The Importance of the Enterprise in Turkish Labor Law
It is seen that the concept of a workplace and enterprise is not explicitly included in the Labor Law No. 4857 [1] . [2] In order to determine the nature of the concept of an enterprise, it will be necessary to first determine the definition of workplace in the provision of article 2/f.1.
Specifically, “A worker is a natural person employed under an employment contract; an employer is a natural or legal person, or an institution or organization without legal personality, that employs a worker; and the relationship established between the worker and the employer is called an employment relationship. A workplace is defined as the unit where the employer organizes tangible and intangible elements together with the worker for the purpose of producing goods or services…”
This matter is addressed in Article 2 of the Definitions section, which defines the employer's representative as follows: "...Those who act on behalf of the employer and are responsible for the management of the work, workplace, and business are called employer's representatives...". Furthermore, the employer-subcontractor relationship is defined as follows: "The relationship established between an employer who undertakes work from another employer in auxiliary tasks related to the production of goods or services carried out in the workplace, or in a part of the main work, in tasks requiring expertise due to the needs of the business and technological reasons, and who employs workers assigned to this work only in that workplace, is called the main employer-subcontractor relationship."
Furthermore, the concept of "enterprise" is mentioned in Articles 4/bd, 18, 29, 32, 78, 81, 95, and 105/c of the Labor Law. Article 78 of the Labor Law, which regulates occupational health and safety provisions, states that "...workplaces that must obtain an enterprise certificate, the jobs or products that must be certified, and the procedures and principles for obtaining this certificate or certificates, taking into account the number of workers, the characteristics of the work and workplace, and the risk, in terms of compliance with occupational health and safety legislation, shall be determined by regulations to be issued by the Ministry of Labor and Social Security, after obtaining the opinion of the Ministry of Health." From this perspective, it is seen that a workplace is included within the scope of an enterprise with a certificate in accordance with the principles specified in the regulation issued by the Ministry, taking into account the number of workers, the characteristics of the work and workplace, and the risk.
Our professor Esener defines the business as "an organized whole to which one or more organized workplaces belonging to the same employer are connected in order to achieve an economic or ideal purpose". [3]
In the doctrine [4] , since each workplace is an organized whole, and within that whole the employer pursues a specific business technique objective, which is defined as "producing goods or services," the employer brings together tangible and intangible goods and workers and organizes them on the basis of "work organization." In the definition of a workplace, it can be said that when this organizational unit often belongs to a single person, the definition is "workplace," but if multiple individuals (e.g., heirs and partners) pursue the same business objective together, and/or if the existence of multiple workplaces is accepted outside of this exceptional situation, the definition of the organization is "enterprise." In contrast, the activity of a large enterprise may include various tasks that do not require legal and financial independence. An enterprise may consist of one workplace or multiple workplaces. Therefore, it can be said that the concept of an enterprise is broader than the concept of a workplace. Since an enterprise is essentially defined as two different aspects of the same organism, it should not be understood as the totality of workplaces. A business may consist of a single workplace, or it is not necessary for various workplaces belonging to the same employer to form a business as a whole. [5]
The result is the same even if the workplaces in question jointly own individual workplace facilities or are managed by the same person. The sameness of purpose does not always lead to the conclusion that the workplace is one. A person may pursue the same purpose in several independent businesses, or may have very different departmental purposes within the same business. Therefore, it can be said that the only measure in determining whether there is a single workplace (business) is the unified organization, which is most clearly demonstrated in the unity of technical management. [6]
Technical management as a whole can only be realized if the different parts of the workplace are geographically close to each other. Of course, this does not require them to be united under the same roof. However, even without a certain degree of proximity, the unity of technical management cannot be discussed. Accordingly, in order to determine whether it is a single workplace or an enterprise, it would be appropriate to consider technical management as the basis in terms of Article 27II of the Labor Law. [7]
Although the workplace is a technical production unit, geographically limited and equipped with the necessary materials, the enterprise, regardless of its organizational form, is an economic and financial production unit for which the employer is responsible. Furthermore, while the workplace is managed by a workplace manager or supervisor whose authority is limited to the technical field, it is managed by the enterprise manager. The workplace manager does not have administrative authority within the enterprise and is accountable to the enterprise manager. [8]
The Concept of Workplace
The worker performs his work in principle at the workplace. Since the workplace is a technical production unit, individual service relations, workplace union representatives, workplace committees, workplace disciplinary boards are established at the workplace level. In addition, the characteristics of the workplace are taken into consideration in matters such as the organization of work, occupational safety and occupational supervision. [9]
The elements that come together within the concept of workplace are:
Human labor is the combination of material resources, tools of work, rights, and intangible assets.
An organization established to bring these elements together.
