IN LOANED BUSINESS RELATIONSHIP; THE SCOPE OF PROTECTION AND SUPERVISION LIABILITY IN TERMS OF EMPLOYERS ‘OCCUPATIONAL HEALTH AND SAFETY

Summary: One of the flexible working models is the loan business relationship. If an employer puts the work of the employee, who is bound by a contract, to the order of another employer for a certain and temporary period, provided that he obtains their consent, it is defined as the employee working in the service of another employer who does not have a labor contract. The loan business relationship, which is a unique tripartite relationship, may be grouped under two headings as the loan business relationship with a profession, and the loan business relationship without a profession. Employers’ responsibilities for taking occupational health and safety measures differ for both loan relationships. It can be said that the responsibility of the private employment agency is quite limited in the lent business relationship established through private employment agencies, although joint responsibility is foreseen in the loan business relationship without a profession.

As it is known, the loan business relationship generally refers to the business relationship established when the employer (lender) gives the work of one worker temporarily to the order of another employer (borrower). In the loan business relationship, which is a three-way relationship; the employee actually performs their obligation to work in the workplace of an employer that does not have a contractual relationship between them. In this respect, it can be said that there is a unique relationship between the employee and the borrower employer. Private employment agencies, Labor Law dated 06.05.2016 and Turkey Employment Agency Act 4857 of the Law Amending the Law entered into our legal system with Article 7. In accordance with the 11th paragraph of the aforementioned regulation; it is established through a “loan employment agreement” between the private employment agency and the borrower employer. The employment loan agreement, which is a contract that imposes continuous and mutual debt on both sides, has a unique legal quality.

The establishment of a loan business relationship without a profession depends on the written approval of the worker. The worker must give their written consent during the transfer. Therefore, the consent given before the transfer is not valid. The loan business relationship without a profession may be established for a period not exceeding six months and may be renewed twice at most. Extension of these periods is not legally possible. Extension of these periods will not bind the worker. However, if the loan worker continues to work with the borrower at the end of the contract agreed in the contract or at the end of the contract term, which is at most 18 months; the worker must be considered the borrower’s worker from the end of the said period. If the deadlines are respected; the employer of the employee does not change, and continues to remain as the lending employer. Again, in accordance with the provision of the Labor Law Article 7/15, the borrower employer; has been held liable together with the lending employer for the employee’s unpaid wages, social security premiums and employee protection debt, limited to the time the employee worked in their own organization. Because, since joint liability is stipulated between employers in the said business relationship, both employers will be responsible for administrative fines regulated in accordance with the provisions of Article 26 of the Occupational Health and Safety Law.

In the loan employment relationship with a profession, the employer is a private employment office pursuant to the provisions of Article 7/11 of the Labor Law and the employee essentially signs the employment contract with the Private Employment Office. In the loan employment relationship with a profession, the terms of the employment contract are determined by the private employment agency, but the employee is under the orders and instructions of the employer, who borrowed for a certain period of time. It is obligatory to establish a temporary employment relationship through a private employment agency, in writing, by concluding a temporary employment contract with the employer employing temporary workers. 

In accordance with the Labor Law Article 7/9-f; it has been regulated that the borrower employer is primarily responsible for the debt of taking care of the employee in the loan business relationship. At the same time, even if the main interlocutor is the borrower, the obligation to take care of the employee continues in terms of the private employment agency. The liabilities that the private employment agency is responsible for under this paragraph; health surveillance, the obligation to inform and to inspect. However, on the other hand, we should emphasize that; ıf the loan worker continues to work with the borrower employer after the end of the period of employment, then the worker will be considered as an indefinite-term worker of the temporary employer. As of this date, the private employment agency will cease to be responsible for the wages arising from the temporary employment relationship, the obligation to take care of the worker and the social security premiums. However, the responsibility of the private employment agency will continue, limited to the period agreed in the temporary employment contract.

Temporary employer in accordance with Article 7/9-c of Labor Law; it is obliged to notify the cases of work accidents and occupational diseases to the private employment office immediately, and to the authorities specified in the Social Insurance and General Health Insurance Law within the period. Because, in the event of an occupational accident, in case the insured person dies, the right holders will be able to benefit from social insurance benefits, depending on the Social Security Institution accepting the incident as a work accident. An administrative fine is stipulated if the borrower violates the notification obligations.

If it is necessary to talk about the rights of the loan worker in case of violation of the protection obligation;

First of all, in case of a serious and imminent danger, the loan worker, in accordance with the Article 13 of the Occupational Health and Safety Law No. 6331; has the right to refrain from working against the borrower employer. At the same time, article 13/4 of the Occupational Health and Safety Law, the loan worker has been given the right to terminate the employment contract for a just cause if the necessary measures are not taken. However, in the lent business relationship in which the private employment agency is involved, the employee will not be able to use his right to terminate immediately, since joint liability is not foreseen. First of all, it will be possible to request the private employment office to terminate the loan business relationship and to have the right to terminate if this request is not met.

In the loan business relationship without a profession; the right of termination of the loan worker will arise without seeking an application to the lender employer due to the joint responsibilities of the employers. Again, in the loan employment relationship with a profession, loan worker; ın the event of an occupational accident and occupational disease, will only be able to claim material and moral damages arising from the breach of the obligation of protection from the borrower employer. Because, in case of violation of the protection obligation, fault liability may be applied.

However, if the private employment agency’s violation of the obligations such as health surveillance, supervision and information against the loan worker still has an effect on the accident, then the responsibility of the private employment agency will come to the fore. The loan worker will be able to claim their damages arising from work accidents and occupational diseases that may not be covered by the SSI, subject to a 10-year general statute of limitations. In the loan business relationship without a profession, the loan worker; in accordance with the joint responsibility clearly set forth in the article 7 of the Labor Law, both the borrower and the lender will be able to claim the damages from the employer. The employer who borrowed in terms of compensation for the damage caused by the work accident; in the event that the loan worker compensates for their loss, their will have the opportunity to recourse to the private employment office at the rate of their fault in the occurrence of the work accident.

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