NEWSLETTER-2020-metin

353 LABOR LAW As understood from the Court of Cassation precedents, even if a foreign law is designated as the applicable law under the employment contract, if a dispute between the parties is taken to competent Turkish courts, and foreign law grants less protection to the employee for such matter in comparison to Turkish law, Turkish law shall be applied to the case either due to directly applied rules or public order interven- tion. On the other hand, if a foreign law grants more protection with regard to other employment law matters, then the foreign law shall be applied. Conclusion Turkish companies undertaking projects in foreign countries gen- erally recruit Turkish employees to work in those projects. Employers wishing to recruit Turkish employees for overseas companies shall firstly check whether a bilateral labor force treaty is executed between the Republic of Turkey and such state. If a bilateral labor force treaty is executed, the recruitment procedure set forth under the treaty shall be observed. Additionally, each overseas employment contract shall be approved by the Turkish Employment Agency. As to the merits of overseas employment contacts, foreign law is mostly determined as the applicable law that governs the contract. As per Article 27 of the AIPPL, employment contracts are subject to the applicable law des- ignated by the parties, provided that the minimum protection arising out of the mandatory rules of the employee’s habitual work place are reserved. The work place where the material and dominant part of the work takes place is accepted as the habitual work place. In this regard, the habitual work place of the employees who are recruited specifically for the project abroad is the foreign state. Having said that, the Court of Cassation prevents employees being faced with rules granting less protection in comparison to Turkish law, and applies Articles 5 and 6 of the AIPPL regulating public order and directly applied rules and, thus, applies Turkish law to each case, where the applicable foreign law grants less protection to the employee.