Temporary (Secondment) Employment Relationship in Labor Law and Responsibilities of Employers
Today, the developing economy and diversifying forms of investment or employment bring about new needs. The organization of workplaces under one roof but under different legal entities reveals the existence of new institutions in terms of labor law. ''Temporary (Secondment) Labor Relationship'' is one of these institutions.
Temporary (Secondment) employment relationship is a new type of contract regulated under Article 7 of the Labor Law No. 4857. This relationship is defined as the employment relationship established by the employer (lender) placing the performance of work of an employee at the disposal of another employer (borrower) for a certain and temporary period of time, provided that the consent of the employee is obtained. From another perspective, a temporary employment relationship is a situation in which employers provide the labor force they need for the production of goods and services in their workplaces by procuring workers from an employment agency for a certain or indefinite period of time, which is a situation that is frequently encountered in practice.
A temporary employment relationship is a tripartite legal relationship. This is because the worker works in the service of another employer with whom there is no employment contract and performs his/her employment obligation at the workplace of the borrowing employer. This also shows the existence of a unique relationship between the worker and the borrowing employer.
In the doctrine, the temporary employment relationship is divided into two types: "real - professional temporary employment relationship" and "non-real - non-occupational temporary employment relationship". The main difference between these types is whether the worker is hired by the principal employer to establish a temporary employment relationship as a rule or whether the employer establishes a temporary relationship exceptionally with the worker whom the employer employs permanently. In a non-real - non-occupational secondment relationship, the employer lends the employee temporarily and for a certain period of time in order to employ the employee in its own business, whereas in a real - occupational secondment relationship, the employer employs the employee to lend the employee to other employers. Both types of indentured labor relations will be examined in detail below.
A) Unreal - Unprofessional Secondment Relationship
In this employment relationship, there are "lending employer", "borrowing employer" and "worker". The worker is an employee of the lending employer and there is an indefinite-term employment contract (employment relationship) between them. However, the employer lends its own employee to the service of another employer when they have no work to do or for assistance. A temporary temporary employment relationship is formed between the loaning employer and the worker, and when this period ends, the worker continues to work for his/her own employer. Here, the employer who lends his employee does not lend his employee to other employers on a permanent basis. However, when necessary, it may do so with the consent of the worker.
In this respect, Unreal - Unprofessional Secondment Labor Relationships are mostly established without any profit motive of the employer, for purposes such as the need of another company within the holding company or the temporary assignment of workers to another company that needs workers instead of dismissing the surplus workers in its own company.
The conditions for the establishment of a valid "Non-Professional Secondment Labor Relationship" are as follows:
1- A Valid Employment Contract: In order to establish a valid temporary employment relationship, there must first be an existing and valid employment contract between a person who has the title of employee and another person who has the title of employer. If there is no employment contract or if this contract is not validly established, the existence of rights and obligations arising from the contract and the transfer of the employee's performance of work cannot be mentioned. In the presence of a valid employment contract and if the other elements are also complied with, the existence of a valid temporary employment relationship can be mentioned.
2- Written Consent of the Worker: The written consent of the employee is required. This written consent must be obtained at the time of the transfer, because the consent given by the employee before the transfer is not valid. For this reason, a general consent to assignment during the drafting of the main employment contract is invalid and unlawful. In order for a temporary employment relationship to be established as a representative or proxy secondment relationship, the legal representative or proxy of the worker must be separately and explicitly authorized in this regard. The consent of the worker may be included in the text of the contract regulating the secondment relationship, so that the worker is a party to the transfer agreement; it facilitates the proof of the existence of his/her consent. However, it is also possible that the consent of the employee is included in a separate document and a separate agreement between the employers regarding the transfer is issued.
3- Condition of Being Written: The agreement providing for the secondment relationship must be drawn up in writing.
4- Duration and Renewability: A valid temporary employment contract may be concluded for a maximum of six months and may be renewed at most twice. It is not legally possible to extend this period. Therefore, even if these periods are extended by the employer, this does not bind the employee. However, if the loaned worker continues to work for the borrowing employer at the end of the contract, which is agreed in the contract or at the end of the contract, which is maximum 18 months, the worker should be considered as the employee of the borrower as of the end of the aforementioned period.
The decision of the 9th Civil Chamber of the Court of Cassation numbered 2009/28350 E. 2011/ 48342 K. reads as follows: "At the end of the period stipulated in the law, the employee must continue to work at the workplace of the lending employer. If the worker continues to work for the borrowing employer at the end of the period, it should be accepted that the transfer of the service contract between the parties has taken place." is a proof of this fact. If the deadlines are met, the employer of the worker does not change and the worker remains the employee of the lender.
