Recently, business intermediation activities have started to be heard frequently both in the world and in our country. Although there have been some objections for a long time on the grounds that it will be used in bad faith, there have been very important changes in the legal sense, which is sure to fill a serious gap in business life.
Temporary work that provides serious opportunities for companies that need additional personnel for a short time due to an order they have received or for a reason at the workplace, or companies that want to reach a qualified worker urgently and complain that they cannot do this, or companies that need additional workers for a certain period of time in a special project. relationship seems to continue to be discussed while maintaining its functionality.
It is seen that the provisions regarding the temporary employment relationship in the professional sense are regulated not only in the Labor Law, but also in the Law on the Turkish Employment Agency, and there are also provisions on the temporary employment relationship in the professional sense in the Regulation on Private Employment Offices, which was prepared based on the aforementioned laws. Thus, a brand new concept that was not accepted in Turkish Law before has emerged, and it is clearly stipulated that temporary employment relationships can be established through private employment agencies in the professional sense.
The new regulation on temporary employment, inspired by the regulation in the European Union, is important in terms of ensuring flexibility in Turkish law. In line with the developments and changes made, it has been regulated by the legal regulations that the temporary employment relationship can be established through private employment offices or by making an assignment within the body of the holding or at another workplace affiliated with the same group of companies. Thus, it is stipulated that both a temporary employment relationship in a professional sense or through a private employment office and a “non-professional” temporary employment relationship can be established.
I-Establishment of a Professional Temporary Work Relationship
In a professional temporary employment relationship, the worker is hired by a private employment agency with a written employment contract to be lent. In a temporary employment relationship, the employer is a private employment agency and the provisions of the Labor Law are applied to this relationship. The wages of temporary workers who fulfill the temporary employer’s duty to work at the workplace are paid by the private employment agency, which is a party to the employment contract and has the title of employer. A professional temporary employment relationship is established in the cases listed in the Labor Law, with the temporary transfer of a worker to this employer by making a written temporary employment contract with the temporary employer of the private employment agency authorized by the Turkish Employment Agency.
Establishment of a temporary employment relationship is regulated in the Law in two different categories as “works in which a temporary business relationship can be established” and “cases in which a temporary business relationship can be established”.
While a temporary employment relationship can be established regardless of any other condition in jobs where temporary employment relationship can be established, the nature of the job is not important in cases where temporary business relationship can be established, but the employer is allowed to establish a temporary business relationship with a private employment office due to the needs that arise during the operation of the business. There is a time limitation in both categories.
Jobs that fall into the category of jobs that can establish a temporary employment relationship; seasonal agricultural works, domestic services and works that are not considered as daily work of the enterprise and are carried out intermittently. 13 of the Labor Law in the category of situations in which a temporary employment relationship can be established. The situations specified in the fifth paragraph of the article and in the article 74, the military service state of the worker and other situations where the employment contract is suspended; The emergence of compelling reasons that significantly affect production and in urgent works in terms of occupational health and safety; In case of an unforeseen increase in the average production capacity of goods and services of the enterprise, which requires the establishment of a temporary business relationship; Temporary employment relationship is established in case of periodic job increases, excluding seasonal works.
We would like to briefly explain, one by one, the jobs where temporary employment relationship can be established and the situations where temporary business relationship can be established, which we have mentioned above;
1- Pregnancy, Partial Work of Parents, Military Service, Other Suspension
7 of the Labor Law. 74 of the same law in accordance with the second paragraph of the article. In cases of maternity maternity leave regulated in the article, in all cases where the employment contract is suspended, in the fulfillment of military service and in accordance with İK article 13/5, one of the parents’ art. After the end of the maternity leave, post-natal leave and unpaid maternity leave stipulated in Article 74, the employer may employ a private employment agency worker instead of these workers, in cases where the child works part time until the beginning of the month following the start of the primary school age. (Regulation art. 5/2 a)
3 of the same article. In these cases, a temporary worker supply contract can be established during the continuation of these situations, without any time limit. The point to be considered about military service is as follows; In Turkish law, since active military service cannot suspend the employment contract by itself, leaving the job while on military duty is considered as the immediate and rightful termination of the contract. Here, there is a specific termination situation that does not need to be declared before notice. In this case, since the place of the worker in the military is vacant, art. Employment of temporary workers should be considered according to other sub-paragraphs, not 7/2 (a).
