempted to bring workers subject to the Labor Law and those subject to the TBK closer together, since the TBK is a general law, it cannot fully cover the rights granted to workers under the Labor Law, which is a special law. Therefore, air transport workers who cannot benefit from the rights regulated in the Labor Law are, in practice, subject to the Labor Law through collective bargaining agreements and can benefit from the rights within the scope of the Labor Law.

In other words, since there is no specific law applicable to air transport workers, this gap is attempted to be filled through collective bargaining agreements. For example, for years, a collective bargaining agreement has been concluded between the Turkish Civil Aviation Union (Hava-İş) and Turkish Airlines Inc., and the provisions of the Labor Law are applied to air transport workers employed by THY. While workers who have a collective bargaining agreement or are unionized are subject to the Labor Law, the provisions of the Turkish Code of Obligations are applied to workers who do not have a collective bargaining agreement or are not unionized.

In the aviation industry, the fact that two workers with the same job title are subject to two different laws and have different rights creates certain problems in practice. As we will explain in more detail below, the fact that two workers with the same job title are subject to two different laws leads to differences in terms of the competent court and labor claims; workers subject to the Turkish Code of Obligations are deprived of some labor claims granted to workers subject to the Turkish Labor Law.

This study will first examine the labor claims that workers subject to the Turkish Code of Obligations and those subject to the Labor Law are entitled to and deprived of, and then attempt to address the problems that arise in practice regarding these claims in light of the Supreme Court's jurisprudence.

II. COMPARISON OF LABOR CLAIMS OF WORKERS EMPLOYED IN AIR TRANSPORTATION UNDER THE TURKISH CODE OF OBLIGATIONS NO. 6098 AND THE LABOR LAW NO. 4857

1. Severance Pay: Severance pay is a sum of money that the employer must pay to the employee or their heirs, taking into account their seniority and wages, when the employment contract of an employee who has completed the minimum working period specified in the law is terminated for one of the reasons listed in the law. No new regulations have been made regarding severance pay in the Labor Law; the provisions regarding severance pay in the repealed Labor Law No. 1475 remain in effect. Severance pay was defined in Article 14 of the repealed Labor Law No. 1475 as follows:

“In the case of termination of the employment contracts of the workers subject to this Law: 1. By the employer for reasons other than those specified in subparagraph II of Article 17 of this Law, 2. By the worker in accordance with Article 16 of this Law, 3. Due to compulsory military service, 4. For the purpose of receiving old-age, retirement or disability pension or lump-sum payment from the institutions or funds established by the law or Presidential decree to which they are affiliated; (2) 5. Due to their leaving their jobs at their own request after completing the other conditions other than the ages stipulated in subparagraphs (a) and (b) of subparagraph (A) of the first paragraph of Article 60 of Law No. 506 or the insurance period and the number of premium payment days stipulated for the granting of an old-age pension according to Temporary Article 81 of the same Law, or the termination of the contract by the woman at her own request within one year from the date of her marriage, or the termination of the employment contract due to the death of the worker, the employer shall pay the worker for each full year of service during the period of continuation of the employment contract from the date of the worker's commencement of work. The provision states: "The worker is paid severance pay equivalent to 30 days' wages. Payment is also made at the same rate for periods exceeding one year..." For a worker to be entitled to severance pay, they must have at least one year of seniority at the workplace at the time of termination of the employment contract, and the contract must have been terminated due to one of the reasons listed in Article 14 of the Labor Law.

This termination may occur as a result of the termination of the employment contract by the employee or employer based on some of the circumstances listed in the aforementioned article, or it may occur due to the death of the employee. The Labor Law regulates not only the circumstances under which an employee is entitled to severance pay, but also the amount of severance pay.

In this respect, air transport workers who have collective bargaining agreements or are unionized are subject to the Labor Law and, if the conditions required by law are met, are entitled to severance pay.

When we examine the provisions of Articles 393-447 of the Turkish Code of Obligations, which govern the employment contracts of airline workers who are not covered by collective bargaining agreements or are not unionized, we see that the legislator has not made any provisions regarding severance pay. It is also stated in Supreme Court decisions that, as a rule, severance pay does not apply to workers who fall outside the scope of the Labor Law and are subject to the Turkish Code of Obligations.

