ABSTRACT
Article 2 of the Labor Law no. 4857 (“Labor Law”) lists the elements of the principal employer subcontractor relationship, outlines the limits of the parties’ liabilities within the scope of this relationship, and then regulates the cases of collusion in the principal employer subcontractor relationship.
I. INTRODUCTION
In a legally established principal employer subcontractor relationship, the principal employer is liable for the obligations arising from the Labor Law and other relevant legislation, the employment agreements between the parties or the collective bargaining agreement to which the subcontractor is a party, together with the subcontractor, to the subcontractor’s employees, beneficiaries (heirs of the employees, etc.) and the Social Security Institution (“SSI”).
The Labor Law regulates the principal employersubcontractor relationship, which allows an employer to receive assistance from another employer and its employees. The Labor Law also regulates the consequences of the principal employersubcontractor relationship and the liabilities imposed on the parties to this relationship. Pursuant to Article 2 of the Labor Law, an employer may assign, limited to a part of the main work, work requiring specialization due to the necessity of the business and work and technological reasons, or auxiliary task related to the production of goods or services carried out in the workplace, to another employer who will employ its employees exclusively within the boundaries of the workplace of the principal employer and within the scope of the work to be obtained from the principal employer.
In this context, in the event that subcontractors fail to pay their debts to their own employees, beneficiaries (heirs of the employees, etc.) and the SSI, the principal employers and subcontractors are held jointly liable for these debts. In this study, the principal employersubcontractor relationship, the nature of this relationship, the cases of joint liability between the parties and the status of the recourse relationship between the parties according to the validity of the established principal employersubcontractor relationship will be discussed.
II. DEFINITION AND ELEMENTS OF THE PRINCIPAL EMPLOYER - SUBCONTRACTOR RELATIONSHIP
Article 2/6 of the Labor Law defines the principal employersubcontractor relationship as follows: “The connection between the subcontractor who undertakes to carry out work in auxiliary tasks related to the production of goods and services or in a certain section of the main activity due to operational requirements or for reasons of technologicaexpertise in the establishment of the main employer (the principal employer) and who engages employees recruited for this purpose exclusively in the establishment of the main employer is called “the principal employer subcontractor relationship”. The principal employer shall be jointly liable with the subcontractor for the obligations ensuing from this Labor Act, from employment contracts of subcontractor’s employees or from the collective agreement to which the subcontractor has been signatory”1.
A. Elements of the Principal Employer-Subcontractor Relationship
When the definition in the Labor Law is examined, it is understood that in the principal employer subcontractor relationship, the principal employer may contract with another employer to employ its employees in “a part of the main work” or in “auxiliary works” related to the production of goods or services carried out in the workplace in works that require specialization due to the necessity of the business and work and technological reasons, and that this employer may employ its employees exclusively in the work to be performed in this workplace.
Pursuant to Article 2/6 of the Labor Law, the conditions for the establishment of a lawful principal employer subcontractor relationship can be listed as follows; (i) there are two employers, namely the principal employer and the subcontractor (ii) the work to be subcontracted to the subcontractor within the scope of the relationship is question must be within the scope of goods and services produced at the workplace, (iii) the work subcontracted to the subcontractor must be “a part of the main work that requires specialization due to the necessity of the business and work and technological reasons” or “auxiliary work”, (iv) the subcontractor’s employees must work within the boundaries of the principal employer’s workplace, and (v) the subcontractor’s employees must be working exclusively in the work received from the principal employer and are dedicated to this work2.
1. Presence of Two Employers
First of all, in order to establish a lawful principal employer subcontractor relationship, both parties in the relationship in question must be qualified as employers. In the event that one of the parties does not have this qualification, the relationship in question will be deemed not to have been established3.
What is important in the principal employer subcontractor relationship is not how the contract is characterized by the parties, but whether it contains the elements of the definition in the Labor Law4. Accordingly, although there is no agency relationship between the parties in the principal employer subcontractor relationship, the relationship between the parties is based on contracts such as work, transportation, lease, service procurement contracts5. The important factor of this point is that the subcontractor performs the works that it performs within the scope of the relationship with the principal employer on its own behalf, on its own account and with its own employees6.
