Types of Contract Of Employment PDF

SECTION III Types of Contract of Employment I. GENERAL Owing to the principle of the freedom of contract provided in the Labour Code, employers and employees may conclude different types of contract of employment (Art. 9 of LC)(49). Nevertheless, according to the same article, the parties must com...

SECTION III Types of Contract of Employment I. GENERAL Owing to the principle of the freedom of contract provided in the Labour Code, employers and employees may conclude different types of contract of employment (Art. 9 of LC)(49). Nevertheless, according to the same article, the parties must comply with the restrictions of the law. This section examines the main types of contract of employment(50). II. TRANSITORY AND PERMANENT CONTRACT OF EMPLOYMENT A contract of employment can be transitory or permanent, based on the duration of the work. Parties do not necessarily make a choice between transitory or permanent contract of employment. The contract of employment is deemed as transitory or permanent regarding the duration of the work. A. Transitory Contract of Employment (Süreksiz İş Sözleşmesi) Transitory contract of employment is stipulated in the LC and is based on the duration of the work. If the duration of the work, which is the subject of the contract of employment, is, by its very nature, only up to 30 days, then the contract of employment is considered as “transitory” (Art. 10 of LC). The duration of the work is determined objectively, on the basis of the nature of the work. Thus, if the duration of the work is only up to 25 days, which is determined objectively, the contract of employment is a transitory contract even if the parties consider the duration of the work as 35 days. B. Permanent Contract of Employment (Sürekli İş Sözleşmesi) Unlike transitory contracts, if the duration of the work, which is determined objectively, is longer than 30 days, then the contract between the parties is regarded as a permanent contract of employment. Since the duration of the work is determined objectively, on the basis of the nature of the work, if the work lasts more than 30 days, the contract of employment is considered as “permanent”, even if the parties may complete the work before 30 days by doing double shift(51). C. Consequences of the Distinction between Transitory and Permanent Contract of Employment It is important to determine whether the contract of employment is transitory or permanent, as the Articles 3, 8, 12, 13, 14, 15, 17, 23, 24, 25, 26, 27, 28, 29, 30, 31, 34, 53, 54, 55, 56, 57, 58, 59, 75, 80 and the Provisional Article 6 of the LC are not applicable to transitory contracts of employment (Art. 10 LC). Instead, the TCO will apply to the matters regulated by the said articles(52). To give an example, the provisions of the termination of the employment contract with just cause, which is regulated under the Article 24 and 25, are not applicable to the transitory contract as a consequence of the distinction. However, the Article 435 of TCO, which will be applied to the matter, also regulates the termination of the employment contract with just cause. III. CONTRACT OF EMPLOYMENT WITH INDEFINITE TERM AND DEFINITE TERM A contract of employment can be made with an indefinite or a definite term. However, there are strict regulations regarding establishing a definite term contract. A. Contract of Employment with Indefinite Term (Belirsiz Süreli İş Sözleşmesi) As a general rule, contracts of employment are concluded with indefinite term. The contract of employment with indefinite term is a contract where the employment relationship is not based on a fixed term(53). In indefinite term contracts, the contract does not have an end date. However, it cannot reasonably be expected from the parties to be bound by a contract of employment for unforeseeable period. Hence, the LC allows both the employer and the employee to terminate an indefinite term employment contract upon notice, provided that they comply with the notice period(54). Sometimes, parties may name their employment contract as “definite term contract”. However, as it is examined in details below, parties have to comply with the strict regulations regarding establishing a definite term contract. In case of a contradiction to those regulations, the contract concluded between the parties shall be regarded as indefinite term contract. B. Contract of Employment with a Definite Term (Belirli Süreli İş Sözleşmesi) 1. General In spite of the general rule, it is possible to conclude a contract of employment with a definite term as long as the legal requirements are provided(55). The contract of employment with a definite term is a contract which has a specified term or which is based on objective conditions such as the completion of a certain work or the emergence of a certain event (Art. 11 of LC). It is also possible to refer to this type of contract as a “fixed-term employment contract”. In fixed-term employment contracts, the duration of the work is known or possible to know or foreseeable(56). Thus, both the employer and the employee can determine the conditions of their relationship in advance and in accordance with the duration of the work. This is the reason why a fixed- term employment contract cannot be terminated by the unilateral declaration of one party, unless he/she has a ground for just cause. This is one of the main differences between the contracts of employment with an indefinite term and those with a definite term(57). On the other hand, employees working under a fixed-term employment contract are not considered in the scope of the employment security(58). As the result of this, these employees will not be able to file re- employment lawsuit, which provides an important protection for employees who are in the scope of