Introduction
Turkey has recently adopted a new law to officially enable temporary employment relationships through private employment agencies, while offering better protection for temporary staff.
The Law Amending Labor Law 4857 and Turkish Labor Agency Law 4904, which entered into force on May 20, 2016, frees the way for private employment agencies to become intermediaries in establishing temporary employment relationships between employers and employees.
Previously, even though the Regulation on Private Employment Agencies banned private employment agencies from carrying out temporary employment activities, the law had no teeth. As a result of this loophole, private employment agencies were engaged in placing temporary employees, even though this was technically against the law.
The amended Article 7 of the Turkish Labor Law allows private employment agencies to arrange temporary staffing for certain types of work, and regulates the employment terms and conditions for temporary workers.
Principal Modalities for Establishing Temporary Employment Relationships Through Private Employment Agencies
Private employment agencies can provide temporary staffing services by concluding a temporary employment agreement with an employer and transferring an employee over to the employer under the conditions set forth in the Labor Law.
However, private employment agencies cannot be intermediaries for all kinds of work; the Amending Law restricts them to providing temporary employees for only certain types of jobs or situations, including: (a) an employee’s maternity leave, military service and other cases where an employment agreement is suspended; (b) seasonal agricultural work; (c) household work; (d) intermittent work not included in the daily business of the enterprise; (e) urgent work with regard to occupational health and safety, or in the event of a force majeure which significantly affects production; (f) unpredictable increase in the enterprise’s average work load which necessitates temporary employment; and (g) periodic increases in the workload, in situations other than seasonal work.
Allowing employers access to temporary employment due to an “unpredictable increase in the capacity of the enterprise’s average overload” has been criticized, as it creates uncertainty as to how to determine the “average workload.” Employers could abuse this by adopting a relatively low workload as an average in order to employ the minimum number of permanent employees and use temporary workers when the workload increases.
While the duration of temporary employment is limited to the duration of the situation requiring temporary help (e.g., maternity leave), there is no inherent time limitation for seasonal and household work. The law attempts to address this by setting out overall limits for temporary employment. Temporary employment agreements can be signed for up to 4 months and renewed twice for up to 8 months – for a grand total of 12 months. Furthermore, if an employer uses a temporary employee for a certain job, it then has to wait at least 6 months after that employee leaves before using a private employment agency to staff that role again.
If the temporary employment relationship exceeds the above thresholds, then an indefinite employment relationship is established between the temporary employer and employee. When this happens, the liability of the private employment agency ceases.
In the three-party relationship, the private employment agency is the employee’s principal employer and is responsible for paying the employee’s salary and benefits. The employment agency can establish a temporary employment relationship by signing a written employment agreement with the employee, and a written procurement agreement with the temporary employer.
To protect temporary employees from differential treatment by employers, the Amending Law provides that temporary employees cannot be employed under less favorable conditions than permanent employees for the same work. This includes being entitled to the same social benefits which are offered to full time staff during the employment period. At the end of the employment relationship, the temporary employer can offer the employee a permanent position and this cannot be limited in the employment agreement between the private employment agency and the employee.
Conclusion
Even though the Amending Law takes a positive step in protecting the rights of temporary employees, it has also been the target of criticism among academics who point to the uncertainty in some of the situations where employers can use private employment agencies. No doubt the uncertainties regarding the implementation of the amended Article 7 of the Labor Law will be addressed by the labor courts in the years to come.