Article 3 of the Subcontracting Regulation (“Subcontracting Regulation”) published in the Official Gazette dated 27.09.2008 and numbered 27010 defines the concepts of principal employer and subcontractor. According to Article 3/1 (ç) of the Subcontracting Regulation, the principal employer is defined as “the real or legal person or institutions and organizations without legal personality who employ workers in the primary work and who assigns auxiliary works related to the production of goods or services in the workplace or works requiring expertise for technological reasons due to the necessity of the business and work in a part of the primary work to the other employer” and according to Article 3/1 (a) of the Subcontracting Regulation, the subcontractor is defined as “a real or legal person or non legal entities or institutions and organizations without legal personality who employs the workers assigned for this work only in this workplace, who receives work from an employer in auxiliary works related to the production of goods or services carried out in the workplace or in a part of the main work that requires specialization due to the necessity of the business and work and technological reasons”.
In addition, as clearly stated in Article 4/1 (a) of the Subcontracting Regulation, the work assigned to another employer must also involve the employees of the employer, i.e. the principal employer7. On the other hand, if it is seen that the employer has completely transferred the main work to another employer and only the employees of the employer who has received the work are working in that work, but the employees of the employer who is given the work are not working in that work, it cannot be mentioned that the existence of the principa employer subcontractor relationship.
2. Being a Part of the Main Work or Auxiliary Work
In the Labor Law, “a part of the main work that requires specialization due to the necessity of the business and work and technological reasons” or “auxiliary works” are listed as works that can be subcontracted. The definitions in the Subcontracting Regulation may be instructive in determining which works in a workplace are subcontracted to another employer and when a principal employer subcontractor relationship is established. Article 3/1 (c) of the Subcontracting Regulation defines the main work as “the work that constitutes the basis of the production of goods or services”, and Article 3/1 (ğ) of the Subcontracting Regulation defines the auxiliary work as “the work that is related to the production of goods or services carried out in the workplace, but is not directly included in the production organization, is not a compulsory element of production, but continues as long as the main work continues and is dependent on the main work”.
At this point, it should not be forgotten that the additional condition for the transfer of a part of the main work to a subcontractor is that it requires specialization due to the necessity of the business and work and technological reasons8. From this point of view, the relationship established by the employer who assigns the work to another employer that exceeds a part of the main work or does not qualify as auxiliary work will not be considered within the scope of the principal employer subcontractor relationship.
a. A Principle of That the Work to be Subcontracted to Subcontractor is Auxiliary Work
If the work given by the principal employer to the subcontractor is auxiliary work, this work must be within the scope of the goods and services produced in the workplace. If the principal employer contracts with another employer for a work that is outside the scope of the production of goods and services in the workplace, the principal employer subcontractor relationship is not established. However, the work to be subcontracted to the subcontractor may be directly related to the production of goods and services carried out in the workplace, or indirectly within this scope9. Otherwise, works that are completely outside the production of goods and services in the workplace cannot be subcontracted.
Contrary to the condition that the work to be subcontracted is a work that requires specialization due to the necessity of the business and work and technological reasons, if the work to be subcontracted has the nature of auxiliary work, the auxiliary work can be subcontracted without the need to seek any other qualification10. The subcontracting of services such as security, cleaning, catering, etc. by the employer to another employer constitutes the most typical examples of the subcontracting of auxiliary work by the principal employer to the subcontractor.
b. A Principle of That the Work to be Subcontracted to Subcontractor is A Part of Main Work
If the work to be subcontracted is a part of the main work, this work must be a work that requires specialization due to the necessity of the business and work and technological reasons. As a matter of fact, this additional condition is a condition of validity in order to be able to speak of a principal employer subcontractor relationship established in accordance with the law11. The purpose of this provision is to prevent employers from arbitrarily dividing the main work to subcontractors12.
3. Working in the Workplace of the Principal Employer
In establishing a principal employer and subcontractor relationship, the subcontractor’s employees must work at the principal employer’s workplace. In this circumstance, for example, if the sub employer, who receives work from the main employer, outsources the work to its employees as subcontracted production in its own workplace, the principal employer and subcontractor relationship will not be formed13.