On the other hand, the labor shortage that arises due to part-time work of workers who work part-time can also be eliminated by employing temporary workers. 13 of the Labor Law No. 4857. If there are workers who have switched to part-time work with the fifth paragraph added to the article, temporary workers can be employed instead of them as long as this part-time work continues. According to Article 74 of the Labor Law No. As long as it passes and continues, temporary workers can be taken instead. Here, it is the case of filling (closing) the wasted (incomplete) working time with a temporary worker when the worker changes from full-time to part-time work. In this case, an important point to note is; The temporary worker who will be employed instead of the worker who has switched to part-time work should also be employed for a part-time job.
2- Seasonal Agricultural Works
The jobs that will be the subject of a temporary employment relationship are not all seasonal work, but only agricultural work done in certain periods of the year. There is no time limit for temporary workers to be employed within the framework of this paragraph.
3- Home Services
Although these activities are jobs that can be experienced in a house every day, it is possible to provide temporary workers through private employment offices to work in these jobs. Although the Turkish Code of Obligations No. 6098 applies mainly to workers working in domestic services, when a private employment office worker is employed for these services, 7th Law of Labor Law No. 4857 is applied. provisions of this article will apply. There is no time limit for temporary workers to be employed within the framework of this paragraph.
4- Works that are not considered as daily work of the enterprise
Here, there are works that are not always included in the daily activities of a workplace/enterprise, but that come to the agenda at intervals, usually in previously known situations. For example; such as the periodic maintenance and control of machinery and installations in the enterprise. The expression ” daily work of the enterprise ” in the provision should not be understood as the work being done every day, and the work carried out at regular and short intervals (eg every three days or once a week) should also be considered among the daily works. In these works, the temporary worker supply contract can be established for a maximum of 4 months and can be renewed twice at most, not exceeding a total of eight months.
5- Urgent Works in terms of Occupational Health and Safety or Forceful Reasons Affecting Production Significantly
In the case of the execution of urgent works arising in terms of occupational safety in the justification of the provision (repair and modification works necessary for the safety of the employees) or the emergence of compelling reasons that significantly affect the production (in case of flood, fire and similar natural disasters or during terrorist events, the enterprise can raise the necessary production). It has been stated that a temporary employment relationship can be established through a private employment office.
For example; such as the occurrence of a dangerous situation in the workplace and the need for personnel with technical knowledge about occupational health and safety in order to prevent this situation. Here, the concern that it may take a long time for a personnel who is urgent to be present in the workplace or to provide service in terms of occupational health and safety, is selected and trying to recruit, and cannot be found, and on the other hand, the urgency it carries in terms of occupational health and safety is important. In this framework, it will be possible to employ the relevant personnel with a temporary employment relationship instead of hiring them with an employment contract.
To give an example for compelling reasons that significantly affect production; A personnel shortage occurred in the workplace because the worker could not continue to work due to the fact that these workers were poisoned at a party attended by a large number of workers, or that they were detained or arrested due to a fight they were involved in, or that the district they lived in was quarantined due to the epidemic. In order to fill this gap, a temporary employment relationship can be established through a private employment office. In these works, the temporary worker supply contract can be established for a maximum of 4 months and can be renewed twice at most, not exceeding a total of eight months.
6- Unpredictable increase in the business volume of the enterprise
In these works, the temporary worker supply contract can be established for a maximum of 4 months and can be renewed twice at most, not exceeding a total of eight months. There is a limitation on the number of temporary workers regarding the said provision. The number of temporary workers that can be employed in this context cannot exceed one quarter of the number of workers employed in the workplace. However, this limitation has been lifted in workplaces employing ten or less workers, and it has been stated that temporary employment relationships can be established for up to five workers.
7- Seasonal Job Increases Except for Seasonal Jobs
2 of Article 7 of the Labor Law No. 4857. With this paragraph, the establishment of a temporary employment relationship in all seasonal works (except seasonal agricultural works) is prohibited, and a private employment agency worker can be employed only in pre-specified and periodic job increases other than seasonal works. Here, we are not talking about a job increase that occurs in a certain season in a workplace that continues its activities throughout the year, which transcends the season every year, there are seasonal job increases that occur while the operation continues in normal times, and temporary worker employment related to this is in question.
For example; Although the activity of a company that provides independent audit services continues throughout the year, the intensity experienced between September and April of each year or the workload due to export and / or import experienced in a certain period of the year in the workplace that carries out its activities all year, such as periodic job increase. .
While it is legally allowed to employ temporary workers in seasonal agricultural works without a time limit, it is regulated that temporary workers can be employed for a period of four months in case of periodic job increases, and it is also not possible to renew the period. In other words, according to the aforementioned paragraph, it is stipulated that a temporary employment relationship can only be established for 4 months.
II- Situations where Establishment of a Temporary Business Relationship is Prohibited
In order to prevent the abuse of temporary worker employment through a private employment agency, some prohibitions and restrictions have been introduced in the Labor Law.
