Temporary Employment Relationships and Subcontracting: Employee Rights and Legal Aspects

Temporary employment and subcontracting are frequently used methods in the modern business world to provide flexibility and manage labor costs. However, these business models also bring with them various legal problems regarding the protection of employee rights, job security, and employer responsibilities. This article will examine in detail the legal framework of temporary employment and subcontracting, the problems encountered in practice, and the rights of employees in these forms of employment.

1. What is a temporary employment relationship?

• Definition of Temporary Employment Relationship: A temporary employment relationship occurs when an employer temporarily transfers an employee to another employer's workplace for a specific period. In this model, the employee maintains their employment relationship with their original employer while temporarily being under the control of another employer.
• Legal Basis: In Turkey, temporary employment relationships are regulated under Article 7 of the Labor Law No. 4857. According to the law, temporary employment relationships can only be established for specific situations and for specific periods. For example, temporary employment relationships can be established during periods of increased production, when employees are on maternity leave, or when they are going to military service.

2. Subcontracting and Sub-employer Relationships:

• What is subcontracting? Subcontracting is when an employer (main employer) delegates a portion of its main or auxiliary work to another employer (subcontractor) to perform that work. The subcontractor carries out the work by employing workers, and these workers are listed on the subcontractor's payroll.
• Legal Framework: Article 2 of the Labor Law No. 4857 contains regulations on subcontracting. According to this law, a subcontracting relationship can only be established for auxiliary tasks within the main work. Dividing the main work and transferring it to a subcontractor is prohibited, and such practices are considered fraudulent; the subcontractor's employees are considered the main employer's employees.

3. Responsibilities of the Parties in a Temporary Employment Relationship:

• Responsibilities of the Primary Employer: The primary employer is responsible for protecting the social rights of the employee during the temporary employment relationship and for situations such as workplace accidents. Furthermore, when the temporary employment relationship ends, the primary employer must provide the employee with a similar position in their own workplace.
• Responsibilities of the Temporary Employer: The temporary employer is obligated to comply with occupational health and safety regulations for the duration of the employee's temporary employment. The temporary employer is also responsible for improving the employee's working conditions and the execution of the work.
• Employee Rights: Even if an employee temporarily works at another workplace, their employment contract with their original employer remains in effect. In this case, the employee can claim their wages, severance pay, and other entitlements from their original employer.

4. Legal Issues Encountered in Subcontracting:

• Collusion (Fraudulent Employment) Problem: A common problem is the establishment of a subcontracting relationship through collusion, meaning that a genuine subcontracting relationship does not exist, but the structure is used to employ workers at a lower cost. If collusion is detected, the workers are considered employees of the main employer and can claim all their rights from the main employer.
• Non-Payment of Wages and Compensation: Subcontractors may sometimes fail to pay workers their full wages or avoid paying severance and notice pay. In these cases, the main employer may also be held liable for these amounts.
• Occupational Health and Safety Violations: Failure to fully comply with occupational health and safety regulations in workplaces employing subcontracted workers can lead to serious problems. In the event of workplace accidents, both the main employer and the subcontractor may be held jointly responsible.

5. The Impact of Temporary Employment Relationships and Subcontracting on Employee Rights:

• Job Security Issue: Temporary employment relationships and subcontracting can negatively impact workers' job security. Workers constantly employed by different employers can increase the risk of dismissal and reduce long-term job security.
• Protection of Social Rights: Protecting the social rights of temporary and subcontracted workers is crucial. For example, it is necessary to ensure that the social security contributions of a temporary worker are paid and that their retirement rights are protected. Similarly, subcontracted workers have the right to unemployment insurance and social benefits.
• Union Rights: Temporary employment relationships and subcontracting can make it difficult for workers to exercise their union rights. In particular, the rights of subcontracted workers to join a union and benefit from collective bargaining agreements may be limited due to the different policies of the subcontractor.

6. Supreme Court Decisions and Key Issues in Practice:

• Collusion Rulings: The Supreme Court rules that in cases where collusion is detected, employees should be considered employees of the main employer. In this case, employees can claim all their rights from the main employer.
• Occupational Health and Safety Cases: The Supreme Court holds both the main employer and the subcontractor responsible in cases of workplace accidents and occupational diseases. The employer's compliance with occupational health and safety obligations is crucial in such cases.
• Compensation Rights in Case of Termination: When a temporary employment relationship ends and the employee is not rehired for a similar position at their original workplace, the employee is entitled to severance pay and other entitlements.

7. Temporary Employment Relationships and Subcontracting: Proposed Solutions

• Strengthening Oversight Mechanisms: Stricter oversight of temporary employment relationships and subcontracting processes can help prevent collusion and fraudulent employer practices.
• Employee Information: Information campaigns should be conducted to ensure employees are aware of their rights and can pursue legal avenues in cases of rights violations.
• Special Arrangements for Temporary and Subcontracted Workers: Legal regulations should be enacted to provide stronger protection for social security rights and increase job security for temporary and subcontracted workers.

Conclusion:

Temporary employment and subcontracting, while advantageous in terms of providing flexibility in the labor market, are areas that require careful management to protect employee rights. Employers and subcontractors implementing these models while respecting the social and economic rights of employees will contribute to preventing legal problems and maintaining industrial peace. Therefore, regular monitoring of temporary employment and subcontracting within the framework of labor law, and clarification of the parties' obligations, are of great importance.