| Mert Batuhan ERİM Lawyer |
ABSTRACT
Within the framework of the subcontracting institution regulated under Labor Law No. 4857, which entered into force in 2003, it is possible for certain jobs at a workplace to be assigned by the main employer to a subcontractor. The purpose of this article is to examine the types of jobs that can be assigned by the main employer to a subcontractor within the scope of the subcontracting institution.
Keywords: Labor Law, Main Job, Auxiliary Job, Subcontractor, Main Employer, Sham Transaction.
INTRODUCTION
Within the scope of Labor Law No. 4857 (“Law”); it is possible for certain jobs at a workplace to be assigned to subcontractors and for the jobs to be performed in this manner. However, for the subcontracting institution to be invoked, certain conditions stipulated in the legislation must be met. In the event that the aforementioned conditions are not fulfilled, it will be concluded that the legal transaction carried out to establish a subcontracting relationship is a sham transaction. In this situation, the outcome intended to be achieved through the subcontracting relationship will not be attained. In our article, it will be examined which jobs are of a nature that can be assigned to a subcontractor. Within this scope, firstly, general information regarding subcontracting will be provided, followed by explanations concerning the determination of whether a job is an auxiliary job or not, and the determination of whether a job, while being a main job, is among those requiring expertise due to the requirements of the enterprise and the job and for technological reasons.
I. SUBCONTRACTING INSTITUTION
The subcontracting institution enables the main employer to assign certain jobs to subcontractors. The elements of subcontracting are regulated under Article 2 of the Law. The relevant elements are effective in deciding whether a job is of a nature that can be assigned to a subcontractor. Pursuant to the aforementioned article, an employer may assign to a subcontractor the auxiliary jobs related to the production of goods or services carried out at the workplace or the jobs requiring expertise due to the requirements of the enterprise and the job and for technological reasons in a part of the main job. Again, pursuant to the same article, in a subcontracting relationship, the main employer shall be jointly liable with the subcontractor for the obligations arising from the relevant legislation or the collective labor agreement to which the subcontractor is a party, vis-à-vis the employees of the subcontractor regarding that workplace. As mentioned above, for the main employer to be able to assign a job to a subcontractor, either that job must be an auxiliary job or, while being a part of the main job, it must be among the jobs requiring expertise due to the requirements of the enterprise and the job and for technological reasons. Therefore, in order to distinguish whether a job carried out at a workplace is of a nature that can be assigned to subcontractors, it must first be determined whether the job is a main job or an auxiliary job; and if the job in question is a main job, then it must be determined whether it is among the jobs requiring expertise due to the requirements of the enterprise and the job and for technological reasons. When an examination is conducted taking into account the elements explained above, if a job that is not of a nature that can be assigned to subcontractors has been assigned to subcontractors, it is accepted pursuant to Article 3 of the Subcontracting Regulation (“Regulation”) that the aforementioned transaction is a sham transaction.
II. DETERMINATION OF WHETHER A JOB IS AN AUXILIARY JOB
As stated above, it is possible for auxiliary jobs to be assigned to subcontractors. For auxiliary jobs to be assignable to subcontractors, unlike main jobs, no condition such as requiring expertise or technology is sought, and auxiliary jobs can be assigned to subcontractors without any limitation.1 Therefore, in order to determine whether a job is among the jobs that can be assigned to a subcontractor, it is first necessary to determine whether the job in question is a main job or an auxiliary job. If it is concluded that the job in question is an auxiliary job, it will be concluded that this job is of a nature that can be assigned to subcontractors. Various criteria have been developed in doctrine and legislation for this examination to be conducted. Definitions have been made for main job and auxiliary job in Article 3 of the Regulation. Pursuant to the aforementioned article, the main job is defined as “the job that constitutes the essence of the production of goods or services”. The auxiliary job, again in the same article, is defined as “a job that is related to the production of goods or services carried out at the workplace but does not take place directly within the production organization, is not a mandatory element of production, however