In Which Conditions the Collusion will be Applied to Relation Between Employer and Sub-Contractor? 5 September 2016
I. INTRODUCTION
Because of the increasing numbers of disputes arising from the collusion in subcontracting relations, it is regulated under Labor Code numbered 4857 (‘Code’) by also considering the Supreme Court decisions.
II.COLLUSION IN SUB-CONTRACTING RELATIONS
Collusion is actually regulated in Turkish Code of Obligations and it can be defined as a contract-in-appearance which does not reflect the real wills of the parties and does not result in any unwanted effect between parties. Accordingly, collusion aims to defraud third parties and the main purpose of the contract is hidden by the parties. In practice, there are reasons such as keeping the payments of workers low, avoiding obligations related to social insurances, preventing workers from using their rights of labor union or collective labor agreement; to have collisional relation in sub-contracting. Situations which are considered as collusion, is regulated both in the Code and in the Regulation.
Sub-Contracting Relations with collusion is defined in Article 2/7 of the Code numbered 4857 as; “The rights of the principal employer’s employees shall not be restricted by way of their engagement by the subcontractor, and no principal employer – subcontractor relationship may be established between an employer and his ex- employee. Otherwise, based on the notion that the principal employer- subcontractor relationship was fraught with a simulated act, the employees of the subcontractor shall be treated as employees of the principal employer. The main activity shall not be divided and assigned to subcontractors, except for operational and work- related requirements or in jobs requiring expertise for technological reasons”. In line with this provision, cases which are considered as collusion are listed below;
a. Restriction of rights of Primary Employers’ Employees through being employed by Sub-Contractor: In that case, according to the Code and the Regulation, not only getting the primary employer’s employees worked by the subcontractor but also the limitation of employees’ worker rights are also required to consider it as collusion. For example, if a bank assigns the security services to a sub-contractor, it can ne demanded that its previous security guard shall be employed with the same wage since they know the customers and the other people. It is obvious that the purpose of the bank is neither reducing the costs nor restricting the right of the worker, hence there is no collusive subcontractor relationship. In this respect, it is important to consider the status and circumstances of the concrete case. Thus, in its decision numbered E. 2006/11741 K. 2006/14066, T. 15.05.2016, 9th Civil Chamber of the Supreme Court emphasizes the necessity of giving decision by considering the features of concrete case, as follow; “It should be noted that, the behavior of the subcontractor is not collusive since its staff predominantly is composed of its own employees with few workers of primary employer. In this case, limitation of worker rights of that few workers of primary employer, does not affect the result. Therefore, the collusion should be evaluated after determining how many workers are subcontractor’s and how many workers are primary employer’s”. Consequently, there shall be no collusion in case the subcontractor uses the workers of primary employers as long as the worker rights are not limited.
Besides, it is important to note that, in accordance with Article 12/2(e) of the Regulation, there is no limitation to assign employees, who are employed by the primary employer, for supervising and coordinating the task which is undertaken by the subcontractor. Relatedly, in the decision numbered E. 2009/47847 K. 2009/37770, T. 28.12.2009, 9th Civil Chamber of the Supreme Court states that “although having such regulations indicating that it shall be acted in accordance with the Administration’s knowledge and wish, in the matters of employing or changing an employee, changing place of duties, determining annual leave periods, etc; it shall be considered natural as a result of the joint liability of primary employer against the wages of the employees and due to the the supervision authorization of the primary employer”.
b. Establishing a subcontracting relationship with persons who were employed previously:
With this provision in the Code and the Regulation, it is aimed to prevent from employing the workers, who were previous workers of primary employer, with low wages and under bad working conditions by establishing a subcontracting relationship with that employees. Nevertheless, it should not be ignored that this is a legal presumption as the contrary can be proved by the employer. An assessment should be made by considering the features of the concrete case and the purpose of the provision. Yet it is not collusion for a company in case of having a subcontractor relationship with a company which is established by its previous employee.
c. The general case of collusion: The cases that may be considered as collusion in sub-contractor relation, are not only limited with the abovementioned situations; collusion may generally be claimed in any subcontractor relation as the employee has the burden of proof. For instance, in case primary employer uses all of his authorization within the frame of right to manage (for example; if the primary employer determines the wages and the working conditions, if the primary employer has the power of employing or dismissal, etc), it may be claimed that there is collusion in subcontract relation. The important factor is that the subcontractor has a certain organization, expertise and legal independence, in the undertaken task. (9th Civil Chamber of the Supreme Court, 23.02.2009, E. 2008/12808, K. 2009/3210) However, as mentioned above, the fact that having the supervision power of primary employer, is not an obstacle to establish subcontract relation.
In accordance with the Code, Regulation Article 3/1-g consider a subcontract relation as collusive if subcontractor restricts the rights of the employees of primary employer by employing or if a subcontractor relation is established with a person, who were previously working in that workplace. Assigning a task which does not require expertise regarding the production of goods and services to the sub-contractor and any arrangement which aims to avoid public liabities or to restrict the rights of the employees arising from legislation, labor agreement and collective labor agreement; are considered as collusive by the same Article of the Regulation.
CONCLUSION:
In our opinion, it is not appropriate to consider assigning a task which does not require expertise to the subcontractor as collusive in the Regulation, although it is regulated, in the Code, that assigning a task which requires expertise to subcontractor is a condition to establish a subcontractor relationship.
Despite the fact that, illicit subcontracting relationship and collusive subcontracting relationship have the same legal sanction, contradictions between the Code and the Regulation cause uncertainty in practice, therefore, consistency between the Code and the Regulation on this issue should be ensured.
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