ABSTRACT
Preventive approaches have been adopted in order to ensure the employees to work in healthy and safe working environments, with occupational health and safety regulated by separate law. This issue has also great importance on the basis of the temporary employment relationship that is regulated under the Labor Law No. 4857.
I. INTRODUCTION
Employment agreements can be defined as an agreement that the employee undertakes to perform a work, and employer undertakes to pay in return for the work undertaken by the employee. Generally, employment agreements are concluded between the employee and the employer. However, the Labor Law No. 4857 (“Labor Law”)1 enables the establishment of an employment relationship with an employer who is not a party to the agreement and this employment relationship has been called as” temporary employment relationship.”
With a more technical expression, the temporary (indentured) employment relationship is an employment relationship between employer and employee that occurs when the employer lays the employee under an obligation to carry out the work under another employer’s order for a specific or temporary period of time2. The temporary employment relationships between the employer, temporary employer and employee shall be established in two ways either through the employment agency or employment within the holding itself or in another workplace affiliated with the same group of companies.
In this article, the occupational health and safety obligations will be discussed by examining the temporary employment relationship established through the private employment agency. In this context, there may be different obligations before the parties of the contractual relationships; the private employment agency, temporary employer and employee.
II. TEMPORARY EMPLOYMENT RELATIONSHIP THROUGH THE EMPLOYMENT AGENCY
A. Definition and Conceptual Information
Although, competence and authority essentially pertain to Turkish Employment Agency, the Labor Law and Law on Turkish Employment Agency and Certain Regulations (“Law of Turkish Employment Agency’’) annuls the public monopoly of the Turkish Employment Agency in this respect and adjudicates that the authority may be given to the private employment agency by the [Turkish Employment] Agency.
Private employment agencies shall be established upon the approval of the Turkish Employment Agency, by real and legal persons. These agencies have the authority and duty to place workers in various jobs and to mediate worker’s settlement process, and to establish a temporary business relationship.
As the Labor Law and Regulation on Private Employment Agency clarifies:
“Private Employment Agencies; act as an intermediary to find job and employee, may operate services for the labor market and employment and human resources may organize vocational training and may establish a temporary employment relationship in case of authorization. Private Employment Agencies shall not establish a temporary employment relationship and act as an intermediary for the staffs and positions of public institutions and organizations’’3.
According to the principles of tripartite relation4 stipulated in law, the employment contract between the employer and the transferor employer in the temporary employment relationship is ongoing. As for the transferor employer and the private employment agency, an agreement in order to provide temporary employees is concluded. The employee is obliged to carry out the work before the transferee employer.
I. Legal Basis of Offices
Although the Labor Law does not contain any special articles that regulate the private employment agencies, Article 7 of the Labor Law explains the way to establish private employment agencies and the way to establish a temporary relationship.
In the Article 5 of the Regulation on Private Employment Agency, it is explained that: “Agencies are real or legal persons that are allowed by the [Turkish Employment] Agency to be established in order to provide job seekers with proper jobs abroad and at home, and to act as an intermediary to place the employees in suitable jobs.”
In addition, in the Article 17/5 of the Law on Turkish Employment Agency contains an expression that: “Private employment agencies; act as an intermediary in finding job and employee, may conduct services fort he labor market, employment, and human resources, may organize vocational training and may establish a temporary employment relationship in case of authorization.’’
II. Provisions of Establishing a Temporary Employment Relationship
The establishment of a temporary employment relationship is subjected to certain conditions through the private employment agency. In accordance with Article 6 of the Regulation on Private Employment Agencies, the contract to provide temporary employees shall be concluded in writing. Such that, Article 23 of the same Regulation, regulates the written Agreement as a validity condition.
On the other hand within the scope of the same article; temporary employment relationship cannot be established through the private employment agency for eight months in the workplaces where the employees are dismissed collectively; in public institutions and organizations and in the underground mining workplaces. With regard to the strike and lockout situations, it is foreseen that employees cannot be employed with a temporary employment relationship without prejudice to the Article 65 of the Law on Trade Unions and Collective Bargaining Agreement dated 18/10/2012 and numbered 6356.
