What is the Relationship Between Subcontractor and Primary Employer? 29 August 2016
Article 2, Paragraph 7 of the Labor Law No: 4857 regulates the conditions required to establish the subcontractor relation by defining the same. According to the Article 2: “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 technological expertise 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.”
The requirements needed to constitute the subcontractor relation are stated in Article 2/7 of the Labor Act and Article 4 of Subcontractor Regulation. The specified conditions can be listed as follows:
- The presence of the main employer who employs employees at workplace: Main employer should preserve the title of employer by employing their own employees. In other words, in order to have a subcontractor relationship, the main employer should not transfer the whole work to another employer. Besides, the main employer should employ his own employees who are working in a different section of the work than the section which is transferred to the subcontractor. Therefore, in case of turn-key projects or a work which is transferred to another employer by tender, there shall be no subcontractor relationship since the main employer does not have his own employee. Accordingly, in the decision No: 2010/21-739 E, 2011/5 K, 02.02.2011 T of the Supreme Court Assembly of Civil Chambers, it is stated that “… in case the employer transfers the work by tender through dividing the work to different persons, there shall not be a subcontractor relationship since the jobholder (contracting authority) shall not be the main employer in the meaning of the definition made by law.”
- Work to be performed at main employer’s workplace: the work to be carried out by the subcontractor should be done at the workplace of the main employer. However, this condition should not be strictly interpreted. The work may not be performed at main employer’s workplace even though subcontractor had undertaken certain section of the work, in that cases the subcontractor relation is deemed to be established. For example, a subcontractor relation is deemed to be established between the main employer and the company which undertakes the shipping of the manufactured goods although the shipping company does not perform its work at main employer’s workplace. In this respect, the parts belonged to the workplace (where there are union of management and production), accessory (cafeteria, rest room, bathroom etc.) and vehicles (constructions equipment etc.) are included in the scope of the workplace.
- Work to be concerning the production of goods and services conducted at workplace: In order to establish the subcontractor relation, the work given to the subcontractor should concern the productions of goods and services carried out at the workplace of the main employer or should be dependent to main work, which would continue as long as the main work is performed. In this respect, it is indicated that the work which is undertaken by the subcontractor, should be a part or ancillary of the main work concerning the productions of goods and services. This situation is stated in the law’s preamble that “it is not possible to consider an employer which undertakes a work different than main or ancillary works carried out at the workplace; for example, constructing an extra building or repairing a building, as subcontractor.” In this respect, explanations regarding the main tasks and auxiliary tasks shall be given below;
Main Tasks: According to Article 3/1-c of the Regulation, main task is the work which forms the basis of the production of goods and services. The main work may be assigned to the subcontractor by being divided; however, is not given in full. The condition which imposed in order to give the section of the main work to the subcontractor is presence of the work which is undertaken by the subcontractor, requires expertise due to the operational and technological needs. Explanations regarding this condition are listed below.
Since condition of continuation is legally not required, a subcontractor relation could also be established at a certain section of the work which would finish in a given time, but not very soon. For example, a subcontractor relationship could be established with an employer which undertakes the assemble work of weaving loom at a textile factory. Accordingly, in the decision No: 2001/9-711 E, 2001/820 K, 14.11.2001 T of the Supreme Court Assembly of Civil Chambers, it is stated that “works which could be undertaken by the subcontracts, could be temporary or on an ongoing basis”.
Auxiliary Tasks: Pursuant to Article 3/1-ğ of Subcontractor Regulation, auxiliary task is the work which concerns the production of goods and services which are carried out at the workplace, is not an essential element of the production, continues as long as the main work is being executed and is bound up with the main task. Works which are not directly in the manufacture organization such as cleaning, catering, security are some of the auxiliary tasks. Nevertheless, the scope of the main employer’s activity should be considered regarding the determination of the auxiliary tasks and the main tasks, yet cleaning work for textile factory would be considered as auxiliary task, however, it is considered as main task for municipalities (2007/6094 E, 2007/10224 K, 10.04.2007 T, 9th Chamber of the Supreme Court). Auxiliary tasks may be given to the subcontractor without any restriction.
