Temporary employment relationship is a tripartite business relationship regulated in Article 7 of Labor Law numbered 4857. However, in order for this relationship to be established in accordance with the law, it is necessary to comply with the limitations clearly stated in the article of the law, which we will examine below. Otherwise, administrative fines may be imposed on employers who are parties to the contract, or legal consequences of a collusive relationship may occur. Again, as explicitly stipulated in the law, if the temporary worker is employed for more than the period specified in the law, it is accepted that an indefinite-term employment contract is established between the temporary employer and the temporary worker as of the expiry date of this period.

Temporary employment relationship can be established in two ways according to the law. The first of these is the employment relationship established through private employment offices for professional and profit purposes, and the other is the employment relationship established through assignment within the holding or in another workplace affiliated to the same group of companies. The provisions specific to both situations and to be applied jointly are regulated in the law.

TEMPORARY BUSINESS RELATIONSHIP ESTABLISHED THROUGH PRIVATE EMPLOYMENT OFFICE

Private employment offices establish temporary employment relationships as a professional activity. As clearly stated in the law, temporary employment relationship is established by making a contract about providing temporary workers between Private Employment Office which is authorized by Turkish Employment Agency, and employer and by transferring an employee to this employer. According to article 20/b of the law of Turkish Employment Agency, the fine imposed for year of 2020 for real and legal persons whose authorization is revoked or who arrange temporary business relationships without permission of the Institution is 90,131 TL. In case of repetition of this act, an administrative fine of 180.263 TL may be imposed, and an administrative fine of 36.050 TL may be imposed on the employer receiving service within this scope.

Through the private employment office, a temporary employment relationship is established by signing an employment contract with temporary worker and also by signing a contract about providing temporary worker with the employer employing temporary worker and is established in writing.

In the temporary business relationship established with the private employment agency, the employer is the private employment office. The employment contract between the worker and the Private Employment Agency is made in writing according to law. Provisions such as the employee's working as unregistered, being or not being a member of a union, paying a wage below the minimum wage cannot be established in this contract. In the written agreement about providing temporary worker to be made between the private employment agency and the employer employing temporary workers, it has been stated that the start and end date of the contract, the nature of the work, the service fee of the private employment agency, the special obligations, if any, of the employer and the private employment office will be regulated.

It is regulated that the temporary worker cannot be prevented from receiving service from Turkish Employment Institution or from another private employment agency or after he/she fulfilled his obligation, working within the employer where he works as a temporary worker or in the workplace of another employer and also it is regulated that no provisions in this direction will be established in the contract. Thus, provisions that will ensure that the employee is occupied to the private employment office in this way will not be arranged. It is understood that the freedom of contract of the worker is protected and it is regulated in the law1.

The wage of the worker is paid by the private employment agency that is his employer. However, in the temporary business relationship which is examined below and established due to the an unforeseen increase of the average production capacity of goods and services to the extent that the enterprise requires the establishment of a temporary business relationship, the employer employing temporary workers is obliged to check every month, whether the wages of temporary workers who work at the workplace for more than one month are paid or not, and the private employment office is obliged to submit documents showing that the wage is paid, to the employer, who employs temporary workers, on a monthly basis. If there are unpaid wages, the employer employing temporary workers does not pay the receivables of the private employment agency until wages are paid, and directly deposits the wages of temporary workers up to three months directly into the workers' bank account, provided that they are deducted from the receivables of the private employment agency. Number of unpaid workers and unpaid wage amounts will be notified to the labor institution and the provincial directorate of the labor institution by the employer employing temporary workers.

According to the Law of Turkish Employment Institution, private employment agencies are responsible as employers for obligations arising from the law of Occupational Health and Safety, law of Social Insurance and General Health Insurance and law of Unemployment Insurance. However, in accordance with the Labor Law, the temporary employer is obliged to take the necessary occupational health and safety measures and to provide training according to the Occupational Health and Safety Law which is numbered 6331, as well as to report the Work Accident and occupational disease according to the Law which is numbered 5510. Also, according to the law numbered 5510, as required by regulation that says the employer, whose temporary business relationship is established, is jointly and severally responsible with the employer for the obligations arising from the law numbered 5510, the employer with whom a temporary business relationship is established has the responsibility of paying the "social security premiums"2.

In the contract between the employee and the private employment agency, it should be determined in the contract that if the employee is not called to work within what period of time does he have the right to terminate with just cause. However, this period cannot exceed three months. Therefore, if the employee is not invited to work by the private employment office for 3 months after the end of the last temporary employment relationship, he may terminate the employment contract for justified reasons and request severance pay if he has at least one year of seniority3.

CONDITIONS TO ESTABLISH TEMPORARY BUSINESS RELATIONSHIP

Temporary employment relationship to be established through the private employment office can be established in certain situations and in certain jobs. In the law, these situations and jobs are clearly stated together with the time record.

