Türkçe
In today’s conditions; many companies leave the performance of ancillary works of their facilities which are outside their main field of activity, but needed for the realization of these activities, such as security, reception, cleaning, catering, to subcontractors for economic, technical or administrative reasons. However; definitions of sub-employer and main employer and the related regulations on this issue are mostly unknown by employers and accordingly, they are subjected to some sanctions, since necessary legal actions are not made and measures are not taken. Although personnel transfers between group companies are common, generally no contracts are concluded in this context, which constitutes a violation of the law. So, what should be taken into consideration within the scope of main employer – sub-employer relationship? What kind of regulations should be made in that respect?
What Is Main Employer – Sub-Employer Relationship?
The main employer – sub-employer relationship is regulated under paragraph 6 and subsequent paragraphs of Article 2 of the Labor Law No. 4857 (“Law”) and under the Sub-Employer Bylaw (“Bylaw”).
Under the 7th paragraph of Article 2 of the Labor Law, the principal employer – sub-employer relationship is defined as “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.”
The main employer and the sub-employer are defined under paragraphs (a) and (ç) of Article 3 of the Bylaw; as follows:
Main Employer: Main employer is a natural or legal person or unincorporated institution or organization who employs workers in the workplace for the performance of its main activities and who also employs another employer to perform auxiliary works related to the production of goods or services or some part of the main works that require expertise due to technological reasons due to the necessity of the enterprise.
Sub-Employer: Sub-employer is a natural or legal person or unincorporated institution or organization who undertakes to perform auxiliary works related to the production of goods or services carried out by another employer or some part of the main works of such employer that require expertise due to technological reasons due to the necessity of the enterprise and who employs his employees only in this workplace.
What are the Requirements to Establish Main Employer – Sub-Employer Relationship?
Pursuant to Article 4 of the Bylaw; in order to establish a main employer – sub-employer relationship in a workplace, the following conditions should be satisfied:
a) The main employer must also employ his own workers to work in the production of goods or services in the workplace.
b) The works given to the sub-employer must be one of the auxiliary works of the production of goods or services in the workplace. If the main work is divided and given to a sub-employer, such works should be in a nature that requires expertise due to technological reasons.
c) The sub-employer should only employ the workers assigned for the works that he undertakes in that workplace. In other words, if the same workers are assigned to other works by the sub-employer on different days or hours, sub-employer relationship cannot be mentioned.
ç) The work given to the sub-employer must be a work related to the production of goods or services carried out in the workplace and it must be dependent on the main work and continue as long as the main work continues.
d) The sub-employer should not be a person who has been employed in that workplace before. However, the fact that the employee previously employed in that workplace is also a shareholder of the legal entity company or the ordinary partnership does not prevent the establishment of sub-employer relationship.
Which Kind of Works are Eligible for the Establishment Main Employer – Sub-Employer Relationship?
As stated above; the determining factor in the main employer – sub-employer relationship is that the work given to the sub-employer should be one of the auxiliary works of the production of goods or services in the workplace. As a principle; any part of the main work cannot be divided and given to the sub-employer, and thus the main employer – sub-employer relationship cannot be established. Dividing the main work and assigning it to the sub-employer is only possible if such work requires expertise due to technological reasons.
As can be seen; although there are some restrictions in the transfer of the main works to the sub-employer, it is possible to transfer the auxiliary works to the sub-employer without any restrictions. At this point, it is important to determine what is auxiliary work – main work distinction.
The main work is defined under paragraph (c) of Article 3 of the Bylaw as “the work that forms the basis of goods or service production“.
The auxiliary work is defined under paragraph (ğ) of Article 3 of the Bylaw as “the work that is related to the production of goods or services carried out in the workplace, but is not directly involved in the production organization, is not a compulsory element of production, but continues as long as the main work continues and is dependent on the actual work“.
Generally; services such as security, reception, cleaning, and catering services that are not included in the production and services carried out in the workplace can be considered among the auxiliary works. In determining auxiliary works; the field of activity of the main employer is taken into consideration. For example; in the decision of the 9th Civil Chamber of the Supreme Court numbered E. 2007/6094 K. 2007/10224 and dated 10.4.2007, it was stated that the cleaning work for the textile factory could be considered as an auxiliary work, but it should be considered as the main work for the municipalities.
Although the main work can be divided and transferred to the sub-employer only if the part of the work to be transferred is “a work that requires expertise due to the requirements of the enterprise and the work and technological reasons“, there is no criterion for the determination of this specified condition. However, since the purpose of the relevant regulation is to prevent the employers to establish a main employer – sub-employer relationship merely to reduce costs, the main purpose that led to the establishment of the main employer – sub-employer relationship will need to be taken into account while making a determination in that respect.
Also; as clearly stated under Article 11 of the Bylaw, in order to establish the main employer – sub-employer relationship, both the “requirements of the enterprise and work” and “technological reasons” must be present. Therefore; if only one of these two elements is existing, the main employer – sub-employer relationship to be established can be considered as collusive.
What are the Liabilities of the Parties in Main Employer – Sub-Employer Relationship?
Pursuant to paragraph 6 of Article 2 of the Law; in the mai employer – sub-employer relationship, the main employer, together with the sub-employer, is responsible for the obligations of the sub-employer arising from the Law, the employment contract or the collective labor agreement to which the sub-employer is a party.
The said liability is a joint liability due to its legal nature. In other words, the employee of the sub-employer working in the workplace of the main employer will be able to apply to any of the sub or main employers regarding wages and any labor rights or damages incurred within the scope of the business relationship. In this case; if the main employer has included a clause under the contract concluded with the sub-employer that he will have the right of recourse, the sub-employer will be liable to compensate the amount paid to the employee by the main employer. However, if there is no such an agreement in the contract, whether the main employer will have recourse right to the sub-employer will be determined according to general provisions. In addition; it is not possible to eliminate the joint responsibility of the main employer through a contract between the main employer and the sub-employer.
The above – mentioned joint liability of the main employer commences as from the date of assignment of the work to the sub-employer and is limited to the working period of the employee of the sub-employer in that workplace.
Is It Necessary to Execute a Contract to Establish the Main Employer – Sub-Employer Relationship?
In accordance with Article 9 of the Bylaw; a contract should be executed in written form between the main employer and the sub-employer. If the contract executed between the main employer and the sub-employer constituting the basis for undertaking the work, includes the matters indicated under Article 10 of the Bylaw, such contract can be accepted as a sub-employment contract.
Similarly, in accordance with Article 10 of the Bylaw; if a work that requires expertise is given to a sub-employer for technological reasons in a workplace, the related work equipment list, work completion certificate, operator and technical staff certificates suitable for the work covered by the contract should also be added to the contract in order to certify the expertise of the sub-employer.
Is It Necessary to Make a Notification to Relevant Institutions for the Main Employer – Sub-Employer Relationship?
Pursuant to the second paragraph of Article 3 of the Law and Article 5 of the Bylaw; sub-employer who undertakes works of the main employer is obliged to make a notification in accordance with the provisions of the first paragraph of Article 3 of the Law, together with the sub-employer contract and necessary documents received from the main employer for the registration of his own workplace.
Establishing a main employer-sub-employer relationship in a workplace by any means whatsoever is considered as establishing a new workplace and within this scope, necessary registrations and notifications should be made. The workplace of the sub-employer, who made a notification as described above, is registered and a separate registration number is given for the workplace.
ERKUT LAW OFFICE
For Turkish version, click here.
