ABSTRACT
In this article, the innovations brought by the Law No. 6325 on Mediation in Civil Disputes (“Law No. 6325”), the Law No. 7036 on Labor Courts (“Law No. 7036”), and the Law No. 4857 on Labor (“Law No. 4857”) regarding compulsory mediation in labor disputes arising from the relationship between primary employer and subcontractor, specifically with regards to labor claims and reinstatement lawsuits, are examined, and evaluations are made on which cases of compulsory mediation require the presence of all parties.
I. INTRODUCTION
One of the most notable innovations introduced by the Law No. 7036, which came into effect in 2017, is that mediation is now considered a condition of litigation in labor disputes. As stated in Article 3 of the Law; “In cases where a lawsuit is filed for a labor claim or compensation based on a law, individual or collective labor agreement, or for reinstatement, it is a condition of litigation that mediation has been applied”1. In fact, mediation, which is one of the alternative dispute resolution methods aimed at reducing the workload of courts and facilitating agreements between parties, has been recognized as a condition of litigation with this regulation. However, it is not entirely clear in which situations the subcontractor and the primary employer will participate together in the mediation process and make a joint decision in disputes involving both parties. Indeed, the Court of Cassation has considered the mediation process as a condition of litigation in its recent decisions and has required the primary employer and the subcontractor to participate together in the mediation process18. However, considering that the purpose of mediation is to reduce the workload of courts, and that this institution is an alternative solution that ultimately depends on the will of the parties, the fact that parties view this process as merely a condition of litigation may create a contradiction with the purpose and nature of mediation. This article evaluates these potential situations and the regulations regarding compulsory mediation in disputes involving primary employers and subcontractors.
II. JOINT AND SEVERAL LIABILITY IN THE RELATIONSHIP BETWEEN PRIMARY EMPLOYER AND SUBCONTRACTOR
Article 2 of Law No. 4857 defines the relationship between primary employer and subcontractor as follows: “The relationship between a primary employer and a subcontractor is established when a subcontractor undertakes to perform auxiliary work or a part of the main work in the workplace, which requires expertise due to technological reasons, and employs workers only for this work in the workplace, and the primary employer assigns this work to the subcontractor”2. However, in order to establish a primary employer-subcontractor relationship, the subcontractor must have an independent management and organization separate from the primary employer3. Therefore, the subcontractor is a separate employer operating in its own name and account, and the purpose of referring to them as “primary” and “sub” is simply to distinguish between the two employers4. However, in order to establish this relationship, the conditions specified in Article 2 of Law No. 4857 must be met. On the other hand, the conditions for subcontracting are listed in detail in the Subcontracting Regulation:
- The existence of a primary employer who is actively working at the workplace,
- A labor or service that is a part of the main job or a supporting job related to the production of goods and services, or a job that requires special expertise, given by the primary employer,
- The work must be done at the workplace owned by the primary employer,
- The person taking on the job must not have worked at that workplace before,
- The subcontractor’s workers must be employed only for the job taken from the primary employer.
If any of the elements listed above are missing, it is not possible to speak of a subcontracting relationship5. As a result, a genuine primary employer-subcontractor relationship can only be established if the conditions specified in the law and regulations are met.
An employer’s responsibility towards their employees arises from the employment contract between them or from the mandatory provisions of the law that governs them. Therefore, the primary employer has various responsibilities and obligations towards their own employees, both contractual and statutory. While there is no contractual relationship between the primary employer and the subcontractor’s employees, the primary employer is jointly responsible with the subcontractor for the obligations arising from the law or contract towards the subcontractor’s employees, pursuant to Article 2 of Law No. 48576.
In one of its decisions, the Court of Cassation emphasized the scope of the joint and several liability between the primary employer and the subcontractor in terms of individual labor law, stating that it includes all labor rights such as severance pay, notice pay, bad faith compensation, compensation for not reinstating the employee after a court decision, overtime pay, wages, weekly holidays, holiday and official holiday pay, annual leave pay, bonuses, premiums, transportation allowances, and meal allowances7. Additionally, the purpose of Article 2 of Law No. 4857 is to ensure that the subcontractor’s employees are protected in the same way as the primary employer’s employees. As a result, due to this liability, the subcontractor’s employee can apply to either the subcontractor or the primary employer, or both, separately or together, for the payment of their claims arising from the debts mentioned above.