What is meant by the expression “work performed at the workplace” here is that the work belongs to that workplace. For example, in the event that the employer, who also performs distribution work in any field, assigns this work to another employer, it would be wrong to conclude that the principal employer subcontractor relationship has not been established, since it is not possible to perform distribution work within the boundaries of the workplace14. Even in this case, if the exclusivity condition explained below is met, it can be stated that a principal employer and subcontractor relationship has been founded. In fact, that there are decisions of the Supreme Court that provide flexibility by using the concept of “work organization” instead of the concept of “workplace boundaries”15.
4. Exclusivity
The important point of the principal employer and subcontractor relation is that certain employees work at the workplace which belong to principal employer. In other words, the personnel allocated by the subcontractor for the receipt from the principle employer must work entirely at the principal employer’s workplace. The existence of a principal employer subcontractor relationship cannot be mentioned, if the employees are employed to other workplaces at the same time16.
III. LIABILITY OF THE PRIMARY EMPLOYER
A. Legal Responsibility
Under Article 2 of the Labor Law, the responsibility of the principal employer is restricted to the labor receivables of the subcontractor’s employees17. Also, in cases where the principal employer and subcontractor relationship is established in accordance with the law, unlike the responsibility of the subcontractor, the liability of the principal employer is limited to civil liability and the principal employer does not have criminal or administrative responsibility18. The subcontractor has a joint civil, criminal and administrative liability.
B. Absolute and Strict Liability
The legislator has not required an additional fault condition for the principal employer’s, legislator has held the principal employer liable only for the existence of the principal employer subcontractor relationship established in accordance with the law. However, the principal employer’s right of recourse against the sub employer in the event that the sub employer pays the labor receivables of the sub employer’s workers separates this situation from an actual case of strict responsibility19.
C. The Joint Liability
The subcontractor who fails to fulfill its responsibilities towards its own employees, in this case, makes the main employer liable together with it as required by law, as a matter of fact, it is stated without any doubt in the decisions of the Supreme Court and in the doctrine that the liability in the relationship between the members joint liability20.
D. No Independent Accountability
Although the parties are jointly liable for the labor receivables of the subcontractor’s employees, the responsibility of the principal employer depends on the liability of the subcontractor at same point. In other terms, with a view to the parties to be jointly liable in the relationship in question, the subcontractor must first be liable21. Because of this reason, in cases where there is no responsibility of the subcontractor, the responsibility of the principal employer cannot be mentioned. For example, if the subcontractor workers do not have any receivables from the subcontractor, the workers will not be able to demand payment of their claims from the subcontractor, and as a natural consequence, they will not be able to make such a demand to the main employer.
IV. JOINT LIABILITY IN THE PRINCIPAL EMPLOYER SUBCONTRAC TO R RELATIONSHIP
A. Scope of Joint Liability
The last clause of Article 2/6 of the Labor Law regulates liability in the principal employer and subcontractor relationship. The purpose of this regulation is to ensure the interests of workers and protect workers who are in a weaker position compared to employers. The joint liability mentioned in the relevant provision is of an absolute mandatory nature as it concerns public order, and it is not possible for the parties to agree to eliminate this responsibility by contract22. Pursuant to the last sentence of Article 2/6 of the Labor Law; “The principal employer shall be jointly liable with the subcontractor for the obligations ensuing from this Labor Act, from employment contracts of subcontractor’s employees or from the collective agreement to which the subcontractor has been signatory.”. “Joint liability” in the wording of the Labor Law is joint and several liability. Another reason for the principal employer to be held liable along with the subcontractor is that the employers benefit together from the performance of the work in question23.
In addition, since the Labor Law classifies the joint liability of the principal employer and the subcontractor by stating that the issues that require joint liability may arise from the Labor Law, the employment contract or the collective labor agreement to which the subcontractor is a party, the principal employer will not be held responsible for the obligations arising from any contract or act other than those listed in the Labor Law24. At this stage, it should be noted that the principal employer does not have any responsibility towards the subcontractor. The liability of the principal employer is limited only against the employees of the subcontractor.
