127 Union of Turkish Bar Associations Review 2023 Muhammed Enes YILDIZ collusion in subcontracting relationships. However, there is no regulation on the legal nature of subcontractor relationships that do not meet the conditions required in the sixth paragraph.36 According to the Court of Cassation, just like the collusive subcontracting relationship, in a subcontracting relationship that does not have the elements listed in the Law, the subcontractor’s employees must be considered as the employees of the principal employer from the beginning.37 Applying the sanctions related to collusion to every relationship that does not meet the conditions in the law, and therefore considering the workers as employees of the principal employer, may not always be in accordance with the nature of that relationship. For this reason, each concrete case should be evaluated separately, and in cases that are not suitable for the application of the collusion provision, it should be ruled that there is no subcontracting relationship.38 In a subcontracting relationship, the employer (the principal employer) is jointly liable to the employees of the subcontractor for the rights arising from the Labour Law, the employment contract and the collective bargaining agreement to which the subcontractor is a party (Art. 2/6). The legislator has not only regulated joint liability, but also stipulated in Article 36 of the İK that the public contracting authorities and the principal employers are obliged to check whether the wages of the workers are paid and to pay the wages of the unpaid workers to the workers by deducting them from the progress payments of the employers.39 2. Joint Liability in the Principal Employer-Subcontractor Relationship In the principal employer-subcontractor relationship, there is no employment contract between the principal employer and the subcontractor’s employee. For this reason, it is necessary to make an assessment on the basis of the legal regulation regarding the liability 36 Süzek, p. 168. 37 Yarg. 9. HD, 14.05.2007, E. 2007/3132, K. 2007/14914, (www.kazanci.com.tr, AD. 06.11.2021). 38 Süzek, p. 168. 39 İbrahim Aydınlı, “6552 sayılı Kanun’la Alt İşveren Kurumunda Yapılan Yeni Düzenlemeler ve Değişiklikler”, GÜHFD, C. XVIII, Y. 2014, Issue. 3-4, p. 83.
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