- Work to be related to operation and work or to be required expertise with the reasons of technological requirements: According to Article 2/6 of the Code, in order to establish a subcontractor relation, tasks which is work related, requires operational or technological expertise, can be assigned. However, it is criticized that the criterion of work related task or operational requirement is abstract. Operational or work related reasons mean that the task is needed to be assigned to a subcontractor due to economical, technological or organizational reasons. In this case, the primary employer who is not in financial difficulties, or who does not need new technology or reorganization; cannot employ worker with lower salary and worse working conditions. Therefore, this condition prevents having subcontractor relations which are established for reducing the costs.
On the other side, it is also discussed that whether expression of “or” is understood as “or” or “and”. According to the view which suggests that the condition should be evaluated as a whole, a subcontractor relation could be established in case the task is work related and the task requires technological expertise. In this direction, expression of “or” should be understood as “and” and both condition should exist together. According to the view which suggests that the condition cannot be divided, establishment reason of the subcontractor relation could be based on operational or work related reasons, or the reason of technological expertise. In this direction, the expression of “or” should be understood as “or”.
Supreme Court has also different opinions on this issue. In some of its decisions, it is accepted that having one of the criteria is enough to have a reason to establish a subcontractor relation, however, in some of its decisions, it is stated that both criteria should be exist. Considering the recent decisions of Supreme Court, in a decision no: 2008/12851 E & 2008/8003 K, 10.04.2008 T of 9th Chamber of the Supreme Court, it is emphasized that “The rule established in Article 2 of the Labor Act No: 4857 is that the main task shall not be divided and assigned to the subcontractor. However, when the section of the main work is related operational and work requirements or is required expertise for technological reasons, it is possible to give it to subcontractor.” On the other hand, the same Chamber, in the decision no: 15362/11408, 05.05.2008 T stated that “…the dominant element is the task which requires technological expertise. In other words, the criterion of operational and work related reasons can only be considered in case of having the reason of technological expertise”.
According to the recent decisions of Supreme Court, both criteria should exist. Supreme Court states in its many decisions that; “the criteria of “operational and work related requirement” and “for the reason of technological expertise” should exist together in order to give the certain section of the work to the subcontractor. Expressing “operational and work related requirement or technological expertise” in Article 2/6-7 of the Code, shows that those criteria should be considered. In parallel with the Code, according to the Article 11 of the Subcontractor Regulation, it is stated that the criteria of “operational and work related requirement” and “for the reason of technological expertise” should exist together”. (See for the decisions made similar comments 9th CC. T.05.05.2008 E.2008/15362 K.2008/11408; 9th CC. T.06.05.2010 E.2010/10901 K.2010/12451)
From our standpoint, looking for the conditions all together by literal interpretation poses an obstacle in terms of execution of the commercial activities since it complicates the establishment of the subcontractor relation. This strict interpretation affects national economy negatively by deprive industrial and service sector of possible positive contribution may be made by the subcontractor institution. Considering the purpose of the Act, it is obvious that main aim is not to restrict the subcontractor relation, is to prevent the restriction of the rights of the worker by collusive subcontractor relation. Therefore, it should not make the establishment of subcontractor relation difficult by literal interpretation and it should be accepted that the subcontractor relationship could be establish in case of having one of the criteria.
- The workers to be employed only at main employer’s workplace: The subcontractor should allocate its own workers assigned to the work undertaken and should be employed them only at the workplace. For example, there shall be no subcontractor relation if the employees of a company which undertakes the work of roofing of a workplace, are worked at the task of assembling of an elevator in the same workplace or worked in a different workplace.
Türkçe Versiyonu İçin
http://www.kasaroglu.av.tr/tr/28534/Asil-Isveren-Alt-Isveren-Iliskisi-Nedir