In its decision dated June 1, 2007, numbered E. 2007/643, K. 2007/7823, the 13th Civil Chamber of the Court of Cassation ruled that "Since the plaintiff, a flight crew member, is not covered by the Labor Law according to the regulation in Article 4 of the Labor Law, he/she cannot claim the compensation under the name of 'Severance Pay' stipulated in the Labor Law." Similarly, in its decision dated October 2, 2014, numbered T. 2014/11415 E. and K. 2014/30462 K., the same Chamber ruled that "The plaintiff claims that he/she started working as a cabin crew member in the defendant company and that he/she terminated his/her employment contract due to mobbing and the completion of his/her retirement period, and therefore demands severance pay. The case arises from the employment contract, and it is understood that the plaintiff's contract was rightfully terminated according to the contract provisions."

The court ruled that "since the provisions of the Labor Law cannot be applied to the contractual relationship between the parties, although the employee cannot claim the compensation regulated in the Labor Law, they can claim reasonable compensation because there is an employment contract between the parties. A decision should be made after evaluating the right to compensation regulated in the Code of Obligations." In addition to Supreme Court decisions stating that air transport workers cannot claim severance pay because they are subject to the Turkish Code of Obligations, there are also Supreme Court decisions stating that employees who are not covered by the Labor Law are entitled to severance pay if their employment contracts contain provisions regarding severance pay.

In the decision of the 9th Civil Chamber of the Supreme Court of Appeals dated 09.09.1992, numbered 1992/2280 E. and 1992/9386 K., regarding agricultural workers who fall outside the scope of HR, such as aviation workers, it is stated that "It is understood that the plaintiff's entire employment was in agricultural work. According to Article 5 of the Labor Law No. 1475, the provisions of the Labor Law do not apply to him; therefore, he cannot claim severance pay according to the Labor Law."

However, if there is a provision in the employment contract or collective bargaining agreement stating that severance pay will also be paid to agricultural workers, the agricultural worker can also claim severance pay by filing a lawsuit in the Labor Court based on such a provision.” Therefore, for an air transport worker to be entitled to severance pay if there is no collective bargaining agreement or if they are not unionized, there must be a provision in the employment contract they have with their employer stating that severance pay will be paid.

Otherwise, air transport workers subject to the Turkish Code of Obligations are not entitled to severance pay, while air transport workers with the same title, or perhaps even less seniority, are entitled to severance pay because they are subject to the Labor Law. The lack of a specific law applicable to air transport workers means that attempts to resolve the problems arising in practice through collective bargaining agreements only provide a temporary solution and protect the rights of a limited group of workers.

To prevent this practice, a special law should be enacted for air transport workers, or new regulations should be made in the Labor Law to subject air transport workers to it. 2. Notice Pay In labor law, if an indefinite-term employment contract is terminated without adhering to the notice periods or with advance payment as recognized by the legislator, and the wages related to the notice period are not paid, it is considered an irregular termination. The party making the irregular termination is obliged to pay the compensation stipulated in Article 17/4 of the Labor Law to the other party. This compensation, called notice pay, is only applicable in cases of irregular termination of indefinite-term employment contracts.

Article 17 of the Labor Law states: “Before terminating indefinite-term employment contracts, the other party must be notified. Employment contracts are deemed terminated: a) Two weeks after the notification is given to the other party, for employees whose employment has lasted less than six months; b) Four weeks after the notification is given to the other party, for employees whose employment has lasted from six months to one and a half years; c) Six weeks after the notification is given to the other party, for employees whose employment has lasted from one and a half years to three years; d) Eight weeks after the notification is given, for employees whose employment has lasted more than three years.”

These periods are minimums and may be increased by contract. The party that fails to comply with the notice requirement is obliged to pay compensation equal to the amount of wages for the notice period. The employer may terminate the employment contract by paying the wages for the notice period in advance. The employer's failure to comply with the notice requirement or termination of the contract by paying the wages for the notice period in advance does not prevent the application of the provisions of Articles 18, 19, 20, and 21 of this Law. In cases where the employment contract of workers who fall outside the scope of application of Articles 18, 19, 20, and 21 of this Law, pursuant to the first paragraph of Article 18, is terminated through the abuse of the right of termination, the worker shall be paid compensation equal to three times the amount of the notice period.

Failure to comply with the notice requirement for termination also necessitates the payment of compensation pursuant to the fourth paragraph. In calculating the compensation to be paid under this article and the advance payment of wages for the notice periods, in addition to the wages stated in the first paragraph of Article 32, any monetary or quantifiable benefits provided to the employee arising from the contract and the law shall also be taken into consideration.” Thus, a regulation has been established requiring prior notice, observing the minimum periods specified in the article, for the termination to be considered procedurally correct.