As stated in paragraph 5 of Article 13 of Labor Law,During the period when parents with children who have not reached primary school age exercise their right to work part-time, during the maternity leave specified in Article 74 of the Labor Law, during the postnatal half-work leave period and unpaid maternity leave, during the military service when the employee's employment contract is suspended and in other cases where the employment contract is suspended and during the continuation of these situations,

  • Without time limit for seasonal agricultural work and domestic services,
  • A contract can be established for a maximum of 4 months in the jobs that are not considered from the daily work of the enterprise and are done intermittently or can be established in the case of work that is urgent in terms of occupational health and safety or in case of compelling reasons (such as flood, fire, and similar natural disasters or terrorist events) that affect the production significantly or in the case of an unforeseen increase in the average production capacity of goods and services that would require the establishment of a temporary business relationship, or in case of periodic business increases except for seasonal jobs. However, according to the law, except for seasonal job increases excluding seasonal jobs, temporary working relationship can be renewed twice at most, not exceeding 8 months in these cases above.

As can be seen, situations like establishing temporary employment relationship through private employment agencies which received permission from the Turkey Employment Institutions are limited and limited to certain times. The situation which there is no time limit is specific to the temporary work relationship to be established within the scope of seasonal agricultural workers and domestic services.

RESTRICTIONS ON EMPLOYING TEMPORARY WORKERS

In the law, it is prohibited to establish temporary business relations in public institutions and organizations and in workplaces where minerals are extracted underground. Apart from these, in accordance with the Law;

  • In cases where there is a collective dismissal in accordance with the provisions of the Labor Law, temporary workers cannot be employed for 8 months.
  • The employer employing temporary workers will not be able to re-employ temporary workers for the same job before 6 months have passed. The law prohibits employing temporary workers for the same job unless 6 months have passed.

The employer employing temporary workers cannot employ temporary workers during the implementation of the strike and lockout, without prejudice to the provisions of Article 65 of the Law No. 6356 on Trade Unions and Collective Labor Agreement dated 18/10/2012. (Article 65 is a provision that says number of workers can work during strikes and lockouts for continuity of activity or workplace safety in works that have technical obligations to be continuous in terms of quality, provided that they are not intended for production or sales in any way. Also, it says that number of workers will work during strikes and lockouts to ensure that machinery and fixtures, equipment, raw materials, semi-finished and finished products are not spoiled, animals and plants are protected.)

The employer employing temporary workers cannot employ the worker, whose employment contract has been terminated, within the scope of temporary work relationship unless 6 months have passed from the date of termination.

These limitations, which are on collective dismissal during strikes and lockouts, and the limitation on public institutions and organizations and the limitation on workplaces where minerals are extracted underground, are also valid for temporary work relations, established in the form of assignment in a private employment agency or holding or in another workplace affiliated to the same group of companies.

The legislator has imposed a limit on the number of workers who can be employed within the scope of a temporary business relationship if the average production capacity of goods and services increases in an unforeseen way that requires the establishment of a temporary business relationship. In such a case, the number of workers to be employed within the scope of temporary work relationship cannot exceed one fourth of the number of workers employed in the workplace. However, in workplaces employing ten or fewer workers, temporary employment relationships can be established for up to five workers. In determining the number of workers, employees working on a part-time contract are converted to full-time work, taking into account their working hours. During the implementation of the obligation to employ disabled and ex-convicts, the employee working with a temporary worker contract is not included of the number of employees of the employer of the private employment agency and the employer employing temporary workers.

RIGHTS AND OBLIGATIONS OF PARTIES IN TEMPORARY BUSINESS RELATIONSHIP ESTABLISHED THROUGH PRIVATE EMPLOYMENT AGENCY

In the temporary business relationship established through the private employment agency, the employer is a private employment office. However, the worker has the obligation to the temporary employer to comply with the instructions, care, loyalty and work in accordance with the job's requirement and the contract for providing temporary workers. In addition, it is accepted that the temporary employer is obligated to protect the worker and to act worker equally. Even if the obligation of loyalty among these rights and obligations is not directly regulated in the law, it must be accepted that the obligation of loyalty is a part of the relationship and the employee's obligation of loyalty continues towards both employers4. According to the law, the temporary worker is liable for the damage caused by his fault to the employer who employs the temporary worker provided that it is related to the workplace and the job. What is regulated here is the worker's duty of care. The temporary worker is obliged to perform his service with care during his service at the temporary employer. The authority of the temporary employer to give instructions is also clearly stipulated in the law and according to the regulation, it has been accepted that temporary employer has the authority to give instructions in accordance with the requirement of the job and the contract for providing temporary workers.

