135 Union of Turkish Bar Associations Review 2023 Muhammed Enes YILDIZ C. Transfer of Workplace 1. In General According to the Labour Law, the transfer of a workplace or a part of a workplace to another employer based on a legal transaction is called a transfer of workplace (Art. 6/1). The legislator has expressed the transfer of the workplace with a general expression and has not included a detailed regulation on its conditions. However, in the EU Directive on the transfer of the workplace, the conditions that must be present in order for the transfer of all or part of the workplace to be qualified as a transfer of the workplace in the technical sense are clearly listed. According to Directive no. 2001/23, the transfer of a workplace is defined as “the transfer of an economic entity which retains its identity in the sense of an organized pooling of resources for the purpose of carrying on a main or subsidiary economic activity” (Art. 1/1.b). Accordingly, the conditions for the transfer of a workplace or part thereof are the existence of an economic entity, i.e. a workplace or part thereof, the transfer of the workplace or part thereof to another employer, the transfer being based on a legal transaction and the preservation of the identity of the economic association despite the change of employer.66 Although the conditions required by the EU Directive are not explicitly stipulated in our domestic law, it is observed that the Court of Cassation’s decisions require these conditions in order to qualify as a transfer of workplace.67 In the decisions of the Court of Cassation, it is seen that the transfer of a workplace or a part of a workplace with economic integrity “while preserving its identity” is strictly sought for the characterization of the transfer of a workplace.68 However, in 66 Gülsevil Alpagut, İşyerinin Devri ve İş Sözleşmesini Fesih Hakkı, Beta Yayınevi, İstanbul, 2010, p. 28; Ercüment Özkaraca, İşyeri Devrinin İş Sözleşmesine Etkisi ve İşverenlerin Hukuki Sorumluluğu, Beta Yayınevi 1. Basım, İstanbul 2008, p. 33. 67 “Transfer refers to the transfer of a business or a workplace or a part of a workplace that has an economic integrity while preserving its own identity...), Yarg. 9. HD, 27.05.2019, E. 2017/10797, K. 2019/12098, (www.lexpera.com, AD. 07.11.2021). 68 Yarg. 9. HD, 22.2.2016, E. 2014/30825, K. 2016/3327, (www.lexpera.com, AD. 7.11.2021).
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