Subcontracting And Issues To Be Included In The Subcontracting Agreement
A subcontractor-subcontractor is defined as a person who is employed by an employer in auxiliary works related to the production of goods or services carried out in the workplace or in a part of the main work that requires specialization due to the necessity of the business and work and technological reasons, and who employs the workers assigned for this work only in this workplace.
However, Labor Law No. 4857 restricts the principal employer-subcontractor relationship. It will not be possible to limit the rights of the employees of the principal employer by hiring and continuing to employ them by the sub-employer or to establish a sub-employer relationship with the person who was previously employed in that workplace.
Otherwise, it will be accepted that the principal employer-subcontractor relationship is based on a collusive transaction and the employees of the subcontractor will be treated as the employees of the principal employer from the beginning. The main work cannot be divided and subcontracted, except for the work that requires specialization due to the necessity of the business and work and technological reasons.
In the event that a work that requires specialization due to the necessity of the business and work and technological reasons in a workplace is subcontracted to a subcontractor, in order for the subcontractor to certify its expertise; work equipment list, work completion certificate, operator and technical staff certificates suitable for the work covered by the contract must be attached to the contract.
Matters to be included in the Subcontracting Agreement;
In the subcontracting agreement
a) The title and address of the workplace of the principal employer and the sub-employer,
b) The name, surname and address of the principal employer and the name, surname and address of the employer’s representatives in case the principal employer and the sub-employer are legal entities or institutions and organizations without legal personality,
c) What the main work carried out at the workplace is related to,
ç) What the subcontracted work is related to,
d) If a part of the main work is given to the subcontractor; technical explanation regarding the condition that the given work requires specialization due to the necessity of the business and work and technological reasons,
e) The start and end dates of the work, if arranged by the parties,
f) In which part of the workplace the subcontractor will carry out its activities,
g) The primary employer shall be jointly liable with the sub-employer for the obligations of the sub-employer towards the employees of the sub-employer arising from the Law, the labor contract or the collective labor agreement to which the sub-employer is a party in relation to that workplace,
ğ) In the event that workers employed by the main employer before the subcontracting agreement is concluded are hired by the subcontractor, the rights of these workers cannot be restricted,
h) The principles of execution of the work given to the subcontractor in terms of the parties,
ı) The signatures of the principal employer or its representative and the sub-employer or its representative should be included.
Regarding the fine for collusive agreements, the sub-employer is obliged to notify the Regional Directorate of the Ministry of Labor and Social Security with the written sub-employment agreement received from the main employer and the necessary documents for the registration of its own workplace. It is regulated that the principal employer and the sub-employer or their representatives who notify the workplace as collusive shall be imposed an administrative fine of 11.200.- TL separately.