Att. Kemal Guclu Erdogan
General Rule
The general rule in Turkish Labor Law is that main employers are jointly and severally responsible from the employment contracts of their sub-employers concluded for performance of services obtained. Main employers are thus held responsible for payment of wages and other receivables of the employees of subcontractors, along with the subcontractor himself. This prevents main employers from obtaining services of subcontractors that are used as empty front companies, from having the personnel employed in paper by such shell companies and escape potential responsibility from employment contracts.
Much-Debated Issue
The general rule of the Turkish Labor Law provides an umbrella of protection for employees of numerous sectors although it was very much in discussion whether this protection extended to the employment of seafarers under Turkish Maritime Labor Law. Regional Courts of Appeals (first step of appeal) had different views on this subject which led to confusion in day-to-day employment of seafarers.
The confusion stemmed from the following: Employment of seafarers in Turkish flagged vessels is subject to Turkish Maritime Labor Law which is an old but distinct act from the general Turkish Labor Law. The general rule explained above on sub-employment was introduced with the relatively new Turkish Labor Law and was not adopted in the Turkish Maritime Labor Law. This raised the question of applicability of the general rule on sub-employment to the maritime employment context. The problem was that application of this rule by analogy in maritime employment would go against legal technicality as Turkish Maritime Labor Law was distinct from the regular Labor Law and specifically designed to cover the aspect of maritime labor. This law did not include a general rule holding main employers responsible for the debts of their sub-employers. If on the other hand this relatively new concept was ignored, this would run the risk of leaving the employees prone against financially empty subcontractors. For instance, if introduction of this rule into maritime labor is refused, a port operator could easily outsource the operation of tug, mooring, pilot services within the port in paper to a shell company. The port operator can then ensure that the personnel of such boats and tugs are employed in name by the shell company and escape responsibility from employment contracts of the given personnel. This could become a loophole to exploit on national scale.
Decision of the Supreme Court
The Supreme Court recently took a close look at this issue and eliminated the contradiction between the decisions of Regional Courts of Appeal of several districts. The Supreme Court held that provisions of the Turkish Labor Law could not be applied by analogy into the Turkish Maritime Labor Law and that two codes regulated distinct and independent areas of labor. They have thus upheld that the general rule regarding sub-employment was not to be applied to the employment of seafarers in Turkish vessels in the wake of a specific provision to that effect within the Turkish Maritime Labor Law.
Notwithstanding the above and guessing that the Supreme Court has foreseen the undesirable outcome to be brought by a firm refusal of introduction of joint and several responsibility of the main employer into Turkish maritime labor, the High Court left a door open for seafarers to follow. According to this, although a seafarer was not to demand application of the general rule on sub-employment to the maritime labor by analogy, he/she could nevertheless allege collusion and claim that the main employer and the sub-employer colluded in obtaining the services of the sub-employer. As a matter of Tukish law, acts of collusion are deemed null and void. Hence, the Supreme Court suggested that a seafarer would be free to allege that the main employer obtained the services of the sub-employer only in paper and the two have colluded together. The seafarer would then be entitled to hold the employer in paper and the real employer behind the scenes jointly and severally liable for his contract of employment.
Conclusion
Although the rationale of the Supreme Court decision seems correct to me from the perspective of legal technicality, it will sure give rise to practical difficulties of proof. It will no longer be enough to basically outline that there is a contract of service between the main employer and the sub-employer but the seafarer will also be asked to prove that this contract of service was an act of collusion. To tackle this, the seafarer could attempt to prove that the work performed was under the full and exclusive control of the main employer, the employees were receiving instructions directly from the main employer, no administrative personnel of the sub-employer was present in the workplace and that the maritime equipment and vessels used during performance of the work belonged to the main employer. Turkish Courts were consistent in taking sides with employees in the past and on numerous occasions dismissed consorting to evaluation of matters from the perspective of legal technicalities. It was therefore surprising to observe the Supreme Court remaining faithful to a technical point for an issue that concerns a large sector with high number of employees.
You may reach our office by e-mail (kgerdogan@aksoyerdogan.com) or by phone (+90 212 909 07 07) for further questions regarding this matter.
Tags
Maritime Labor Law, Labor Law, Employment Law, Maritime Law, Seafarer, Crew, Employee, Employer, Sub-Employer, Supreme Court, Regional Courts of Appeal, Port, Ship, Aksoy Erdogan Law Firm, Attorney Kemal Guclu Erdogan