5- Place of Employment: The nature of the work in which the worker will be employed within the scope of the unprofessional temporary employment relationship is of utmost importance. If the worker will be temporarily assigned to another workplace within the holding or to another workplace affiliated to the same group of companies, in this case, no similarity is sought between the work he is doing and the work he will do temporarily. In other words, the worker can be employed in any branch/position. However, when the temporary employment relationship is established with a completely different employer outside the same holding or group of companies, it is required that the employee is employed in a job similar to the job he/she was previously doing in the workplace to which he/she is transferred.
B) Real - Professional Secondment Relationship
In this type of employment relationship, there is a "lending employer", "borrowing employers" and "worker". The lender in an occupational secondment relationship is a private employment agency pursuant to Article 7/11 of the Labor Law. Private Employment Agencies were introduced to our law with Article 7 of the Labor Law No. 4857 with the Law Amending the Labor Law and the Law on Turkish Employment Agency dated 06.05.2015. The private employment agency has legal personality, is the employer of the worker and has an indefinite-term employment contract (employment relationship) with the worker. It can be seen that the employee essentially signs the employment contract with the private employment agency.
Pursuant to Article 7/11 of the Labor Law, a "secondment labor agreement" is concluded between the private employment agency and the borrowing employer. Thus, the employer permanently lends its employees to other employers within the framework of their skills subject to the employment contract. A fixed-term employment contract is concluded between the borrowing employer and the worker. At the end of this period, the worker returns to his/her own employer to be given to another employer. In this respect, we can say that the worker is always a loaned worker. In an occupational secondment relationship, the terms of the employment contract are determined by the private employment agency, but the worker is under the orders and instructions of the borrowing employer for a certain period of time.
In this respect, an occupational secondment relationship is established not for the purpose of producing goods or services, but for the purpose of lending its employees, who are bound to it by an employment contract, to other employers in return for a certain service fee.
Below, we will examine the elements that must be complied with in order to establish a valid occupational secondment relationship;
1- A Valid Employment Contract: In order to establish a valid secondment employment relationship, there must first be an existing and valid employment contract between a person who is a worker and the Employment Agency.
In this employment contract with the temporary worker, it is necessary to specify the period of time within which the worker may terminate his/her employment contract for just cause if he/she is not called to work. However, this period cannot exceed three months. If the worker is not called to work for more than the period specified in the Employment Contract (provided that it does not exceed 3 months), he/she may terminate the contract for just cause.
2- Condition of Being Written: The Loaned Labor Contract must be concluded in writing.
3- Situations where a Temporary Labor Relationship can be Established: Article 5 of the Regulation on Private Employment Agencies regulates the conditions under which a temporary employment relationship may be established. A temporary employment relationship through a private employment agency may be established in the following cases
a) In cases specified in the fifth paragraph of Article 13 and Article 74 of the Law No. 4857,
b) In case of military service of the employee and in other cases where the employment contract is suspended,
c) In seasonal agricultural work
d) In domestic services,
e) In the works that are not considered as daily works of the enterprise and are performed intermittently,
f) In urgent work in terms of occupational health and safety or in case of emergence of compelling reasons that significantly affect production,
g) In the event that the average production capacity of goods and services of the enterprise increases to an extent and in an unpredictable manner that requires the establishment of a temporary labor relationship, in the case of periodic job increases, except for seasonal jobs.
4- Duration and Renewability: According to the Law, the periods for establishing a temporary employment relationship are determined and the periods determined are as follows;
a) It can be established during pregnancy, partial employment of parents, fulfillment of military service and other situations where the employment relationship is suspended until the end of these situations.
b) It can be established in seasonal agricultural work and domestic service and there is no time limit for these.
c) The contract may be renewed at most twice for a maximum of 4 months and not exceeding 8 months in total in works that are not considered as daily works of the enterprise and are performed intermittently.
d) In case of emergency works and compelling reasons in terms of occupational safety, the contract may be renewed for a maximum period of 4 months and a maximum of two times, not exceeding 8 months in total.
e) In case of an unforeseen increase in the business volume of the enterprise, it can be established for a maximum period of 4 months (to be renewed twice, not exceeding 8 months).
