1. The concept of subcontracting in General in Turkey
Subcontracting occurs in workplaces in Turkey for cost reduction, outsourcing the work to specialists and similar purposes, and in Article 2 of the law, the relationship between the primary employer and the subcontractor is defined as the relationship established between an employer and the other employer who receives work from an employer in auxiliary works related to the production of goods and services carried out in the workplace or in a part of the main work in the workplace that requires specialization for technological reasons due to the necessity of the business and work and employs the workers assigned for this work only in this workplace.
Sub-employer, on the other hand, is defined in the subcontracting regulation in Turkey in parallel with the definition of the relationship as a real or legal person or institutions and organisations without legal personality who take work from an employer in auxiliary works related to the production of goods and services carried out in the workplace or in a part of the main work that requires expertise due to the necessity of the business and work and technological reasons, and employ the workers assigned for this work only in this workplace.
The responsibility in between is adopted as a joint and several responsibility by stipulating that the primary employer shall be liable together with the sub-employer for the obligations arising from the labour law, the employment contract or the employment contract to which the sub-employer is a party in relation to that workplace against the employees of the sub-employer. Accordingly, the employee may also apply directly to the primary employer regarding the unfulfilled obligations arising from the labour law, employment contract or collective labour agreement or unpaid rights (notice and severance indemnities, annual leave, wages, overtime wages, etc.).
At this point, since the labour receivables are in question, it is necessary to reveal how the assertion of the statute of limitations defence and the waiver of the lawsuit or right affect the said liability.
Accordingly, if the statute of limitations defence is in question, since the relationship between the two employers is similar to the principal debtor/guarantor relationship regulated in Article 155 of the Turkish Code of Obligations, both the sub-employer and the primary employer will benefit from the statute of limitations defence asserted by the primary employer, since the sub-employer is perceived as the principal debtor and the primary employer as the guarantor against the workers’ receivables. Thus, it is ensured that the responsibility of the primary employer does not exceed the responsibility of the sub-employer.
The other issue is the waiver of the lawsuit or right. In the principal-employer-sub-employer relationship, although the sub-employer has full liability, the waiver of the lawsuit against the sub-employer, who is the main debtor, will also affect the primary employer, since the guarantee obligation arising from the law, including the recourse authority of the primary employer, is in question. However, the waiver of the lawsuit against the primary employer will not result in the waiver of the lawsuit against the sub-employer. If there is a waiver of the right, this will affect both employers.
Based on the above-mentioned definition, the responsibility of the primary employer towards the employees of the sub-employer will arise in the following cases.
- Work undertaken by the subcontractor;
1. It must be an auxiliary work related to the production of goods or services carried out in the workplace (cafeteria, security, cleaning, service, construction, installation and maintenance of machinery, etc.) or
2. In a part of the main work, there must be works that require expertise due to the necessity of the business and work and technological reasons (control, maintenance, repair, quality control, job evaluation, performance evaluation, preparation and implementation of time studies, tunelling, electrical installation, laying, material supply, etc. in large-scale construction works, etc.). As a matter of fact, it is clearly stipulated in the continuation of the article that the main work cannot be divided and subcontracted.
- The workers assigned for this work should only be employed in the work that has been taken in this workplace. In this case, for example, if the work of transporting workers to and from the workplace is assigned to another employer, and this employer employs workers only for this work and employs these workers only for this work, a liability relationship can be mentioned, on the contrary, if it directs some of the workers it already employs to this work or employs these workers to perform the service works of other workplaces even if it employs new workers, the liability relationship cannot be mentioned.
- The unfulfilled obligation or unpaid right must arise from the labour law, the employment contract or the collective bargaining agreement to which the subcontractor is a party. According to this provision, if the obligation not fulfilled or the right not paid is not related to these three sources, no liability of the primary employer will arise.
- Finally, although it is not explicitly stated in the text of the law, due to the natural structure of the subcontracting practice and according to the view accepted in the doctrine or judicial decisions and as clearly stipulated in Article 4/a of the subcontracting regulation in Turkey, in order to be able to speak of a primary employer-subcontractor relationship, it is necessary to be an employer, in other words, to employ workers within the meaning of the labour law. Therefore, for example, in a workplace where public law is applied completely, which should not be perceived in the sense of the application of the labour law, it is necessary to accept that a primary employer-subcontractor relationship does not arise if a part of the work or auxiliary works are outsourced to other employers in a workplace where civil servants are employed entirely within the framework of public law rules.