In addition to this regulation in the Labor Law, Article 16 of the Maritime Labor Law states that "The other party must be notified before terminating indefinite-term employment contracts," Article 5 of the Press Labor Law states that "In employment contracts with an indefinite term, the notice of termination is subject to the periods specified in this Law," and Article 431 of the Turkish Code of Obligations states that "Each party has the right to terminate an indefinite-term contract by complying with the termination periods." Thus, it is seen that the legislator has stipulated in each law that compliance with the notice periods is required for the proper termination of an indefinite-term employment contract.

As can be seen, an air transport worker subject to the Labor Law or the Turkish Code of Obligations is entitled to severance pay if their indefinite-term employment contract is terminated irregularly by the employer. The Labor Law and the Turkish Code of Obligations overlap regarding severance pay, and an air transport worker is not deprived of severance pay if they are excluded from the scope of the Labor Law; however, due to differences in notice periods, two air transport workers with the same seniority may not be entitled to the same severance pay according to the law they are subject to.

Article 17/2 of the Labor Law stipulates that the minimum legal notice periods are two weeks if the employee's seniority is up to six months, four weeks if it is between six months and one and a half years, six weeks if it is between one and a half years and three years, and eight weeks if it is more than three years. Article 432 of the Turkish Code of Obligations, titled "Notice Period for Termination," regulates notice periods that increase according to seniority, similar to the Labor Law, but with different notice periods for different seniority ranges. The minimum legal notice periods regulated in Article 432 of the Turkish Code of Obligations are two weeks if the employee's service period is up to one year, four weeks if it is between one and five years, and six weeks if it is more than five years. As can be seen, an air transport worker, whether subject to the Turkish Code of Obligations (TBK) or the Labor Law (İş Kanunu), is entitled to severance pay if their employment contract is terminated irregularly. However, this difference in notice periods under the two laws causes two air transport workers with the same seniority but subject to different laws to be entitled to different severance pay. In this regard, an air transport worker who does not have a collective bargaining agreement or is not a member of a union suffers a loss of rights because they are subject to the TBK.

The right of an airline worker with an indefinite employment contract to severance pay is protected by the legislator in both the Turkish Code of Obligations (TBK) and the Labor Law (İK). However, the differences in notice periods in these two laws create inequality between the two workers in terms of severance pay. As can be seen, an airline worker subject to the TBK suffers inequality in many rights compared to a worker subject to the Labor Law, and it is evident that they also suffer inequality in terms of severance pay. Instead of workers trying to eliminate this inequality through collective bargaining agreements, a new regulation is needed to align the notice periods in the TBK with those in the Labor Law.

3. Reinstatement and Job Security Compensation: The Labor Law distinguishes between employees covered by job security provisions and those not covered. It stipulates that employees with indefinite-term contracts in workplaces employing thirty or more workers are covered by job security if they have at least six months of seniority. The termination of employment contracts for employees covered by job security must be based on a valid reason, as per Article 18 of the Labor Law.

If an employee covered by job security provisions has their employment contract terminated invalidly, they have the right to file a lawsuit in the Labor Courts according to Article 20 of the law, starting from the date of notification of termination. The employer's invalid termination is also subject to certain penalties under Article 21 of the law. If the court determines that the termination is invalid, the employer is obligated to reinstate the employee within one month; otherwise, they are liable to pay the employee job security compensation equivalent to at least four months' and at most eight months' wages.

Workers not covered by job security provisions do not have the right to file a lawsuit for reinstatement. As mentioned above, the employment contract of an indefinite-term worker not covered by job security provisions can be terminated by the employer in accordance with the notice periods stipulated by law. The employer has the option to terminate the contracts of indefinite-term workers who are not included in job security provisions without having to give a reason. Air transport workers subject to collective bargaining agreements and HR regulations, if they are covered by job security provisions under the conditions required by law, have the right to file a lawsuit for reinstatement if their indefinite-term employment contracts are terminated invalidly, and they are also entitled to the compensation legally granted to workers covered by job security provisions.

In the case of air transport workers who are subject to HR regulations but not covered by occupational safety regulations, their indefinite-term contracts can be terminated by the employer without just cause, provided that notice periods are observed; therefore, they do not have the right to file a lawsuit for reinstatement. Similarly, in the case of air transport workers who are subject to the Turkish Code of Obligations, there is no provision in the law that provides for this right, so they do not have the right to file a lawsuit for reinstatement.