III. OCCUPATIONAL HEALTH AND SAFETY OBLIGATIONS OF THE PARTIES
A. Obligations of the Employer Within the Scope of the Occupational Health and Safety
1. The Obligation to Take Precautions
The employment contract is a type of contract where the personality of the employee is at the forefront. For this reason, employer’s obligation to protect the employee, is placed among the primary obligations of the employer within the framework of the contract5. The obligation to protect employee, delivers the obligation to take precaution within the scope of occupational health and safety of both private employment Agency, who is the actual employer, and the temporary employer, in terms of the temporary employment relationship. In this context, pursuant to Article 11 of the Regulation on Occupational Health and Safety at Temporary or Fixed-Term Employment Contract:
“The employer, who has a temporary employment relationship with the transferor employer, is responsible for the conditions related to the work and conditions during the working process.’’
According to the European Commission’s Evaluation Report on the Implementation of the EU Legislation by the other Member States related to Occupational Health and Safety of the Employees Working under Temporary Employment Relationship or under employment contract of definite duration, workers who work within the framework of a temporary employment relationship are more likely to suffer from work accidents or occupational diseases than other workers6. For this reason, occupational health and safety measures taken for the employees who are employed in a temporary work relationship have high importance. There is a Directive numbered 91/383/EC and dated 25 June 1991 in European Union is aimed to achieve this purpose7. The main purpose of this directive, which regulates the definite duration of work and temporary employment relationship under a single roof, is to ensure that the workers working under the temporary employment relationship enjoy the same level of protection as the other workers in the workplace8. As a matter of fact, the obligation of the temporary employer to act equally to the employees in the workplace is also expands to the temporarily employed workers.
In this context, employers are obliged to provide training within the scope of occupational health and safety under the obligation of employers to undertake measures, to conduct health examinations and to provide protective equipment and materials related to the work that constitutes the basis for the obligation to carry out the work.
First of all, it is necessary to focus on the employer’s obligations to provide trainings. In fact, while an opinion in the doctrine supports that training obligation should be on the private employment agency,9 while the another argues that the temporary employer employing the temporary employee is obliged to ensure that the training is delivered to their employees in accordance with their performance of their work. Although there are controversies about which employer is responsible from the training obligation, both the relevant legislation and the Article 4 of the European Union Directive explicitly state that workers who are informed about the occupational risks should also be provided training for this purpose.
Secondly, the obligation to provide and control the suitability of the necessary or mandatory work clothes or materials for the performance of work which the employer is obliged to provide to the worker under the obligation to take precautions within the scope of occupational health and safety will pertain to temporary employer employing the temporary employee. If the obligations are not fulfilled within this scope, the temporary employer will be responsible in cases where it has not been proved that the necessary measures have been taken. Finally, both temporary employer and the employee employed under the temporary employment relationship by the private employment agency have an obligation to carry out health examinations under the obligation to take measures. In accordance with Article 15 of the Labor Law, the employer must ensure that the workers are examined by considering the health and safety risks of the workers in the workplace. Although, it is not explicitly stated in the legislation that which employer will fulfill this obligation, in Article 6 of Occupational Health and Safety Law, there is a regulation for the employer to be obliged to employ the occupational safety specialist, occupational physician and other health personnel from the employees, or to take the obligation from the private institutions operating in the field of occupational health and safety. As a result of the principle of equal treatment, except for, the private employment agency who is the main employer with the deduction from this article, it should be ensured that the temporary employer is provided with the necessary health checks and benefits from the health services as the employer’s own workers do.
2. Obligation to Make Risk Assessment
Risk assessment to be conducted by the employer is of great importance in terms of the necessary preventive measures to be taken within the scope of occupational health and safety. In this context, it is considered that the first issue to be addressed is “Informing the Employee” within the scope of Art.16 of the Regulation on Occupational Health and Safety Risk Assessment10.
It is very important to inform an employee; who is likely to be exposed to various risks, undertakes to work temporarily and not acquainted with the workplace, so as to prevent exposure to health and safety risks.
By taking obligation of equal treatment into consideration, the obligation to inform an employee with a fixed term employment contract, shall also apply to temporary employees in order to protect the employee with an indefinite term employment contract and for the works to be carried out without any delays.
Alongside with the obligation of making risk assessment by taking potential dangers into consideration and informing the employee of such assessment regulated under article 16 of the Law of Occupational Health and Safety and similar obligations, so to say, pre-conditions were regulated under the Regulation on Occupational Health and Safety Risk Assessment article 6, with the purpose of informing the employees and ensuring their health and safety by putting the employer under further obligations.