- Again, based on the concept of taking a part of a certain work or auxiliary works to the main work, in the event that the entire work is outsourced to another employer (in practice, this type of work is called turnkey work), the primary employer-subcontractor relationship arises again. Therefore, for example, in a large construction work such as subway construction, dam construction, road construction, etc., if the contracting authority assigns this work to a company on a turnkey basis, a liability arises against the workers of that company; however, if the company that receives turnkey work from the contracting authority assigns this work, for example, the laying of electrical installations, to another company, if other conditions are met, it seems possible that a liability may arise. However, apart from this, it is not possible for the sub-employer, who receives work in a part of the main work, to divide the work undertaken according to Article 11/4 of the regulation and give it to another employer.
2. Collusion in subcontracting practices in Turkey
The Law stipulates a number of provisions in order to ensure that the principle employer-subcontractor practice arises from the real necessity of the work and to prevent the use of collusion to restrict the rights of the workers. According to this regulation, the rights of the employees of the primary employer cannot be restricted by hiring and continuing to be employed by the sub-employer, or a sub-employer relationship cannot be established with the person who was previously employed in that workplace. Otherwise, and Generally, the primary employer-subcontractor relationship will be deemed to be based on a collusive transaction and the employees of the subcontractor will be treated as the employees of the primary employer from the beginning. Additionally, administrative Penalties are also stipulated for the primary employer and sub-employer or their representatives due to this collusive transaction.
The determination of the aforementioned collusion and the subsequent procedures will be carried out within the framework of Article 3 of the law and the provisions of the subcontracting regulation in Turkey. Accordingly, it is expected that the work to be given is primarily an auxiliary work to the main work or a work that is part of the main work but requires expertise due to the necessity of the business and work and technological reasons. Therefore, it is not possible to subcontract the main work completely or partially without the fullfilment of the aforementioned condition.
While the main work is defined as the work that constitutes the basis of the production of goods or services in Article 3/c of the regulation, the auxiliary work is defined in paragraph (ğ) of the same article as the work that is related to the production of goods or services carried out in the workplace, but is not directly included in the production organisation, is not a compulsory element of production, but continues as long as the main work continues and is dependent on the main work.
The work that requires specialisation due to the necessity of the business and work and technological reasons is stated in Article 11 of the regulation. Accordingly, this type of work is work that is a compulsory element of the production of goods or services and requires a separate expertise other than the expertise of the enterprise due to the nature of the work.
In the light of these definitions, it becomes possible for an employer to subcontract the auxiliary works to the main works carried out in the workplace or a part of the main work to a subcontractor if it requires specialisation due to the necessity of the business or work and technological reasons.
However, only the definition of the work is not sufficient for the establishment of this relationship, other conditions are also required by the provisions of the law and regulations.
The first of these is the employment of only the workers to be employed in this work. This issue is clearly stated both in the provision of the law and in paragraph c of Article 4 of the regulation, which lists the conditions for the establishment of the primary employer-subcontractor relationship. Another condition is that the sub-employer must not be a person who has previously worked in that workplace in accordance with Article 4/d of the law and regulation. However, this condition has been softened by clarifying and clarifying the aspects that are not fully understood from the provision of the law, and the fact that the person who previously worked in the workplace has become a legal person or ordinary partnership shareholder has ceased to be a prohibitive issue in terms of establishing a primary employer-subcontractor relationship. In this respect, a person who has previously worked in a workplace cannot be a subcontractor only if he/she takes work as a real person, and the fact that this person is a shareholder in a legal entity or ordinary partnership will not affect this relationship.
After the conditions for the establishment of the primary employer-subcontractor relationship have been determined in this way by the provisions of the law and the regulation, it is necessary to draw a conclusion about collusion in line with these definitions.
According to Article 3/g of the Regulation;
- Subcontracting of works that do not require specialisation in a part of the main work related to the production of goods or services produced in the workplace,
- The subcontracting relationship established in Turkey with the person previously employed at that workplace,
- The continuation of the employment of the employees of the primary employer by the sub-employer by restricting their rights,
- Subcontracting agreements in Turkey that include transactions to conceal the real will of the parties, such as avoiding public obligations or restricting or eliminating the rights of workers arising from the employment contract, collective bargaining agreement or labour legislation, will be considered collusive.