Air transport workers who are subject to HR regulations through a collective bargaining agreement or an employment contract with their employer can file a lawsuit for reinstatement. The 9th Civil Chamber of the Supreme Court of Appeals, in its ruling dated January 15, 2018 (Case No. 2016/33198 E., 2018/107 K.), ruled in favor of the plaintiff, a captain pilot subject to HR regulations through a collective bargaining agreement, stating: “In this specific dispute, since the defendant employer, who bears the burden of proof, failed to prove that the termination was based on a valid reason, the decision to declare the termination invalid and to reinstate the plaintiff is correct.”

As seen in the case of reinstatement, even if all the necessary conditions for air transport workers to claim reinstatement are met, they do not have the right to file a reinstatement lawsuit simply because they are subject to the Turkish Code of Obligations. Unions also try to remedy this inequality through collective bargaining agreements, ensuring that workers are subject to the Labor Law.

The inequality regarding reinstatement, as with many compensation items, among workers subject to both the Turkish Code of Obligations (TBK) and the Labor Law (İK), requires more permanent solutions rather than attempts to address it through collective bargaining agreements. The fact that air transport workers are subject to the TBK creates a significant inequality, and these workers should be included within the scope of the Labor Law through a new regulation, not through collective bargaining agreements. 4. Unjustified Termination Compensation: If the employment contract between the employee and the employer becomes unbearable or intolerable for one of the parties due to the principles of good faith, i.e., if the justified termination grounds listed by the legislator in Articles 24 and 25 of the Labor Law have arisen, the party in whose favor the right to terminate arises may immediately terminate the employment contract for just cause without waiting for the notice periods. However, if the employment contract is terminated without these justified termination grounds listed by the legislator, an unjustified termination occurs. If the employment contracts of workers covered by job security provisions are unfairly terminated, they are subject to the same legal consequences as in cases of invalid termination, including reinstatement and job security compensation.

When indefinite-term contracts of workers not covered by job security provisions are unfairly terminated—that is, when the termination occurs without the reasons listed by the legislator in Articles 24 and 25 of the Labor Law—these workers can claim notice pay, severance pay (if the conditions are met), and compensation for unfair termination. As can be seen, an air transport worker subject to the Labor Law and covered by a collective bargaining agreement can benefit from job security provisions and make claims within the framework of these provisions if they are subjected to unfair termination. A worker not covered by job security provisions, on the other hand, can claim notice pay and, if the conditions are met, severance pay as well as compensation for unfair termination if they are subjected to unfair termination.

The Turkish Code of Obligations (TBK) also regulates the legal sanctions for wrongful termination in its Article 438, titled "Termination Without Just Cause," concerning employment contracts. According to Article 438, if the employer wrongfully terminates the employment contract, the employee has the right to claim, in addition to the compensation stipulated in the first paragraph of the article, an independent compensation, not exceeding six months' wages, under the name of "wrongful termination compensation." While the compensation stipulated in the first paragraph aims to compensate the employee for the damage suffered due to the employer's failure to comply with notice periods in an indefinite-term employment contract, the wrongful termination compensation is a direct sanction for the employer's unlawful conduct. Therefore, when the employment contract of an air transport employee subject to the TBK is wrongfully terminated by the employer, the employee can claim both notice pay and wrongful termination compensation.

5. Compensation for Bad Faith Termination: According to the Labor Law, the indefinite-term employment contracts of workers who are not covered by job security provisions can be terminated by the employer without just cause, provided that the notice periods are observed and the procedure stipulated by law is followed. Since the abuse of this right granted by the legislator is possible, this matter is limited within the framework of the law. While the employer can terminate the worker's employment contract without giving a reason, in accordance with the legally required procedure, the employer cannot terminate the workers' employment contracts in bad faith, as per Article 17 of the law. Otherwise, an employer who terminates a worker's employment contract in bad faith is obliged to pay the worker compensation for bad faith termination equal to three times the notice period.

Thus, if air transport workers subject to collective bargaining agreements and HR regulations are not covered by job security provisions and their employment contracts are terminated maliciously by the employer, the worker can claim compensation for malicious termination.