1. Joint Liability in Terms of The Source of Receivables
The principal employer is liable together with the subcontractor for the wages, overtime works, weekends, national holidays and general holidays, annual leave, bonuses, food allowances, travel allowances, severance, notice, bad faith and reinstatement compensation, insurance premiums of the workers, compensation arising from work accidents, recourse claims of the Social Security Institution (SSI) and similar claims of the workers employed by the subcontractor. In this context, subcontractor’s employees, right holder (heirs of the employee, etc.) and SSI can apply to either one of them in terms of the entire receivable for the collection of receivables, or they may apply to the principal employer and subcontractor collectively. When the worker of the subcontractor collects their receivables from one of the parties, they cannot claim from the other party again25.
As can be seen from the wording “obligations arising from the collective labor agreement to which the subcontractor is a party” in Article 2/6 of the Labor Law, liability arising from collective labor agreements is only applicable to collective labor agreements to which the subcontractor is a party. On the other hand, the subcontractor’s employees cannot benefit from the provisions of the collective labor agreement to which the principal employer is a party, if the principal employer is a party to the collective labor agreement and the subcontractor is not26.
2. Joint Liability in Terms of Duration
In order for the principal employer to be able liable for the claims of the subcontractor’s employees regarding labor receivables, the receivable claimed by the subcontractor’s employee must have arisen during the continuation of the principal employer and subcontractor relationship. The principal employer cannot be held liable for the receivables before the principal employer and subcontractor relationship arises or after the said relationship is terminated. Therefore, the principal employer is not responsible for the notice pay occur after the termination of the principal employer subcontractor relationship between the parties. The principal employer may be held liable only for the period during which the employee worked in its own workplace in terms of severance pay27.
Finally, subcontracted workers are entitled to claim their unpaid or underpaid wage receivables that come about during the period in which they were employed by the principal employer from the subcontractor and/ or the main employer within five years from the date of such employment, and the statute of limitations for SSI’s receivables for unpaid or underpaid SSI premiums of workers is ten years from the beginning of the calendar year following the end of the payment period.
3. Joint and Several Liability in Terms of Occupational Safety
Article 18 of the Labor Law contains regulations on job security. Pursuant to the relevant provision, the conditions for job security are that the employee has at least six months of seniority, there are at least thirty employees in the workplace, these employees are working under indefiniteterm employment contracts and the employee is not the employer’s representative, and in this case, the termination of the employment contract will be possibly by the employer only in the presence of a valid reason.
The number of employees of the main employer is not included in the condition of “having thirty or more employees”, which is one of the conditions imposed by the Labor Law in order to benefit from the job security provisions. Within the scope of this regulation, only the number of employees of the subcontractor must be at least thirty. In addition, even if the employee has worked for the principal employer before, this duration will not be taken into account in the calculation of at least six months of seniority required to benefit from job security28.
The distinction between reinstatement lawsuits filed by employees who benefit from job security provisions against the principal employer and the subcontractor will differ depending on whether the relationship in question was established in accordance with the law. In a legally constituted principal employer subcontractor relationship, it is not possible to file a lawsuit only against the principal employer, and the reinstatement lawsuit must be filed against both subcontractor and the principal employer together or only against the subcontractor. However, in this case, the reinstatement obligation will be on the subcontractor and there will be no reinstatement obligation on the principal employer. Yet, even though it does not have the obligation to reinstate the employee, the principal employer will be responsible together with subcontractor for the payment of the idle time wage and/or the compensation for nonreinstatement, which will be ordered to be paid by the Court as a result of the reinstatement decision29.
On the contrary, if the established principal employer subcontractor relationship is collusive, the reinstatement lawsuit must be filed against the principal employer, since it will be decided to dismiss the lawsuit in terms of hostility if the reinstatement lawsuit is filed against the subcontractor30.
4. An Agreement Contrary to Joint and Several Liability
In the event that the parties make an agreement to the contrary of joint and several liability, this agreement shall be binding only in their internal relationship and shall have no effect on the claims of the workers, their beneficiaries (heirs of the employee, etc.) and/ or the SSI. The workers, the beneficiaries (heirs of the employee, etc.) and the SSI may also apply to the main employer to collect their receivables, even if the contract between the parties stipulates that the main employer will not be liable for the workers to be employed by the subcontractor within the scope of the service to be provided by subcontractor. Provided that there is no agreement between the parties to the contrary, the principal employer may have recourse to subcontractor for all payments that it may have to make to the employees, their beneficiaries (heirs of the employee, etc.) and the SSI.
