This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Asıl İşveren - Alt İşveren İlişkisi ve Muvazaa.
Where a subcontracting arrangement is a sham, the subcontractor's workers are treated as the principal employer's workers from the outset (Article 2/6 of the Labour Act). Length of service then runs from the first day at that workplace, whatever the paperwork says, and changes of subcontractor do not break it.
You work at one workplace but your payslip comes from another company — and that company changes every year, resetting your service each time.
That is subcontracting, and where it is a sham the consequences are severe. This article sets out the limits of the arrangement and how a sham is established.
The Statutory Definition and Its Limits
Article 2/6: the relationship between an employer and another employer who takes on work from them — in ancillary work relating to the production of goods or services at the workplace, or in a part of the core work requiring expertise for reasons of the requirements of the undertaking and of the work and for technological reasons — and who employs the workers assigned to that work only at that workplace, is a principal employer–subcontractor relationship.
Two conditions must both be met:
- the work must be either ancillary work, or a part of the core work requiring expertise for reasons of the requirements of the undertaking and of the work and for technological reasons
- the subcontractor must employ the workers assigned to that work only at that workplace
The same paragraph imposes three express prohibitions:
- The rights of the principal employer's own workers may not be restricted by their being taken on and kept in employment by a subcontractor.
- A subcontracting relationship may not be established with a person previously employed at that workplace.
- Otherwise, and generally, the arrangement is treated as resting on a sham, and the subcontractor's workers are treated as the principal employer's workers from the outset.
That last sentence is among the strongest sanctions in Turkish employment law.
How Is a Sham Established?
The facts that point to it:
- Splitting off part of the core work. Giving to a subcontractor work that requires no expertise and forms part of the undertaking's ordinary activity — sewing in a textile factory, for instance.
- Who gives instructions. The principal employer instructing the workers and setting their leave and hours.
- The same work in the same place. The subcontractor's workers doing the same job, in the same place, on the same terms as the principal employer's own workers.
- Equipment belonging to the principal employer. The subcontractor having no equipment or organisation of its own.
- Frequent changes of subcontractor while the workers stay the same.
- The principal employer being the subcontractor's only customer.
Several of these together make the finding of a sham much stronger.
The court establishes it through site inspection, expert evidence, witnesses and workplace records. Labour inspectors' reports are also important evidence.
| Lawful | Sham | |
|---|---|---|
| The work | Ancillary, or core work requiring expertise | Ordinary core work, split off |
| Instructions | Given by the subcontractor | Given by the principal employer |
| Organisation | The subcontractor has its own | None; everything belongs to the principal employer |
| Who is the employer | The subcontractor | The principal employer, from the outset |
| Length of service | From the start with the subcontractor | From the first day at the workplace |
| Collective agreement | That of the subcontractor | That of the principal employer's workplace |
A subcontracting relationship may not be established with someone previously employed at that workplace; doing so is itself an indicator of a sham.
The Consequences of a Finding of Sham
The worker is treated as the principal employer's worker from the beginning, and the consequences are wide:
- Length of service is calculated from the first day of work; changes of subcontractor do not interrupt it.
- The worker benefits from the wages and social entitlements applied to the principal employer's own workers. Where a collective agreement exists, benefiting from it arises.
- Job security applies as against the principal employer, and any reinstatement claim is brought against them.
- Differences in wages, bonuses and other social entitlements may be claimed.
How to Raise It
- Gather the evidence that shows the reality: who gave instructions, whose equipment was used, who approved leave, which colleagues did the same work under a different employer.
- Name both employers in the mediation application and in the claim — leaving the principal employer out makes enforcement against them impossible later.
- Plead the sham expressly and ask for service to be calculated from the first day at the workplace.
- Ask for the workplace file and inspection reports to be obtained; a labour inspector's report is strong evidence.
- Ask for the collective agreement applied at the principal employer's workplace, where one exists, and claim the differences.
Where the work and the workplace stay the same and only the company on the payslip changes, service is not reset — the successive periods are added together. And where the arrangement is found to be a sham, service runs from your first day at that workplace, with the principal employer as your employer throughout.
Frequently Asked Questions
When is subcontracting lawful?
Where the work is ancillary, or is a part of the core work requiring expertise for reasons of the undertaking, the work and technology — and where the subcontractor employs the assigned workers only at that workplace.
What makes an arrangement a sham?
Splitting off ordinary core work, the principal employer giving instructions and setting leave and hours, no separate organisation or equipment, frequent changes of subcontractor with the same workers, and the principal employer being the only customer.
What happens if a sham is established?
The worker is treated as the principal employer's worker from the outset: service runs from the first day at the workplace, and the principal employer's pay, social entitlements and collective agreement apply.
Does my service reset when the subcontractor changes?
No. Where the work and the workplace stay the same, the successive periods are added together.
Whom should I sue?
Both the subcontractor and the principal employer, naming both in the mediation application as well — otherwise enforcement against the principal employer becomes impossible.