To prevent employers from abusing the right to terminate employment contracts with notice granted by the legislator, Article 434 of the Turkish Code of Obligations, titled "Protection Against Termination," also regulates compensation for bad faith termination. This article stipulates that an employer who terminates an employment contract in bad faith is obligated to pay the employee compensation equal to three times the amount of wages for the notice period.

As can be seen, if an air transport worker is not covered by job security provisions, whether subject to the Labor Law or the Turkish Code of Obligations, the employer is obligated to pay compensation for bad faith termination of the indefinite employment contract. In this respect, the Labor Law and the Turkish Code of Obligations are consistent.

III. PROBLEMS ENCOUNTERED IN PRACTICE

1. Regarding the Competent Court: Article 4 of the Labor Law for employees working in air transport: "The provisions of this Law shall not apply to the following jobs and employment relationships;"

a) In sea and air transport operations,

b) In workplaces or businesses engaged in agricultural and forestry work employing fewer than 50 workers (including 50),

c) All kinds of construction work related to agriculture that remain within the limits of the family economy,

d) Gatherings between members of a family and relatives up to the third degree (including the third degree) in homes and in handicraft workshops, without the participation of anyone else from outside.

e) In domestic services,

f)(…) (1) about apprentices, (1) g) about athletes,

h) Regarding those who have been rehabilitated,

i) In workplaces employing three people, as defined in Article 2 of the Tradesmen and Craftsmen Law No. 507. However;

a) Loading and unloading operations from ships to shore and from shore to ships at coasts or ports and jetties,

b) All work carried out at aviation ground facilities,

c) Work performed in workshops and factories where agricultural crafts and agricultural tools, machinery and parts are manufactured,

d) Construction works carried out in agricultural enterprises,

e) Parks and gardens that are open to public use or are an extension of the workplace,

f) Jobs related to aquaculture producers working at sea, which are not covered by the Maritime Labor Law and are not considered agricultural jobs.

According to the provision that "It is subject to the provisions of this Law," they are excluded from the scope of the Labor Law. While there is a Maritime Labor Law to be applied to maritime transport work, which is excluded from the scope of the Labor Law, there is no special law to be applied to air transport work. Therefore, the Turkish Code of Obligations, which is the general law, is applicable to air transport work.

The competent courts for legal disputes falling under the scope of the Turkish Code of Obligations are the general courts. Since they are excluded from the scope of the Labor Law, legal disputes concerning air transport workers, who are subject to the Turkish Code of Obligations, are therefore handled by the Civil Courts of First Instance, which are general courts. However, with the entry into force of the Labor Courts Law No. 7036 dated October 25, 2017, Article 5 of this law stipulates that Labor Courts shall handle all legal disputes arising from employment relationships between workers subject to service contracts regulated in the Sixth Section of the Second Part of the Turkish Code of Obligations No. 6098 and employers or their representatives, whether arising from contracts or law. Therefore, as of October 25, 2017, Labor Courts have become competent to handle legal disputes related to air transport work and workers.

According to Article 3 of the same law, in lawsuits filed for employee or employer claims and compensation based on law, individual or collective labor agreements, and requests for reinstatement, recourse to mediation has been made a prerequisite for filing a lawsuit, and this article came into force on January 1, 2018. Therefore, in legal disputes concerning employees working in air transport services subject to the Turkish Code of Obligations (TBK), recourse to mediation has become a prerequisite for filing a lawsuit, and Labor Courts have been designated as competent courts to resolve legal disputes of employees who cannot reach an agreement in mediation talks. Before the TBK came into force on October 25, 2017, a frequently encountered problem in practice was the issue of competent courts; while the Civil Courts of First Instance were responsible for handling cases concerning employee claims of air transport workers subject to the TBK, it was observed that lawsuits were frequently filed in Labor Courts.

In practice, this problem encountered regarding the jurisdiction of the court was causing hardship for air transport workers and further prolonging the already lengthy litigation process. Therefore, the new law, which has made Labor Courts the competent courts, has resolved this problem in practice.

We believe that the designation of Labor Courts as competent courts for legal disputes concerning air transport workers is appropriate in terms of protecting the interests of air transport workers and ensuring fair decisions.

Although the issue of the competent court has been eliminated with this regulation, it is not fully understood in practice, and lawsuits continue to be filed in Civil Courts of First Instance. The fact that an air transport worker is subject to the Turkish Code of Obligations, and that the competent court for their disputes is the Labor Court, and that mediation has become a prerequisite for litigation, is misleading the courts in practice. Instead of establishing a special law to apply to these workers, the fact that they are subject to both procedural and substantive regulations through several laws creates a major problem in practice and results in the loss of workers' rights.