Moreover, as the obligation to make a risk assessment should be evaluated together with the obligation to take precautions, the necessary measures set out as a result of the risk assessment should be provided primarily by the temporary employer and the private employment agency shall operate through the process if necessary.
In this respect, a decision of the Court of Appeals (“Yargıtay”) in 2016 expresses that it is explicitly regulated under the law numbered 6331 that the employer shall make risk assessment regarding the occupational health and safety or have it made, and the necessity for the principles of protection against the risks to be set out was mentioned under the article 5 of the same law11. As it can be understood from the decision, Yargıtay makes the determination of the employer’s compliance with the obligations regarding the risk assessment.
3. Obligation of Inspection
Although there are not much liabilities for employers in temporary employment relationships, for the sake of preventing any potential risk from happening within the scope of occupational health and safety, it should be inspected if the employee complies with the rules and orders which should be complied with in order to protect the employee from the potential risks and occupational accidents within the scope of risk assessment obligation and obligaiton to inform the employee12. It is also an important obligation for the employers to take deterrent measures in order to prevent the acts of non-compliance from repetition, after the necessary warnings were made to the employees who are not complying with the directions given as a result of the inspections made.
In this context, in an exemplary decision given by Yargıtay, it was held that the employer shall be responsible of the damages for not conducting the necessary inspections for the relevant matters, since the necessary occupational health and safety trainings were not made, the protective equipment was not provided to the employee and an occupational accident occurred due to an error in the relevant machinery was present in the workplace13.
Either for the temporary employer or the private employment agency in certain circumstances, there are liabilities for the examination of whether the protective equipment which are necessary to be used by the employee during the work were used or not; presence of necessary protective equipment to be provided by the employer; the quality of the protective equipment to observe the eligibility to prevent the potential occupational accidents and illnesses. In this regard, in the event of any damages to the temporary employee are present, if the necessary inspections are not provided by the employer in connection with other obligations, the liability will arise based on the fault ratio of both the temporary employer and the private employment agency.
II. Obligations Of The Employee Within The Scope Of Occupational Health And Safety
1. Obligation to Comply with the Orders and Directions with the Employer
The employer has an obligation to take the necessary occupational health and safety measures as well as the employee must comply with the rules laid down according to this obligation of taking measures. The Law nnumbered 6331 regulates the obligations of the employees regarding occupational health and safety. In this respect, employees are obliged not to endanger the health and safety of themselves or other employees affected by their work or actions14. In this context, even though the temporary employee undertakes to do work by the temporary employer, it is necessary for the temporary employee to comply with the orders and directions of the temporary employer towards potential risks that the employee may face and the matter of occupational health and safety. Even though, doctrinally, it is stated that the private employment agency, as the actual employer, is the one to give the orders and directions; it is very important for the temporary employee to comply with the temporary employer’s orders and directions since the employee undertakes the work in the employer’s workplace and may result in the rightful termination of the labor supply agreements executed between the private employment agency and the employer and the employment agreement executed between the private employment agency and the employee. In this regard, the obligation to comply with the orders and directions, shall be interpreted in a broad way by the employee.
As a result of the training and studies on the use of the protective equipment provided to the employees, the employees are responsible for the damage caused by themselves in case of failure to comply with the instructions of the employer in connection with the obligation to follow the orders and directions, and to use the protective equipment delivered to them, as instructed.
In this respect, in a decision of the Yargıtay, it was emphasized that the main obligation of the employees within the scope of occupational health and safety is to comply with the rules by stating the following sentence: “In addition to the obligation of the employer to take necessary measures in relation to occupational health and safety, the employee has an obligation to comply with the procedures and conditions set forth in this regard”15.
In another decision of the Yargıtay, the obligation to follow the rules was pointed out by stating that the contract of the worker who does not use the occupational safety materials (hard hat, goggles, masks) which are compulsory to use, may be terminated16.
However, if an occupational accident occurs, it is not held that the employee would be solely responsible for not using the compulsory occupational safety materials which are delivered to the employee to be used for the occupational health and safety. On the other hand, the burden of proving the necessary warnings for not using the materials were made to the employee by the employer.
2. Obligation to Participate in the Trainings
A temporary employee, who is employed by a temporary employer through a private employment agency to perform a temporary job, is obliged to participate in the special trainings provided by the temporary employer for the work to be conducted in the workplace, as well as the private employment agency. Because the main reason for many occupational accidents and diseases to occur is the training to be provided to the employee and employee’s failure to complete this training completely.