employment security. Furthermore, fixed term contracts end per se when the period determined by the parties expires(59). As a general rule, the parties do not need to give a notice to the other party on termination of the contract, unless they stipulate otherwise. Hence, the employee will not be able to claim either pay in lieu of notice or severance pay(60). Because of the mentioned disadvantageous situation of the employees working under a fixed term contract, legal requirements to conclude such a contract are stipulated under the Article 11 of the LC. 2. Legal Requirements of the Contract of Employment with a Definite Term The legal requirements for concluding a fixed term employment contract are regulated in the LC. First of all, one of the objective criteria stated in the Article 11 of the LC must be present. These objective criteria are “a work with a definite duration”, the “completion of a certain work” or the “emergence of a certain event”. As stated above, the duration of a work is deemed to be definite when it is known or is possible to know or is foreseeable(61). In other words, the employee is aware of the duration of his/her work, and the employer is aware of the duration of the employee’ work. The completion of a certain work means that the work, which is the subject of the contract of employment, is not a continuous work, but a work where the employment relationship will terminate when the work is completed. The construction of a building, the installation of a machine, the arrangement of a garden plot may be given as examples of works that meet this legal requirement. The emergence of a certain event is the last objective condition stated in Article 11 of the LC. This event can be something that is not regarded as a normal activity for the workplace or something that is unusual for the ongoing activities(62) such as illness, pregnancy of an employee, increase of the workload, or an urgent purchase order. As a result of this event, the employer can hire new employees with fixed-term contracts to handle the situation. Apart from the objective conditions, the law further requires fixed-term employment contracts to be in writing. The written form is a condition of validity for contracts that have a one-year or longer term, while it is only a condition of proof for contracts that have a shorter term than one year(63). It should be added that a contract of employment with a definite term will be considered as a contract of employment with an indefinite term if the conditions stipulated in the LC are not met(64). Employers sometimes intend to conclude definite term contract in order to avoid additional liabilities stipulated for the indefinite term contracts. However, if the conditions to conclude a definite term contract are not met, the contract will not be regarded as definite term contract although it is named as so. Parties may also conclude definite term employment contracts consecutively. In other words, they may conclude another definite term contract at the end of the first definite term contract. It is called as “chain employment contract” (zincirleme iş sözleşmesi). Chain employment contracts have to comply with the objective criteria that are necessary to conclude a definite term contract. Otherwise, the contracts will be considered as indefinite term contract from the beginning (Art. 11/2 of LC). IV. CONTRACT OF EMPLOYMENT WITH MINIMUM TERM Parties to the employment contract may set a minimum term such as two years or include a clause, which determines a date for minimum duration of the contract. In such contracts, parties are not able to use their right to terminate the contract with a notice during the designated minimum term(65). However, they are still able to terminate the contract with just cause. Minimum term contracts do not end per se at the end of the designated minimum term but parties will be able to use their right to terminate the contract with a notice. In such contracts, the purpose of the parties is not to designate an end date for the contract but to prevent parties from terminating the contract with notice during the minimum term. Hence, they are regarded as indefinite term contracts where a minimum term for the application of the contract is guaranteed(66). V. CONTRACT OF EMPLOYMENT WITH MAXIMUM TERM Likewise the contracts with minimum term, parties may conclude an employment contract with a maximum term. In such contracts, the contract of employment shall be terminated per se at the end of the maximum term. In other words, contract of employment with maximum term and contract of employment with fixed term are similar regarding the termination of the contract. Because of this similarity, it is accepted that the provisions on the fixed term contracts shall be applied to the termination of the maximum term contracts. Hence, employees working under a maximum term are not considered in the scope of the employment security if their contract ends at the end of the maximum term. As the result of this, these employees will not be able to file reemployment lawsuit which provides an important protection for employees who are in the scope of employment security. Furthermore, since the maximum term contracts end per se at the end of the maximum period, the parties do not need to give a notice to the other party on termination of the contract, unless they stipulate otherwise. Hence, the employee will not be able to claim either pay in lieu of notice or severance pay. On the other hand, unlike the fixed term or minimum term contracts, in maximum term contracts parties may use their right to terminate the contract with a notice before the end of the maximum term. With this characteristic, maximum term contracts are similar with the employment contracts with indefinite term. Hence, the provisions