1- The Prohibition on the Establishment of Temporary Work Relationships in Workplaces That Release Collective Workers; According to the 4th paragraph of the 7th article of the Labor Law No. 4857, the 29th article of the Labor Law. It is forbidden to employ temporary workers for eight months in workplaces where collective workers are dismissed within the scope of the article.
2- Establishment of Temporary Business Relationships Prohibited Workplaces; Pursuant to the 4th paragraph of the 7th article of the Labor Law No. 4857, it is regulated that temporary employment relations cannot be established in public institutions and organizations, workplaces where underground mines are extracted. There is an indefinite ban here.
3- Limitation on Establishment of Temporary Business Relationship during Strikes and Lockouts; 7 of the Labor Law. The employer employing temporary workers in accordance with the fourth paragraph of the article, during the implementation of the strike and lockout, Article 65 of the Law on Trade Unions and Collective Bargaining No. 6356. Provided that the provisions of the article are reserved, no workers can be employed with a temporary employment relationship. During strikes and lockouts, the employer only applies to Article 65 of Law No. 6356. Temporary workers can be employed in the works listed in the article, but they cannot employ temporary workers.
4- Limitation on the Establishment of a Temporary Work Relationship with the Employee whose Employment Contract has been terminated; A special limitation is included in order to prevent malicious practices by employing workers as temporary workers. Accordingly, an employer employing temporary workers cannot employ a worker whose employment contract has been terminated within the scope of a temporary employment relationship before six months have passed from the date of termination.
5- Time Limit on Establishment of Temporary Work Relationship with Temporary Worker; 7 of the Labor Law. According to the third paragraph of the article, the employer who employs temporary workers in a job cannot employ temporary workers again, unless six months have passed for the same job after this relationship. One of the points to be considered here is that the law regulates that the temporary employer cannot employ the temporary worker for the ” same job “. In this case, it is possible to employ the same person as a temporary worker for a different job.
III- Temporary Employer-Temporary Worker Relationship
- When the private employment agency transfers the employee to the temporary employer for temporary employment, the employment contract concluded between the employee and the employee does not expire, it continues and the office retains the title of employer.
- With the transfer of the right to request the work to be done in the temporary employment relationship, the right to give instructions (management) to the worker also passes to the temporary employer.
- The temporary employer is obliged to treat temporary workers equally. According to the Labor Law, temporary workers also benefit from social benefits such as transportation, meals, and child support in the workplace, according to the principle of equal treatment.
- The temporary worker shall be held liable to the employer who employs the temporary worker for the damage caused by his fault, provided that it is related to the workplace and the job. Since there is no contractual relationship between the temporary employer and the worker, the personal responsibility of the worker arising from the damage caused by his fault will be subject to the principles regarding tortious act liability.
- The temporary worker cannot take advances or loans from the temporary employer to be deducted from the service fee of the private employment agency. The main reason for the introduction of such an arrangement is that the employer of the temporary worker is a private employment agency. Therefore, the wage obligation belongs to the private employment agency.
- It is stipulated that the temporary employer is obliged to take the necessary measures in terms of occupational health and safety, to provide the training regulated in Article 17/6 of the Occupational Health and Safety Law, and to attend these trainings. Temporary employer or employer’s representative who does not provide the trainings stipulated in the Occupational Health and Safety Law and does not take the necessary measures in terms of occupational health and safety is punished with an administrative fine.
IV- Continuing to Employ the Temporary Worker by the Temporary Employer
One of the problems that arise in practice in the temporary employment relationship is that the employee continues to be employed at the workplace despite the expiry of the period stipulated in the temporary employment relationship. In this case, it is stated in the law that an employment contract of indefinite duration will be deemed to have been concluded between the employer and the worker, who employs temporary workers, as of the expiry date of the contract. In this context, an indefinite employment contract between the worker and the temporary employer is established as of the end of the assignment period of the worker. In this case, the private employment agency is responsible for the employee’s wages arising from the temporary employment relationship, the employee’s supervision debt and social insurance premiums, limited to the contract period.
As a result of the developments in business intermediation activities, in accordance with the regulations made to adapt to this situation, the temporary employment relationship with a profession is for the first time in our law, with Law No. 6715 and 7 of the amended Labor Law. This situation is defined in our legislation as the transfer of the worker to this employer temporarily by the private employment agency, which is allowed by the Turkish Employment Agency, by making a temporary worker supply contract with an employer.
Although there are some shortcomings in the aforementioned regulations, there are also positive effects on the meeting of the parties and job placement activities and the solution of the unemployment problem.
Lawyer / K&P LEGAL LAW OFFICE