Although one of the main obligations of the employer is to provide training to the employee, it is also necessary for the employee to participate in all trainings provided and to take all necessary steps in this direction, in order to carry out the relevant work. Otherwise, the employee shall be obliged to cover the damages if the employee has not participated to the detailed and descriptive training given by the employer.
IV. CONCLUSION
Pursuant to the Article 417 of the Turkish Code of Obligations (“TBK”), the employer has an obligation to take all necessary measures to ensure occupational health and safety in the workplace. At the same time, Article 13 of the Regulation on Occupational Health and Safety in Temporary or Fixed-Term Works, alongside with the private employment agency, the temporary employer may take additional measures in addition to the measures mentioned in the relevant legislation in terms of protection of the employee in the scope of occupational health and safety.
In this context, other than the temporary employer, the obligations of the private employment agency as the main employer have been regulated. For example, Article 9 of the Regulation on Private Employment Agencies reads as follows: “e) [private employment agency] is obliged to provide the trainings regulated in the Sub-article six of Article 17 of the Occupational Health and Safety Law No. 6331 dated 20/6/2012 and to take the necessary measures in terms of occupational health and safety”.
All in all, the obligations of the private employment agency as the main employer and the temporary employer employing temporary workers are not regulated separately in the framework of the relevant legislation and the obligations are set out based on a general term of employer, as a result of the principle of equal treatment and the obligation to supervise the employee, the obligations appear to be similar for both employers. Similarly, the employees employed on the basis of temporary work must fulfil their obligations, in particular towards the temporary employer, by paying attention to their own occupational health and safety and as well as the occupational health and safety of other workers under the same workplace.
BIBLIOGRAPHY
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FOOTNOTE
1 Labor Law No. 4857 published in Official Gazette numbered 25134 and dated 10.06.2003
2 Mollamahmutoğlu/Astarlı/Baysal, İş Hukuku Ders Kitabı, Volume 1: Bireysel İş Hukuku, Ankara 2017
3 Labor Law No. 4904 published in Official Gazette numbered 251129 and dated 05.07.06.2003
4 Türkiye Mühendislik Haberleri, 491, 29.08.2018 http://www.imo.org.tr/resimler/ekutuphane/ pdf/17782_54_26.pdf
5 Simon, Deakin, The Changing Concept of the Employer in Labour Law, Industrial Law Journal, 30, 2001 pg.72-84
6 Kübra Doğan Yenisey, Seda Ergüneş Emrağ, İş Hukukunda Yeni Yaklaşımlar, Beta Yayınları, pg. 231
7 12.09.2018, http://www.mess.org.tr/media/ filer_public/67/86/67866beb-126e-4988-b829- bda418ff9baa/belirli_sureli_ve_gecici_istihdamda_ calisanlarin_is_guvenligi_ve_sagligina_iliskin_ab_ uygulama_raporu_2011.pdf
8 Direktif, 28.08.2018, https://eur-lex.europa.eu/legalcontent/EN/ALL/?uri=celex%3A32008L0104
9 Canan Erdoğan, Geçici İş İlişkisinde İş Sağlığı ve Güvenliği Önlemleri Alma Yükümlülüğü, pg.129
10 Çağla Erdoğan, İşveren ve İşveren Vekilinin İş Kazasından Doğan Cezai Sorumluluğu, Yetkin Yayınları, pg.121,122, 31.12.2015
11 Regulation on Occupational Health and Safety Risk Assessment, published in Official Gazette numbered 28512 and dated 29.12.2012
12 Yargıtay 21st Civil Chamber. D: 04.04.2016, Case No: 11422, Decision No: 5930
13 Kübra Doğan Yenisey, Seda Ergüneş Emrağ İş Hukukunda Yeni Yaklaşımlar, Beta Yayınları, pg. 231
14 Yargıtay 9th Civil Chamber, D: 04.10.2017, Case No: 25596 Decision No: 14831
15 Law on Occupational Health And Safety, Published on the Official Gazette dated 30.06.2012, numbered 28339; Article 19/1
16 Yargıtay 9th Civil Chamber, D: 26.11.1991, Case No: 1991/13260 Decision No: 1991/14880
17 Yargıtay 9th Civil Chamber, D: 11.09.2014, Case No: 2014/11104 Decision No: 2014/2633
