What Are The Effects Of Covid-19 In Terms Of Subcontractor And Primary Employer? 28 April 2020

With the new type of coronavirus outbreak affecting the whole world, some measures have been taken by employers to reduce the effects of the Covid-19 outbreak on commercial life. One of the issues to be taken into consideration within the scope of these measures is to determine how to take measures for the new type of coronavirus outbreak in workplaces where the primary employer-subcontractor relationship exists. It is important to determine the limits of the primary employer-subcontractor relationship in terms of both taking necessary measures to prevent the epidemic in the workplace and the issues such as salary payment during outbreak, using annual leave, and suspending workplace activities.

How to Determine the Existence of Primary Employer-Subcontractor Relationship?

Article 2/6 of the Labor Law No. 4857 defines the existence of the relationship between the primary employer and the subcontractor as “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 primary employer and who engages employees recruited for this purpose exclusively in the establishment of the primary employer.”

Accordingly, in order to determine a primary employer-subcontractor relationship, the following elements must coexist:

• The existence of the primary employer employing employees in the workplace,
• Performing the work in the workplace of the primary employer,
• Work to be related to the production of goods and services carried out in the workplace,
• Work to be required expertise for technological reasons due to the operation and the work,

Is The Primary Employer Responsible Together With And The Subcontractor Due To The New Type Of Coronavirus?

Within the scope of the measures taken against the new type of coronavirus, some difficulties experienced in commercial life and the measures that employers can take against these difficulties have been evaluated in our previous articles. However, in the workplaces where the primary employer-subcontractor relationship is determined, the primary employer is obliged to ensure that the subcontractor also fulfills the relevant obligations as required.

Article 2 of the Labor Law regulates that the principal employer is responsible for the employees of the subcontractor, together with the subcontractor, the obligations arising from the Labor law, the labor contract or the collective labor agreement to which the subcontractor is a party. Accordingly, in a dispute between the subcontractor and the employee, the employee can directly claim the compensation for the damage suffered from the primary employer.

At this point, the principal employer should ensure that not only the employees registered in their payroll but also the employees of the subcontractor are not subjected to unlawful practice regarding the decisions to be made under the coronavirus epidemic. For example, the Labor Law does not entitle employers the right to terminate the employment contract or to give unpaid leave to the employees with a unilateral decision, due to the coronavirus. Since both cases will result in unjust termination of the employment contract, the employee will be entitled to claim compensation. In this case, the primary employer will be responsible to the employer of the subcontractor due to the unjust termination of the subcontractor, and the employee can claim his damages either from the primary employer or the subcontractor. Likewise, since the matters such as working from home, working in shifts will be determined according to the nature of the work carried out in the workplace, it will be appropriate for the primary employer and the subcontractor to operate the decision mechanisms together.

On the other hand, under Turkish law, it is not possible to make arrangements that eliminate the joint liability of the primary employer and subcontractor. Accordingly, even if there is an agreement in this direction, the right of the employee to make a request from the primary employer will continue. However, as well as the supervision of the measures taken by the subcontractor against Covid-19, it is also important to review of the contractual provisions concluded between the primary employer and the subcontractor to prevent a possible loss due to new type of coronavirus outbreak.

Consequently, when evaluating the labor law related measures due to the new type of coronavirus, the primary employer-subcontractor relationship should be taken into consideration and should not be ignored in evaluating both the work carried out in the workplace and the measures to be taken.