III. MEDIATIONIN THE RELATIONSHIP BETWEEN PRIMARY EMPLOYER AND SUBCONTRACTOR
A. Mediation
The concept of mediation refers to a method of resolving disputes through mutual negotiation, where a neutral third party, without the power to make a binding decision, assists the parties in finding a solution to their dispute8. The resolution of disputes is essentially within the jurisdiction of the state, which has the power of judicial authority9. Alternative dispute resolution methods, such as mediation, aim to resolve disputes between parties in a way that is satisfactory to both parties, without undermining the state’s judicial authority10. Therefore, alternative dispute resolution methods, including mediation, are not alternatives to courts, but rather complementary methods that can be used in conjunction with court proceedings11. Furthermore, the fact that mediation is mandatory and considered a condition of litigation does not mean that it replaces the courts, but rather that it is a necessary step before resorting to litigation12.
The parties’ decision to resort to mediation is essentially based on their free will. Indeed, at every stage of the process, they have the right and opportunity to continue the process, reach an agreement, or not reach an agreement. In this sense, the most notable feature of the mediation solution is that the process is based on the principle of voluntariness from start to finish. However, there is an exception to the principle of voluntariness, which is that for certain types of disputes defined by law, the parties must have resorted to mediation and completed the process as a precondition for litigation. In such cases, the mediation method becomes a condition of litigation, rather than being dependent on the parties’ will.
B. Mediation as a Condition of Litigation
Although mediation is essentially based on the principle of voluntariness, it has become a condition of litigation in certain cases due to regulations introduced by law. One of these cases is the disputes arising from claims and reinstatement lawsuits related to the primary employer-subcontractor relationship. According to Article 3 of Law No. 7036; “in cases where a lawsuit is filed for a labor claim or compensation based on a law, individual or collective labor agreement, or for reinstatement, it is a condition of litigation that mediation has been applied”. In short, in all types of claims and reinstatement lawsuits arising from the employment relationship between the employee and the employer, the mandatory mediation method will be a condition of litigation that the parties must face.
As a result, the mediation method, which is inherently voluntary, has become a mandatory condition for the parties to exercise their right to file a lawsuit, and thus has become a requirement for the parties to use their right to file a lawsuit13. Indeed, this mandatory condition is explained in the justification of the law as aiming to alleviate the increasing judicial burden caused by the growing number of lawsuits arising from employment relationships, particularly due to the increasing population14.
Law No. 4857 states that in a situation where there is a primary employer, subcontractor, and employee, the primary employer is jointly responsible with the subcontractor15. There is no dispute that the concept of joint responsibility mentioned in the law represents joint and several liability16. Therefore, in any dispute arising from the employment relationship, the primary employer and the subcontractor will be jointly responsible to the employee.
In cases where mandatory mediation is required by law, it is compulsory for the parties to resort to mediation as a condition of litigation. However, the law does not explicitly state whether all three parties, including the primary employer, subcontractor, and employee, must be present in the mediation process in cases where all three are involved. Although there is an opinion that the primary employer’s participation in the mediation process is not mandatory in cases where all three parties are involved17, the Court of Cassation’s recent decisions suggest that the primary employer and subcontractor’s participation in the mediation process is necessary due to their joint and several liability. If the primary employer or subcontractor does not participate in the mediation process, any agreement reached will only be binding on the party that participated in the process. Similarly, if the employee only applies for mediation against one of the parties, despite the fact that both parties are jointly and severally liable, any agreement reached will only be binding on the party that participated in the mediation process.
According to Article 3 of Law No. 7036, applying for mediation is a condition of litigation for lawsuits arising from employment relationships, including claims and reinstatement lawsuits. If this condition is not met, the lawsuit will be dismissed on procedural grounds. Although the law does not explicitly state that there is a mandatory joinder of parties between the primary employer and subcontractor in such lawsuits, the 22nd Civil Chamber of the Court of Cassation has ruled that the judicial review of the validity of the primary employer-subcontractor relationship or the existence of a sham transaction requires the participation of both parties in the lawsuit and their ability to defend their rights and provide evidence. Therefore, a mandatory joinder of parties between the primary employer and subcontractor should be accepted19. Consequently, if no agreement is reached in the mediation process, the employee must apply for mediation against both the subcontractor and the primary employer in order to meet the condition of litigation20.
At this point, it should be noted that there is a special regulation regarding reinstatement lawsuits. Indeed, Article 3, paragraph 15 of Law No. 7036 states that in cases where there is a primary employer and subcontractor, both parties must participate in the mediation process and reach an agreement in disputes related to reinstatement. In fact, the Court of Cassation has ruled in a decision that; “The judicial review of the validity of the primary employer-subcontractor relationship or the existence of a sham transaction, which must be done ex officio pursuant to Article 2 of Law No. 4857, requires the participation of both parties, namely the primary employer and subcontractor, in the lawsuit and their ability to defend their rights and provide evidence. A contrary approach would be in violation of the right to a fair trial under Article 6 of the European Convention on Human Rights and the right to be heard under Article 27 of Law No. 6100”21. Therefore, in disputes related to reinstatement where there is a primary employer-subcontractor relationship, a kind of mandatory joinder of parties is accepted. Consequently, in order for the mediation process, which is a condition of litigation, to take place, both the primary employer and subcontractor must participate in the mediation process as mandatory co-parties in disputes related to reinstatement.
