SUBCONTRACTOR/SUB-EMPLOYER

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What is A Subcontractor? What Are the Benefits?

The institution referred to as subcontractor or contractor in daily life is actually defined as sub-employer by Labor Law No. 4857. In the said law, the sub-employer is the person who assigns a specific part of the ancillary work carried out by the principal employers in the enterprise or in the relevant part of the actual work that requires expertise. Those who are identified as sub-employers are obliged to employ the workers they hire only in the field where the businesses assign them. The main and auxiliary business concepts used to describe the sub-employer are the concepts that need to be explained in terms of understanding the subject.

The main job is defined as the jobs that require expertise and exceed the operational possibilities in the operations that are the main activity of the enterprise. Ancillary business is the job that is related to the main field of activity of the business but does not occur within the organization of the business.

The emergence of the concept of subcontractor was realized with the aim of ensuring specialization in business areas and undertaking different kinds of jobs by other enterprises.In time, the subcontractor institution which entered into the Labour Law and is one of the important parts of the working life has started to be used for the purposes of avoiding certain obligations imposed by the SSI. Sub-employers, which entered the Turkish legal system for the first time in 1936 thanks to the Labour Law No. 3008, today constitute a very serious area with its scope and regulations.

How to Establish A Subcontractor Relationship?

In order to establish the relationship between the sub-employer and the principal employer, certain conditions must be met. In the event that conditions are met, it formally provides the establishment of the relationship by signing a contract called a ‘sub-employer agreement’ on behalf of the parties.

What are the conditions that the parties must meet in order to establish this agreement?

Real or legal persons who are qualified as the principal employer must have their own workers employed in the production of goods and services.,
The work assigned to the subcontractor must be either auxiliary work or must be within the scope of the part of the main job that requires expertise,
Subcontractor must employ their workers only in the job of the principal employer,
The scope of activities to be carried out by the sub-employer must be of a continuing nature as long as the actual work continues.
The subordinate employer cannot have previously worked as the employee of the principal employer. This will cause problems in establishing a sub-employer relationship.

What Are The Qualifications Of The Subcontractor Agreement?

The subcontractor agreement, which is necessary to establish the relationship between the subcontractor and the principal employer, is an agreement regulated by law and which shall be deemed invalid if it does not have certain qualifications. Therefore, when establishing a subcontractor agreement, you must ensure that the following matters are included in the contract.

Workplace title and address of both the principal and the subcontractor,
If at least one of the parties is a legal person, legal entities; if they are real persons, name- surname and address information,
Description of the main job,
The scope of the work transferred to the subcontractor,
Explanation stating that the work requires technological expertise if a certain part of the work will be given,
Work start and end dates, if already determined,
Where to perform the activities of the subcontractor,
The principal employer shall share responsibilities with the workers employed by the subordinate employer.,
Principles of the work to be carried out by the subcontractor,
The signatures of the principal and sub-employer or their surrogates must be found.

What Are the Responsibilities Of Subcontractor?

The subcontracting agreement that emerges when the subcontractor and the main employer relationship is established causes the subordinate and principal employers to be jointly responsible. More specifically, if an assignment that is required by law to be fulfilled by the original employer is not carried out, this time it will be in the sub-employer who has been awarded the sub-employer title with the responsible sub-employer contract. The most common situation at this point is that SSI premiums are not paid, or salaries are not paid.

In case of an occupational accident or occupational illness, the worker may make claims to both the subordinate employer and the principal employer. Since the liability here applies to both parties, it shall not affect the outcome of the application to the subordinate or principal employer.

Although the relationship between the subordinate and the principal employer is established by a contract, possible disputes and irregularities can be controlled not only through the agreement but also in actual practice. Therefore, it is important for the lower and principal employers that the payroll service and other related activities are carried out meticulously.