Labor and Social Security Law (Week 2)

(Definitions & Types of Employment Contract)

LABOR AND SOCIAL SECURITY LAW

Prof. Dr. SEÇKİN NAZLI
 Short Summary (Week 1)

Employee Employer

Employment Contract
Diagram shows us an employment contract and the parties of it. In one side there is employee and on the
other side employer. What is the importance of an employment contract? Employment Contract is the
legal and binding source for the parties during an ongoing employment relationship. If there is no
contract. Then there is no responsibilities. Duties and obligations for both parties arise from the existence
of an employment contract. Both parties (employer and employee) are free to conclude provisions of the
employment contract on their will but they must comply with the restrictions of the law (Labor Code).
 Short Summary (Week 1)

The employees are the weaker side of the employment contract. So there is a need to
protect employees during an ongoing employment relationship. The main reason of the emergence and
development of labor law as a branch of private law division is to protect the employees. Labor law
system designed on a principle that aims to provide and protect the basic rights and interest of
employees. In this context there is an important principle we mustn’t forget. This principle is
«Interpratation in Favor of the Employee». We use this important principle while protecting basic rights
of the employee’s. But when and how ?
We use this principle to resolve an employment conflict. If there are no provisions in the
legislative sources of the labor law directly ruling the conflict, the ruling courts then should rule in favor
of the employee not in favor of the employer. Or if there are conflicting provisions, the ruling court again
should rule the ones that favor the employees interest.
 Short Summary (Week 1)

The employers are economically strong side of the employment contracts and
their main target is to make more profit. By becoming a part of an employment contract they take
economic risks. But the other side of the employment contract (employees) need to work and
earn their money to sustain a decent life for themselves and also for their families. So they need to
work for a proper life. Their risk is more vital than employers. Employer’s are risking their money
but the employee’s are risking their lives. There is no proper balance between the parties of an
employment contract. They can not negotiate properly because they are not economically equal.
So labor law provisions take a part and play an essential role in order to balance this inequality. We
can say that labor law provisions are for sustaining a delicate balance between employees and
employers by regulating minimum employment standarts in the field of labor law.
 Short Summary (Week 1)

«Labor law provisions are for sustaining a delicate balance» between employee and employer
but how and by the help of which kind of provisions is this main target can be reachable ?
First of all generally we can admit all of the labor law sources as the provisions for sustaining a
delicate balance between employee and employer. Both national and international sources have the
same binding effect. National sources firstly official sources; they are legislative (Acts concerning labor
relations passed through the Grand National Assembly like labor code, maritime act etc.), executive (the
ways and means of codes implementation is provided by the executive sources through by-laws and
regulations) and lastly the judicial sources (court verdicts). The second kind of national forces are private
sources like traditions and customs and contracts (both individual or collective employment contracts).
All these sources can be used during resolving an employment conflict and they all have important
binding effect over the parties of employment contract because of their legal nature.
 Short Summary (Week 1)

Labor law is both the product of and a component of struggles between social partners
(employees, employers and governments) firstly in order to create and then after to develop
employment standarts. By regulating employment standarts, social partners also regulates
and improves the life of people at work. It is undoubtfull that all improvements about
employment standarts like as in the field of working hours, wages or job security provisions
will cause a positive effect on the life of the working people. This can be easily accepted as
possible positive effects of new regulations over the employment standarts.
Employment standards are social norms (in some cases also technical standards) for the
minimum socially acceptable conditions under which employees are allowed to work.
 Definitions

Employee Employer
= +
(Employer ‘s Representative) (Employer ‘s
Representative)

Employment Contract
 Definitions of Some Important Labor Law
Terms
The working person, «employee» is a real person working under an employment contract. As it seen from
this definition, two elements are required to be considered as an employee; namely (i) to be a real person; and
(ii) to work under a contract of employment. Therefore, a legal person, such as company, cannot be
considered as an employee since it is not a real person. Nor can a person can be considered as an employee if
there is no contractual relationship established by the free will of the parties, even in cases where there is a
real person. For instance, people who work at prisons are real persons but they do not have a contractual
relationship established by the free will of the parties and their liability is subject to public law. Hence, these
people can not be regarded as employees. Also it is important to distinguish the concept of civil servant from
the concept of employee. One of them (civil servant) appointed to their duties but the other (employees) work
under a contract of employment. Civil servants governed in a special code No 657. They are assigned to carry
out primary and permanent public services.
 Definitions of Some Important Labor Law
Terms

The «employer» is a real or corporate person or a non-corporate

institution or organization employing employees. According to this definiton,
an employer is a real or legal person, or an institution or organization which
does not have a legal personality, employing workers under a contract of
employment. It should be noted that the definiton of employer has a wider
scope than the definiton of employee. This is because, whilst only real persons
can be employees, legal persons or institutions and organizations that do not
have legal personality can also be considered as employers.
 Definitions

The «employer’s representative» is the person acting on behalf of the

employer and charged with the direction of work, the establishment and the
enterprise. The employer is directly liable towards the employees for the conduct
and responsibilities of his representative acting in this capacity. Any obligations
and responsibilities for which the employer is liable under this Act shall also be
born by the employer’s representative. Bearing the status of an employer’s
representative does not abrogate the rights and obligations, which one has an
employee.
 Definitions