In conclusion, in labor law disputes that fall within the scope of mandatory mediation, including claims and reinstatement lawsuits, it is mandatory for both the primary employer and subcontractor to participate in the mediation process. Specifically, in reinstatement lawsuits, since the validity of the relationship between the primary employer and subcontractor or the existence of a sham transaction is examined, the plaintiff employee must apply for mediation against both employers22. If this is not done, the lawsuit will be dismissed on procedural grounds due to the lack of a condition of litigation.
C. Mediation as an Alternative Dispute Resolution Method
The prerequisite for the mediation method, which is considered one of the primary alternative dispute resolution methods, is that the parties freely and voluntarily request the mediation process without any external pressure or coercion. Indeed, according to Article 3 of Law No. 6325, the parties to a dispute are completely free to choose to apply for mediation, continue the process, conclude the process with a positive or negative outcome, or abandon the mediation process at any stage23. Considering this regulation and the purpose of mediation, it is clear that this method is based on the parties’ free will. As a result, due to the parties’ free will, no one can be forced to participate in the mediation process, and anyone can withdraw from the mediation method at any stage. However, regarding the mediation arrangement as a condition of litigation, the justification of Law No. 7036 states that disputes between employees and employers occupy an important place in both the judicial agenda and working life, and that these disputes constitute a significant portion of the cases in the courts, particularly in the 9th Civil Chamber of the Court of Cassation24.
Although the justification explains that the mandatory mediation practice was introduced as a condition of litigation to reduce the workload of the courts and to resolve disputes before they reach the court, it contradicts the Law on Mediation in Civil Disputes, which emphasizes the voluntary nature of mediation, by considering the participation of all parties, including the primary employer and subcontractor, as a condition of litigation in cases where they are both involved, as mentioned in the previous section.
Although, as explained above, there is a view that in cases of mandatory mediation, the primary employer and subcontractor must participate together due to mandatory joinder of parties, some doctrinal views argue that in such cases, it is not a matter of mandatory joinder of parties, but rather voluntary joinder of parties. Based on the joint and several liability regulated in the Turkish Code of Obligations No. 6098, which allows the creditor to direct their claim to either one or all of the debtors with joint and several liability, it is argued that it is not reasonable to require the employee to notify the other employer and to include them in the lawsuit as a mandatory party, as this would impose an undue burden on the employee and would not be in line with the procedural rules that apply to the relationship between the primary employer and subcontractor25. Additionally, since the essence of the mediation method is to provide an alternative dispute resolution mechanism that is based on the parties’ free will, interfering with the parties’ free will and agreement would be contrary to the purpose and nature of mediation. If the parties reach an agreement through their free will, it would be inconsistent with the principles of mediation to intervene in this agreement.
However, it should be reiterated that in such cases, mediation would be a private law contract that the parties have agreed to through their free will, rather than a condition of litigation. Otherwise, expecting the subcontractor and primary employer to be involved in every mandatory mediation case could create practical problems. For example, in cases where reinstatement is at issue, considering that the employee’s primary claim is directed at the subcontractor, it may be possible to resolve the issue of reinstatement through mediation, but the primary employer’s negative approach during the mediation process could prevent a resolution from being reached through mediation26.
Therefore, when viewed from this perspective, it can be said that the regulation is inconsistent with the purpose of introducing mandatory mediation as a condition of litigation, and that it does not help to reduce the workload of the courts as it should. Furthermore, it can be argued that the regulation is not appropriate because it prevents a possible agreement between the subcontractor and the employee, which could have been reached through mediation27.