The main reason for the current and ongoing problems in practice is that although the competent court for legal disputes concerning air transport workers is regulated in the Labor Court, the law they are subject to is the Turkish Code of Obligations (TBK), and they can only make claims within the framework of the TBK. While the inclusion of cases related to disputes of air transport workers within the jurisdiction of the Labor Court through the Labor Court is a good regulation, it still does not fully solve the problems in practice and brings to the fore the need for a special law to be applied to air transport workers. 2. Labor Claims When the employment contracts of workers with indefinite-term employment contracts under the Labor Law are terminated by the employer, labor claims come to the fore.

When the law was drafted, the legislator divided workers into two categories: those covered by job security and those not. Workers covered by job security are granted various rights in addition to the wage claims of other workers. However, the Turkish Code of Obligations (TBK) does not make such a distinction. If the indefinite-term employment contracts of workers covered by job security are terminated by the employer, reinstatement is the primary concern, and the legislator grants workers the right to file a lawsuit for reinstatement within one month of termination.

If the court determines that the employer's termination was unfair, the employer is obligated to reinstate the employee within one month in accordance with Article 21 of the Labor Law. Failure to do so is liable to pay the employee job security compensation equivalent to four months', and at most eight months', wages. If the employer failed to pay notice pay upon termination, they are also obligated to pay severance pay and, if the legal conditions are met, seniority pay.

Workers not covered by job security provisions are not granted the right to reinstatement by law if their employment contracts are unfairly terminated by the employer. However, if the conditions detailed above are met, these workers can claim severance pay, notice pay, compensation for unfair dismissal, and compensation for bad faith termination from their employer.

In the Turkish Code of Obligations, the labor claims granted to workers are regulated as severance pay, compensation for unfair dismissal, and compensation for bad faith termination. Another problem encountered in practice concerns the labor claims of air transport workers. Due to the misconception that flight crew such as pilots, flight attendants, cabin crew, and radio operators are subject to the Labor Law, workers are seen to demand their labor claims within the framework of the HR (Human Rights Law).

In its ruling dated March 19, 2019, with case number 2018/2316 E. and 2019/520 K., the 3rd Civil Chamber of the Antalya Regional Court of Appeals stated: “There is no doubt that the employment contract between the parties is subject to the provisions of the Turkish Code of Obligations, considering Article 4/a of the Labor Law No. 4857, which deals with exceptions. As accepted in established Supreme Court practice, since it is not possible to claim severance pay for employment contracts subject to the Turkish Code of Obligations, the court's decision to reject the plaintiff's claim in this regard is not found to be unlawful.” Thus, it is observed that the plaintiff, despite being subject to the Turkish Code of Obligations, requested severance pay as regulated in the Labor Law.

As mentioned above, if air transport workers do not have collective bargaining agreements or are not unionized, they can only claim wages under the Turkish Code of Obligations. These are limited to severance pay, compensation for unfair dismissal, and compensation for bad faith termination.

The wage entitlements of two aviation workers employed at the same workplace differ depending on whether or not they are covered by a collective bargaining agreement.

Due to the workers' lack of awareness of this situation, in practice, workers are seen to demand labor-related entitlements that are not granted to them by the legislator in the Turkish Code of Obligations. This situation, due to the absence of a specific law applicable to air transport workers, sometimes leads to errors by workers, lawyers, and even courts.

IV. COLLECTIVE BARGAINING AGREEMENTS AND THE FUNCTIONALITY OF TRADE UNIONS

The fact that air transport workers, such as pilots, flight attendants, cabin crew, and radio operators, are excluded from the scope of HR and are subject to the Turkish Code of Obligations due to the lack of a specific law applicable to them, causes these workers to be subjected to injustice both in terms of their labor claims and reinstatement to their jobs.

The fact that the provisions of the Turkish Code of Obligations (TBK) regarding "Service Contracts" applicable to air transport workers are not parallel to the provisions of the Labor Law (İK), and that the TBK, as a general law, is not regulated in detail, means that the TBK, as a general law, is a situation that favors the employer. It does not obligate the employer to pay some of the receivables owed to the employee, and in some cases, the employer is obligated to pay less. Because air transport workers are deprived of many rights granted to employees under the Labor Law, even if they wish to be subject to the Labor Law, this is not accepted by the employer in the service contract they have concluded with the employer, and the employee continues to be subject to the TBK.