regarding the indefinite term contracts shall apply if the parties terminate the contract before the end of the maximum term. Moreover, the employee shall be considered in the scope of the employment security and shall be entitled to pay in lieu of notice and severance pay in such cases. VI. PART TIME AND FULL TIME CONTRACT OF EMPLOYMENT A. Full Time Contracts (Tam Süreli İş Sözleşmesi) As a general rule, employment contracts are concluded as full time contract. If the parties do not designate a weekly working time in the employment contract, then the weekly working time the employee is obliged to work shall be regarded as forty-five hours at most (Art. 63/1 of LC)(67). However, if the parties have designated the weekly working time, then it should be examined whether the designated weekly working time is short enough to consider the employment contract as part time contract. According to the Supreme Court decision, the employer shall not make differentiation between the rights of the employees who are working under a full time contract but with different weekly working times. Hence, if an employee is working thirty-five hours in a week, s/he should be equally paid for social rights such as fuel allowance or food aid with other full time employees working forty-five hours in a week(68). B. Part Time Contracts (Kısmi Süreli İş Sözleşmesi) In practice, contracts of employment are usually concluded as full time contracts. However, following the popularization of flexible working hours, part time contracts also began to be concluded(69). A part time contract of employment is a contract where the normal weekly working hours of an employee are considerably shorter than those of a comparable employee who works under a full time contract of employment (Art. 13 of the LC). It is important to determine when the working hours of an employee are considerably shorter than those of a comparable employee working under a full time contract. According to Article 6 of the Regulation on Working Hours in Labour Code(70) working hours that are up to two thirds of the working hours of a comparable employee working under a full time contract of employment are considered as part time work. To give an example, if a comparable full time employee works for 45 hours per week, then it is considered as a part time work when the working hours of an employee are only up to 30 hours per week. It is also important to define “comparable worker”. “Comparable worker” is defined as an employee who is employed full-time in the same or a similar job in the workplace in the Article 13/3 of the LC. If there is no such employee in that workplace, an employee performing the same or a similar job in the same line of business with a full-time contract of employment in a workplace with similar conditions will be considered as a comparable worker. Wages and other monetary benefits of part-time employees must be paid in accordance with the proportion of working hours between the part time employee and the comparable employee working under a full time contract. Furthermore, according to Article 5 of the LC that regulates the prohibition of discrimination and Article 13/2 of the LC which protects part time employees, an employer cannot accord less favourable treatment to a part time employee, unless there is a reason justifying such discrimination. VII. WORK ON CALL (Çağrı Üzerine Çalışma) The idea of flexibility in labour law led to the emergence of atypical working types such as work on call(71). Work on call is a part time work where the employee accepts to work when the employer makes a call for work in case of need(72). Work on call is regulated in the Article 14 of LC and accordingly, work on call agreements shall be concluded in written form. If the parties do not specify how long the worker will work within a period of time such as week, month or year; the weekly working time is considered to be twenty hours (Art. 14/2 of LC). So that the employee will not face insufficient working hours without his/her knowledge. In a case where the parties did not specify the working time, the employer will have to pay for at least twenty hours per week even though the employee worked less than twenty hour in that week. If the parties specify how long the worker will work within a period of time; then the employee will be entitled to the wage of that specified working hours even when s/he works less than that working hour (Art. 14/2 of LC). For example, if the parties agreed on ten hours of work in a week, then the employee will be entitled to the wage of ten hours even if he had worked only for two hours on that week. On the other hand, if the employee works more than specified working hours, then his/her wage will include those extra hours too. Parties can also specify some other details by work on call agreement. For example, parties may decide how long before the work shall the employer make the call; or for how long the employer must employ the worker in a day on each call. However, if the partied do not specify those details, then, the employer has to make the call for work at least four days before the time of the employee’s work and the employer must employ the worker at least four hours in a day on each call (Art. 14/3 of LC). VIII. REMOTE WORK CONTRACT (Uzaktan Çalışma) As a result of technological developments, there have been many changes in working methods. Remote work contracts are one of these changes(73). With the help of the new methods, employees are able to fulfil their duty to work although they are not present at the workplace. In this type of work, workers can perform their work at home or outside the workplace with technological communication tools. Besides that, remote work is expected to be more common when the fourth industrial revolution, namely Industry 