The Joint Responsibility of Primary Employer and Subcontractor 1 September 2016
According to Article 2/7 of Labor Code “In this relationship primary employer is responsible to employees together with subcontractor for the all obligations related to workplace which is generating from this Law, Labor Contract or Collective Labor Contract that subcontractor is a side of.” Law maker handles the subcontracting relationship considering the employee’s benefit and aims to protect the employees by holding primary employer liable as well, in case the employees do not get wage or other rights from the subcontractor which is fiscally smaller scaled.
The phrase ‘together responsibility’ is intended to be meant joint liability, which means that the primary employer and the subcontractor are equally responsible for the whole obligation. Accordingly, an employee who is employed by the subcontractor, can claim his damages from either subcontractor or primary employer, so he may request his due directly from primary employer, as well. Primary employer’s right of resource to subcontractor is reserved in case he makes payment to the employee.
Primary employer’s joint liability is limited with the duration that sub-employer’s employee works in his workplace. In other words, it can be said that primary employer’s responsibility emerges as of the date when the subcontractor’s employee starts working in primary employer’s workplace. In the preamble of the related article, the scope of the responsibility is stated as follow; “This responsibility is limited with that workplace and with the duration that subcontractor’s employee is working for that business, and it includes all obligation that are generating from Labor Law, Labor Contract and Collective Labor Contract that subcontractor is a side of.” Regarding the scope of primary employer’s responsibility in terms of duration, 9th Civil Chamber of the Supreme Court states in the decision numbered E. 2001/19790 K. 2001/3151 that “…Nurol A.Ş.’s (primary employer) responsibility… begins on the date when the job is given to Mensoy A.Ş. (subcontractor). Since there is no connection between two companies previously, it is not possible to hold this company responsible for all term of service. Therefore, this decision shall be reversed”.
Another limitation regarding joint liability arising from primary employer – subcontractor relationship, is related to the workplace. In order to hold responsible, subcontractor’s employees must be employed for the workplace where the task is given. In other words, in order to mention joint liability, subcontractor’s employees should exclusively work in the primary employer’s workplace. For example, if a driver, who is an employee of a subcontractor, also works as a driver in other factories different from the primary employer’s factory, primary employer’s responsibility will be expired. Accordingly, 9th Civil Chamber of the Supreme Court states in the decision numbered E. 2010/48561, K. 2013/7445, T. 04.03.2013 that “defendant R.. Ltd. Şti. provides transportation service to more than one company, P.. is one of those companies, in the present case the condition of working exclusively in the transportation tasks of P.. is not fulfilled; therefore, the misjudgment which states that there is a joint liability by considering subcontractor relationship between companies, shall be reversed since it is not possible to be held responsible as the primary employer, regarding the Article 2 of the Labor Code numbered 4857.
Besides, any arrangement which is made by the primary employer and the subcontractor regarding abolishing or changing the joint liability, shall not be valid. In other words, it cannot be accepted on that the primary employer shall not be held responsible. For example, if subcontractor and the primary employer determine in an agreement that any responsibility belongs to subcontractor, such a provision shall not bind the employees. The mentioned provision of the Code is related to public order, therefore it cannot be changed.
Türkçe Versiyonu İçin
http://www.kasaroglu.av.tr/tr/28553/Asil-Isveren-ve-Alt-Isveren-Birlikte-Sorumlulugu
