Recent Amendments to the Labor Law and the Employment Agency Law

The contract between the special recruitment office and the employer of
the temporary employee shall include clauses regarding the commencement and
termination date of the contract, the nature of work, the fee to be paid to
special recruitment office and special clauses, if any, regarding the employer
and the special recruitment agency. It is important to note that in cases
the agreed duration of the contract is exceeded, the temporary nature of the
employment relationship automatically changes into an indefinite employment
relationship. In other words, the employment relationship that was intended
to be temporary will become indefinite in cases the employment relationship
continues beyond the termination date set in the contract. 

iii.      Important limitations

The amendment introduces certain rules regulating the temporary
employment relationship that must be adhered to by the parties in an attempt to
ensure that the concept of temporary employment is not abused so as to creating
adverse effects for job seekers, as follows:

• With regard to the time
  limits mentioned above, it must be underlined that an employer employing a
  temporary employee may not re-employ another temporary employee for the same
  task for a period of six months as of the expiry of the stipulated time. Hence,
  an employer that has employed a temporary employee for a specific
  work is prohibited to re-employ a temporary employee for the same work as long
  as the mandated break of six months has not passed.

• The Amending Law further
  prescribes that a temporary employment relationship via special recruitment offices
  cannot be established (i) for a period of eight months in workplaces in which a
  mass termination has occurred in accordance with Article 29 of the Labor Law,
  (ii) in public institutions and organization and (iii) in workplaces engaged in
  underground mining activities.

• Another limitation deals
  with the situation of strikes and lock-outs; and provides that employers may
  not employ temporary employees in the course of strikes or lock-outs, without
  prejudice to Article 65 of Law No. 6356 on Trade Unions and Collective
  Bargaining Agreements[3], which regulates the
  employees who may not attend legal strikes and lock-outs.

• In the event that a contract of an employee is terminated, the Amending Law provides that the employer cannot hire the same employee through a temporary employment relationship for a period of six months following his employment termination date. 

The Amending Law introduces a definition of special recruitment offices
under Article 2 of the Turkish Employment Agency Law No. 4904, which provides
that special recruitment offices are offices that are established by natural
and legal persons and approved by the Turkish Employment Agency to act as an agency
to establish employment relationship between job seekers and employers and/or
engage in temporary employment relationships.

Article 17 of Law No. 4904 provides the applicable rules for the establishment
of special recruitment offices, their field of activity and the conditions for
obtaining the permit necessary to establish temporary employment relationships.
The amended provision includes conditions regarding employment arrangement services
on the one hand, and conditions for the competence to establish temporary
employment relationships on the other. One of the most important conditions
enlisted under Article 17 is that offices that wish to engage in temporary
employment relationships must be active special recruitment offices that are
registered with the Turkish Employment Agency at least for two years prior to
the date of their application for such permit.

The Amending Law stipulates that the permit for temporary employment
services is given for a three years’ term and may be extended for further three
years provided that the required conditions exist and the application for
extension is made within the prescribed time. 
 

b.      Relocation of workers within a holding structure or company
group

The establishment of a
temporary employment relationship through such relocation requires the written
consent of the employee to be temporarily employed in another workplace. With
regard to duration and time limits, the Amending Law stipulates that the
temporary employment may be established in writing for a maximum period of six
months, which may be extended twice at most. 

The duty of paying wages
and social security premiums remains with the employer that temporarily transfers
the employee. The employer employing the temporary employee is jointly
responsible with the employer transferring the employee for the unpaid wage
relating to the period of temporary employment, for the duty to take care of
the employee and for the payment of the employee’s social security premiums. 

1. The concept of working remotely

The Amending Law introduces
the concept of working remotely into Article 14 of the Labor Law that
previously solely regulated the concept of working on call. This concept is
defined as an employment relationship that is established on the basis of a
written agreement which foresees that the work within the scope of the
employer’s working organization is undertaken by the employee from home or
outside the office via technological devices.

The Amending Law envisages certain
aspects that must be included into this type of employment contracts, however,
other than those special provisions, it regulates that employees working
remotely should not be subject to different treatments simply on the basis of
the nature of the employment relationship and without the existence of a
significant reason. The duty of employers to inform and educate the employee about
occupational health and safety measures and to observe implementation of such
measures remains. The amendment provides that principles and procedures
relating to the concept of working remotely shall be further specified with a
regulation to be adopted by the Ministry of Labor and Social Security.

1. Administrative Fines

Administrative fines that
are applicable in case of breach of provisions regulating the newly introduced
concepts are specified under Article 99 of the Labor Law. The determined
administrative fines are in the range between TL 150 and TL 250 per employee
and the Amending Law further includes certain circumstances in which such fines
may be increased up to four times.

Conclusion

Despite the
removal of the regulation related to employee relocations between companies
that do not belong to the same group, it is expected that the novelties
introduced with the amendment will lead to an increase in the number of
temporary employment relationships with the expanded scope of work of special
recruitment offices. Yet, in order to mitigate and prevent adverse effects of
such method and to ensure that the rights of employees are protected, it is
important that special recruitment offices remain subject to clear rules and strict
supervision.