Seconment in Turkey
According to Turkish Labor Law (“Labor Law”), a temporary employment relationship is established when the actual employer transfers the employee, upon the employee’s written consent, to an employer within the same holding or group companies or to any employer on the condition that the role will be same or very similar to the work performed by the employee for the actual employer.
One should note under the law a temporary employment relationship can be established for a period of six months and can be extended twice, six months each time. Therefore, the maximum period allowed under the Turkish Labor Law is 18 months.
In this case, the employment relationship between the permanent employer and the employee remains to be in effect. In other words, there will be no employment contract between the temporary employer and the employee ,and the employee performs work for the temporary employer for a certain period of time. However, if an employee is seconded to a company, a secondment agreement may be drawn between the permanent employer, the temporary employer, and the temporary employee (“Secondment/Tripartite Agreement”).
In principle, since the employment relationship between the permanent employer and the employee remains in effect, the permanent employer’s obligation to pay the employee’s salary will continue. Nonetheless, the terms of working conditions, such as salary, bonus payments, benefits, and other special conditions can be set out under the Tripartite Agreement and temporary assignment related costs such as payment of the employee’s salary and additional benefits could be clarified between the actual employer and the temporary employer.
It is important to note that the temporary employer is jointly and severally liable with the actual employer for unpaid salary amounts, additional benefits and unpaid social security premiums for the period that the employee was working temporarily. Therefore, any limits on the liability determined under the Secondment Agreement in this respect would be only binding between the actual and the temporary employer, without affecting the employee’s rights granted by the law.
It is also mandatory for the parties to expressly state the term of the secondment in the Agreement. In the event that the parties do not determine the term of the secondment, it shall be interpreted that the total period for the Secondment Agreement shall not exceed 18 months as per the Labor Law.
Turkey has bilateral social security treaties with certain countries to eliminate dual social security coverage, and taxes for multinational companies and expatriate employees. The limitation of the total period for the Secondment Agreement may also be extended under these treaties compared to the Labor Law.
In case a bilateral treaty on social security is executed between Turkey and the country of the temporarily assigned foreign employees, under the reciprocity principle, the provisions of such treaty would be automatically and exclusively applied to the social security status of the employee concerned. If an employee who is permanently employed in a foreign country, which is party to the treaty, is temporarily employed in Turkey, this employee would be subject to the social security laws of the permanent employer and the permanent employer will continue to pay his social security contributions to the Social Security Institution (“SSI”).
If there is no bilateral treaty between Turkey and the country of the temporarily assigned foreign employees, the provisions of the Social Security and General Health Insurance Law No. 5510 (“Law No. 5510”) applies to temporary employment relationships. As per the relevant provisions of the Law No. 5510, foreigners who work under an employment contract, excluding the citizens of countries with which an international social security agreement is entered based on the reciprocity principle, shall be deemed insured. However, the Communiqué published by the SSI numbered 2011/43 determines that personnel employed by a company established in a foreign country and transferred to work in Turkey for a period of three months at most, are not within the scope of Law No. 5510 provided such personnel substantiates that they are covered by the social insurance system of such foreign country.
Please note that if the employee is employed by the temporary employer for a period of more than 18 months or the term determined under the bilateral agreement if any, the temporary employee may claim that a permanent employment relationship has been established. Such claims regarding the establishment of a permanent employment relationship with assignees would only arise in the event that employee file lawsuits before the Turkish labor courts. Furthermore, the employer may be subject to an administrative fine of 122 TL for non-compliance in case labor authorities discover such irregularity.
FOREIGN EMPLOYEE WITHIN THE SCOPE OF INTERNATIONAL SOCIAL SECURITY AGREEMENTS
When the foreign employee is assigned form a country where Turkey has a multi-lateral or bilateral social security agreement, provisions of that international agreement will be applicable in determining the social security status of the foreigner. Turkey is a party to European Convention on Social Security (Paris, 14.12.1972) and has concluded several bilateral social security agreements with various countries.
EUROPEAN CONVENTION ON SOCIAL SECURITY
For foreign employees who are assigned form a member state of the European Convention on Social Security, the maximum duration for the temporary assignment shall be 12 months. Foreigners, after providing a confirmation related to their social security coverage in the origin countries, may be subject to social security scheme of the origin countries. In exceeding 12 months period, unless otherwise is agreed by Turkish social security institution, the foreigner will be subject to Turkish social security scheme.
Parties of European Convention on Social Security are as follows: Austria, Belgium, Czech Rep., France, Greece, Ireland, Italy, Luxembourg, Moldova, The Netherlands, Portugal, and Spain.
Other Bilateral Agreements: Social security status of a foreign employee who is assigned from a country which Turkey has a bilateral social security agreement is determined by the provisions of that agreements. Maximum durations for the temporary assignments and their extension periods are agreed in the specific bilateral agreements. (See table below) Within those period of time specified in the bilateral agreements, foreign employee may subject to social security law of origin country. Foreign employees exceeding specified periods shall become subject to the social security law of Turkey.