According to Article 12 of the Regulation, if there is evidence of illegality or collusion based on the subcontracting agreement or the attached documents in Turkey, the examination of collusion will begin with the notification of the relevant provincial directorate to the labour inspection group presidency. Labour inspectors will continue this examination;
- Whether the work subcontracted to the subcontractor is auxiliary work of the main work related to the production of goods or services carried out by the primary employer in the workplace,
- Whether the work subcontracted to the subcontractor is a work that requires specialisation due to the necessity of the business and work and technological reasons,
- Whether there is a person previously employed by the sub-employer in that workplace,
- Whether the subcontractor has sufficient equipment and experience suitable for the work,
- Whether the qualifications of the workers to be employed are suitable for the work to be done,
- Whether there are any employees of the primary employer other than those assigned to coordinate and supervise on behalf of the primary employer in the work subcontracted to the subcontractor,
- Whether the subcontracting agreement aims to avoid the public obligations stipulated by the labour law,
- It will be taken into consideration whether the subcontracting agreement is intended to restrict or eliminate the individual or collective rights of the workers arising from the employment contract, collective bargaining agreement or legislation.
At the end of the examination, if it is concluded that there is collusion, the reasoned inspector report will be notified to the employer by the provincial directorate. It is possible for employers to object to the competent labour court within 30 working days from the date of notification. The case to be heard upon the objection will be finalised within four months according to the simple trial procedure. In case of appeal of the court’s decision, the Court of Cassation will render a final judgement within six months. It is mandatory for public administrations to appeal against these reports to the competent labour courts and to apply to other legal remedies against the court decisions.
If the report is not objected to within 30 working days or the court approves the determination of the collusive transaction, the registration process will be cancelled and the employees of the sub-employer will be deemed to be the employees of the primary employer from the beginning, and administrative fines will be imposed on the primary employer and the sub-employer or their representatives.
3. Other obligations of the principal employer related to subcontracting in Turkey
Labour Law No. 4857 also includes other obligations regarding subcontracting in Turkey in addition to the general obligations specified in the law.
The first of these is the obligation imposed on the primary employer regarding the wages of the sub-employer workers in Article 36 of the law. Accordingly, employers are obliged to check whether the wages of their employees are paid upon the application of the employee or monthly ex officio, and to deduct the unpaid wages, if any, from the progress payments and deposit them into the bank account of the employees.
Another special regulation is related to annual leave. According to Article 56 of the Law, the annual paid leave period of the sub-employer workers who continue to work in the same workplace despite the change of sub-employer should be calculated by taking into account the periods of employment in the same workplace. In other words, it is tried to prevent the interruption of the ongoing seniority of the employee with the change of sub-employers.
In such a case, the obligation regarding the follow-up of the issue belongs to the primary employer. Accordingly, the primary employers are required to check whether the annual paid leave periods earned by the workers employed by the sub-employer are used and ensure that they are used within the relevant year. The sub-employer, on the other hand, is obliged to provide a copy of the leave registration document, which it is obliged to keep as an annual leave book, to the primary employer.
Another special obligation of public employers is related to the payment of severance pay of subcontracted workers and is regulated in Article 112 of the Law. Since this issue specifically concerns public employers, it is explained in detail under the following heading.
4. Special considerations regarding public institutions and organisations
Apart from these general regulations regarding subcontracting practices in Turkey, the law also includes some special regulations regarding public institutions and organisations.
a. Prohibition of recruitment
The first of these is related to the employment of subcontractor workers in the staff of public institutions and organisations. According to Article 2 of the Law, public institutions and organisations established on the basis of the law or the authority granted by the law and the partnerships in which they directly or indirectly own at least fifty percent of their capital, within the framework of the provisions of the Public Procurement Law No. 4734 or other laws, in accordance with the contracts made for the procurement of services, those who are employed through the contractor, based on the fact that they have worked in this way:
- To be appointed to staff or positions belonging to public institutions, organisations and partnerships,
- They will not be entitled to benefit from all kinds of financial rights and social benefits determined in accordance with the provisions of collective labour agreements, personnel laws or other relevant legislation for those working in the staff and positions of the workplaces of these institutions, organisations and partnerships.
