Turkey: New Regulation Regarding Business Life: Private Employment Agencies and Telecommuting

Introduction

Private Employment Agencies, which obtain necessary permissions from Turkish Employment Agency by means of "The Law on Making Amendments on Turkish Employment Agency Law with Labor Law", which is also known as "Flexible Working" Law in practice, will be able to establish a temporary business relationship with an employer by making a temporary employee hiring agreement with an employer. For example, in case of suspension of employment agreement due to pregnancy, military service, sickness, a temporary business relationship can be established between Private Employment Agencies and Employers with an agreement in order to ensure continuity of operations which is not considered as routine operations of the business and short-term operations throughout the period in which these circumstances continue. The Law requires restrictions of practice reasons, numbers of employees and the term of the agreement since a temporary business relationship doesn't substitute for a prolonged employment. The legal relationship between Private Employment Agencies and employees, and the responsibilities of Private Employment Agencies are important to determine the conditions under which the Law allows establishing a temporary business relationship.

With this Law, the principles of telecommuting are specified and telecommuting is guaranteed by law with the amendments to Labor Law.

The Conditions of Establishing a Temporary Business Relationship and the Time Limitations

In accordance with the Law, a temporary business relationship can be established;

  • As per the Article 13 of Labor Law, in substitution for an employee exercising their postnatal right of part time employment until compulsory primary education of the child and throughout the period of these circumstances,
  • As per the Article 74 of Labor Law, in substitution for an employee exercising their prenatal and postnatal right of unpaid maternity leave and throughout the period of these circumstances,
  • In substitution for an employee completing their military service and throughout the period of these circumstances,
  • For seasonal agricultural worker without a time restriction,
  • For domestic responsibilities without a time restriction,

Also for a period of 4 months;

  • For operations which is not considered as routine operations of the business and short-term operations
  • In case the work load of businesses is increased unpredictably,
  • For seasonal increase of work loads
  • For operations which are urgent in terms of occupational safety or in case of force majeure significantly impacting the manufacturing

Penalties will be Imposed on Those who Mediate Hiring without Obtaining Permission from the Agency

Pursuant to the Law, a fine of 20K TRY will be imposed on those mediating hiring by means of information and communication tools like radio, television, video, Internet without obtaining permission from the Agency and a fine of 40K TRY on those repeating this action and an administrative fine of 20K TRY on those collecting money from jobseekers.

Rights and Responsibilities of Private Employment Agency

Private Employment Agency is the employer in temporary business relationships. Private employment agency has the right to collect money from the employer in return for temporary hiring operations. However, taking advantage of jobseekers for any reason and charging service fee are prohibited. Private Employment Agency employing temporary workers must pay the claims like the pay, premiums and bonuses taken by the precedent workers who have the same severance to the worker limited to the period of temporary employment. Private Employment Agency is also responsible for meeting the obligations derived from the Law of Occupational Health and Safety, Law of Social Insurance and the Law numbered 4447.

Responsibilities of an Employer Hiring Temporary Workers

Pursuant to this Law, the employer hiring temporary workers has the right to give orders and instructions to the worker. Temporary worker is required to inform the Private Employment Agency of occupational accidents and diseases immediately. Also, the employer can't discriminate the precedent worker carrying on the same operations from their worker in terms of working conditions without a justification. In addition, it is indicated that the temporary employer will be responsible for giving the occupational health and safety trainings to the temporary workers.

Telecommuting

The provisions added to the Article 14 of Labor Law numbered 4857 guarantee telecommuting juristically. Telecommuting is defined as the relationship established in writing based on the principal of conducting business from home or outside the office by means of technologic communication instruments.

As per the Law, the agreement of telecommuting must include provisions regarding the job definition, the way to conduct business, term and place of the job, pay and payment, and the communication between the employer, and general and special working conditions.

Telecommuter can't be subjected to procedures different from the precedent workers merely due to the nature of the employment agreement without a justification. The employer is also responsible for the health and safety measures regarding the telecommuter.

The procedures and principles of telecommuting, the jobs which can't be done considering the nature of the job and other aspects will be clarified in detail with the regulations to be issued by the Ministry of Labor and Social Security.

Conclusion

Considering the fact that the Law on Making Amendments on Turkish Employment Agency Law will allow Private Employment Agencies to establish temporary business relationships in case of pregnancy, we believe that the practical problems regarding this subject will be addressed to a certain extent with the Labor Law which is also known as Flexible Working Law. However, the fact that the Private Employment Agencies will be responsible for making payments to the workers with e temporary business relationship and that the employers can't claim anything in this respect can victimize the workers. Now that telecommuting and Private Employment Agencies are legitimized, it should be emphasized that the social and legal rights of the workers with a temporary business relationship should be protected strictly. In other words, Supreme Court decisions will clarify the measures for securing the temporary workers in a flexible manner, ensuring that the system is operating effectively, and workers' ability to exercise their right under the Labor Law when permanent employment is restrained.

www.cukuryilmaz.av.tr

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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