TRANSFER OF THE SERVICE AGREEMENT
In Article 429 of the Code of Obligations No. 6098 entitled “Transfer of the Contract”; “The service contract may be transferred to another employer on an ongoing basis only with the written consent of the employee. With the transfer process, the transferee, together with all his rights and obligations, becomes the employer’s party to the service agreement. In this case, in terms of the rights of the employee depending on the length of service, the date of commencement of work with the transferring employer is taken as a basis.” the provision has been included.
As stated in the provision, the transfer of the service contract can be defined as the transfer of the employee employed by the service contract from one place to another company, provided that all the rights of the employee are protected, provided that the working life is active and the needs of the parties are met.
LEGAL FEATURES OF THE TRANSFER OF THE SERVICE AGREEMENT
1-Obtaining the Written Consent of the Employee:
Decommissioning of the service contract takes place in a triple relationship between the employee, the employer and the employer who has taken over the service contract. With the transfer, it is envisaged that the employee will henceforth provide services to the employer who has taken over. During the transfer of the service contract, it is necessary to unite the will of the transferring and inheriting employers and the employee regarding the transfer.
Prior to the transfer of the service contract, it is necessary to obtain the written consent of the employee. Written approval can also be obtained during the transfer. However, obtaining written consent from the employee after the transfer is not legally valid. If the employer performs such an application without the will of the employee, and the employee does not take work at the workplace belonging to the other employer by not accepting it, the employment contract will be deemed terminated by the employer.
2-Form of Transfer Agreement:
in paragraph 3 of Article 205 of Law No. 6098, which generally contains regulations on the transfer of the contract; “The validity of the transfer of the contract depends on the form of the transferred contract.” the provision is contained in the.
article 429 of the Code of Obligations No. 6098 did not impose any regulation on the form of the contract of transfer of the service contract. In addition, if the written consent of the employee to the transfer of the service contract is required to be obtained during the transfer, it is a condition of validity that the contract is executed in writing. Except for the relevant issue, the contract does not necessarily have to be made in writing. The transfer process can also be carried out with the verbal and even tacit agreement of the transferor and the transferee.
On the other hand, it is important for the transfer agreement to be made in writing, to prevent future disputes and to prove the law.
LEGAL CONSEQUENCES OF THE TRANSFER OF THE SERVICE AGREEMENT
With the transfer of the service contract, the labor relationship between the employee and the Decommissioning employer ends. However, the employment contract continues without interruption with the new employer. For this reason, the termination of the contract and the establishment of a new business relationship are not a bet. In this way, the senior workforce needs of the employer who takes over are met by maintaining the continuity of the employment relationship without encountering termination consequences and without losing the rights of the employee related to the length of seniority without losing the continuity of the employment relationship. With the transfer of the service agreement, all rights and obligations related to the contract are transferred to the employer who takes over without any changes.
As the employment relationship between the Decommissioning employer and the employee has ended with the transfer of the service contract, the transferee employer has no responsibility for receivables and liabilities after the transfer date. The owner of the rights and debts arising from the date of transfer is the employer who has taken over the party to the contract.
However, there is no legal regulation on the determination of liability for labor receivables that were born during the term of the transferring employer, but were not paid. For this reason, the transferor and the transferee until the date of transfer of receivables for the employer responsibilities, regulate the transfer to the workplace, and of the Labour Law No. 4857 1475 repealed Article 6 of the applicable by analogy applied to determine as a result of the provisions of Article 14 are evaluated. The transferring employer must be responsible for the debts arising during his/her period together with the inheriting employer, as in the case of the workplace transfer, for a period of two years. There is also joint liability in terms of severance pay. However, in accordance with Article 14 of Law No. 1475, the liability of the transferring employer arising from the severance pay earned for his period is 10 years, the statute of limitations provided for in the law.