V. COLLUSIVE RELATION SHIP BETWEEN PRINCIPAL EMPLOYER AND SUBCONTRACTOR
A. Right to Recourse of the Principal Employer
If the sub employer’s workers’ labor receivables are paid by the principal employer, the issue of whether the principal employer can recourse the amount of which he paid to the sub contractor or if it can recourse, how much of this amount can be recourse varies according to whether there is collusion in the relationship established between the parties.
1. Recourse in Cases Where the Principal Employer-Subcontractor Relationship is Lawful
Since contract law will be taken into consideration in the relationship established between the parties, the provisions of the contract will take precedence in disputes that may arise. The amount of the labor receivables paid by the principal employer that can be claimed from the subcontractor or whether they can be claimed from the subcontractor or not is determined in the provisions of the contract between the parties. As a matter of fact, this issue is considered within the scope that the parties may freely dispose of. If there is noagreement between the parties on this matter, the principal employer and the subcontractor shall be deemed to be equally liable pursuant to Article 167 of the Turkish Code of Obligations numbered 6098 (“TCO”)31.
2. Recourse in Cases Where the Principal Employer-Subcontractor Relationship is Collusive
In a 2015 Supreme Court decision, it was determined that the sub employer cannot relieve itself of responsibility under the principle that “one cannot rely on one’s own collusion,” despite the opinions of those who contend that the subcontractor’s employees should be treated as the principal employer’s employees from the beginning when the relationship between the principal employer and subcontractor is established in a collusive manner32.
In this respect, both the principal employer and the apparent subcontractor should be held jointly liable for the labor receivables of the subcontractor’s employees. In cases where the principal employer subcontractor relationship is collusive, the employee, who is not obliged to be informed about the validity of the relationship between the employers or to investigate this situation, should not be affected by the recourse relationship in question, and should continue to have the right to apply to both employers in terms of their receivables33.
VI. CONCLUSION
The principal employer subcontractor relationship is established in accordance with the law in cases requiring specialization due to the necessity of the business and work and technological reasons, in a part of the main work or in auxiliary works related to the production of goods and services in the workplace, where the employer has agreed with another employer and this employer employs its own employees within the boundaries of the workplace of the principal employer, provided that this employer is exclusively dedicated to the work assigned by the principal employer.
In this instance, the Labor Law also imposes responsibilities on the principal employer. These responsibilities come into play for the principal employer who benefits from the performance of the work in order to protect the workers in the event that the wages and other rights of the subcontractor’s workers cannot be paid. The joint liability of the principal employer and the subcontractor arises from the obligations arising from the Labor Law, the employment contract or the collective labor agreement to which the subcontractor is a party. As a requirement of this joint and several liability, the subcontractor’s employees may apply separately to the principal employer and the subcontractor, or they may apply to both of them. On the other side, the principal employer is not responsible for the receivables of the subcontractor’s employees that have arisen before the subcontracting did not commence or that arose after the termination of the principal employersubcontractor relationship. The principal employer is held liable only for the receivables that arose during its own period.
If the principal employer pays the labor receivables of the subcontractor’s employees, the right to recourse against the subcontractor for these payments varies depending on whether the principal employer subcontractor relationship is established in collusion or not. If the principal employer subcontractor relationship can be stated to have been established in accordance with the law, the principal employer will have the right to fully recourse the payment made to the subcontractor. If it is determined that a collusive relationship between principal employer subcontractor has been established, the subcontractor will be held liable for the receivables of the subcontractor’s employees together with the principal employer, since the subcontractor’s employees will be considered as the employees of the principal employer from the very beginning.
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FOOTNOTE
1, 4857 sayılı İş Kanunu m. 2, 10.06.2003 tarih, 25134 sayılı Resmî Gazete (RG).
2 Seda Özgül Ekiz, “Türk İş Hukukunda Asıl İşveren-Alt İşveren İlişkisinde Müteselsil Sorumluluk”, Türkiye Adalet Akademisi Dergisi, 13, 52, 2022, p. 237.
