Determination of Reference Wage
In audits conducted by public institutions or in lawsuits/determination lawsuits filed by employees, if it is determined that employees’ wages are not reported according to their actual wages,
An administrative fine of two minimum wages shall be imposed on the employer for each month in which wages are paid in cash.
If the situation is determined as a result of the audit, the payroll records and the workplace’s daily logbook shall be deemed invalid, and an administrative fine equal to half of the minimum wage (up to a maximum of 12 minimum wages) shall be imposed on the workplace for each instance of invalidity.
The “Minimum Wage Support” received by the workplace for the years in which cash payments were made to employees will be canceled, and the relevant amounts will be refunded to the Social Security Institution (SGK) with legal interest.
The employer shall be obliged to pay the underreported premiums and taxes to the relevant institutions with late payment interest.
Payment may be made again to the employee following an allegation that cash payment was not made.
Considering these results, paying wages in cash causes significant loss of rights for employees and poses a serious risk for employers.
The decision of the 9th Civil Chamber of the Court of Cassation dated 11.12.2017, with case number 2017/7955 and decision number 2017/20925, also serves as a precedent in this regard. Accordingly;
“In workplaces, it is sometimes seen that the wages shown in employment contracts or payrolls do not reflect the actual amount in order to pay less tax or insurance premiums. In this case, determining the actual wage becomes important. When factors such as the employee’s seniority, job title, actual work performed, workplace characteristics, and wages paid to comparable employees are taken into account, and when there is suspicion that the wages indicated on the signed payrolls do not reflect the actual wages, witness statements on this matter should be taken into account, and the employee’s length of service in the profession, dates of employment at the workplace, job title, and actual work performed should be reported to the unions and relevant employee and employer organizations to investigate what the comparable wage might be. A conclusion should then be reached by evaluating all the evidence together.
It is “contrary to the normal course of life” for a skilled worker to work for the minimum wage according to the nature of the job.
A young man working as a forklift operator in the packaging department of a company in Çifteler and his friends filed an appeal with the Çifteler Civil Court of First Instance, stating that they received part of their wages, as shown in their insurance premiums, from the bank and the remaining part in an envelope given to them in a room at the workplace after lining up. The local court dismissed the employee’s lawsuit.
The workers also submitted a CD containing camera footage showing cash payments being made in envelopes at the workplace. Th e footage showed workers waiting in line in front of a room door and those coming out of the room holding thin, long envelopes.
T he 21st Chamber of the Court of Cassation overturned the local court’s decision on the grounds that “it is contrary to the normal course of life for a skilled and experienced worker to work for the minimum wage, given the nature of their work.”
The High Court’s decision emphasized that it is contrary to the normal course of life for a qualified and experienced worker to work for the minimum wage according to the nature of their work, stating that the employer’s documents based on the minimum wage could be disproved.
The decision recalled that a CD containing workplace camera recordings showing cash payments in envelopes in similar situations had been submitted to the file. T he images showed employees waiting in line in front of a room door and people coming out with thin, long envelopes. The Supreme Court decision stated that witnesses also confirmed that such a practice existed at the workplace and that the employees’ pay slips were unsigned.
It was noted that the Eskişehir Chamber of Commerce informed the worker, who was employed as a forklift operator, that those performing similar work between 2007 and 2010 could receive wages 30% above the minimum wage.