5- Number of Temporary Workers that can be employed: The number of workers employed through a temporary employment relationship cannot exceed one quarter of the number of workers employed in the workplace, but temporary employment relationships can be established for up to five workers in workplaces employing ten or fewer workers.
6- Unenforceable Provision: Provisions that prevent the temporary worker from receiving services from the organization or another private employment agency or from working at the workplace of the employer or another employer after performing the work cannot be included in the Secondment Labor Contract.
The professionalized secondment relationship has significant positive effects on employment. Some of the positive effects include the inclusion of people who are young and inexperienced and therefore have not yet been able to work as permanent employees, and enabling flexible working patterns. In addition, it enables employers to meet the demand for labor and production in accordance with the competitive environment, changing conditions and emerging needs.
At the same time, workers can continue to benefit from the training and childcare services of the private employment agency during periods when they are not working. Thus, the agency ensures that temporary workers can participate in vocational training activities for their professional development and employability.
Responsibility of Employers
A) Responsibility of Employers in Non-real - Unprofessional Secondment Relationships
The joint and several liability of the temporary employer is accepted in temporary employment relationships that are not for professional purposes. Unlike the temporary employment relationship for professional purposes, this regulation constitutes an important guarantee for the employee. Within the scope of this guarantee; the employer with whom a temporary employment relationship is established is jointly and severally liable with the transferring employer for the employee's unpaid wages, the obligation to protect and supervise the employee and social insurance premiums. Since joint liability is envisaged between the employers in this employment relationship, both employers will be responsible for the administrative fines regulated under Article 26 of the Occupational Health and Safety Law.
It should also be noted that if the borrowing employer uses his/her authority to give instructions within the limits of his/her management right and the situation of the employee is not aggravated, termination due to a fundamental change will not come to the agenda. In this respect, the temporary employer must exercise its management right in good faith and in accordance with the prohibition of abuse of right. In the decision of the 9th Civil Chamber of the Court of Cassation numbered 2004/27850 E., 2005/18819 K.; if it is difficult to commute to work according to the new address; the employer must provide the employee with appropriate travel expenses. Otherwise, even if there is freedom of transfer in the service contract, the 9th Civil Chamber of the Court of Cassation accepted that the working conditions of the employee are aggravated and there is an adverse change in an essential element of the contract.
B) Responsibility of Employers in Real - Professional Secondment Relationships
Unlike the temporary employment relationship that is not for professional purposes, the temporary employer is not jointly and severally liable with the private employment agency for the unpaid wages and SSI premiums during the period of employment. The private employment agency, which is the main employer, pays the wages of the worker. However, the private employment agency is still responsible for the obligation to supervise the worker and for social security premiums, limited to the duration of the contract.
However, in the temporary employment relationship established in the event that the average capacity of the enterprise to produce goods and services increases unpredictably and to the extent that requires the establishment of a temporary employment relationship, the temporary employer is obliged to check whether the wages of the employee who works in the workplace for more than one month are paid every month during the working period. In this regard, the Private Employment Agency is also obliged to notify the temporary employer on a monthly basis of the documents showing that the wages of the worker have been paid. If there are unpaid wages, until these wages are paid, the temporary employer deposits the wages of the temporary workers up to a maximum of three months directly into the bank account of the workers, provided that they are deducted from the receivables of the private employment agency. The temporary worker cannot receive wages from the temporary employer other than this exception. The workers whose wages are not paid and the unpaid wage amounts shall be notified to the provincial directorate or service center by the employer employing temporary workers within fifteen days from the day of payment.
Other rights and obligations of the employer employing temporary workers are as follows;
a) Has the authority to give instructions to his/her temporary worker in accordance with the requirements of the work and the temporary employment contract.
b) Notify the temporary worker of job vacancies in the workplace and keep the documents requested by the Agency within the period specified in Article 25/4 of the Regulation on Private Employment Agencies.
c) The temporary worker is obliged to notify the private employment agency and the relevant authorities of work accidents and occupational diseases.
ç) Treat temporary workers equally with other workers in the workplace in terms of social services during their employment period.
d) Notify the workplace union representative, if any, about the employment status of temporary workers in the workplace.
e) Take the necessary measures in terms of occupational health and safety and provide trainings on this subject.
Introduced by Labor Law No. 4857, the temporary employment relationship is an institution that provides flexibility to the employer in the organization of work, as well as preventing the termination of employment contracts of workers during periods of economic crisis. In Turkey and all over the world, the scope of activity of private employment agencies constitutes the most common type of temporary employment relationship.