133 Union of Turkish Bar Associations Review 2023 Muhammed Enes YILDIZ The employer who temporarily transfers the employee does not have the opportunity to inspect whether the temporary employer complies with occupational health and safety measures at the workplace. Nevertheless, due to the explicit legal regulation regarding the temporary employment relationship, the transferring employer will be jointly liable together with the temporary employer for an occupational accident that occurs.59 In the doctrine, this regulation is criticized on the grounds that the main employer cannot actually take occupational health and safety measures.60 On the other hand, it is also stated that this regulation is appropriate as it encourages employers to avoid temporarily transferring their employees or to act more diligently in the matter of transfer.61 However, in any case, the employer who fulfils its responsibility arising from the occupational accident will be able to apply for recourse to the temporary employer in proportion to its fault.62 The Law does not include any joint liability provision for “professional” temporary employment relationships established through private employment agencies. It is inappropriate not to include any joint liability provision for this type of temporary employment relationship where the worker needs more protection. In this respect, it is necessary to regulate joint liability in the temporary employment relationship established through private employment agencies, just as in the temporary employment relationship without a profession.63 The temporary worker does not work for his/her own employer in the workplace where he/she is sent to work, but for the employer called the temporary employer and works in accordance with his/ her orders and instructions. Therefore, taking occupational health 59 Odaman , p. 55. 60 Ömer Ekmekçi, “4857 sayılı İş Kanunu’nda Geçici (Ödünç) İş İlişkisinin Kurulması, Hükümleri ve Sona Ermesi”, Legal İş ve Sosyal Güvenlik Hukuku Dergisi, Issue 2, Y. 2004, p. 376; Can Tuncay, “İş Kanunu Tasarısındaki Ödünç İş İlişkisi ve Eleştirisi” (Ödünç), Mercek, Y. 8, Issue 30, Y. 2003, p. 71. 61 Özdemir, p. 241, see the authors there. 62 Civan, p. 381; Özdemir, p. 24; “In receivables arising from occupational accidents, joint debtors can only sue the other joint debtor for compensation if they have made payments in excess of their fault ratios. The recourse lawsuit filed before the payment must be dismissed for lack of a cause of action”, Yarg. 21. HD, 07.05.2015, E. 2014/24340, K. 2015/10282, (www.lexpera.com, AD. 26.11.2021). 63 Özkaraca, p. 95.
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