IV. CONCLUSION
Although there is no provision in the current legislation regarding whether all parties must participate in mediation negotiations in cases of disputes involving the primary employer, subcontractor, and employee, including mandatory mediation cases, the prevailing view in the doctrine and the light of judicial decisions suggest that all parties must participate in mediation negotiations to fulfill the condition of mediation as a condition of litigation in labor law disputes related to claims and reinstatement. However, since the essence of mediation, which is one of the alternative dispute resolution methods, is based on the parties’ free will, it seems unfair that the primary employer or subcontractor, who may not have an effect on the resolution of the dispute, should have a say in the conclusion of the mediation negotiations, especially in cases where mediation is not a condition of litigation and the parties reach an agreement. Therefore, it is not necessary for the primary employer and subcontractor to participate together in mediation and conclude the process in order to reach an agreement. However, the provision in Article 3, paragraph 15 of Law No. 7036, which states that; “in cases where there is a primary employer-subcontractor relationship, when an employee applies for mediation for reinstatement, the employers must participate together in the mediation negotiations and their intentions must be in agreement in order for an agreement to be reached,” contradicts both the purpose of mediation, which is to reduce the workload of the courts, and the principle of allowing parties to make free choices through their own will. Indeed, in cases related to reinstatement, considering that the employee’s request for reinstatement is directed at the subcontractor, any possible negative attitude shown by the primary employer regarding the agreement may prevent the dispute from being resolved through mediation. From this perspective, it can be clearly stated that the legal regulation is not suitable and does not align with the purpose of mandatory mediation, and that it does not help to reduce the workload of the courts. The provision should be revised in a way that does not hinder the realization of the parties’ intentions and helps to achieve the purpose of mediation by preventing potential disputes.
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FOOTNOTE
1 Labor Courts Law No. 7036, 25.10.2017 Dated, no 30221 Resmi Gazete.
2 Labor Law No. 4857, 10.06.2003 Dated, no 25134 Resmi Gazete.
3 Gülsevil Alpagut, İş İlişkisinin Kurulması, Hükümleri ve İşin Düzenlenmesi Açısından Yargıtay’ın 2014 Yılı Kararlarının Değerlendirilmesi, 2014, Ankara, p. 20.
4 Hamdi Moll amahmutoğlu/ Muhittin Astarlı/ Ulaş Baysal, İş Hukuku, 2022, Ankara, p. 45.
5 Alt İşverenlik Yönetmeliği, 27.09.2008 Tarih, 27010 sayılı Resmi Gazete.
6 Labor Law No. 4857, article.2/7 10.06.2003 Dated, no 25134 Resmi Gazete.
7 Yargıtay 9. H.D., T. 21.07.2008, E. 2008/23429, K. 2008/20721.
8 Ömer Ekmekçi/ Muhammet Özekes/ Murat Atalı/ Vural Seven, Hukuk Uyuşmazlıklarında Arabuluculuk, 2th Edition, 2019, İstanbul, p. 18.
9 Ertuğrul Yuvalı, Asıl İşveren ve Alt İşveren İlişkisinde Zorunlu Arabuluculuk, Dergipark, V. 11, I. 2, Aralık 2021, p. 365
10 Felix Steffek, “Principled Regulation of Dispute Resolution: Taxonomy, Policy, Topics”, Regulating Dispute Resolution ADR and Access to Justice at the Crossroads, 2013, Oregon, p. 56.
11 AYM Kararı, T.10.07.2013, E.2012/94, K.2013/89.
12 Yargıtay 9. H.D., T.13.10.2021, E.2021/9540, K.2021/14240.
13 Code of Civil Procedure No. 6100, article 24, 04.02.2011 Dated, no 27836 Resmi Gazete.
14 Draft Law on Labor Courts and Justice Committee Report, Serial Number: 491.
15 Labor Law No. 4857, 10.06.2003 Dated, no 25134 Resmi Gazete.
16 Yargıtay 9. H.D., T. 13.10.2021, E.2021/9540, K.2021/14240.
17 Ekmekçi/ Özekes/ Atalı/ Seven, Hukuk Uyuşmazlıklarında Arabuluculuk, 2th Edition, 2019, İstanbul, p. 238.
18 Yuvalı, p. 367.
19 Yargıtay 22. H.D. T. 22.11.2017, E. 2017/43598, K. 2017/26455; Yargıtay 22. H.D., T. 14.03.2018, E. 2018/1906, K. 2018/6718; Yargıtay 22. H.D., T. 18.01.2018, E. 2017/45379, K. 2018/845.
20 Yuvalı, p. 367.
21 Yargıtay 9. H.D., T. 13.10.2021, E.2021/9540, K.2021/14240.
22 Yargıtay 9. H.D., T. 13.10.2021, E.2021/9540, K.2021/14240.
23 Law No. 6325 on Mediation in Civil Disputes, 22.06.2012 Dated, no 28331 Resmi Gazete.
24 Draft Law on Labor Courts and Justice Committee Report, Serial Number: 491.
25 Yalçın Bostancı/ Süleyman Serhat Kırtıloğlu, İşçinin Asıl İşverene Karşı Dava Açması Durumunda Davanın Alt İşverene Teşmil Edilme Zorunluluğu, Erciyes Üniversitesi Hukuk Fakültesi Dergisi, V.8, I.2 2013, p. 860.
26 Talat Canbolat, İş Yargısında Dava Şartı Olarak Arabuluculuk, İstanbul, 2018, p. 102.
27 Yuvalı, p. 371