continues as long as the main job continues and is dependent on the main job”. Although the aforementioned definitions are explanatory, they often remain insufficient regarding the determination of whether a job is a main job or an auxiliary job. The activities that are indispensable in nature for realizing the technical purpose of an enterprise or a workplace should be accepted as the main job.2 The jobs that are not of an indispensable nature should be accepted as auxiliary jobs. To give an example; it is possible for jobs such as cleaning, security, personnel transportation and warehousing, which cannot be regarded as a part of the main job, to be accepted as auxiliary jobs.3 In a decision of the Court of Cassation, services such as security and fire brigade have also been classified as auxiliary jobs.4
III. DETERMINATION OF WHETHER A JOB, WHILE BEING A MAIN JOB, IS AMONG THE JOBS REQUIRING EXPERTISE DUE TO THE REQUIREMENTS OF THE ENTERPRISE AND THE JOB AND FOR TECHNOLOGICAL REASONS
As mentioned above, for a job to be assignable to a subcontractor, either that job must be an auxiliary job or, while being a part of the main job, it must be among the jobs requiring expertise due to the requirements of the enterprise and the job and for technological reasons. In the event that it is concluded that a job is not an auxiliary job and is a part of the main job, for this job to be assignable to a subcontractor, it is necessary that this job be a job requiring expertise due to the requirements of the enterprise and the job and for technological reasons. Jobs that are a part of the main job will be assignable to subcontractors if they are jobs of expertise for technological reasons. For example, dyeing, weaving or garment jobs in a textile factory must be accepted as a part of the main job.5 Therefore, the aforementioned jobs can only be assigned to subcontractors if they are of a nature requiring expertise due to the requirements of the enterprise and the job and for technological reasons, and for the determination of this matter, it should be examined whether the main employer can perform the aforementioned jobs with its own technology and the expertise of its own personnel, and whether different technologies and expertise are required for the execution of this job.6 However, for jobs that are a part of the main job to be assignable to subcontractors, whether the elements of “being a requirement of the enterprise and the job” and “requiring expertise for technological reasons” contained in the relevant legal provision where the conditions to be sought are stated will be sought together or separately has been an important matter of debate in doctrine. The view of the Court of Cassation on this matter is that the elements of “being a requirement of the enterprise and the job” and “requiring expertise for technological reasons” must be found together.7 For in a situation where the joint presence of these elements is not sought; many jobs could be assigned to subcontractors under the name of “being a requirement of the enterprise and the job” and the element of “requiring expertise for technological reasons” would lose its meaning.8
CONCLUSION
Within the scope of the Law, it is possible for certain jobs at a workplace to be assigned to subcontractors and for the jobs to be performed in this manner. However, since the subcontracting institution is of a nature that restricts the rights of employees to certain extents, the legislator has felt the need to impose a limit thereon. Therefore, certain conditions stipulated in the legislation must be met for the subcontracting institution to be invoked. In the event that the aforementioned conditions are not fulfilled, it will be concluded that the legal transaction carried out to establish a subcontracting relationship is a sham transaction. For the main employer to be able to assign a job to a subcontractor, either that job must be an auxiliary job or, while being a part of the main job, it must be among the jobs requiring expertise due to the requirements of the enterprise and the job and for technological reasons.
1 Ahmet Tozlu, Mehmet Tarık Eraslan, “Subcontracting Practice in Turkey”, Sayıştay Journal, Year 2012, Issue: 64, 45-62, p. 49.
2 Hamdi Mollamahmutoğlu, “Some Important Innovations Brought by the New Labor Law No. 4857”, Kamu-İş Labor Law and Economics Journal, Volume: 7, Issue: 4, 1-37, p. 7.
3 Sarper Süzek, Labor Law, Beta Publications, 2025, Istanbul, p. 206.
4 Court of Cassation 9th Civil Chamber E. 2008/15362, D. 2008/11408.
5 Sebahattin Şen, Subcontracting and Assignment of a Part of the Main Job to the Subcontractor, Labor and Society, Vol. 3, Issue: 10, 71-98, p. 84.
6 Ibid.
7 Ahmet Tozlu, Mehmet Tarık Eraslan, “Subcontracting Practice in Turkey”, Sayıştay Journal, Year 2012, Issue: 64, 45-62, p. 49.
8 Sebahattin Şen, Subcontracting and Assignment of a Part of the Main Job to the Subcontractor, Labor and Society, Vol. 3, Issue: 10, 71-98, p. 82.