3 Ekiz, p. 241.; Aykaç, İş Hukukunda Alt İşveren, İstanbul 2011, p. 57-62.
4 Nuri Çelik/ Nurşen Caniklioğlu/ Talat Canbolat/ Ercüment Özkaraca, İş Hukuku Dersleri, Yenilenmiş 35. Bası, İstanbul 2022, p. 98.
5 Ekiz, p. 241; Aykaç, p. 37.
6 Sarper Süzek, İş Hukuku, 20. Baskı, İstanbul 2020, p. 157-158.
7 Hamdi Moll amahmutoğlu/ Muhittin Astarlı/ Ulaş Baysal, İş Hukuku Ders Kitabı Cilt:1 Bireysel İş Hukuku, Güncellenmiş 6. Baskı, Ankara 2022, p. 45; Çelik/ Caniklioğlu/ Canbolat/ Özkaraca, p. 102.
8 Ekiz, p. 242.
9 Ercan Akyiğit, İş Hukuku, Güncellenmiş 14. Baskı, Ankara 2022, p. 71.
10 Mustafa Halit Korkusuz, “Asıl İşveren ile Alt İşverenin Müteselsil Sorumluluğu”, İstanbul Üniversitesi Hukuk Fakültesi Mecmuası, 72, 2, 2014, p. 215.
11 Korkusuz, p. 215.
12 Ekiz, p. 244; Mollamahmutoğlu/ Astarlı/ Baysal, p. 46.
13 Ekiz, p. 244; Süzek, p. 159;
14 Ekiz, p. 245.
15 Yargıtay 9. H.D., T. 18.10.2023, E. 2023/355, K. 2023/970.
16 Süzek, p. 165; Çelik/ Caniklioğlu/ Canbolat/ Özkaraca, p. 126; Mollamahmutoğlu/ Astarlı/ Baysal, p. 47-48.
17 Korkusuz, p. 227.
18 Korkusuz, p. 226.
19 Korkusuz, p. 227.
20 Korkusuz, p. 227.
21 Korkusuz, p. 227.
22 Ali Güzel/ Ali Rıza Okur/ Nurşen Caniklioğlu, Sosyal Güvenlik Hukuku, Yenilenmiş 18. Bası, İstanbul 2020, p. 203; Süzek, p. 166.
23 Süzek, p. 165.
24 Ekiz, p. 256.
25 Ekiz, p. 256; Süzek, p. 166; Osman Güven Çankaya/ Şahin Çil, İş Hukukunda Üçlü İlişkiler, İstanbul 2009, p. 44.
26 Süzek, p. 166-167.
27 Süzek, p. 165; Mollamahmutoğlu/ Astarlı/ Baysal, p. 49; Çankaya/ Çil, p. 47- 48; Yargıtay 22. H.D., T. 17.06.2019, E. 2017/22904, K. 2019/13208 (karararama.yargitay.gov. tr; Erişim Tarihi: 09.01.2024).
28 Çankaya/ Çil, p. 53.
29 Çankaya/ Çil, p. 53; Çankaya/ Çil, “4857 Sayılı İş Kanunu’na Göre Asıl İşveren Alt İşveren İlişkisi”, Sicil İş Hukuku Dergisi, 3, 2006, p. 71.
30 Ekiz, p. 260.
31 Ekiz, p. 267.
32 Yargıtay 9. H.D., T. 23.12.2015, E. 2015/24940, K. 2015/36619. (karararama.yargitay.gov.tr, Erişim Tarihi: 09.01.2024); Ömer Uğur, Alt İşverenlik İlişkisi ve Kamu İşyerlerindeki Uygulaması, 1. Baskı, İstanbul 2017, p. 60-61.
33 Özkaraca, “İş Güvencesi Sistemine Eleştirel Bakış”, İstanbul Barosu İş ve Sosyal Güvenlik Hukuku Komisyonu Galatasaray Üniversitesi, İş ve Sosyal Güvenlik Hukukuna İlişkin Sorunlar ve Çözüm Önerileri 15.Yıl Toplantıları, 2011, p. 156.