Air transport workers, maritime transport workers, and other workers not covered by the scope of the law have been excluded from the scope of HR regulations because the legislator deemed it necessary to regulate them with a special law.

While special laws have been established for other workers excluded from the scope of the law, the lack of a special law for air transport workers subjects them to the Turkish Code of Obligations (TBK), thus depriving them of many rights and subjecting them to injustice. The legislator's intention is never to prioritize workers subject to the TBK over those subject to the TBK. The absence of a special law applicable to these workers should not subject them to the TBK, depriving them of certain rights and entitlements. The interpretation made between the TBK and the TBK should not be to the detriment of the worker. This interpretation, which is to the detriment of the worker, never serves the legislator's purpose. The lack of a special law should be remedied in practice by the courts by interpreting the two laws in favor of the worker.

In practice, instead of courts interpreting cases in favor of the worker, the application of only the provisions of the Turkish Code of Obligations (TBK) to air transport workers creates a disadvantage for the worker. Therefore, workers rightfully seek to be subject to the Labor Law (HR) through their employment contracts. Since workers being subject to the TBK instead of HR creates a situation in favor of the employer, employers do not accept the workers' demands regarding HR in the contracts they make with their employees. Due to the employers' refusal to accept the workers' demands within the scope of HR, unions intervene and, through collective bargaining agreements they conclude with air transport companies, ensure that all unionized workers are subject to the provisions of the HR in many matters such as wage claims, notice periods, and termination procedures, thus working to remedy the injustice.

While unions ensure the application of HR regulations to aviation workers through collective bargaining agreements, it is known that protecting these workers' rights through collective bargaining agreements, rather than through a specific law, is not easy. Even when unions negotiate collective bargaining agreements with airlines to protect the rights of aviation workers, there are still airlines without such agreements, and unions can only protect the rights of workers in certain companies through collective bargaining agreements. If unions subject unionized aviation workers in some companies to HR regulations through collective bargaining agreements, then inequality arises in terms of the laws applied and the rights granted to two aviation workers with the same title and seniority. When a unionized aviation worker is subject to HR regulations, as explained in detail above, they have more advantages in matters such as receivables, reinstatement, and termination. Due to the lack of parallelism between the regulations of these two laws, inequality occurs between a worker subject to the Turkish Code of Obligations and a worker subject to HR regulations.

As can be seen, unless a special law or new regulation is enacted to include air transport workers within the scope of HR, only unionized workers can have their rights protected from injustice. Attempting to resolve the problems faced by air transport workers through collective bargaining agreements is only a temporary solution and, unfortunately, not a comprehensive approach covering all air transport workers. It is clear that collective bargaining agreements will not completely eliminate the problems and injustices suffered by these workers, and a new legal framework is necessary to address their needs.

V. CONCLUSION

Air transport workers, such as pilots, flight attendants, cabin crew, and radio operators, are excluded from the scope of the Labor Law under Article 4. Since there is no specific law applicable to air transport workers, they are subject to the Turkish Code of Obligations (TBK). While the competent courts for legal disputes concerning air transport workers were the general courts due to their subjection to the TBK, the enactment of Law No. 7036 on Labor Courts dated October 25, 2017, has resolved the problems encountered in practice regarding the competent court. Furthermore, we believe that the designation of Labor Courts as competent courts for legal disputes concerning air transport workers is appropriate in terms of protecting the interests of air transport workers and ensuring fair decisions.

One of the most common problems encountered in practice concerns labor claims. Because air transport workers are subject to the Turkish Code of Obligations (TBK), they are deprived of labor claims regulated under the Labor Law (İK). Therefore, in practice, these workers are included under the Labor Law through collective bargaining agreements.

Due to the absence of a specific law applicable to air transport workers, this gap has been attempted to be filled for years through collective bargaining agreements. Although they can be subject to HR regulations through collective bargaining agreements, the issue now concerns air transport workers who do not have collective bargaining agreements and are not unionized. The fact that these workers are subject to the Turkish Code of Obligations (TBK) and are therefore deprived of their labor entitlements continues to cause a significant problem and inequality. It is clear that this problem regarding the labor entitlements of air transport workers has not been resolved through collective bargaining agreements.

We believe that in order to eliminate this inequality and resolve the problems encountered in practice, either a special law should be enacted for air transport workers, or air transport workers should be included within the scope of HR.