La relation entre le permit de travail et le conrat de travail des ouvriers etrangers dans le droit de travail individuel Turc

In recent years, Turkey has become a country subject to migration, and this fact has the effect of increasing very rapidly the population of foreign workers in the country. This increase, having reflections in the economic and social field, was also noted with regard to employment contracts with a foreign party. It has become necessary to examine the relation of the procedures for obtaining, renewing and cancelling a work permit, which, concerning the entry of foreign workers into the country by legal means and their legal employment, remain in the power of the administrative authority, with the conclusion of the employment contract of the foreign worker, the type of this contract and its termination. During this review, one needs to consider and compare the legislation, legal practice and legal literature of European countries where migration is the subject of a much greater experience. The United Nations' International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which is endorsed by Turkey, also taking into account that the right to employment is a fundamental human right, requires that derogations of this right to foreigners, having been subject to the law number 6735 and other legal regulations, be regulated, interpreted and practiced in a manner compatible with itself. The Convention provides that foreign workers in a regular situation must not be made irregular in the event of loss of employment for certain conditions, and that irregular foreign workers must be protected against their employers who make them work in this situation. The doctrine of law has generally accepted, that the law number 6735 on foreign workers and the legislation concerning the employment of foreigners in Turkey in gainful work in general, protects above all public order and the national labour market, and that for this reason violations of this legislation should be subject to severe administrative and civil penalties. However, by claiming that all legislation concerning foreign workers, including law 6735, "protects the national labour market and public order", it becomes quite a matter of discussion how the purpose of this protection will be achieved and the problem of sanctioning irregular employment still remains insoluble. First, the legislation contains provisions ignoring a person's right to not to be bound by a contract as a part of his rights due to his personality. An example is the article 15 of the foreign labour act which, without making any distinction, provides that any termination of the employment contract "for any reason" is cause for cancellation of a permit. It is difficult to accept that such provisions are compatible with the United Nations conventions on foreign workers, because they place the burden of the termination of contract on the worker, even if it arises from an unfair breach by the employer or an act by the worker based on the unjust actions of the other. The legislation, as such, threatens the worker with the cancellation of his work and residence permit in case that he executes the right linked to his personality. The immediate effect of this is the birth of a mass of workers who are easier to employ and whose right to termination of contract is sanctioned by the cancellation of their permits. In other words, the legal provision as it stands has a purpose that has nothing to do with the purpose of protecting "the national labour market". The subject of the legality of other provisions, not provided for by law but by regulation and which constitute an intervention in the freedom of contract (for example the limitations for the right of the parties to suspend the contract), is also debatable. To discuss their effects on the employment contract, it is essential to determine the legal nature of the provisions of law 6735 and other legal regulations. Above all, the uncertainty regarding the effect of the irregular employment of the foreign worker on the employment contract is still present. We speak on the one hand of the violation of the law, on the other of the violation of public order, but there are several points of view on the degrees of this violation and the consequences that it must undergo. First of all, one must not forget that these regulations are intended to protect the personality of the foreign worker and human dignity, to prevent clandestine work, human trafficking and forced labour, to control the labour market, along with the objective of maintaining the social and economic public order and the protection of the national labour market. In the doctrine, although the effect of the violation of the legislation on the authorisation to work on the contract is evaluated in different ways, the point of view admitting an invalidity towards the future which is provided for by article 394 al. 3 of the code of obligations, is predominant. However, from another point of view, although it is reduced to a notice of dissolution, we must take into account that invalidity towards the future is still a invalidity and it is a severe sanction. The source of the Turkish legal provision, the Swiss law, even if it accepted that the invalidity of the contract works towards the future, does not provide for such a sanction of invalidity as an immediate sanction whose application will serve the employer who hires the unlicensed worker. As for French law, despite the conservative position of French legal and administrative practice, it contains legal provisions, which aim to "assimilate" the irregular foreign worker to the status of a regular worker when there are problems with his employment contract. When one examines Turkish law relying on comparative law, accepting the point of view that presumes invalidity towards the future due to an illegality concerning the part of the contract, will set up a mass of workers who will not benefit from the protective provisions about termination and termination proceedings and who will be subject to other termination proceedings, and this position is in contrast to the purpose of the legislation on work authorisation. Even if in the event of the performance of a profession requiring a specialist with a specific authorization, a sanction of invalidity is admitted, it is a subject of discussion to be reconsidered especially with regard to the objectives of labour law and of the protection of the national labour market, whether the sole hiring