Labour Law No. 4857 defines the practice also known as temporary employment relationship in Turkey in Article 7.
As it is understood from the provision of the article, temporary employment relationship in Turkey can only be established in two cases; in the first case, through a private employment agency, and in the second case, by assignment within the holding or in another workplace affiliated to the same group of companies.
In the case of establishing a temporary employment relationship through a private employment agency, first of all, this transaction must be carried out by a private employment agency permitted by the Turkish Employment Agency. Regulations on private employment agencies are included in the Law No. 4904 on Turkish Employment Agency and its special regulation. In simple terms, the process involves a private employment agency concluding a temporary labour supply contract with an employer and temporarily transferring an employee to this employer. In the text of the law, the freedom to establish a temporary employment relationship through a private employment agency is restricted in certain circumstances. Accordingly, a temporary employment relationship between an employer and a private employment agency can only be established;
- In cases specified in the fifth paragraph of Article 13 of the Labour Law (in the event that one of the parents requests part-time work until the beginning of the month following the beginning of the compulsory primary education age after the end of the permits foreseen in case of birth) and Article 74 (pre-natal and post-natal leaves), in case of military service of the employee and in other cases where the employment contract is suspended,
- Seasonal agricultural labour,
- Domestic service,
- In the works that are not considered as daily works of the enterprise and are performed intermittently,
- In urgent work in terms of occupational health and safety or in case of emergence of compelling reasons that significantly affect production,
- In the event that the average production capacity of goods and services of the enterprise increases unpredictably and to an extent that requires the establishment of a temporary employment relationship in Turkey,
- It can be established in case of seasonal job increases, except for seasonal jobs.
According to the article, private employment agency is accepted as the transferring employer in temporary employment relationship. The establishment of a temporary employment relationship through a private employment agency must include two contracts. Accordingly, an employment contract must be concluded with the temporary worker and a temporary labour supply contract must be concluded with the employer employing the temporary worker. It is stipulated that the agreements must be made in writing. The written form requirement should be accepted as a validity condition here. Accordingly, if there is no written contract, there shall be no temporary employment relationship, and the temporary worker shall be considered as the employee of the employer employing the temporary worker from the beginning and for an indefinite period of time.
The temporary employment contract between the private employment agency and the employer employing temporary workers shall include the start and end date of the contract, the nature of the work, the service fee of the private employment agency, and the special obligations of the employer employing temporary workers and the private employment agency, if any.
Provisions preventing the temporary worker from receiving services from the Turkish Employment Agency or another private employment agency or from working at the workplace of the employer or another employer after performing his/her work shall not be included. In the employment contract to be concluded with the temporary worker, it should also be stated how long the worker can terminate the employment contract for just cause if he/she is not called to work within the specified period, which is limited to three months.
If the temporary employment relationship continues despite the expiry of the period specified in the contract, an indefinite-term employment contract will be deemed to have been established between the employer employing the temporary worker and the worker as of the expiry date of the contract. In this case, the private employment agency is held responsible for the wages of the worker arising from the temporary employment relationship, the obligation to supervise the worker and social insurance premiums, limited to the duration of the contract.
In the following paragraphs of the article, the duration of the temporary employment relationship in Turkey established within the scope of the cases listed has been clarified. Accordingly, the temporary employment relationship may continue for a maximum of four months in cases where one of the parents requests part-time work, use of maternity leave, military service and suspension of the employment contract, without any time limit in the case of seasonal agricultural work and domestic services, and for a maximum of four months in other cases.
After the duration, the number of times the contract can be renewed is regulated. According to the regulation, the contract regarding the temporary employment relationship in Turkey can be renewed at most twice for a maximum period not exceeding eight months in total, except for seasonal work, except for seasonal work increases. At the end of the specified period, the employer who employs temporary workers will not be able to employ temporary workers again for the same work until six months have passed.
Another issue addressed by the text of the article is the situations where temporary employment relationship in Turkey cannot be established. Accordingly;
- For eight months in workplaces where collective dismissals are made within the scope of Article 29 of the Law,
- Public institutions and organisations and
- Temporary employment relationship in Turkey will not be established in underground mining workplaces,
- During the implementation of the strike and lockout, the employer employing temporary workers will not be able to employ workers with a temporary employment relationship, without prejudice to the provisions of Article 65 of the Trade Unions and Collective Bargaining Agreement Law No. 6356. (The provisions of Article 65 are related to the workers who cannot participate in the legal strike and lockout)
Another issue is the number of workers with whom a temporary employment relationship can be established. The text of the article relates this issue to the number of workplaces where the temporary employment relationship in Turkey will be established. Accordingly, if there is an unforeseeable increase in the average production capacity of goods and services of the enterprise to the extent that it requires the establishment of a temporary employment relationship, the number of workers employed through a temporary employment relationship shall not exceed one quarter of the number of workers employed in the workplace. However, it is possible to establish a temporary employment relationship up to five workers in workplaces employing ten or less workers. In the determination of the number of workers, employees working under part-time employment contracts shall be converted into full-time employees by taking into account their working hours. In the application of Article 30 (obligation to employ disabled workers), the worker working under a temporary employment contract cannot be included in the number of workers of the private employment agency and the employer employing temporary workers.
