Labor and Social Security Law (Week 3)

(Properties of Standart Employment Relationship & Types of Employment Contract)

LABOR AND SOCIAL SECURITY LAW

PROF. DR. SEÇKİN NAZLI
 Employment Contract

‘Employment contract’ as a ‘contract whereby a party (employee) undertakes

to perform work in subordination while the other party (employer) undertakes
to pay a fee (wage)’.
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.
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
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.
 Properties of Standart Employment
Relationship

The key element of «Standart» or «Typical» employment relationship was full

time permanent employment under a contract of employment. Employees
expected to spend their working life for an indefinite period in the same
workplace – perhaps even in the same job and performing the same tasks.
Their basic rights were guarenteed by legal norms, but atypical employment
relationship differs from typical one by losing one of these key elements.
 Key Elements of Standart Employment
Relationship
The standart (typical) employment relationship’s key elements, based on;
a) full-time work,
b) duty to perform work for an indefinite period,
c) Duty to perform work for only one employer.
Atypical employment relationships differs from typical one by losing one of these key elements.
As an atypical employment relatonship part time employment is the exception of full time work. As a general
rule, contracts of employment are concluded with indefinite term. In spite of general rule, it is possible to
conclude a contract of employment with a definite term as long as the legal requirements are provided.
Temporary employment relationship as a different kind of atypical employment relationship is the exception
of performing work for only one employer. All of these atypical employment relationships are seperated from
typical one by losing at least one of these key elements of standart employment relationship.
 Types of Employment Contract

Employers and employees may conclude different types of contract of employment.

According to freedom of contract principle, if the parties comply with the restrictions of the
law, they can freely settle the rules which they must obey. The developments in the field of
technology eventually cause changes in the types of employment relationships. Production
methods, processes and the place of production changes and give rise to new types of
employment. For instance, parties of the employment relationships started to prefer part
time contracts more than full time contracts.They prefer atypical employment contracts
like work on call, remote work contracts, tele-work contracts or temporary employment
relationships instead of typical employment contracts. Changing needs of both employees
and employers change the direction of demand related with workforce.
 Particular Forms of Employment

Basis of the employment relationship is the employment

contract freely concluded under private law.
Employment contracts shall be made for a definite or an
indefinite period. In terms of manner of working, these contracts may be
concluded on a full-time or part-time basis, with a trial period or in other
forms.
 Particular Forms of Employment

Fixed term (Definite) / Open-ended (Indefinite) employment contracts

Transitory and permanent contract of employment

Full-time / Part-time employment contract (kind of a part-time employment work on call)

Employment contracts with a trial period

Team employment contract

Seasonal Employment Contract

Temporary Employment Relationship

 Transitory and Permanent Contract of
Employment
A contract of employment can be transitory or permanent, based on the duration
of the work. The contract of employment is deemed as transitory or permanent regarding
the duration of the work. Employment which, owing to its nature, lasts only up to 30
working days is transitory; and employment which requires a longer period is permanent
(continual). The duration of the work is determined objectively, on the basis of the nature
of the work. If the duration of the work is only up to 25 working 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 working days. If the contract is transitory then
some of labor act provisions are not applicable to transitory contracts of employment.
 Employment contracts with a 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 and personality of the
employee, while the employee can assess whether the workplace and the working conditions are suitable
for him/her.
Labor Code regulates the trial clause in contracts of employment. Within the trial term the parties
are free to terminate the employment contract without having to observe the notice term and without
having to pay compensation. The employee’s entitlement to wages and other rights for the days worked is
reserved.
If the parties have agreed to include a trial clause in the employment contract, the duration of the
trial term shall not exceed two months. However, the trial period may be extended up to four months by
collective agreement
 Fixed Term (Definite)/ Open-ended (Indefinite)
Employment Contracts
A contract of employment can be made with an indefinite or a definite term. As a general rule,
contracts of employment are concluded with indefinite term. The contract of employment with indefinite term
is contract where the employment relationship is not based on a fixed term. In indefinite term contracts, the
contract does not have an end date.
Commencement date of the employment contract known but the end ?
Because of this reason Labor Code allows both the employer and the employee to terminate an
indefinite term employment contract upon notice.
Sometimes, parties may name their employment contract as definite term contract. However, parties
have to comply with the strict regulations regarding establishing a definite term contract. In case of
contradiction to those regulations, the contract concluded between the parties shall be regarded as indefinite
term contract.
 Fixed Term / Open-ended Employment
Contracts

