RECENT LEGAL ARRANGEMENTS ON FLEXIBLE WORKING MODELS

The Code numbered 6715 regarding the Amendments to the Labour Code and the Turkish Employment Agency Code (the “Amendment Code”) came into effect after being published in the Official Gazette dated 20 May 2016 and numbered 29717.

The Amendment Code brings considerable changes regarding flexible working models specifically about temporary employment relationship.

1. FORMER PROVISION OF THE LABOUR CODE NUMBERED 4857

Article 7 of the Labour Code numbered 4857 and dated 22 May 2003 (the “Labour Code”) regulates temporary employment relationship. Before the changes recently made to this article through the Amendment Code; a temporary employment relationship was only allowed for transferring the employee to a) another establishment within the same holding or in the same group of companies or to b) another employer provided that the employee would work in a similar position as he/she had already been working. The employer was also obliged to receive the written consent of the employee at the time of transfer. Moreover, a temporary employment relationship could only be established in writing and for a period not exceeding six months. It could be renewed maximum twice, if required.

2. LEGAL AMENDMENTS MADE TO THE LABOUR CODE REGARDING TEMPORARY EMPLOYMENT RELATIONSHIP AND OTHER FLEXIBLE WORKING MODELS

The Amendment Code made considerable amendments to the article 7 of the Labour Code concerning temporary employment relationship. Accordingly;

2.1. Who can establish a temporary employment relationship?

A temporary relationship can be established through a private employment agency (in Turkish “özel istihdam bürosu”) or by assigning the employee in a different establishment within the same holding or in the same group of companies.

One of the main amendments made with the Amendment Code is that private employment agencies have been authorized to transfer the employees temporarily to the employers by signing a contract with the employer for supplying temporary employees. However, it should be noted that private employment agencies should fulfil the conditions set forth by the Amendment

2.2. Under  which conditions a temporary employment relationship may be established through a private employment agency?

2. 2. 1. In substitution for the employee who has been using his/her right of part time working after the birth of his/her child or after child adoption as per the article 13/5 of the Labour Code;
      2. In substitution for the employee who has been using his/her rights arising from article 74 of the Labour Code (related with the birth of his/her child or child adoption);
      3. In substitution for the employee who has been performing his military service;
      4. In the other conditions where the employment contract remains in suspense;
      5. For seasonal agricultural works;
      6. For home services;
      7. For the works that are not considered at the daily works of the enterprise and are performed discontinuously;
      8. For the works that have an urgency in terms of occupational safety or in case of force majeure which dramatically effect manufacturing;
      9. In case of an unforeseen increase in the approximate goods and service production capacity of the enterprise that requires the establishment of temporary employment relationships;
      10. In case of periodic increases in the business volume excluding seasonal works.

2.3. Is there a time limit for the temporary employment relationships that are established through a private employment agency?

2. 2. 1. A temporary employment relationship may be established only during the continuance of the situations for (a), (b), (c), (d) listed above;
      2. For seasonal agricultural works and for home services, there is not any time limit.
      3. For the situations listed in (g), (h), (i), (j) above, a temporary employment relationship may be established through a private employment agency up to four months only and except the article (j) above, it may be renewed maximum twice provided that the period of which does not exceed eight months in total. In case of periodic increases in the business volume excluding seasonal works, a renewal is not allowed by the Amendment Code meaning that in such a case, a temporary employment relationship may only be established for four months maximum.

An employer employing temporary employees is not allowed to establish a new temporary employment relationship at the end of the determined period for the same job unless a six- month period elapses.

2.4. Under which conditions and for which places of business, it is not legally allowed to establish a temporary relationship through a private employment agency?

If collective redundancy (in Turkish “toplu işçi çıkarma”) as per the article 29 of the Labour Code is applied in a place of business, it is not allowed for the same place of business to establish a temporary employment relationship for eight months following the collective redundancy.

Also, it is not legally allowed to establish a temporary relationship at state institutions and organizations and at the places of business carrying out mining activities.

By reserving article 65 of the Law on Trade Unions and Collective Bargaining Agreements numbered 6356 (in Turkish “6356 sayılı Sendikalar ve Toplu İş Sözleşmesi Kanunu”), an employer shall not employ temporary employees during strike and lockout.

2.5. Is there a limitation for the number of the employees that can be employed by a temporary employment relationship?

The number of the temporary employees that are employed in case of an unforeseen increase in the approximate goods and service production capacity of the enterprise shall not exceed one fourth (1/4) of the number of the employees working at the enterprise. However, for the enterprises employing ten or less employees, a temporary employment relationship may be established up to five employees.

There is not any limitation in the number of the employees that will be employed temporarily for the situations other than the one defined in the above paragraph.

2.6. Can the Employer employ its former employee as a temporary employee after terminating his/her employment contract?

The employer is not entitled to establish a temporary employment relationship with its former employee after the termination of his/her employment contract unless six month elapses following the termination date of the contract.

2.7. What are the powers and responsibilities of an employer employing temporary employee(s)?

1. 1. 1. The employer is authorised to give instructions to its temporary employee(s) as required by the job and in accordance with the contract of supplying temporary employees;
      2. The employer is obliged to advise its employee of the vacant positions in the place of business and to keep the documents required by the Turkish Labour Agency Code during the terms determined;
      3. In case of an occupational accident or an occupational disease, the employer shall immediately inform the private employment agency and the relevant authorities of the accident ordisease;
      4. The temporary employees shall benefit from the social services at the place of business as per the equal treatment principle;
      5. If there is any information concerning the employment situation of the temporary employees, the employer is obliged to share this information with the business place union representative;
      6. The employer is obliged to give the trainings regulated in article 17 of the Occupational Health and Safety Code numbered 6331 and to take all the necessary precautions in terms of occupational health and safety.

2.8. How will a temporary employment relationship be established through a private employment agency?

During the temporary employment relationships, the employer is the private employment agency.

A temporary employment relationship shall be established through a private employment agency in writing by signing a labour contract with the temporary employee and by signing a contract of supplying temporary employee(s) with the private employment agency.

2.9. What will happen if the temporary employment relationship continues although the time period determined in the contract is expired?

Although the period determined in the contract is expired, if the temporary employment relationship continues, it is accepted that the said temporary employment relationship has been turned into an employment contract of indefinite duration.

2.10. How can a temporary employment relationship be established within the same holding or in the same group of companies?

Provided that the employee’s written consent is received at the time of transfer, if an employer temporarily transfers its employee(s) to a different establishment within the same holding or in the same group of companies to perform its business, then a temporary employment relationship is established. Such a relationship shall be established in writing and for a period not exceeding six months and it can be renewed only twice.

2.11. Telecommuting as a new flexible working model

The Amendment Code also provides a new flexible working model called telecommuting (in Turkish “uzaktan çalışma”) by amending article 14 of the Labour Code. Telecommuting is an employment relationship that is established in writing and is based on performing the work under the business organization from the employee’s house or from a place other than the place of business by using technological communication instruments.

The employees working in accordance with this working model shall be treated equally with a precedent employee. By taking into consideration, the characteristics of the job, the employer is obliged to give information to its employee concerning occupational health and safety precautions and to arrange necessary trainings, to provide the medical care and to take the required occupational health and safety measures related with the equipment supplied by the employer.

Our Law Firm remains at your disposal for any further clarifications and assistance you may require.