THE CONDITIONS FOR RELATIONS BETWEEN PRIMARY EMPLOYER AND SUB-EMPLOYER
1. Existence of the Primary Employer Employing an Employee in the Workplace
The relation between primary employer and sub-employer requires that there be an employer who employs employees in the workplace. For the primary employer to keep its employer status, he should have not transferred the whole work to another employer. This point has been set out under article 4 subparagraph (a) of the Sub-Employership Regulation having entered into force upon publication on Official Journal dated 27 September 2008 and numbered 27010 (“Regulation”) titled “the conditions for the establishment of the main employer-sub-employer relation” as follows:
“In order to establish a sub-employer relation with the primary employer; the primary employer must also have his own employees working employed in the production of goods or services in the workplace.”
It should also be noted here that the person who receives work from the primary employer must also possess the “employer” status. In other words, the work that is received by sub-employer must be carried out by its own employees, but not by the sub-employer itself. This is because, in the event that the person who receives work carries out the work himself, then he would not have “employer” status; which leads to the non-ability to establish sub-employment relation between him and the primary employer.
2. Performance of the Work in the Workplace of the Primary Employer
The second condition for the main primary employer - sub-employer relation is that the work must be carried out by the sub-employer at the workplace of the main primary employer. For instance, a sub-employer relation would not arise between the employer and those who receive work from an employer in the form of sub-production and perform this work in their own workplace.
3. The Work Being Related to the Production of Goods and Services in the Workplace
According to article 6 subparagraph 2 of LC, to establish a sub-employment relation, subcontractor must receive work “from an employer, in auxiliary work related to the production of goods and services carried out by an employer in the workplace or in a part of the main work”. Therefore, it is not possible to qualify another employer as a sub-employer who takes an additional construction or building repair work that is not related to the work performed, as stated in the preamble of the provision, for example in an automotive or textile factory. We would like to point out that, in the concrete case, it is considered that there is no causal link as laid down in LC, between the activities of the Factory and the construction where the occupational accident took place.
In this respect, according to 21st Civil Chamber of the Supreme Court’s decision numbered 1995/2660 Merit, 1995/3844 Decision and dated 04.07.1995, it has been established that:
“In the event that work is completely transferred to an employer or the work is delivered in the form of turnkey, PRIMARY EMPLOYER – SUB-EMPLOYER RELATION NO LONGER REMAINS. In cases of being the sole owner of the land or building and transferring the business as a tendering authority, no entity as intermediary will be at stake. Because here the work is completely transferred to an independent employer.”
4. Being a Work Which Requires Expertise Due to Technological Reasons and the Necessity of the Business and the Work
a. Non-existence of Limitation in Auxiliary Work
Auxiliary Work is defined in Article 3 of the Regulation as follows:
"It refers to the work that is related to the production of goods or services carried out in the workplace, but is not directly involved in the production organization; the work that is dependent on the primary work; that is not a mandatory element of production, but continues as long as the primary work continues; and that is dependent on the primary work.”
Both in the doctrine and the Supreme Court’s case-law, it is accepted that the sub-employment relation can be established formed without any condition or limitation, provided that there is no collusion.
However, it should be noted whether the work is the main work or an auxiliary work may differ depending on the field of operation of the primary employer. Therefore, this point should be evaluated separately for each workplace.
b. Whether the Condition is Divisible
Although it is a very controversial subject in the doctrine, to mention the summary and the dominant view on the subject; in order to establish the main employer- sub-employer relation as set out under article 2 paragraph 6 of the LC, the criterion “Work Requiring Expertise Due to Technological Reasons and the Necessity of the Business and the Work” must be applied without being divided and in employing sub-employers; the interpretation that take into consideration the existence of both the necessity of the business and the work, and the requirements of expertise for technological reasons must be given superiority. The 9th Civil Chamber of the Supreme Court has decided on the subject in its decision dated 6 May 2010 and numbered 2010/10901 M., 2010/12451 D.
5. Employees Being Employed Only in the Primary Employer’s Workplace
The important point to be noted here is that, as set out under article 2 subparagraph 6 of LC, the sub-employer must allocate his employees whom he has assigned for the work, namely, a group of employees to the primary employer’s work; and that he must, in principle, employ his employees and not employ in other work. In this respect The Supreme Court has found that the primary employer cannot be held liable pursuant to article 6 subparagraph 2 of LC due to the facts that the employees of the sub-employer for cleaning work did not only employ his employees in the defendant bank’s workplace, but also switched them between other workplaces.