In spite of general rule, it is possible to conclude a contract of employment with a definite term as long as the
legal requirements are provided.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.
Commencement date End date
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. Fixed term contracts cannot be terminated by giving notice, fixed term
contracts end when the period determined by the parties expires.
 Fixed Term / Open-ended Employment
Contracts
The legal requirements for concluding a fixed term employment contract are regulated in Labor
Code. First of all, one of the objective criteria stated in the Article 11 of the Labor Code 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».
The duration of a work is deemed to be definite when it is known or possible to know or is
foreseeable. The employee is aware of the duration of his/her work, and the employer is aware of the
duration of the employee’s 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 may be given as
examples of works that meet this legal requirement.
 Fixed Term / Open-ended Employment
Contracts
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 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.
It should be noted 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. 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.
 Fixed Term / Open-ended Employment
Contracts

Parties may also conclude definite term employment contracts

consecutively, as chain contracts. In other words, they may conclude another
definite term contract at the end of the first definite term contract. 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.
 Full time / Part time employment contracts

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 of LC). 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.
A part time contract of employment is a contract where the normal weekly working hours of an employee has
been fixed considerably shorter than those of a a comparable employee who works under a full time contract of
employment (Art 13 of the LC). According to Labor Code 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.
 Full time / Part time employment contracts

The comparable employee is the one who is employed full-time in the same or a similar job in
the establishment. In the event there is not such an employee in the establishment, an employee with
a full-time contract performing the same or similar job in an appropriate establishment which falls
into the same branch of activity will be considered as the comparable employee.
If there are vacant positions suited to the qualifications of employees working in the
establishment, the employees’ requests to move into full-time from part-time jobs or vice versa shall
be taken into consideration; vacancies shall be announced without delay.
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.
 Temporary Employment Relationship

There are two methods of establishing temporary employment relationship. They have
important differences due to their natures and legal arrangements. Classical type of
temporary relationship can be established when the employer transfers the employee, with
the employee's written consent at the time of transfer, to another establishment within the
structure of the same holding company or the same group of companies. While in this case the
employment contract between the employer and the employee continues to be in effect, the
employee is under a duty to perform work for the host employer with whom the temporary
employment relationship has been established. The employer's obligation to pay the
employee's wages continues. The temporary worker will still be entitled to employment
benefits provided by the host employer in line with the equality principle.
 Temporary Employment Relationship

Second type is the temporary agency work, a private employment office establishes
temporary employment relationship with an agreement between an employer. However, the
parties have to follow strict regulations of the Labor Code regarding the temporary agency
work. Temporary agency work can only be done in the limited cases (which are listed in the
Article 7 of the LC), for a limited time period (duration limit) and for only limited number of
employees can be hired from an employment agency. This kind of employment relationship
can be described as a flexible working method, and especially an expensive way to obtain
workforce when urgently needed. But temporary employment relationship does not regulated
as a way of decreasing labor costs. So this method can not be considered as a way of
exploiting employee rights.
 Team Employment Contract

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. 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. 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. Conclusion of team employment
contract does not mean that an employment contract is concluded between employer and
employees listed in the group contract. 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.
 Seasonal Employment Contract

Seasonal employment contract is not regulated in Labor Code. However, it is commonly used
between employers and employees and there are many Supreme Court decisions on this kind of
employment relationship.
Seasonal jobs can take place only in certain period of a year. For instance, an employee of a ski
resort can perform its duty to work only in winter season.
Seasonal employment contracts can be concluded either for one season or multiple seasons.
When parties conclude seasonal employment contract with an indefinite term, the employee
undertake duty to work during the working season. However, the employee does not have to work
during other seasons. According to Supreme Court decisions, seasonal employment contracts are
considered as pendent during the seasons other than the working season.