Technical purpose. [10]
While the technical purpose is defined in the economic and commercial aspect in Commercial Law, in the field of Labor Law, the goal of generating income is not aimed at, and the existence of profit motive does not fall within the scope of this technical purpose. It is accepted that there is a technical purpose in educational aid, religious and charitable institutions and health services that do not have a commercial and economic purpose. [11]
Business Concept
As a concept, the enterprise forms the basis of the business theory studied in economic policy. Here, the enterprise is a financially independent economic production unit, with the risk belonging to the operator. While in the context of commercial law, an economic enterprise must also have the characteristics of a commercial enterprise, Labor Law deals with the enterprise because of the workers employed in that enterprise. In fact, in the context of Commercial Law, it must be established to carry out the written works written in Article 12 of the Turkish Commercial Code and must be operated by a person considered a tradesman according to Article 17 of the Turkish Commercial Code. Within the scope of Labor Law, the areas of interest of the enterprise are based on issues such as the establishment of enterprise committees and the participation of workers in the management of the enterprise. [12]
Elements of a Business
Business manifests itself in three elements;
Salaried Staff
In the context of a business, we are talking about workers who work under a service contract and are subject to labor legislation. In this framework, personnel working under a service contract in public institutions that have the character of a commercial or industrial enterprise are also considered workers. Our professor Esener argued that high-level administrative personnel who have assumed responsibility for the operation of that business should not be considered workers from the perspective of the business. [13] In Commercial Law, a business is established with the commencement of commercial activity for the purpose of generating income based on economic benefit. In Labor Law, however, the main idea is the protection of workers. Accordingly, although a family business is an enterprise in an economic sense, it cannot be considered an enterprise from the perspective of Labor Law because it does not employ workers. [14] A legal relationship is established between the business and its workers within the framework of the employment relationship that occurs within the business through a service contract. [15] From the perspective of Labor Law, the number of workers employed in the business is not important. The number of workers may play a role in the establishment of business committees and the appointment of worker delegates. Similarly, the qualifications of the employees are not important. [16]
b) Business Manager In order for a business to exist, it is necessary that there be a superior body that is endowed with administrative authority, has assumed responsibilities and has the final say. This business manager may be the employer himself or an employer's representative appointed in accordance with Article 2 of the Labor Law. The important point from the perspective of Labor Law is that the business owner is the one who bears criminal and legal responsibility according to labor legislation and who has undertaken obligations and liabilities in contractual relations with the workers. [17]
Specific Activities That Are the Subject of the Business,
In the field of Commercial Law, organizations such as associations and foundations that do not carry out an economic activity and do not pursue a goal within this scope are considered as businesses in terms of Labor Law if they employ workers, even though they are not considered as businesses in terms of the economy. This activity stems from the continuity and independence nature of the concept of business in terms of Labor Law. [18] aa)
Continuity
For the business to exist, it is sufficient that it is established with the aim of "more or less continuous operation". Because only in this way can the continuity of the employment relationship of the workers be ensured. In the transfer of the business, the transferee should not be able to terminate the employment contracts solely for this reason. Thus, in the case of the transfer of the business, the existing employment contracts continue to have effect and consequences against the person who takes over the business. In order to ensure the principle of job security, it is necessary to deviate from the principle of the relativity of contracts with respect to third parties. [19]
bb) Independence In Commercial Law, for an economic enterprise to have a certain degree of continuity and to pursue an economic goal, the activity must be carried out independently under the management of a business manager. An organization that is not independent is considered a workplace, not an enterprise. In Labor Law, an enterprise is formed by the organization of managers and personnel to achieve an economic or ideal goal. [20]
Comparing the Workplace and the Business
[1] RG 10.06.2003, p. 25134
[2] For detailed information, see Turhan Esener, "Labor Law", AÜHFY, Ankara, 1978, pp. 82-110.
[3] Esener, p. 87
[4] See Esener, "From a practical point of view, especially in a small or medium-sized industrial or commercial enterprise operating in a single workplace, the concepts of workplace and enterprise can easily become confused with each other.", p. 82.
[5] See Esener, “…a repair shop and a bakery belonging to the same employer are both two separate workplaces and two different businesses. The French and German doctrines distinguish between the concepts of workplace and business, at least theoretically…”, p. 82., Kenan Tunçomağ/ Tankut Centel; “Fundamentals of Labor Law”, Beta, 4th ed., Istanbul, 2005, p. 60 et seq.
[6] Tunçomağ/Centel, “…for example, an industrialist can own more than one independent yarn factory…”, p. 61.
[7] Tunçomağ/Centel, p. 61.
[8] Esener, p. 83.
[9] Esener, p. 83.
[10] Esener, “Technical purpose is the immediate goal pursued by the workplace manager in matters such as the manufacture of goods, the sale of goods, transportation, etc. in a factory. However, this may not be the ultimate goal and motive of the business. Therefore, the workplace does not necessarily have to work for the market.”, p. 84.
[11] Esener, p. 84.
[12] Esener, p. 84.
[13] Esener, p. 85.
[14] Esener, p. 85.
[15] Esener, p. 85
[16] Esener, p. 85.
[17] Esner, pp. 85-86.
[18] Esener, p. 86.
[19] Esener, p. 86.
[20] Esener, p. 87.