«Employer contract» is an agreement whereby one party (the employee)

undertakes to perform work in subordination to the other party (the employer)
who undertakes to pay him remuneration. The employment contract is not subject
to any special form unless the contrary is stipulated by the Act. Written form is
required for employment contracts with a fixed duration of one year or more.
The parties are free to draw up the employment contract in a manner
commensurate to their needs, without prejudice to the limitations brought up by
legislation.
 Definition of Employment Contract
The LA defines the ‘employment contract’ as a ‘contract whereby a party
(worker) undertakes to perform work in subordination while the other party (employer)
undertakes to pay a fee (wage)’ (Art. 8 para. 1 LA). The definition of employment
contract contains three elements, namely (i) the employee’s duty to work
(performance of work); (ii) the employee’s subordination to the employer
(dependency); (iii) the employer’s duty to pay wages. It is necessary to have all these
three elements to characterize a contract as a contract of employment. Thus, an
employee must undertake work as required under the contract of employment and
he/she must work under the commands, supervision of the employer; in return, them
employer must pay wages.
 Elements of the
employment contract
Wage

Dependency
Performance of work
 Elements of the Employment Contract

PERFORMANCE OF WORK
An employment contract may exist only if, before anything else, there is an obligation
to perform a work. Here the work in question is an activity that means a value for the
other party and is necessary to meet or satisfy its material or mental need. The type of
the work does not matter with reference to the existence of the obligation.
Accordingly, a work may be a physical, or mental, or artistic effort. On the other hand,
there should be a promise that the obligation to perform a work shall be for a definite
or indefinite term. Accordingly, the worker does not do a single work and does not
yield a specific result.
 Elements of The Employment Contract

WAGE
One of the elements that should exist to confirm the presence of an employment contract is the
promise to perform a work in return for a WAGE. If there is no wage, this legal relation should take up the
form of an another contract but not an employment contract. As per the legal definition of the
employment contract (Art. 8 para. 1 LA), there is a reference to the ‘payment of fee’. Where the wage is a
mandatory element of the employment contract, this should necessarily mean that it should have been
clearly stated in the agreement. In circumstances where the payment of a wage is normal in return for a
work, it shall be considered, as a rule, that a wage shall have been agreed as between the parties.
Accordingly, the employer is obliged to pay a wage not less than the minimum wage unless a wage is
agreed in the contract
 Elements of The Employment Contract

DEPENDENCY
Subordination is a mandatory element in order to prove the existence of an employment
contract. Accordingly, the dependency permits to distinguish the employment contract from
other contracts of work (job), which are also built on the performance of work concept. The
worker shall be bound by the orders and instructions of the employer during his work and his
works shall be supervised by the employer. In this respect, the subordination relation here
should be interpreted as a personal dependency. But the dependency may arise in varying
degrees, depending on the nature of the job done by the worker, his position at the workplace and
his professional status. The dependence of unskilled worker on its employer is much harsh and
stricter than the dependence of top executives and field experts in the company.
Elements of the employment contract :
Performance of work : An
employee must undertake work as
required under the contract of
employment

Dependency : he/she must work

under the commands, supervision
of the employer

Wage : in return, them employer

must pay wages.
 A contract is an agreement that is enforceable at law and creates rights and duties between
the parties. As a contract also contract of employment imposes obligations to the parties of
the contract. The main obligations arising from contract of employment are employee’s
duty to work and employer’s duty to pay wages.

Duty to
Duty to work Pay Wage

Duty of loyalty Duty of

Care

Duty to follow Duty of Equal

instructions Treatment
 Characteristics of The
Employment Contract

Creation of a continuous
Establishing personal Creation of mutual relation of obligation
relations obligation
 Characteristics of The Employment Contract

ESTABLISHING PERSONAL RELATIONS

An employment contract is a contract that establishes personal relationship
between the contract parties. Accordingly, an employment contract particularly brings
the personality of a worker to the foreground and helps build personal relations
between the employer and the worker. As a consequence, the employment contract
creates a sense/relation of trust between the parties that should not be destroyed.
This sense of trust helps the employer protect and treat equally the people at the
establishment, and the worker perform its loyalty and adherence obligations, so that
the relation becomes a kind of basic obligation.
 Characteristics of The Employment Contract

CREATION OF MUTUAL OBLIGATION

Employment contract is a contract that imposes mutual obligations
both on the worker and the employer. Accordingly, the worker carries out
work and the employer pays a wage to the worker in return. However, this
reciprocal nature is now left behind due to the social challenges in
circumstances where the employer continues to pay wage to the worker
although he does not work. For example paid annual leaves can be defined as
a typical example of this special circumstances.
 Characteristics of The Employment Contract

CREATION OF A CONTINUOUS RELATION OF OBLIGATION

In an employment contract, obligations of the parties are constantly performed.
Accordingly, the worker’s obligation to perform a job under the employment contract is
constantly carried out and the employer constantly pays a wage in return. This way, the
mutual obligation to perform respective liabilities is not eliminated by one-off
performance but continues. The fact that the employment contract creates a constant
relation of obligation does not set a barrier to determine whether it is a definite or
indefinite term one. Because regardless of whether an employment contract is a definite
or indefinite term contract, the obligations of the parties display a constant tendency
 Characteristics of the
Characteristics of The

Employment Contract
Employment Contract :
An Employment Contract

Creates a continuous
Creates mutual Creates a continuous
Establishes personal Creates mutual obligation relation of obligation:
relation of obligation
Establishes personal
relations : bothobligation
for the parties : An
Regardless of whether
relations: The employment contract
an employment
employment contract has a reciprocal
contract is a definite or
creates a sense of trust nature. The employee
indefinite term
between the parties carries out work and
contract, the
that should not be the employer pays a
obligations of the
destroyed wage to the employee
parties display a
in return.
constant tendency.