The temporary employer is under equal treatment debt against the temporary worker. According to the law, the basic working conditions of the temporary worker during the working period in the employer who employs the temporary worker cannot be below the conditions that would be provided if these workers were directly employed by the same employer for the same job. Likewise, it is stipulated that temporary workers will benefit from social services in the workplace on the basis of equal treatment during the periods they work.

Even if the sanction of violation of equal treatment debt is not explicitly stipulated, it can be said that article 5 of the Labor Law can be applied here by analogy. Accordingly, it can be argued that the temporary worker can claim from the temporary employer the rights which he is deprived of and the compensation for discrimination5.

In addition, it should be noted that temporary workers will be able to benefit from education and childcare services which are exist in the private employment agents when they are not working.

The temporary employer must immediately notify the private employment agency of the temporary worker's work accident and occupational disease. Likewise, temporary employer is obliged to notify the work accident immediately to the law enforcement officers and to the Social Insurance Institution within 3 working days, and to the Social Insurance Institution within 3 working days from the date of learning about the worker's occupational disease.

In accordance with the Occupational Health and Safety Law No. 6331, the temporary employer is obliged to provide the occupational health and safety trainings stipulated in the sixth paragraph of Article 17 of the Law and to take the necessary measures in terms of occupational health and safety. Also the temporary worker is obliged to participate in these trainings.

According to the law, the temporary employer is obliged to notify the vacant job positions in the workplace to the temporary worker and to keep the documents to be requested by the Turkish Employment Agency for specified periods and to inform the workplace union representative if there is any information about the employment status of temporary workers in the workplace.

It is accepted that the temporary worker cannot request an advance or a loan from the employer, who employs temporary workers, to be deducted from the service fee of the private employment agency.

END OF TEMPORARY EMPLOYMENT RELATIONSHIP

The contract ends with the expiration of the period stipulated in the contract of employing temporary worker. However, if the temporary employment relationship continues despite the expiration of the period specified in the contract, an indefinite-term employment contract is deemed to have been established between the employee and the employer who employs temporary workers as of the end date of the contract. In this case, the private employment agency is responsible for the wages of the worker arising from the temporary work relationship, the obligation to take care of the worker and the social security premiums, limited to the duration of the contract. At this point, if the employee continues to work at the end of the duration, it must be accepted that his contract with the private employment agency is also terminated.

A BUSINESS RELATIONSHIP ESTABLISHED THROUGH AN ASSIGNMENT WITHIN THE HOLDING OR AT ANOTHER WORKPLACE AFFILIATED WITH THE SAME GROUP OF COMPANIES

The second temporary business relationship stipulated in the law is established through temporary transferring of the working relationship to fulfill the duty of working within the holding or at another workplace affiliated with the same group of companies. In the temporary business relationship established within this scope, it is a legal obligation to obtain the written approval of the employee at the time of transfer. It is acknowledged by the law that, by obtaining the written consent of the employee during the transfer, a temporary business relationship can be established if the employer temporarily transfers an employee to perform the duty to work within the holding or at another workplace affiliated with the same group of companies.

In this case, there is also a time limit in the temporary business relationship established. It is stipulated that it can be established for a maximum of 6 months and can be renewed 2 times at most. Although there is a time limit, there is no limitation in terms of the conditions and situations where a temporary work relationship can be established, as in the temporary work relationship established through a private employment office6.

The wage payment duty of the employer who transfers the worker continues. Also, the employer with whom a temporary business relationship is established is responsible together with the transferring employer for the unpaid wages of the employee when employee works for transferee employee, the duty of taking care of the worker and the employee's social security premiums.

In this relationship, as in the temporary work relationship established through the private employment office, the basic working conditions of the temporary worker when working under employer employing the temporary worker cannot be below the conditions that would be provided if these workers were directly employed by the same employer for the same job. As it is mentioned above, in public institutions and organizations, in workplaces where mining is extracted underground, throughout 8 months in workplaces that workers are fired collectively, and also during strikes and lockouts, the restrictions regarding not to establish a temporary business relationship will also apply to the temporary business relationship established in this way. In addition, regulations which are about: the temporary employer's duty of equal treatment against temporary workers and the employer's duty to give instructions, to take occupational health safety measures and to provide training, and the obligation of the worker to comply with this, and the regulations which is about the temporary workers' benefit from social services and liability for damages caused by the temporary worker's fault, also applies to temporary employment relationship established in this way.

Footnotes

1. Sarper Süzek, Labor Law, 2019 Edition, p.288

2. Nuri Çelik, Nurşen Caniklioğlu, Talat Canbolat, Labor Law Lessons, 32nd Edition, 2020, p.246

3. Çelik, Caniklioğlu, Canbolat, p. 234

4. Çelik, Caniklioğlu, Canbolat, p.253.

5. Çelik, Caniklioğlu, Canbolat, p.243

6. Çelik, Caniklioğlu, Canbolat, p. 250.

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