4.0, takes place(74). Remote work is an employment relationship where the employee is performing it duty to work at home within the work organization created by the employer, or outside of the workplace with technological communication tools. It is also stipulated that a remote work contract shall be established in written form (Art. 14/4 of LC). As it can be derived from the definition of the remote work contract, it can be established in two different types: work at home and telework. However, both types are subject to the same provisions in the Article 14 of the LC. On the other hand, “contract of service at home” is regulated under the Articles 461 to 469 of TCO. It is important to note that employees whose occupations are not in the scope of LC will be subject to the provisions of TCO. The remote work contract established in written form shall include the provisions regarding definition of work, the manner of work, the duration and location of the job, the issues relating to wage and the payment of it, the equipment provided by the employer and the obligations related to their protection, the method of contact of employer with the worker and the general and specific working conditions (Art. 14/6 of LC). In a remote work, employees may not be subject to a different treatment than a comparable employee depending on the nature of the employment contract, unless there is a fundamental reason (Art. 14/67 of LC). In other words, the employer cannot discriminate the employees working under a remote work contract unless there is a fundamental reason. Hence, both employees working at the workplace and outside of the workplace shall be treated in the same manner. The employer is obliged to inform the employees about the occupational health and safety measures by taking into account the nature of the work done by the employee in the remote working relationship. On the other hand, the employer shall provide the necessary training as well as health supervision and take necessary safety measures related to the equipment provided (Art. 14/67 of LC). IX. CONTRACT OF EMPLOYMENT WITH TRIAL PERIOD The parties to a contract of employment may need a trial period before they become bound by the contract. During this trial period, the employer can observe the skills, knowledge, diligence and personality of the employee, while the employee can assess whether the workplace and the working conditions are suitable for him/her(75). The Labour Code regulates the trial clause in contracts of employment. Accordingly, the parties may add a trial clause to the contract of employment, which cannot exceed two months. This period may be extended for up to four months with a collective labour agreement (Art. 15 of LC). When a contract of employment contains a trial clause, the parties may terminate this contract without complying with the notice period and without paying any compensation. However, the employee’s wage and other rights earned for the days worked are reserved. X. TEMPORARY EMPLOYMENT RELATIONSHIP (Geçici İş İlişkisi) Temporary employment relationships can be established by means of a private employment office (“temporary agency work”) or by assigning the employee to another workplace within the holding body or within the enterprise system(76). These two methods of establishing temporary employment relationship have important differences due to their natures and legal arrangements. Therefore, they will be examined under two subtitles. A. Classical Type of the Temporary Employment Relationship Before the amendment in the LC in May 2016 by the Code numbered 6715, temporary agency work was not allowed in Turkey. Parties were only allowed to establish temporary employment relationship by assigning the employee to another workplace within the holding body or within the enterprise system or by assigning the employee to another employer provided that s/he will be employed at a similar work. Therefore, this method of establishing temporary employment relationship is named as the classical type of the temporary employment relationship. After the amendment by the said Code, parties are allowed to establish temporary agency work while it is no longer possible to establish temporary employment relationship by assigning the employee to another employer provided that s/he will be employed at a similar work. For this reason, temporary employment relationship in the classical meaning includes only the ones established within the holding body or within the enterprise system. Classical type of the temporary employment relationship can only be established if the consent of the employee is received in written form at the time of the transfer. The transfer of the employee is temporary. Temporary employment relationship can be established only for a period of maximum six months and can be extended maximum two times. The employer’s temporary obligation to pay wages continues. The employer with whom a temporary employment relationship is established is responsible for the unpaid wages of the employee during his / her employment period, the obligation to supervise the employee and social insurance premiums together with the transferring employer. Transferor employer’s duty to pay wage continues while the temporary employee is working for the transferee employer. On the other hand, transferee employer is jointly liable with the transferor employer for the unpaid wages and social security premiums of the temporary employee and employer’s duty of care (Art. 7/15 of LC). B. Temporary Agency Work The second method to establish a temporary employment relationship is temporary agency work. With this method, a private employment office establishes temporary employment relationship with an agreement between an employer and the office(77). However, the parties have to follow strict regulations regarding the temporary agency work. First of all, temporary agency work can only be done in the following cases, which are listed in the Article 7 of the LC: When an employee requests to use his/her right to work part-time arising from the Article 13/5 of LC due to parenting or his/her right of parental leave arising from the Article 74 of LC. When an employee leaves for the military service. When the employment contract is pendent. In seasonal agricultural works. In household services. In the works that are not counted in the daily works of the enterprise and that are seen intermittently. In the works that are urgent for occupational health and safety or in the emergence of reasons affecting the production significantly.  