18 Ekim 2024
Main Employer's Responsibilities Towards the Sub-Employer Arising from the Labor Law
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In Türkiye's employment relations, the Main Employer - Sub-Employer practice is explicitly regulated under Labor Law No. 4857. Article 2/6 of the Labor Law defines this relationship as a situation where an employer assigns auxiliary tasks related to the production of goods or services at the workplace, or a portion of the main work requiring expertise due to business needs and technological reasons, to another employer. The Sub-Employer is obligated to carry out these tasks with its own employees solely at the relevant workplace. At the same time, under this law, the Main Employer is also jointly liable with the Sub-Employer for the obligations arising toward the Sub-Employer's employees.
While Article 2 of the law provides detailed regulations regarding the Main Employer - Sub-Employer relationship, it also defines the responsibilities of the Main Employer. The subsequent sections of the law impose certain responsibilities on the Main Employer concerning the Sub-Employer’s relationship with its own employees to ensure the protection of workers' rights. Below, the obligations of the Main Employer toward the Sub-Employer's employees arising from the Labor Law are explained under specific headings:
1. Joint and Several Liability
The most fundamental responsibility of the Main Employer is to bear joint and several (chain) liability towards the employees of the Sub-Employer. In accordance with Article 2 of Labor Law No. 4857, joint and several liability means that the Main Employer is also responsible for wages, compensation, insurance premiums, and other employee entitlements owed by the Sub-Employer to its workers. If the Sub-Employer fails to fulfill these obligations, the employees may directly claim their dues from the Main Employer. In such cases, the Main Employer is required to pay all amounts owed to the employee along with the Sub-Employer. The Main Employer retains the right to seek reimbursement for these payments from the Sub-Employer afterward.
2. Wage Payment Responsibility
The Main Employer is responsible for ensuring that the Sub-Employer makes regular wage payments to its employees. Upon the request of the employees or monthly, the Main Employer must monitor the Sub-Employer's payment status. If it is determined that the wages have not been paid, the Main Employer must deduct the unpaid wages from the Sub-Employer's entitlements and deposit them directly into the employees' bank accounts.
If the Sub-Employer fails to pay the wages, the employees can directly claim their dues from the Main Employer. The payments made by the Main Employer can later be reimbursed by the Sub-Employer.
3. Annual Leave Monitoring and Responsibility
Employees of the Sub-Employer are also entitled to annual leave rights under Labor Law No. 4857. If the Sub-Employer fails to grant these leaves to its employees, the Main Employer will also be held responsible. The Main Employer must ensure that the Sub-Employer’s employees are granted their annual leave entitlements within the relevant year.
Additionally, even if there is a change of Sub-Employer at the same workplace, the annual leave entitlements of the employees must be calculated based on the total duration of their work at the same workplace. The Sub-Employer is required to maintain a leave record document for the employees’ annual paid leaves and provide a copy of these documents to the Main Employer. The Main Employer is responsible for monitoring leave usage based on these records.
4. Responsibility in Reinstatement Lawsuits
According to Article 18 of Labor Law No. 4857, employees who are unjustly dismissed can file a reinstatement lawsuit and request the invalidation of the dismissal. In such lawsuits, the employee can sue both the Main Employer and the Sub-Employer together. According to Supreme Court rulings, although the primary responsibility for reinstatement lies with the Sub-Employer, the Main Employer can also be held liable for compensation due to failure to reinstate and for up to four months' wages for the period during which the employee was not working.
5. Overtime and Other Employment Rights
The Main Employer is also responsible for ensuring that the Sub-Employer’s employees are paid for overtime, weekly rest day compensation, and national and public holiday entitlements. This responsibility is limited to the period during which the Sub-Employer’s employee worked under the Main Employer’s workplace.
6. Seniority-Based Entitlements (Severance Payment, Notice Payment, Annual Leave Compensation)
The Main Employer is responsible for the seniority-based entitlements of the Sub-Employer’s employee, such as severance payment, notice payment, and annual leave compensation, but only for the period during which the employee worked at the Main Employer’s workplace.
7. Fraudulent (Sham) Subcontracting and Responsibilities
Whether the subcontracting relationship is fraudulent (sham) is crucial for determining the responsibilities of the parties involved. If it is determined that the employment relationship is fraudulent, the employees are considered to have been the Main Employer's employees from the beginning and may claim all their rights directly from the Main Employer. In such cases, the contracts between the Sub-Employer and the employees are deemed invalid, and the employees are entitled to all the rights provided by the Main Employer.
Conclusion
The Main Employer has obligations under Labor Law No. 4857 towards the Sub-Employer’s employees. The Main Employer must ensure that the Sub-Employer fulfills its obligations to its employees. Additionally, contracts between the Main Employer and Sub-Employer should clearly state that the Main Employer has the right to seek reimbursement from the Sub-Employer for any amount it is required to pay to the employees. However, since such legal processes can lead to a loss of time and effort, it is important to protect these rights from the beginning.
Moreover, it should be noted that, although it is not the subject of this article, the Main Employer is also jointly liable with the Sub-Employer for obligations related to Social Security Law and Occupational Health and Safety Law.
In conclusion, employers should carefully determine which services they will outsource to the Sub-Employer and clearly define the scope of contracts and the responsibilities of the parties. The Main Employer must regularly monitor whether the Sub-Employer is fulfilling its obligations to its employees, particularly regarding wages, and ensure that employee rights, such as working hours, overtime, and leave entitlements, are meticulously observed. The Main Employer should also regularly track the Sub-Employer’s compliance with its obligations and request necessary reports. By doing so, it will ensure that the obligations are fulfilled in accordance with the law, preventing potential legal issues in the future.
As outlined above, the relationship between the main employer and the sub-employer is structurally a complex process. This relationship is subject to various legal disciplines, including Labor Law, Social Security Law, Tax Law, and even the Law on Protection of Personal Data (KVKK). Correctly defining the rights and obligations of both parties, avoiding the risk of collusion, and ensuring the sustainability of the work require careful legal assessment. Additionally, since sub-employer practices are a dynamic process, continuous updates are necessary due to evolving needs and regulations over time. It is crucial to monitor legal developments, prevent potential disputes, and ensure compliance with both administrative and legal inspections. For these reasons, obtaining professional Labor and Social Security Law Consultancy Services in this specialized field is of great importance. In this way, employers can fully meet their legal obligations and ensure the uninterrupted continuation of operational processes.
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