The liability of actual employer arising from it's relation with the sub-employer

Economic crises and altering personnel management, especiallyexperienced since 1980?s, revealed the necessity of flexibility on staff. Likethe preferences of employers to take the other specialized enterprises?services rather than personnel employment on their own at the areas whichneed to have specialization, the understanding of decrease in manpowercosts or problem-free and perpetual employment have been only a fewreasons make the employers motivate to choose this method. Apart fromthese legal reasons; the tendency to avoid the obligations arising from TheLabour and Social Security Law, keeping away from trade unionorganization, the idea to throw the workload of manpower administration offhave played a part both the appearance and expansion of the subemployership.The legislator, taking into accaunt all these facts, had felt thenecessity to arrange the relationship between actual employer andsubemployer; while the topic was considered as ?the joint liability ofemployer and subemployer? in the period of Law No. 1475, the definition ofsubemployer relationship and the sanctions of simulated employment wasformulated by the Law No. 4857.In the new legal arrangement, related to the actual employer-subemployer relationship, there are some contractionary differences togetherwith some preserved elements in the previous one. According to thesecontractionary differences; the other employers undertaking ?subsidiaryworks? or ?a piece of the principal work? regarding to the production ofgoods or services at a worksite, the actual employer-sub employerrelationship will occur only if they employ their employees at this worksite.Besides, it will be possible to establish this relationship, due to custom ofthe trade and enterprise and the works need specialization related totechnological reasons.Also, the restrictions of the establishment of the actual employer-sub employer relationship have been defined by the Law No. 4857, andmaking the workers of the actual employer work for sub employer, havingsub employer relationship with the worker who worked for the employer,giving a division of the principal work to sub employer have been forbidden.The sanction of breaching those restrictions have been arranged briefly inthe Law No. 4857, and in case of a breach it is stated that the sub employerrelationship will be named as `simulation/collusion? and `the employee of thesub employer? will be acknowledged as `actual employer?s employee? fromthe beginning.It is controversial in the doctrine if the particular circumstancesstated in the Law No. 4857 are an absolute prohibition and simulation or anirrebutable presumption, furthermore, the simulation (collusion) concept inthe statutory provisions has been criticised for not being convenient totechnical meaning.In the actual employer-sub employer relations, the legislator hasundertaken the issue by means of `employee favour? and held the actualemployers together with the sub-employer, liable of the obligations of thesub employer to its employees relevant to that business, arising from thisLaw, from the employment agreement or from the collective agreementwhich the sub employer is a party of, especially in order to avoid the riskthat the employees working for the sub employers may not receive theirwages and other rights in case the sub employers with low capitals get infinancial squeeze. The ?joint liability? mentioned here is the joint liability suchas, in case the employee undergoes any loss arising from the work carriedout for the employer, he/she may request the compensation of the loss byapplying either to the actual employer or the sub employer.In case the actual employer-sub employer relation is detected to bebased on collusion, the employer shall be the only and actual drawee of theemployee claims as the employee shall be considered as the employee ofthe actual employer.