Article 2/6 of Labor Law No. 4857 defines the primary employer-subcontractor relationship as the relationship established between one employer and another employer who hires employees for auxiliary work related to the production of goods or services at the workplace, or for work requiring expertise due to the nature of the business and technological reasons, and who assigns these employees to work solely at the workplace.
It should be noted that there is no contractual relationship between the primary employer and the subcontractor’s employees. Despite this, the Law holds the primary employer responsible for the unpaid labor receivables of the subcontractor’s employees. The second sentence of Article 2/6 of Law No. 4857 states that in this relationship, the primary employer is jointly liable with the subcontractor for the subcontractor’s obligations to its employees arising from this Law, the employment contract, or any collective bargaining agreement to which the subcontractor is a party, with respect to that workplace. The regulation is included here. The term “joint liability” refers to joint liability between the principal employer and the subcontractor. Joint liability refers to multiple parties being held liable to a creditor as the principal debtor for the entirety of the debt arising from the same legal cause. According to joint liability provisions, the joint debtor who compensates for the damage has the right to recourse against the other debtors for the portion exceeding their share.
Furthermore, although the subject of recourse lawsuits between the principal employer and the subcontractor are employee receivables, they are not considered lawsuits arising from labor law. Because these lawsuits are considered lawsuits filed under general provisions, not labor litigation, the Court of Cassation recognizes the civil courts of first instance as having jurisdiction and overturns decisions of lack of jurisdiction issued by the civil courts of first instance.
Court of Cassation, 23rd Civil Chamber, Merits No: 2013/5327, Decision No: 2013/6546;
“…Although the plaintiff’s primary employer paid compensation to the non-suit employee due to its liability based on the aforementioned article, the plaintiff’s liability for this compensation is a liability to the employees under the aforementioned article. The aforementioned regulation, which does not include the mutual liability between the subcontractor and the primary employer, cannot be applied to the case in question. In this case, the court held that the dispute should be resolved in accordance with the provisions of the “Agreement on the Processing, Transportation, and Distribution of Shipments Except for the Postal Monopoly” dated March 3, 2007, and that the Civil Court of First Instance has jurisdiction. Considering that the merits of the dispute should have been examined and a decision should have been rendered based on its findings, the dismissal of the case on procedural grounds was not correct.”[2]
The basis for the recourse lawsuit is a claim from the subcontractor for the amount paid by the primary employer to the subcontractor’s employee. In this case, the employee, whose employer has not paid their labor receivables, has sought to collect their receivables from the primary employer. Under the principle of joint liability, it is not possible for the primary employer to first claim collection from the subcontractor, a party to the employment relationship, for their receivables. Therefore, the primary employer will claim from the subcontractor, a party to the employer-employee relationship, for labor receivables they are obligated to pay, arising from a relationship to which they are not a party. The primary employer may have partially paid the labor receivables. In this case, the primary employer may claim recourse for the portion of the payment made. The Court of Cassation accepts that the upper limit for the recourse claim must not exceed the amount determined in the decision on labor receivables and paid by the primary employer.
Court of Cassation, 13th Civil Chamber, Merits No: 2014/3375, Decision No: 2014/22018;
“In the specific dispute, it is understood that some service contracts and their annexes signed between the defendants and the plaintiff contain provisions stipulating that the contractor will be responsible for labor rights such as severance pay. In cases where such provisions are included, it must be accepted that the defendant contractor is liable for the entire amount paid. The expert report on which the court based its decision did not sufficiently examine whether the contracts contained provisions stipulating that the defendant contractors would be responsible for all of the labor rights in question. It is also understood that the defendant company, the last employer who terminated the employment contract of the non-suitor employee, was responsible for the entirety of the notice compensation that forms the basis of the plaintiff’s recourse claim. Furthermore, while it should be accepted that the plaintiff can recourse based on the calculation to be made in file number 2009/567 of the Ankara 7th Labor Court regarding other receivables subject to the plaintiff’s recourse claim, which will not exceed the amounts collected from the plaintiff in each item of receivable, the calculation made in the expert report on which the decision is based states that the severance pay, It has been observed that this rule was not followed in the calculation of overtime, national holiday, and general holiday pay. Taking into account the matters explained above, the court established a new expert panel. This panel should have rendered a decision in accordance with the contracts between the parties, the Ankara 7th Labor Court’s file number 2009/567, the expert report on which the decision was based, and the expert report prepared in accordance with the entire file, in accordance with the court, the parties, and the Supreme Court of Appeals’ oversight. However, rendering a judgment based on an incomplete written review is contrary to procedure and law and requires reversal.”[3]
In cases where the employee continues to work at the workplace without interruption, but the workplace is transferred between subcontractors, and the subcontractors change hands, each subcontractor is deemed to be liable for the period and duration during which the employee was employed by the subcontractor. The Court of Cassation has held that the last subcontractor is legally liable to the employee for all labor receivables, and that it is not possible to use this liability arising from labor law as the basis for a recourse lawsuit and to claim the entire receivable from the last subcontractor.
Court of Cassation, 13th Civil Chamber, Merits No: 2015/39170, Decision No: 2018/2369;
“…In the present case, the court ruled that the defendant shall recourse to the defendant for all severance pay, annual leave, overtime, and national holiday pay due to the defendant’s employment of the non-suit worker as the last subcontractor. However, the defendant’s status as the last subcontractor makes it liable for all labor receivables against the non-suit worker only in accordance with the Labor Law. It is unlawful for the primary employer to demand collection of all receivables from the last subcontractor based on this obligation imposed by the Labor Law on the last subcontractor to the worker. The defendant company shall be limitedly liable for the portion of the amount arising from the labor rights paid by the plaintiff, which covers the period during which the non-suit worker was employed. This worker also worked for other subcontractors besides the defendant, and the defendant was not his only subcontractor. Therefore, even if the non-suit worker’s employment period was less than one year, the defendant shall be liable for severance pay and annual leave pay proportionate to the period during which he employed the worker. “While a decision should be made in accordance with the result of the investigation to be carried out, taking into account that if there is holiday work, the wages for these should also be collected from this subcontractor, making a decision based on an incomplete written investigation is against procedure and law and requires reversal.”[4]
[1] In this study, the following academic article was used: Subaşi, İ., & Altınay, Z. Ü. (2025). Yargıtay Kararları Çerçevesinde Asıl İşverenin Alt İşverene Rücu Sorunu. Ankara Hacı Bayram Veli Üniversitesi Hukuk Fakültesi Dergisi, 29(3), 915-952.
[2] Court of Cassation, 23rd Civil Chamber, Merits No: 2013/5327, Decision No: 2013/6546.
[3] Court of Cassation, 13th Civil Chamber, Merits No: 2014/3375, Decision No: 2014/22018.
[4] Court of Cassation, 13th Civil Chamber, Merits No: 2015/39170, Decision No: 2018/2369.