In the cases when the average production capacity of goods and services of the enterprise increases in an unforeseeable manner that requires the establishment of a temporary employment relationship. In case of periodical increase in work excluding the seasonal works. There are also four months of duration limit for the temporary employment relationship except the seasonal agricultural works and household services. On the other hand, in the first three cases, the temporary employment relationship may last during the continuation of these situations. Except for the periodical increase in work excluding the seasonal works, the temporary employment relationship can be renewed maximum of two times but the total length of the relationship cannot exceed eight months (Art. 7/3 of LC). Apart from the duration limit, the number of the temporary employees is also limited for the case when the average production capacity of goods and services of the workplace increases in an unforeseeable manner that requires the establishment of a temporary employment relationship. In such cases, the number of the temporary employees cannot exceed the 1/4 of the total number of the employees working at the workplace. However, if there are ten or less employees working, then the temporary employment relationship can be established with up to five employees (Art. 7/6 of LC). C. Common Features In establishments where collective dismissals have taken place, no temporary employment relationship may be established in jobs affected by the collective dismissal within the six-month period following the collective dismissal (Art. 7/7 of LC). Pursuant to the Article 7/9 of LC: The employer employing temporary employee has the authority to give instructions to the temporary employee, Temporary employees shall equally enjoy the social services provided in the workplace with other employees. The employer employing temporary employee has the obligation to provide trainings in accordance with the Article 17 of OHSC and take all necessary measures regarding the occupational health and safety; and the temporary employee is obliged to participate in these trainings. The temporary employee is liable to the employer, who is employing temporary employees, for the damages caused by his/her fault, provided that it is related to the workplace and the work (Art. 7/14 of LC). XI. TEAM EMPLOYMENT CONTRACT (Takım Sözleşmesi) Team employment contract is a type of contract where an employer concludes the contract with a team of employees represented by one of the employees acting as the team leader (takım klavuzu) (Art. 16/1 LC). It is important to emphasise that the team leader has to be an employee in the group and the leader cannot receive a fee for his/her leadership. So that it can be prevented to use team employment contract as an agency service(78). Team employment contracts have to be concluded in written form independently of the length of the contract and the contract must contain the identities of the team members and their wages on an individual basis (Art. 16/2 LC). Conclusion of team employment contract does not mean that an employment contract is concluded between employer and employees listed in the group contract(79). Employment contract will only be regarded as concluded when the employee start to work at the employers workplace. The conditions that are agreed on in the team employment contract will be implemented in the employment contracts between the employer and employees. XII. SEASONAL EMPLOYMENT CONTRACT (Mevsimlik İş Sözleşmesi) Seasonal employment contract is not regulated in Labour Code. However, it is commonly used between employers and employees and there are many Supreme Court decisions on seasonal employment contracts. Seasonal jobs can take place only in a certain period of a year. For instance, an employee of a ski resort can perform its duty to work only in winter season. To give another example, employment contracts for cotton picking also considered as seasonal employment contract since the work can only be performed during certain period of a year(80). Seasonal employment contracts can be concluded either for one season or multiple seasons. If it is concluded for one season, parties may decide it to be with a definite term since seasonal jobs meet the requirements for definite term employment contracts(81). On the other hand, it is still possible to conclude a seasonal employment contract with an indefinite term. When parties conclude seasonal employment contract with an indefinite term, the employee undertake the duty to work during the working season. However, the employee does not have to work during other seasons. So that it is important to characterize the status of the seasonal employment contract during the seasons other than the working season. According to the Supreme Court decisions, seasonal employment contracts are considered as pendent (askıda) during the seasons other than the working season(82). Therefore, the contract between the parties is not deemed to be terminated in the end of the working season.