Types and Elements of Labor Turnover and Differences Among Them 4 June 2015
It is of the essence for any employer that the labor turnover, which is one of the most important issues in the business life, must be made in accordance with the respective legal regulations in order to remove any risk that may arise as a result of such transfers. In that respect, the legal means that provide labor turnover in the Turkish Law, the elements of transfer, their differences and the legal regulations applicable to such transfer must be understood by the employers very well and all legislations regarding this issue while determining the possible risks must be taken into account.
The transfer of employee or personnel can be defined as a transaction for the transfer of employees working at a facility along with all employee personal rights (acquired through the transferor firm and thus coming from the past) to another firm. In practice, there are three types of labor turnover, namely “Employee Transfer”, “Employment Agreement Transfer” and “Workplace Transfer”.
A. How Does Employee Transfer Take Place?
Employee Transfer is different from Employment Agreement Transfer and Workplace Transfer in that it takes place between two workplaces of the same employer. In other words, Employee Transfer means that the employee is transferred between two companies in the same group of companies or holding.
There are Supreme Court judgments in which it is stated that any provision of employment agreement entitling the employer to the right to employee transfer are valid and if the employee does not act in accordance with such provision, then the same can be dismissed by the employer by way of termination of the contract for good cause (Supreme Court, 9th Circuit, 21.09.2014, 2003/21979 E. 2004/19484 K.). On the other hand, although the Supreme Court considers an employment agreement provision envisaging the employer’s right to transfer employee as valid, the employer must not abuse his said right.
Another thing that the employer must take into account regarding the employee transfer is the consent of the employee for the employee transfer. The Supreme Court has many judgments in which it is stated that the consent of the employee for a valid employee transfer is necessary. In fact, the Supreme Court held that “even if there is a temporary employment relation, written consent of the employee is required. In the employment agreement transfer, such consent must already be taken at the time of transfer. This requirement cannot be removed by granting powers to transfer another group company in the employment agreement. The claimant has not given any consent to such application of the company resulting in employment contract transfer” (Supreme Court, 9th Circuit, 01.03.2000, 2000/2221 E. 2000/2417 K.). Therefore, as is held by the Supreme Court in many judgments of the same, the consent of the employee must be taken before the employee transfer takes place.
The Supreme Court has also set another requirement for a valid employee transfer that the same states that the question whether the working conditions of the employee have been changed or not must be examined. According to this, if the employee transfer does not create any negative changes in the working condition of the said employee (for instance, the distance to the work has not changed extremely or his salary has not been reduced), then the requirement for the employee’s consent is not envisaged and the employee is not granted with the right to terminate the employment agreement in such a case.
Within the scope of abovementioned Supreme Court judgment, it is of the essence that there is a provision in the employment agreements entitling the employer to transfer the employee. However, in such a case, it is important to evaluate such transfer is to be made on a temporary or permanent basis. The Supreme Court states that “it is envisaged in Article 7 of the Labor Code No.4857 that a temporary employment relationship is established when, in order to have work performed similar to what the employee was doing, the employer transfers the employee, upon obtaining his written consent at the time of transfer, to another establishment within the structure of the same holding company or the same group of companies, or to another employer. In that respect, the transfer of the employee from one company to another all of which are within the same holding or group of companies can only happen if the employee gives his consent to this at the time of the transfer. The declaration of will which seeks the permanent recruitment of the employee at a workplace belonging to another employer should be considered as an attempt for the transfer of employment agreement. It is not possible to create such triple relation without taking the consent of the employee either in temporary employment relation or in the transfer of employment agreement” (Supreme Court, 9th Circuit, 26.12.2006, 2006/30168 E. 2006/34624 K.). It is compulsory for the employer to have already taken the consent of employee, if the same is permanently transferred to another workplace of the employer and this should be considered as a material change in the employment conditions.
