What Are the Inspection, Sancations and Consequences of the Collusion in Relation Between Primary Employer and Subcontractor? 7 September 2016
I. THE INSPECTION OF THE COLLUSION BY ADMINISTRATION
In accordance with the Labor Code Article 3/2, subcontractor is supposed to notice with written subcontractor agreement taken from main employer and required documents to Regional Directorate. Documents belonging to that work place which is recorded by Regional Directorate in case of need shall be examined by labor inspector. In the inspection of the collusion matters shall be considered have been settled under the Article 12 of the Regulation and so the matters which should be considered are as follows:
- Whether the work given to subcontractor is auxiliary task of main work regarding producing of goods and services conducted by main employer or not,
- Whether the work given to subcontractor is related to operation and work or is required expertise with the reasons of technological requirements ,
- Whether subcontractor has been employed previously in work place of main employer or not,
- Whether subcontractor has enough qualified equipment for job and experience or not,
- Whether qualities of employees being employed comply with job,
- Whether employees of main employer is being employed apart from employees of main employer assigned to coordination and controlling at the work given to subcontractor,
- Whether the subcontractor agreement being made is aiming to escape the obligations foreseen by the Labor Law,
- Whether the subcontractor agreement has been made to limit or cancel employees’ individual or collective rights originated from labor contract, collective labor agreement or the Act, those matters shall be considered.
In case of determination of the collusion, the inspector report related to the collusion shall be notified to employers. From the date of notification, employers can object to the competent labor court against the report within thirty business days. The case upon the objection shall be concluded within four months by simple trial procedure. In the event of appeal of the court’s decision, Supreme Court shall resolve the definitive judgement within six months. In accordance with the previous regulations, the court’s decisions upon the objections were definitive judgement however the right of objection against inspector’s report is expanded and can be appealed. If the report does not object within thirty business day or the collusion is approved by the court, the registration shall be cancelled and employees of the subcontractor shall be considered as employees of the primary employer from the beginning.
II. SANCTION AND CONSEQUENCES OF COLLUSIVE SUBCONTRACTOR RELATION
In Article 2, Paragraph 7 of the Labor Act, legal sanction for the establishment of the collusive subcontractor relation is regulated. According to the provision, employees of the subcontractor shall be treated as employees of the principal employer from the outset. Hereby, the employees who are the object of collusive subcontractor relation and accepted as employees of the primary employer from the beginning shall request their rights arising from code, labour contract and collective labour agreement (if the party is a member of labour union) from the primary employer.
In addition to assume that employees are employed by primary employer as of the beginning, in accordance with Code Article 98/1 and Regulations Article 13/3, in cases of period lapse of the objection, opposing the inspector report, to labour court or court deciding on the approval of collusion, administrative fine shall be imposed to primary employer, subcontractor or their proxies.
Despite the abovementioned provision, in case the conditions determined by Law Article 2/6 are not fulfilled, the sanction and consequences are not regulated by Law. Thus, the Supreme Court decided that the sanction, regulated in Law Article, 2/7 shall be implemented in case the aforementioned situations arise. In fact, the following statement took part in the 9. Civil Department’s resolution dated 13.10.2008 and numbered 32916/26551: ‘The subcontract implementation shall not be valid if it does not include the components determined in the Labour Law numbered 4857 Article 2 and the employee of the subcontractor shall be considered as the employee of the primary employer from the beginning.’. Therefore, the employees of the subcontractor shall be considered as the employees of the primary employer in case subcontract relation does not fulfill the conditions determined by law.
III. CONCLUSION
As explained above, although the enforcement and boundaries of subcontract relation with collusion have been determined by the Law and Regulations, the contradictions in implementation still exist. As a result, due to the fact that subcontract relation is an essential factor for commercial activities, the uncertainties in the regulations, opinions and implementations must be eliminated.
Türkçe Versiyonu İçin