Apart from these, some prohibitions are also included in the article. Accordingly, the employer employing temporary workers shall not employ the employee whose employment contract has been terminated within the scope of temporary employment relationship until six months from the date of termination. The temporary worker, on the other hand, shall not receive any advance or loan from the employer employing temporary workers to be offset against the service fee of the private employment agency.
Again, in the text of the article, a number of powers, responsibilities and duties of the employer employing temporary workers are listed. According to the regulation, the employer employing temporary workers
- Has the authority to give instructions to its temporary workers in accordance with the requirements of the work and the temporary employment contract,
- He is obliged to notify his temporary worker of the open job positions in the workplace and to keep the documents to be requested by the Turkish Employment Agency for the specified periods.
- The temporary worker is obliged to immediately notify the private employment agency of work accidents and occupational diseases to the relevant authorities in accordance with Articles 13 and 14 of the Social Insurance and General Health Insurance Law No. 5510.
- Temporary workers shall benefit from social services in the workplace during their working periods in accordance with the principle of equal treatment (temporary workers shall benefit from education and childcare services in the private employment agency during their non-working periods);
- Notify the workplace union representative, if any, about the employment status of temporary workers in the workplace,
- The employer is obliged to provide the trainings stipulated in the sixth paragraph of Article 17 of the Occupational Health and Safety Law No. 6331 and to take the necessary measures in terms of occupational health and safety, and the temporary worker is obliged to attend these trainings.
- The basic working conditions of the temporary worker during his/her employment in the workplace of the employer employing the temporary worker cannot be below the conditions that would be provided in the event that these workers are directly employed by the same employer for the same work,
- In the temporary employment relationship established in the event of an unforeseeable increase in the average production capacity of goods and services of the enterprise to the extent that it requires the establishment of a temporary employment relationship, the employer employing temporary workers is obliged to check whether the wages of the temporary workers working in the workplace for more than one month are paid every month during the working period, and the private employment agency is obliged to submit the documents showing that the wages are paid to the employer employing temporary workers on a monthly basis. If there are unpaid wages, the employer employing temporary workers shall not pay the receivable of the private employment agency until they are paid, and shall deposit the wages of the temporary workers up to a maximum of three months directly to the bank account of the workers, provided that they are set off from the receivable of the private employment agency.
- The workers whose wages cannot be paid and the unpaid wage amounts are notified to the provincial directorate of labour and employment agency by the employer employing temporary workers.
The temporary worker is held liable to the employer employing the temporary worker for the damage caused by his/her fault, provided that it is related to the workplace and the work.
The last paragraph of the article is related to the establishment of a temporary employment relationship in Turkey within the holding company or in another workplace of the same group of companies. In this case,
- The employer may temporarily transfer an employee to another workplace within the holding or another workplace affiliated to the same group of companies in order to fulfil the performance of work within the holding or another workplace affiliated to the same group of companies by obtaining his/her written consent at the time of the transfer, and this situation is accepted as one of the cases of establishing a temporary employment relationship.
- Within this scope, the temporary employment relationship can be established in writing for a period not exceeding six months and can be renewed at most twice.
- The wage payment obligation of the employer who temporarily transfers the employee will continue.
- The employer with whom a temporary employment relationship is established is deemed to be liable together with the transferring employer for the unpaid wages, the obligation to supervise the employee and the social insurance premiums.
- According to Article 29 of the Law, temporary employment relationship cannot be established in case of mass layoffs, in public institutions and organisations and in cases where underground mines are mined, and employers employing temporary workers cannot establish a temporary employment relationship during the implementation of strikes and lockouts, without prejudice to the provisions of Article 65 of the Law No. 6356 on Trade Unions and Collective Bargaining Agreements. Without prejudice to the provisions of Article 65 of the Law No. 6356 on Trade Unions and Collective Labour Agreements, the basic working conditions of the temporary worker during the working period in the workplace of the employer employing the temporary worker cannot be below the conditions that would be provided if these workers were directly employed by the same employer for the same work, the temporary worker will be liable to the employer employing the temporary worker for the damage caused by his/her fault, provided that it is related to the workplace and the work, the employer employing the temporary worker will have the authority to instruct the temporary worker in accordance with the requirements of the work and the temporary worker provision contract, The rights and obligations of the employer employing temporary workers to provide trainings on occupational health and safety, to take the necessary measures in terms of occupational health and safety and to ensure that the temporary worker participates in these trainings, and that the employer employing temporary workers will benefit from social services in the workplace in accordance with the principle of equal treatment during the period of employment of temporary workers will also be applied in temporary employment relationships to be established within the holding or group of companies.
