According to Article 1/3 of the Communiqué on Employment of Insured Persons in Domestic Services within the Scope of Additional Article 9 of Law No. 5510, domestic services are defined as daily tasks such as cleaning, cooking, laundry, ironing, shopping, gardening that can be done by family members living in the house, and the care of children, the elderly or those in need of special care, performed by persons other than family members.
Indeed, in the Merits No: 2013/35095, Decision No: 2015/9308 of the 22nd Civil Chamber of the Court of Cassation;
‘‘According to subparagraph (e) of the first paragraph of Article 4 of Law No. 4857, the provisions of this law shall not apply to “those working in domestic services”. Disputes between workers working in jobs such as cooks, butlers, cleaners in domestic services and the landlord employer should be resolved in general courts instead of labor courts. In the legal relations between the persons who perform these services that are excluded from the scope of the Labor Law and the persons who employ them, the provisions of the Code of Obligations regarding the service contract shall be applied. It should be accepted that the driver who picks up family members from home and takes them shopping, goes around the city, and spends his free time in the house and its annexes is also performing domestic service and is not within the scope of the Labor Law. On the other hand, the nurse and child educator who looks after the patient at home should be evaluated within the scope of Law No. 4857.’’
As can be understood from the decision, the Court of Cassation evaluates the service provided by the workers who work as cleaners, cooks, butlers and gardeners in domestic services and the service provided by the driver who picks up family members from home and takes them shopping, goes around the city, and spends his free time in the house and its annexes as domestic service. According to the Court of Cassation, since the provisions of the Code of Obligations regarding the service contract, not the Labor Law No. 4857, will be applied in disputes between the employee working in domestic services and the employer, the courts competent in these disputes are general courts, not labor courts. However, according to the Supreme Court, the provisions of the Labor Law No. 4857 will be applied to the nurse who looks after the patient at home and the child educator, and the disputes arising from this relationship will be the subject of litigation in the Labor Courts.
On the other hand, the Supreme Court determines the nature of the work done by evaluating the weighted service in cases where the worker performs more than one job at the house where he works. In this context, the Supreme Court 9th Civil Chamber, in its Decision No. 2007/27814, Decision No. 2008/25988, stated that the worker who performs guard duty in addition to the housework he performs in the house and garden of the landlord is within the scope of the Labor Law because his weighted service is guard duty.[1]
According to Article 6/1/c of the Social Insurance and General Health Insurance Law No. 5510; except for those insured under the second paragraph of the additional article 9 of this Law and those working for the same person for 10 days or more during the month, those working in domestic services are not considered insured. In clearer terms, it is possible to consider those working in domestic services as insured under Law No. 5510 in two cases. The first of these cases is regulated in Additional Article 9 of Law No. 5510. According to the provision; those who are employed by one or more real persons in domestic services and whose number of working days calculated according to the working hours during the month for the person they work for is less than 10 days, benefit from the occupational accident and disease insurance on condition that the employer pays a work accident and disease insurance premium of 2% of the daily earnings lower limit, which is the basis for the premium, in accordance with Article 82, in proportion to the period they are employed. The second of these cases is employees who are employed by one or more real persons in domestic services and whose number of working days is calculated according to the working hours in a month, 10 days or more, in addition to the person they work for. The provisions regarding insured employees are applied to these individuals in accordance with Article 4/1/a of the Law. In clearer terms, employees who work 10 days or more in a month benefit from all insurance branches.