B. How Does Employment Agreement Transfer Take Place?
The Supreme Court defines employment agreement transfer as a triple relation which is established among the transferor employer, transferee employer and employee at the time of the transfer and which envisages the employee’s rendering services to the transferee employer and which does not fall under the temporary employment relation (Supreme Court 9th Circuit, 16.06.2008, 2007/41042 E. ve 2008/15622 K.)
There are not any provisions in the Labor Code No.4857 regarding the transfer of employment agreement. The fact that there are not any provisions in the said code does not necessarily mean that a synallagmatic employment agreement cannot be transferred. In fact, in the event that there are not any applicable provisions in the Labor Code, the general provisions of the law shall apply, and this issue has been taken into account in Article 429 of the Turkish Code of Obligations (“TCO”) as is follows:
“The employment agreement may be assigned permanently to another employer only upon obtaining written consent of the employee. Upon the procedure of assignment, the assignee becomes the employer part of the employment agreement including all rights and obligations. In such a case, for worker’s rights depending on length of service the date of starting work at the assigning employer is taken as basis.”
As could be understood from the abovementioned provisions, there are conditions to be fulfilled for the transfer of employment agreement. These conditions are;
- Existence of an employment agreement,
- Employee’s consent for the transfer of employment agreement, and
- Transferee employer’s being a party to the employment agreement by way of assuming all the rights and obligations of the transferor employer.
It should also be noted that the most important condition for a valid agreement transfer is the written consent of employee as per Article 429 of the TCO. In other words, the employee is not obliged to accept the transfer of employment agreement.
C. How Does Workplace Transfer Take Place?
The conditions regarding the “Workplace Transfer” as per Article 6 of the Labor Code No.4857 and the Supreme Court judgments could be listed as follows:
1. Change of the Employer: Similar to the employment agreement transfer, the employer changes as a result of the workplace transfer.
2. Transfer of Economic Unity: The characteristics of the work place or part of the same in terms of economic unity must be preserved as a result of the workplace transfer. With regard to this issue, the Supreme Court has held that the workplace transfer means the transfer of the business or workplace or part of the work place, which has an economic unity, by protecting its own identity (Supreme Court 9th Circuit, 06.04.2009, 2009/13501 E. and 2009/9655 K.). Therefore, the important thing of the economic unity transfer by protecting the identity is the conservation of the functional bond among the production factors that have been transferred and the transferee continues the same type of economic activity through the same way.
3. Workplace: The workplace of the employee should not change and should become the same in physical terms by way of contrary interpretation of the conditions for transfer of agreement.
4. Continuance of the activities of the workplace or some part of it exactly the same by the employees transferred in terms of the properties and sustainability of the work: The transfer of the employees, who are working at the same unit or for the same project, wholly to another employer can be considered as workplace transfer or transfer of some part of the same. The important thing that should be taken into account is the issue whether or not the activities of the workplace or part of it can be performed exactly as same as it was prior to such transfer in terms of the properties and sustainability of the work[1].
The features differentiating workplace transfer from other employee transfers could be stated as follows:
1. The intentions of the transferor and transferee employers must correspond to each other and it must be possible to actualize the workplace transfer without the necessity for another additional transactions and the consent of the employee.
2. The transferor and transferee employers must be jointly liable for the payment of the employee’s rights that have accrued prior to the transfer and must have been paid at the date of transfer but such liability must be limited with 2 years.
Given our abovementioned explanations, the employee transfers can take place through different means pursuant to the Turkish Law and the type of such transfer can only be determined as per the circumstances of each case. The reason is that each transaction seeking the said transfer results in different legal consequences and becomes subject to different elements in terms of the necessity for obtaining the employee’s consent or the scope and period of the liability of the transferor and transferee employers.
[1] Assitant Professor Doctor İştar CENGİZ, p.168
Türkçe Versiyonu İçin
http://www.kasaroglu.av.tr/tr/28025/Isci-Devir-Turleri-Unsurlari-ve-Aralarindaki-Farklar
