Regulation on Private Employment Agencies (“Regulation”) has been published and entered in force on 11 October 2016. The purpose of the Regulation is stated as to set forth the procedures and principles for the establishment, services and audits of the Private Employment Agencies (“PEA”).
Outline of the Regulation
- PEA can assist the employees and the employers for the establishment of an employment relationship, provide vocational education, carry on the services regarding the human resources, labor market and staffing.
- PEA cannot provide services for the vacancies of the state institutions and organizations.
- Within the context of the agency services of PEA, for the establishment of an employment relationship the agreements specified below shall be considered as invalid;
- requiring any payment from the employees unless the employee is a professional sportsman, soccer coach, coach, model, artist and general managers (or the equivalents or the higher management positions).
- providing for undeclared work, being or not being a member of a union or paying less than a minimum wage.
- restraining the employee or the employer having services from the other PEA or Turkish Employment Agency.
PEA can establish “temporary employment relationship” under special circumstancesandwith an extra authorization granted by the Turkish Employment Institution (“TEI”).
- Accordingly, temporary employment relationships may be established in the below mentioned cases with the below mentioned terms:
|The Cases||Term of Temporary Employment Relationship|
|Enjoyment maternity leave or right to work part-time after giving birth, rendering of a military service, or suspension of employment agreement due to any other reason||remain valid throughout the duration of the cases|
|Seasonal agricultural labor||for an indefinite term|
|Home services||for an indefinite term|
|Seasonal increase of employment except seasonal agricultural labor||4 (four) months at most|
|Periodic employment which is not considered as daily business of the enterprise||4 (four) months at most (but can be renewed twice for periods that shall not exceed eight months in total)|
|Employment that is deemed to be urgent in relation to job security or emergence of force majeure that considerably affects production||4 (four) months at most (but can be renewed twice for periods that shall not exceed eight months in total)|
|Significant increase of work load of the enterprise||4 (four) months at most (but can be renewed twice for periods that shall not exceed eight months in total)|
- There are three parties in the temporary employment relationship. PEA will be the official “employer” in this relationship. The other parties are “the employee” and “the temporary employer”.
- There are two agreements defined by law. “Employment agreement” between the employer and the employee and the “temporary employee procurement agreement” which is between the employer and the temporary employer.
- The start and end date, nature of the business, service charge of the PEA, liabilities of the temporary employer and the PEA should be included in the procurement agreement.
- The employee has a right to terminate the employment agreement with justified cause if he/she is not being called to work for the time period which also should be indicated in the employment agreement. This time period cannot exceed 3 months.
- If the temporary employment relationship is established due to significant increase of work load of the enterprise the number of the employees employed temporarily cannot exceed ¼ of the employees employed by the temporary employer.
- However if there are 10 or less than 10 employees in a workplace, temporary employment relationship can be established up to 5 employees.
- Temporary employer cannot employ its former employees as a temporary employee within 6 months after terminating his/her agreement.
- Temporary employer has a right to give instructions to the employee in compliance with the requirements of the work and the temporary employee procurement agreement.
- The employees should be treated equally with the own employees of the temporary employer on social services and working conditions basis.
- PEA is liable to submit the documents to the temporary employer on monthly basis showing that the salaries of the employees are paid. Therefore the temporary employer is liable to audit if the salaries of the employees are paid regularly. If it is not then temporary employer can pay the employees’ salaries three months at most and deduct it from the receivables of PEA.
- If the temporary employment relationship continues although the expiration of the time period agreed in the agreement, it will be considered that an indefinite employment agreement is established from the date of expiry of temporary employment relationship.
In a Nutshell
The Regulation having its basis from the Labor Law and Turkish Employment Agency Law has been published as a secondary legislation and has more exhaustive terms shed light on services, establishment, authorities, and liabilities of PEA. Conditions to obtain an authority to establish a temporary employment relationship and reasons for cancellation of the authorities are also included in the Regulation.
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Av. Vedia Nihal Koyuncu, LL.M.