In its decisions regarding disputes regarding uninsured employment in domestic services, the Court of Cassation states that the court should not be content with the findings, evaluations and evidence in the labor receivable file, but should determine the scope of the residence, the jobs they work in, and how long these jobs can be done, in line with the principle of ex officio investigation, and should not be content with the witnesses provided by the parties, but should seek the statements of those living in the same or neighboring apartments or employees registered in nearby locations, and the neighborhood headman or members who may know about the plaintiff’s work as witnesses.[2] Indeed, the Court of Cassation 10th Civil Chamber has ruled in its decision Merits No: 2017/3182, Decision No: 2017/8928 as follows;
‘‘(…) As can be seen, in accordance with the aforementioned articles, those working in domestic services; except for those working for a wage and on a permanent basis, cannot be considered insured in the implementation of these Laws. Since wage and permanent employment are required together to be considered insured, both conditions must be met. If no wage is received for the service or if there is no continuity in the work despite receiving a wage, it is not possible to consider such work as insured work. Accordingly, if those who have met the other conditions fall within the scope of the aforementioned articles, they cannot be considered insured and cannot benefit from the rights regulated in Laws No. 506 or 5510.
(…) In order for a job to be considered as a domestic service, the work performed must meet the daily, ordinary needs of domestic life within the scope of the activities required by daily life at home (Mollamahmutoğlu H., Labor Law, Turhan, …, 2004, p. 179).
In the doctrine, domestic services are accepted as the jobs required by daily life at home such as cleaning, cooking, laundry, ironing, child care, and governessing. Domestic service workers are accepted as people who carry out activities related to the daily functioning of the house such as butlers, housekeepers, maids, cleaners, cooks, babysitters, gardeners, drivers, guards, animal caretakers, etc.
Since only those who “work for a wage and on a permanent basis” are considered insured in domestic services, what is important for these people to be accepted as insured is that the work performed in domestic service is done for a wage and is continuous. In terms of the concept of continuous work, in practice, if most of the week is spent in domestic work and the work continues for a while, this work is considered as insured work, and a certain intensity of work is required for continuity.
In accordance with the principle of ex officio investigation, the court should first ask the relevant institutions for the occupancy permit, electricity and water subscription dates for the house in order to determine how long the defendants have been living in the house, if the plaintiff has worked in another house belonging to the defendants before, it should be asked from the plaintiff, whether the defendants should have employed the plaintiff in domestic service for many years, the scope of the house, what jobs he has worked in, how long these jobs can be done, accordingly, whether his work requires full-time work, the need status should be determined, not being content with the witnesses shown by the parties, the employees who have lived in the same and neighboring apartments for many years or who are registered in nearby places (people who work in other houses, people who run neighboring markets and grocery stores and whose employees worked as security guards etc. in another site) and the neighborhood headman or members who are in a position to know about the plaintiff’s work should be identified and their statements should be taken as witnesses, if there is a case file regarding labor receivables, its existence should be investigated and summoned, and the statements of the witnesses heard in the labor rights case and the information and The statements of the witnesses whose eyewitnesses are interviewed should be compared, if any, contradictions should be resolved, in the evaluation of the witness statements heard during the trial process, the scope, capacity and nature of the workplace should be taken into consideration, the reasons for the plaintiff’s work not appearing in the records not being recorded or remaining unreported, whether she took a break from her work due to birth, illness and similar reasons during the period in question should be investigated, with new investigations to be conducted, the plaintiff’s work should be asked from the workplaces where the plaintiff and the defendants shop or provide home-based service, during this time, for example, whether there are documents such as invoices, delivery reports, mail receipts, etc. signed by the plaintiff on behalf of the defendants should be investigated, if their existence is detected, they should be subpoenaed into the file according to the method and an evaluation should be made in terms of whether they confirm the plaintiff’s allegations, the existence of the work and whether it is interrupted should be investigated according to the method, a decision should be made according to the result to be obtained after all the evidence collected is evaluated together.’’
[1] Kökkılınç, A. G. (2019). EV HİZMETLERİNDE ÇALIŞAN İŞÇİNİN İŞ İLİŞKİSİ. Dokuz Eylül Üniversitesi İşletme Fakültesi Dergisi, 20(2), 537-557. https://doi.org/10.24889/ifede.653959
[2] Kökkılınç, A. G. (2019). EV HİZMETLERİNDE ÇALIŞAN İŞÇİNİN İŞ İLİŞKİSİ. Dokuz Eylül Üniversitesi İşletme Fakültesi Dergisi, 20(2), 537-557. https://doi.org/10.24889/ifede.653959