Those who are employed by employers other than contractors in the workplaces that meet the aforementioned qualifications and those who work directly in the work subject to the tender undertaken by contracting on their own behalf and account within the framework of the tender legislation to which these workplaces are subject shall be subject to the same provisions. The requests of the employees working in the staff or positions of the partnerships in which the aforementioned institutions, organisations or partnerships participate in their capital to be appointed to the staff or positions of the public institutions, organisations or partnerships in which they are partners or to benefit from the financial rights and social benefits valid in these institutions, organisations and partnerships will be evaluated in a similar manner and will be included in the contracts and specifications to be formed on the basis of service procurement;
- The authority to determine the persons to be recruited and to dismiss them shall be left to public institutions, organisations and partnerships,
- Provisions cannot be made to continue to employ those who have previously worked in the same workplace within the framework of service procurement contracts or as temporary workers.
b. Obligation to check the payment of wages
According to Article 36 of the Law, general and annexed budget departments, local administrations or state economic enterprises or banks and institutions established on the basis of a special law or the authorisation granted by a special law, as well as the primary employers, are required, upon the application of the worker whose wages are not paid by the contractor or subcontractors, to pay these wages by deducting them from their progress payments according to the payrolls to be requested from the contractor or subcontractor, if any, whose wages are not paid. However, the aforementioned administrations will not have any responsibility for more than three months of wage receivables of the workers who have wage receivables for each progress payment period.
In order to carry out this process, first of all, it is necessary to announce that the progress payment will be made by the administration by posting a written announcement on the notice board of the construction site supervisor’s workplace or in the places where the workers are located.
Additionally, in accordance with the regulation in the article, all kinds of transfer and transfer transactions or seizure and follow-up on all kinds of guarantees and progress payments of the contractors who will be affected by the provision of the article will be effective on the remaining part after the part that will cover the wage receivables of the workers working in this work is separated.
5. Special considerations regarding occupational health and safety
Another issue that needs to be addressed in relation to subcontracting practices in Turkey is the special conditions related to subcontractor-primary employer relations, which are introduced in accordance with the Occupational Health and Safety Law No. 6331 and related legislation.
First of all, it should be said that the Law No. 6331 does not generally distinguish subcontractors from the primary employer. Accordingly, the obligations set forth in the law for any employer shall also apply to sub-employers.
However, in some cases, a number of special arrangements are also envisaged. The first of these is included in Article 15 of the Occupational Health and Safety Risk Assessment Regulation. According to the provision of the article, while conducting risk assessment in the workplaces where the primary employers have a sub-employer relationship, first of all, each sub-employer must carry out or have the necessary risk assessment studies in accordance with the provisions of the regulation in relation to the works they carry out. In this context, the information and documents required by the sub-employers regarding the areas of responsibility of the primary employer regarding the risk assessment studies will be provided by the primary employer. In this context, the primary employers are required to supervise the risk assessment studies carried out by the sub-employers and control the studies on this subject. Finally, when a risk assessment is carried out, sub-employers are obliged to provide a copy of the risk assessment to the primary employer. The primary employer shall integrate the risk assessment work of the sub-employers with its own work, monitor and supervise the implementation of risk control measures and ensure that non-conformities are eliminated.
Another such special regulation is seen when Article 22/2 of the Occupational Health and Safety Law and Article 4/2 of the Regulation on Occupational Health and Safety Committees issued according to this Article and Article 30 are considered together. Accordingly, in cases where there is a primary employer-subcontractor relationship lasting more than 6 months;
- If the number of employees of the primary employer and the sub-employer is fifty or more, the primary employer and the sub-employer shall establish separate committees. In this case, co-operation and coordination in the execution of occupational health and safety activities and the implementation of the decisions taken by the boards will be provided by the primary employer.
- If the number of employees of only the primary employer in a workplace is fifty or more, then the board will be established by the primary employer. The sub-employer, who is not obliged to establish a board, is required to appoint a representative authorised by proxy to the board to ensure coordination regarding the implementation of the decisions taken by the board.
- If the number of employees of the sub-employer is fifty or more and the number of employees of the primary employer is less than fifty, the board will be established by the sub-employer. In this case, the primary employer shall appoint an authorised representative by proxy to ensure cooperation and coordination with the board established by the sub-employer.
- In cases where the number of employees of the primary employer and the sub-employer is less than fifty and the total number of employees is more than fifty, a board will be formed by the primary employer and the sub-employer together, provided that the coordination is carried out by the primary employer. In the formation of the board, members will be appointed by the joint decision of both employers according to Article 6 of the regulation regulating the formation of the board.
Another regulation is included in Article 5, paragraph 3 of the Regulation on the procedures and principles of occupational health and safety training of employees. Accordingly, in workplaces where a primary employer-subcontractor relationship is established, the primary employer will be responsible for the training of the employees of the sub-employer together with the sub-employer.
Another regulation that can be mentioned in this context is found in subparagraph g of Article 5 of the Regulation on emergencies in workplaces. According to the aforementioned provision, employees of the sub-employer must be informed about emergencies, if any.