Türkçe
It is common for many companies to employ a subcontractor for the performance of ancillary services that are outside of their main field of activity or to employ a group company employee in another group company by transferring personnel between group companies. However, most of the time, this main employer – sub-employer relationship is not designed correctly, the necessary legal regulations are ignored and accordingly, the sub-employer relationship is considered as collusive (muvazaalı) and both sub-employers and main employers are subjected to some sanctions.
What is Collusion (Muvazaa)?
As a general law concept; collision is the willful creation of a discrepancy between the will and the declarations of the parties to a legal relationship in order to deceive third parties, in other words; it is the establishment of prearranged fake relationship, which does not reflect the true will of the parties for the purpose of deceiving third parties.
What is Main Employer – Sub-Employer Relationship?
Pursuant to 7th paragraph of Article 2 of the Labor Law; main employer – sub-employer relationship is “the relationship established between the main employer who employs the sub-employer and the sub-employer who is appointed by the main employer to perform auxiliary works related to the production of goods or services or in a part of the main job that requires expertise due to technological reasons and who employs his employees only in this workplace.” You may review our related article to have detailed information about main employer – sub-employer relationship.
What is Collusion within Main Employer – Sub-Employer Relationship?
In accordance with Article 3/1/g of the Sub-Employer Bylaw, the collusion exists in contracts which contain;
1) employment of subcontractor for the performance of the works that do not require expertise in a part of the main work related to the production of goods or services carried out in the workplace,
2) establishment of sub-employer relationship with the person who was previously employed in that workplace,
3) employment of the employees of main employer by the sub-employer in order to continue to work in the workplace of the main employer by limiting their rights,
4) transactions aimed at concealing the real will of the parties, such as avoiding public liabilities or restricting or eliminating the rights of workers arising from the labor contract, collective labor agreement or labor legislation.
Additionally; pursuant to 7th paragraph of Article 2 of the Labor Law numbered 4857; “The rights of the employees of the main employer cannot be restricted by being recruited by the sub-employer in order to continue to work in the workplace of the main employer or a sub-employer relationship cannot be established with a person who was previously employed in that workplace. Otherwise, and in general, it is accepted that the main employer – sub-employer relationship is based on collusion, and the sub-employer’s workers are treated as the employee of the main employer from the beginning.”
Although the presumption of situations causing collusion has been determined in the articles of the relevant Law and Bylaw, in accordance with the predominant opinion in the doctrine and the recent Supreme Court decisions, it is possible to avoid the consequences and sanctions related to the collusion by proving the contrary of these presumption.
Although the employment of the employees of the main employer by being recruited by the sub-employer is listed as one of the cases of collusion both in the Law and the Bylaw, it is not prohibited for the employees of the main employer to be transferred to the sub-employer. The prohibition imposed by the legislator here is about the restriction of the rights of the employees of the main employer by such employee transfer. For example; if the employee benefits from the collective bargaining agreement within the main employer, benefits from different premiums and incentives, and if all these rights are restricted or deprived by the employment of such employee by the sub-employer, then the sub-employer relationship to be established in this way will be deemed as collusion. Therefore; the said employee transfers will only be valid if all wages and working conditions of the workers subject to transfer remain the same or improved.
In practice, it is seen that especially group companies transfer workers among themselves and a group of company employees are transferred to another group company in the process and continue to provide the same services. Managers often make the misconception that companies within the same group or holding are considered as a single corporate entity, and therefore, the necessary legal arrangements are not made for employee transfers between companies affiliated to these groups. However; there is no exception for these companies in the relevant legislation. Since each company is considered as a separate legal entity (employer) although they are included within the same group, the criteria introduced within the scope of the main employer – sub-employer relationship should be taken into account in the employee transfers between the group / holding companies and the necessary legal regulations should be taken into account in this direction.
How to Audit Collusion within Main Employer – Sub-Employer Relationship?
The assessment that a subcontracting relationship constitutes a violation of the above-mentioned provisions and that there is a collusive sub-employer relationship in this direction is made by both courts and labor inspectors.
Since there is no special regulation in the legislation regarding persons who may claim collusion, any collusion claim can be made ex officio by the auditors based on the determinations made during an audit performed on any subject or by the employees of the sub-employer.
Courts usually evaluate whether the main employer – sub-employer relationship is collusive within the scope of the relevant lawsuits which are filed against the main employer by the employees of the sub-employer for the payment of their receivables due to termination of the employment contract or for reinstatement.
Within administrative audits; the determination on whether the main employer – sub-employer relationship is in compliance with the legislation or not is audited by labor inspectors. In such audits, the inspectors especially take into consideration while determining the collusion; whether the subcontracting contract is made in order to limit or eliminate the rights of the workers or to avoid the obligations under labor law, whether the work assigned to the sub-employer is of the nature of auxiliary works of the main work or works that require expertise due to the necessity of the enterprise and the workplace and technological reasons, whether any of the former employees of the main employer who worked in that workplace is employed by the sub-employer, whether the sub-employer has sufficient equipment and experience for the work, whether the qualifications of the workers employed by the sub-employer are suitable for the work to be performed, and whether the employee of the main employer works in the works assigned to the sub-employer.
What are the Consequences of Collusion in the Main Employer – Sub-Employer Relationship?
Pursuant to the 7th paragraph of 2nd Article of the Labor Law; if it is determined that a subcontractor contract is collusive, the employees of the sub-employer will be treated as the employees of the main employer from the beginning. In this case, depending on the nature of the concrete situation, the main employer will be imposed to additional costs and obligations.
Firstly; the main employer will become a party to the employment contracts of the workers employed by the sub-employer within the scope of the sub-employer relationship that is determined to be collusive and will be directly responsible for the wages and all other labor receivables of the workers in that respect.
In addition; in this case, since the number of employees of the main employer will have changed and the obligations stipulated in the law in this context will be violated by the main employer, main employer may be subjected to some sanctions in this direction. For example; in the 29th article of the Labor Law, the obligations regarding collective dismissal and in the 30th article, the employment of disabled and ex-convicts are determined according to the number of employees of the employer. In this sense, if sub-employer relations are deemed collusive, the number of employees employed by the main employers will be recalculated by including the workers of the sub-employers, and if it is determined that the main employers do not comply with the rules such as collective dismissal and employing disabled people or ex-convicts retrospectively, they may be imposed to administrative fines.
However; in the event that the sub-employer relationship is invalidated due to collusion, the employees of the sub-employer do not automatically be entitled to make a claim retroactively within the collective labor agreement to which the main employer is a party. In order for an employee to benefit from the provisions of the collective bargaining agreement retrospectively, such employee should be a member of the union and should have notified the employer of this membership or paid a solidarity fee instead of being a member, and must have submitted to the employer a solidarity dues petition and requested to benefit from the collective labor agreement. If these requirements are not fulfilled by the employee; the provisions of collective labor agreement will not be used retrospectively and wage difference, if any, will not be claimed in accordance with collusive sub-employer claims.
Finally; in accordance with the second paragraph of Article 3 of the Labor Law and Article 5 of the Sub-Employer Bylaw, the sub-employer is obliged to make a notification regarding the main employer – sub-employer relationship for the registration of his workplace. In case of breach of the said notification obligation, both the main employer and the sub-employer may be subjected to administrative fines.
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