Primary employer and sub-employer relationship in Turkish labour law and sub-employer relationship of municipalities

The primary employer and sub-employer relationship, the definition and provisions of which are articulated in Labour Law no. 4857 Article 2 Paragraph 6 and the sanctions of which are extrapolated through certain criteria in Article 7, is one of the most preferred flexible working methods and one of the three-party employment relationships that is frequently used in practice by both the private sector employers and the public institutions and organizations. The sub-employer relationship, which has been used in our country for a long time but was subject to strict conditions during the period of Law No. 4857, has undergone some changes over time. The lawmaker's attempts at narrowing down the scope of primary employer and sub-employer relationship as a reaction to practices in bad faith has not translated to practice, so the scope of the relationship has been constantly subjected to expansion efforts in favor of the employers. Especially in the public institutions and organizations, the sub-employer practices which are regarded as a way to cut the labor costs, have not been contained within the narrow-cut regulations. Because of this, the checks and balances set forth for the public institutions and organizations have been eased in spite of the principle of equality recognized in our Constitution as well as other principles entrenched in international agreements. In this regard, new clauses have been added to Article 2 of the Labour Law and provisions have been introduced to special statutes. Yet with introduction of each new regulation, differences in opinion arose within the doctrine and contradictory judgements were rendered in practice as well as in verdicts. Thus, even though the lawmaker attempted to legitimize the primary employer and sub-employer relationship, which has been established with a special consideration to labor costs but does not for the most part abide by the provisions stipulated in the law with regards to the terms of the relationship, the new regulations that do not reflect the initial will of the lawmaker have greatly eroded the institution of primary employer and sub-employer relationship. This study first attempts to examine the primary employer and sub-employer relationship, then analyzes the provisions stipulated for the public institutions and organizations, with a special regard to municipalities where this relationship is prevalent the most, in relation to primary employer and sub-employer relationship. In this context, both the opinions in the doctrine and the Supreme Court judgements were used.