Simulation on actual employer - subcontractor relation

As a result of the effects of the globalization process that is put forward, the organizations from now, prefers flexible working arrangement and model of flexible employment. These flexible practices brought out atypical employment forms like ?temporary agency work?, ?work on call? and ?subcontracting relations?. Economic crises and altering personnel management, especially experienced since 1980?s, revealed the necessity of flexibility on staff. Like the preferences of employers to take the other specialized enterprises? services rather than personnel employment on their own at the areas which need to have specialization, the understanding of decrease in manpower costs or problem-free and perpetual employment have been only a few reasons make the employers motivate to choose this method. Apart from these legal reasons; the tendency to avoid the obligations arising from The Labour and Social Security Law, keeping away from trade union organization, the idea to throw the workload of manpower administration off have played a part both the appearance and expansion of the subcontracting.The legislator, taking into accaunt all these facts, had felt the necessity to arrange the relationship between actual employer and subcontractor; while the topic was considered as ?the joint liability of employer and subcontractor? in the period of Law No. 1475, the definition of subcontractor relationship and the sanctions of simulated employment was formulated by the Law No. 4857. All the same, ?Regulations of Subcontracting? published in Official Journal with 27010 point on 27th, September 2008, to involve arbitraments in concerned with laws and Constitution.Also, the restrictions of the establishment of the actual employer - subcontractor relationship have been defined by the Law No. 4857 and foregoing Regulations, and making the workers of the actual employer work for subcontractor, having subcontractor relationship with the worker who worked for the employer, giving a division of the principal work to subcontractor have been forbidden. The sanction of breaching those restrictions have been arranged briefly in the Law No. 4857, and in case of a breach it is stated that the subcontractor relationship will be named as ?simulation? and ?the employee of the subcontractor will be acknowledged as `actual employer?s employee? from the beginning.It is controversial in the doctrine if the particular circumstances stated in the Law No. 4857 and Regulations are an absolute prohibition and simulation or an irrebutable presumption, furthermore, the simulation concept in the statutory provisions has been criticised for not being convenient to technical meaning.