of a worker without a permit should bear the burden on the worker or not. Part of the legal provisions on the hiring of foreigners is in the regulations, and unfortunately another part is in no written rule and is carried out with the force of the administration as a "fait accompli". This is the case for the employment contract that one is obliged to present to the administration and which is presented on the website of the ministry of labour. It is difficult to accept that this form of contract, which is, for example, different from the employment contract provided for in law 5580, is a condition for validity or for proof. The request of the administration to present a written contract, by itself, does not affect the fact that this document is only a formal necessity for the administrative process. The question of the concept of "public order" and its form of existence and its degree of predominance in each regulation, is a question to be reconsidered. The evaluation which presumes that the control of the administration on the employment contract of the foreign worker, is shown in the same way as that of the law 5580, with regard to public order and that the written form is a form of validity for the contract, will constitute an interpretation that goes beyond the purpose of the legislation. Another question arises with regard to conflict of law: even if one qualifies rules concerning the authorisation to work as immediate rules, to assume that this qualification means that the contract as provided for by the regulation is a condition of form for the contract, can also go beyond the purpose of the immediate rules. The demand for a written contract during the work permit application, on one hand, is a requirement of state authority over the control of the economy and the national labour market as a form of its sovereignty, on the other hand, is a necessity of national and international legislation on the protection of fundamental human rights, the prevention of human trafficking, forced labour and clandestine work. In this regard, the administrative control over the contract is limited with its purposes and it is special. There cannot be a question of invalidity of contract due to violation of written form regarding irregular foreign workers, as it is unacceptable to say that the written contract presented to the administration serves to get rid of legal rules on the true nature and provisions of the contract. Making conclusions for the benefit of the employer who hires a foreigner without a permit means at the same time concluding contrary to the objective of protection of the legal rules. It is a general and fair presumption to regard the issue of obtaining a work permit as a business risk belonging to the employer. In an employment contract, concluded by the parties for the purpose of performance, hiring the worker without a permit can be assessed as a violation of article 24/II-c of the labour law or "the breach of working conditions". The hiring of the worker without a permit is not only a violation of public order and an act against the workers of that country, but at the same time is an immediate violation of the obligation to protect the personality of this same irregular worker. The irregular foreign worker is in a more precarious and weaker legal situation. The employer who hires a worker without a permit, in principle, should not be able to rely on the invalidity of the contract or on the misleading attitude of the worker or his fault in fulfilling the conditions of application for obtaining of permits. The lack of a work permit or the non-renewal of a permit may create an impossibility of performance (or an impossibility of its acceptance) continuous or temporary for the parties. The question is how to distribute the burden of a risk and the responsibility of an obstacle to performance that arises after the conclusion of the contract but during a period of time for performance. The legal provision (code of obligations art. 394/al. 3) rather protects the contractual relations which have been actually carried out. On the other hand, the dates of the contract and the start of performance may differ. A different assessment must be made for each possibility, taking into account all of these elements. The theoretical points of view that admit the default of the creditor for the impossibility of performance due to an obstacle of his own area of dominance and the impossibility for reasons that are not attributable to the parties must necessarily be underlined. Another problem that arises is the relationship between work permits and the nature of the employment contract. It is debatable that the work permit, which is sometimes temporary, constitutes in itself an objective condition to qualify an employment contract as a contract for a fixed term or indefinite. It is impossible to qualify the existence of a temporary work permit as an objective condition for the contract to be considered a fixed-term employment contract. Taking into account comparative law, the legislation concerning work permits must be regulated again by considering the different types of contracts and the different types of employment. The effect of several possibilities concerning the work permit (refusal of the application, cancellation of the permit, non-renewal) on the dissolution of the contract, is another question to consider. It must be examined whether these possibilities are obstacles for the execution of such gravity that will require the termination of the contract or that will jeopardize the benefits and interests foreseen during the conclusion of the contract by the parties. In a contractual relationship, the parties, in principle, do not consider improper hiring and putting the other party's interest (either under public or private law) at risk as a goal. They expect that the contract is performed with the necessary legal permits and as required. In the event of a party acting contrary to this principle and who, by foreseeing an impossibility of performance, does not notify the other party, the responsibility for the pre-contractual relations will be attributable to this same party. On the other hand, the admission of the absence of the permit as an impossibility of execution or of its acceptance, has never prevented undeclared work. In each current case, an assessment must be made about the reasons for termination whether they are based on the fault of the other party, the source of these reasons and the seriousness of the reasons.