The Turkish Labour Code numbered 4857 which entered into force
on 10.06.2003 does not have a specific provision
regarding the transfer of employees. However, the draft law sent to
the Parliament Commission did include an article 7 titled
"transfer of employment contracts" in between article 6
"transfer of the work place", and article 8
"secondment". The said draft article regarding the
transfer of employment contracts was removed from the Code with the
Parliament Commission's decision dated 12.3.2003.
The removed draft article 7 regarding the transfer of employment
contracts stipulated that an employer may transfer an employment
contract to another employer permanently with the explicit consent
of the employee. The second paragraph stipulated that the
Transferee Employer must consider the initial date of employment
with the Transferor employer in all relevant rights. In other
words, the draft article also required the consent of the employee
for the transfer.
In the absence of an explicit provision in the Labour Code, the
provisions of the Code of Obligations are applied. Article 320 of
the Code of Obligations stipulates that the employee cannot
transfer the obligation to perform personally unless otherwise
agreed, and that the same is relevant for the transfer of the
employer's obligations. In other words, the employment contract
transfer can be realized through mutual consent. The same
understanding is reflected under article 429, "transfer of
contract" of the new Code of Obligations which will enter into
force on July 1, 2012.
The transfer of employees has been the subject of litigation in
the past and the Turkish Court of Appeals has numerous rulings
providing the conditions for the valid transfer of employment
contracts and explanations of the procedure and the rights and
obligations of the three concerned parties.
Difference between "Transfer of Work Place" and
"Transfer of Employment Contract":
The permanent transfer of the employment contract changes the
Employer. The Transferee Employer replaces the Transferor Employer
by assuming all rights and obligations of the Transferee Employer.
Whereas the transfer of the work place does not take place in the
transfer of the employment contract.
"Transfer of the work place" is relevant in mergers
and acquisitions, transfer of assets, which involve the transfer of
the work place. Such transfer of the work place must be based on a
legal transaction for the article to apply. For example, this would
apply when a factory is sold and the employees' consent is not
required for the transfer of their employment contracts to the new
owner of the factory.
In the present case the employees will be transferred from the
work place of the Transferor Employer to the work place of the
Transferee Employer, but it is the transfer of the employees and
not the work place.
Protection of transferred employees:
The transfer of the employees through the transfer of the
employment contracts needs to be realized with the mutual consent
of all three parties involved. Undoubtedly, the written consent of
the Employee is the primary condition for the realization of the
transfer of the employment contract.
The rights of the transferred Employee is protected by Turkish
law as follows:
the Transferee Employer is obliged to apply the initial date of
employment Transferor Employer for all employment rights which are
linked to seniority (i.e. vacation days, notice and severance
All rights and obligations arising from the employment contract
with the Transferor Employer including any practice in the work
place of the Transferor Employer are also transferred to the
Transferee Employer, (the Transferee Employer can only change such
rights and obligations with the written consent of the employee)
without a duration limitation.
Following the entry into force of the new Code of Obligations in
July 12, 2012, the above principles set out by precedent court
decisions will also be clearly reflected in the law.
In practice the Transferor may provide enhanced protection in
order to facilitate the consent of the employees. The agreement
between the three parties needs to be drafted cautiously in line
with Turkish law.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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