Before the conclusion of the employment contract and the related obligations of the employer, it is necessary to focus on the concept of employment relationship in Turkey.
As it is accepted, the conclusion of an employment contract and the employment of the employee are basically based on an employment relationship in Turkey on which the employment contract is also based. Generally, any activity that benefits the person and has an economic value can be accepted within the concept of work. In labour law, work is an activity that provides an economic benefit to the employer and the employee. Therefore, in cases where there is basically no employment relationship in Turkey, the conclusion of the employment contract and the fulfillment of the related transactions cannot be mentioned.
Article 2 of the Labour Law No. 4857 defines the employment relationship in Turkey as the relationship established between the employee and the employer. Based on this definition, the concept of employment in the Labour Law does not have any importance, and it is deemed sufficient to be established between the employee and the employer. Finally, in terms of our subject matter, work is only meaningful if it arises from an employment contract. Accordingly, if the performance of the work is not based on the employment contract established with free will, but on the basis of an obligation, for example in prisons or within the family economy, there will be no work in the sense of labour law.
Parties to the Employment Contract (Employee, Employer and Employer Representative)
The parties to the employment contract are the employee and the employer. According to Article 2 of the Labour Law No. 4857, an employee is a natural person who works on the basis of an employment contract, and an employer is a natural or legal person, or institutions and organisations without legal personality, who employs employees. Accordingly, in order to be able to speak of an employee and an employer, firstly, the relationship between them, as explained above, must be an employment relationship in Turkey and based on an employment contract. For this reason, in a relationship that is not based on an employment contract, such as in an apprenticeship scheme or a contract of work, it is not possible to accept the employee as an employee and the employer as an employer. Again, based on the definition, if the employee must be a real person, it does not matter whether the employer is a real person or a legal person or an institution or organisation without legal personality. Accordingly, in addition to real persons, companies, cooperatives, professional chambers, trade unions and supreme organisations, ministries, public institutions, etc. may be considered as employers.
At this point, it is useful to mention a noteworthy issue in the context of Article 71 of the Law No. 2820 on Political Parties. According to this regulation, Generally, all contracts, including employment contracts made by the provincial or district organisation of the political party, are not binding on the legal entity of the political party unless the central decision-making and management board gives permission and approval. For this reason, the title of employer and the responsibility required by this title shall belong to the person or persons who conclude the contract and are under obligation.
Again, when it comes to the concept of employer, it is necessary to explain the concept specially called royalty agent in the context of the royalty agreements expressed in the Mining Law No. 3213. The royalty agreement is a private law contract in which the owner of the mining right undertakes to transfer the right to operate for a certain period of time, and the transferee undertakes to produce a certain amount of production in return and to pay the price over the amount determined annually. In this context, the real and private person called royalty holder is essentially an independent employer. Accordingly, there is no principal-employer relationship between the parties to the royalty agreement. Therefore, the licence holder shall not be held liable for labour receivables. Even in the Additional Article 7 of the Mining Law, it is specifically stipulated that the administrative, financial and legal responsibilities related to labour law, occupational health and safety arising from mining activities belong to the royalty holder. However, in addition to these, as will be explained under the heading of organic bond, the content of the royalty agreement should be evaluated together with other evidence and whether the royalty operator is organised as an independent employer in the execution of the work.
Another issue to be mentioned in relation to the parties to the employment contract is the capacity to conclude an employment contract. It shall be sufficient for a natural person employee or employer to be competent to exercise civil rights, to be of legal age, to be of legal age and not to be restricted, in order to conclude an employment contract. If the employer is a legal entity, the registration of the legal entity in the prescribed manner or the implementation of the establishment law for public organisations is deemed sufficient to assume the title of employer.
In addition to these two fundamental concepts, the concepts of employer’s representative and sub-employer, which are especially related to the concept of employer and are important in terms of determining the responsibilities in the law, should also be mentioned.
According to the definition of the law, an employer’s representative is a person who acts on behalf of the employer and takes part in the management of the work, workplace and enterprise. Based on this definition, according to the Labour Law, it is not necessary for the employer’s representative to manage the entire work, workplace and enterprise in absolute terms, it is sufficient to act on behalf of the employer and take part in the management. It should be emphasised that, especially in terms of practice and in terms of the Labour Law, the title of employer’s representative cannot be acquired by proxies received from persons who manage real and legal entities, and that it is also necessary to take part in the management of the work, workplace and enterprise. Accordingly, it does not seem possible for a lawyer or a freelance accountant or a freelance accountant and financial advisor, for example, who can represent the employer without taking part in the management of the employer, to carry the title of employer’s representative. Accordingly, it becomes difficult to determine the scope of the knowledge, interest and responsibility of a person who acts on behalf of the employer but does not have direct knowledge and information about the execution of the work, and to associate these responsibilities and obligations with the employer.
The importance of the concept of employer’s representative arises from the provisions following the definition and determining the responsibilities. Accordingly, the employer is directly responsible for the acts and obligations of the employer’s representatives towards the employees in this capacity. Therefore, the employer is prevented from being relieved from liability or, if the conditions are appropriate, from penalties in relation to an unfulfilled obligation, simply by claiming that this mistake or intent is due to the personal behaviour of the employer’s representative.
In the words of the law, it is revealed that the employer’s representatives are employers in one aspect and employees in the other. Based on the statement in Article 2 of the Law, all kinds of problems and obligations stipulated for the employer in the Labour Law shall also be applied to the employer’s representatives, and the fact that the title of employer’s representative shall not eliminate the rights and obligations granted to the employees reveals that the employer’s representatives are employers in one aspect and employees in another aspect. Therefore, as it is evident in the case of legal person employers, the employer’s representatives have the title of employer with respect to the employees and the title of employee with respect to the employer at the same time, and they have to fulfil the requirements of both titles and at the same time they benefit from the privileges of both titles.
