In this article, the concept of subcontracted worker, which is widely used among the public, will be discussed from a legal perspective, and first of all, it will be emphasized which legal relationship this concept is used to express. Then, the legal consequences of this legal relationship will be discussed.

Although it is essential in labor law that the employer conducts the work with its own employees in the workplace, this is not an absolute regulation. It is also possible for the employer to carry out the business through various employment relationships regulated in the Labor Law. In labor law, one of these is the subcontracting institution, which provides the employer with the opportunity to employ workers of another employer for jobs that require expertise.

The relationship established between an employer and another employer who employs an employer in auxiliary work related to the production of goods or services carried out in the workplace or in a part of the main work, in jobs that require expertise for technological reasons due to the requirements of the business and the job, and employs the workers assigned for this job only in the job they have taken in this workplace. It is called the principal employer-subcontractor relationship. In this relationship, the main employer is responsible, together with the sub-employer, for the obligations of the sub-employer towards the workers of that workplace arising from the Labor Law, employment contract or collective labor agreement to which the sub-employer is a party.

There are a number of mandatory elements in order to be able to talk about a subcontractor and hold the main employer responsible for the debts of the intermediary.[1]

a) There must be a main employer who employs workers in the workplace. Since those who do not employ insured people cannot gain the title of “employer”, those who employ people in this situation will not be considered as intermediaries and solidarity liability will not arise within the scope of the mentioned article.

b) Another employer must take on work and employ insured people in a job related to the production of goods or services carried out in the workplace, or in parts or extensions of a job.

c) It is required that the employer has acquired the title of employer as a result of the job undertaken and the employment of insured people for that job. The employer title that this person has acquired due to the insured people he employs in some other workplaces has no effect on the result.

d) The work taken from the employer should not be of a nature that can be considered as a separate and independent workplace compared to the work for which the employer employs insured people, otherwise the person taking the job will be considered an independent employer, not an intermediary.

e) When the entire work is left to another employer, when the work is given on a turnkey basis, or if the employer divides the work and gives it to different people by tender without employing an insured person, there will be no sub-employer relationship since the owner (contracting authority) will not be the main employer in the sense defined by the Law.

f) The work undertaken by the subcontractor must be within the scope of a part of the work or auxiliary works in the sections and extensions of the employer’s main work. If the work received from the main employer has a separate and independent nature compared to the work for which the main employer employs the insured, the person receiving the work will be considered an independent employer, not a sub-employer. The decisive aspect at this point is; Whether the work done is an integral or auxiliary part of the other. If a job is undertaken that is not related to the production in the workplace and is not complementary to the main work, there will be no possibility of talking about a subcontractor and there will be two independent employers. (The decision of the General Assembly of the Supreme Court of Appeals dated 24.05.1995 and numbered 1995/9-273-548 is in the same direction.)

The primary employer is jointly and severally liable with the subcontractor for all obligations arising from the beginning of the legally established primary employer-subcontractor relationship.

Joint debt is where more than one debtor is responsible for the entire debt to the creditor, the creditor can request full or partial performance from each debtor, the responsibilities of the debtors continue until the performance is fully fulfilled, each debtor is obliged to perform the entire debt regardless of their share in the internal relationship, in case one of the debtors pays the debt. It is a debt relationship in which others are relieved of their debt to the creditor, the debt is not secondary but primary in terms of each debtor, and there is more than one debtor and debtor to the creditor.[2] In other words, joint liability means that the sub-employer’s employee can apply to the main employer or sub-employer for all receivables arising from the beginning of the main employer-sub-employer relationship in question. Therefore, the worker of the sub-employer can apply to the sub-employer or the main employer for all receivables that arose during the main employer-sub-employer relationship.

The 7th Civil Chamber of the Supreme Court of Appeals Determined the Scope of Claims That Can Be Asserted Against the Principal Employer in its Merits No. 2015/22012 and Decision No. 2015/12543;

In accordance with the last sentence 2/6 of the Labor Law No. 4857, the main employer is responsible, together with the sub-employer, for the obligations arising from this Law, the employment contract or the collective labor agreement to which the sub-employer is a party, regarding that workplace, towards the workers of the sub-employer. The Labor Law No. 4857 and the regulation that holds the main employer responsible for the obligations arising from this Law, the employment contract and the collective labor agreement to which the sub-employer is a party should be considered as an expansion of the responsibility of the main employer. In this case; notice pay, severance pay, bad faith compensation, compensation for not starting work as a result of reinstatement, and all labor rights such as wages, overtime pay, week holidays, holidays and public holidays, annual leave, bonuses, premiums, food allowance, and road assistance. Joint responsibility is essential. The term “joint liability” used by the law should be understood as full solidarity, and therefore joint and several liability.

In another decision of the Supreme Court, after determining that the subcontractor worker who suffered a work accident or occupational disease or his heirs in case of death could apply to the main employer or subcontractor, it was decided that the responsibility for material and moral compensation due to work accident or occupational disease belongs to the subcontractor in the contract between the main employer and the subcontractor. It has established a provision that it will not be binding on workers or heirs who are not parties. The Decision of the 21st Civil Chamber of the Supreme Court of Appeals, Merits No. 2015/19164, and Decision No. 2016/12034, is as follows;

The joint liability of the main employer and the subcontractor is “joint liability”. Although the main employer does not have a direct service contract, in accordance with the 6th paragraph of Article 2 of the Labor Law, the main employer is jointly and severally liable with the sub-employer for the material and moral damage that the sub-employer’s workers may suffer due to work accidents or occupational diseases. For this reason, the employee of the sub-employer who suffers from an occupational disease or work accident, or in case of death, their heirs, can file a compensation lawsuit against the main employer and the sub-employer, who are jointly liable, or only against the main employer or the sub-employer.

On the other hand, it is decided that the responsibility for material and moral compensation due to work accident or occupational disease belongs to the sub-employer, through the contract made between the main employer and the sub-employer; It does not bind the employee or heirs who are not parties to this contract.

The task to be done consists of making a decision considering that there is a principal employer and subcontractor relationship between the defendants and that the principal employer is jointly and severally liable with the other defendant for the compensations awarded.

As a result, the main employer and the subcontractor are jointly liable for all receivables belonging to the subcontractor worker arising from the moment the main employer-subcontractor relationship is established. Even if the main employer and the subcontractor have made a provision in the contract stating that only the subcontractor will be responsible for the receivables of the subcontracted worker, this contract does not bind the subcontracted worker and his heirs. Therefore, in such a case, subcontracted workers or their heirs can apply to the main employer and/or subcontractor.

REFERENCE

Supreme Court of Appeals 21st Civil Chamber Merits No. 2016/18206 and Decision No. 2017/2762

Supreme Court of Appeals 10th Civil Chamber Merits No. 2015/19630 and Decision No. 2017/7601

Supreme Court of Appeals 7th Civil Chamber Merits No. 2015/22012 Merits and Decision No. 2015/12543

Supreme Court of Appeals 21st Civil Chamber Merits No. 2015/19164 and Decision No. 2016/12034

Labor Law and Related Legislation

[1] Supreme Court of Appeals, 21st Civil Chamber, Merits No. 2016/18206 and Decision No. 2017/2762

[2] Supreme Court of Appeals, 10th Civil Chamber, Merits No. 2015/19630 and Decision No. 2017/7601