The contractor and subcontractor relationships is one of the relations encountered in Labor Law and disputed. As a result of the misapproprement of this relationship, most cases are dragged on due to animosity objections. In this article, evaluations will be made in terms of the contractor and subcontractor relationship and these employer responsibilities.
- CONTRACTOR AND SUBCONTRACTOR CONCEPTS
In Turkish Labor Law No. 4857, the concepts of the contractor and subcontractor are not defined. The concepts of the contractor and subcontractor are regulated by the “Sub-Employer Regulation” which came into force with the official newspaper no. 27/09/2008. In the Sub-Employer Regulation;
Conctractor Concept; “Institutions and organizations that give the auxiliary works related to the production of goods or services in the workplace or the work that requires expertise for technological reasons to the other employer in part of the work, and who do not have a real or legal person or legal entity that employs workers in the main job.”
Subcontractor Concept; “Institutions and organizations that take jobs from an employer in auxiliary jobs related to the production of goods or services carried out in the workplace or in jobs that require expertise for technological reasons as required by the business and in part of the actual work, who employ the workers assigned for this job only in the job they take in this workplace, or institutions and organizations that do not have a legal entity.”
- ELEMENTS OF THE RELATIONSHIP BETWEEN THE CONTRACTOR AND THE SUBCONTRACTOR
In order to establish the relationship between the contractor and the subcontractor, a number of conditions and elements must be found together. These elements are mentioned in the Subcontractor Regulation. According to Article 4 of the Subcontractor Regulation, in this relationship;
- There should be two separate employers, the contractor and the subcontractor,
- The contractor has its own workers working in the production of goods and services,
- The nature of the work belonging to the subcontractor; be an auxiliary business in the workplace; If the actual work is divided and transferred to the subcontractor, the main job divided is a job that requires expertise for technological reasons,
- Subcontractor is a job that is dependent on the actual job and continues as long as the actual job continues,
- Subcontractor workers can only be listed as their work in the job they are assigned to.
In addition to these articles, in order to establish the relationship between the principal employer and the sub-employer; the sub-employer is required not to work in the original employer beforehand. Otherwise, many successful processes can be opened. The fact that the worker previously employed in that workplace is a shareholder of the legal entity company or the scolded partnership does not prevent the establishment of a subcontractor relationship.
Section 2 of the Labor Code No. 4857. In the article, only the relationship between the contractor and the subcontractor is regulated. According to this article of law, two states are required for the relationship between the contractor and the subcontractor to occur. These are the ones that are going to The availability of jobs that require expertise in the production of goods or services carried out in a workplace, or as a result of the auxiliary work, and the fact that the persons taken for these jobs will only be employed in this field.
In addition to this situation, it is regulated that if the work to be done requires technological and expertise, some of the actual work can be given to the subcontractor. The Supreme Court on this issue is the 22nd. Law Office 2011/7730 Basis, 2011/2970 Decision, 24.10.2011 Decision; ”.. The plaintiff works in the original work of the defendant. According to Article 2/6 of the Labor Law No. 4857, it is possible to give the work to the sub-employer if it requires technological reasons.”
If the above mentioned elements are found together, it can be said that the relationship between the original employer and the subcontractor is born. However, the concepts of auxiliary work and expertise defined in the main and sub-employer relationship need to be clarified.
- NOBLE BUSINESS AND HELPFUL BUSINESS CONCEPTS
The actual business and Auxiliary business concepts are regulated in the Sub-Employer Regulation. In this regulation, the main job is; The work that forms the basis of the production of goods or services; It is expressed as the work that is related to the production of goods or services carried out in the Auxiliary Workplace, but is not directly included in the production organization, does not have a mandatory element of production, but continues as the actual work continues and is dependent on the actual work. Cleaning, food, etc. in a workplace can be said to be helpful work.
In order for a job to be considered an auxiliary job according to the provision of the regulation; Although it is related to the production of goods and services produced in the workplace, it should not be included in the production organization, the actual work should continue as it continues and the elements of dependence on the actual work are required. In addition to the fact that the auxiliary job is dependent on the actual job; must also be linked to the actual work. The auxiliary business cannot find an asset independent of the actual job. In established Supreme Court Decisions;
”… If the job taken from the original employer has a separate and independent qualification according to the job it employs insured, the person who takes the job is not the sub-employer, but the independent employer. If a job that is not related to production in the workplace and is not a complementary to the actual work is undertaken, there will be no possibility to mention the intermediary in terms of law enforcement no. 506, since there will be two independent employers, the animosity in the service determination case will have to be directed to the independent employer, who is the party of the service contract, not the actual employer. This is not the case in the case at hand.”
Auxiliary work; complementary to the actual work. In a relationship that is not complementary to the actual work and aims to provide workers rather than the performance of the auxiliary work; there is no relationship between the original employer and the sub-employer. It can be said that there is an independent business relationship between the parties in this relationship.
There are some exceptions to the provision that the actual work cannot be transferred, and that the sub-employer must perform the auxiliary work that is complementary to the actual work. As an example of these exceptions, it is regulated that the works listed in Article 67 of the Municipal Law No. 5393 can be made to third parties through tender. In such exceptional cases, the Supreme Court has accepted that business relations do not prevent the establishment of the main and sub-employer relationship.
- RESPONSIBILITY BETWEEN CONTRACTOR AND SUBCONTRACTOR
Article 2 of the Labor Law No. 4857; ”.. The principal employer is responsible to the workers of the sub-employer together with the sub-employer for its obligations arising from this Law, employment contract or collective bargaining agreement to which the sub-employer is a party.” The type of responsibility regulated by this article of law is the individual responsibility with consensus. In case of any damage to the employee working within the scope of the principal and sub-employer relationship; to the original employer or sub-employer. The original employer has the right to reimpass the sub-employer. However, whether or not there is a recourse relationship and to what extent this is the case, each concrete event must be evaluated and determined within itself.
The responsibility of the original employer begins from the date the work is given to the sub-employer. The responsibility for the sub-employer is limited to the time that the sub-employer worker works in that workplace.
The responsibility between the principal employer and the sub-employer is limited to the workplace. In order for the provisions of individual responsibility to be born, sub-employer workers must only be working in the workplace where the actual work is done.
The provisions of the contract that may remove the liability relationship between the sub-employer and the principal employer do not apply. In other words, regulations that the original employer will not be responsible will not have a presence in our legal order. It contains many complicated elements in the relationship between the main employer and the sub-employer. In this context, receiving the help of specialists will not cause any loss of rights to the parties.
