WORKPLACE TRANSFER
The requirements for workplace transfer can be determined within the light of Article 6 of the Labor Law No. 4857 and Supreme Court decisions.
The workplace is an integrate, organized for technical purposes, consisting of material elements, intangible values and labor. When one or some of these elements are transferred, it must be determined whether there is a transfer of the workplace or not. In order to mention that the transfer of a workplace occurred, the following conditions must be fulfilled; (i) the workplace must be taken over by another employer or (ii) must be transferred to another employer together with all its assets and employees.
The transfer of a workplace means that it transfers to another employer with all its legal consequences, namely together with all assets, risk and losses. A transfer agreement which executed in such a way will be considered as a transfer of ownership since it will involve the uninterrupted continuation of the employee contracts of the employees. Otherwise, if the first employer terminates the employment contract of it’s employees and suspends the activity, there would be no workplace in accordance with the law. The sale or lease of such a building, installation and machinery that does not qualify as a workplace is considered the transfer of title or right to use under private law.
The following requirements must be realized to mention that there is a workplace transfer;
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As a result of the transfer of the workplace, the employer title shall also change. Thus, the person who takes over the workplace would be the person who will hold the title of new employer.
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the economic union which expresses the workplace or a part of it must be transferred while preserving its identity to mention a workplace transfer. There are two important elements in transfer of economic union; (i) Maintaining functional interdependence between transferred factors of production (ii) continuing the same type of economic activity by transferee when it is included in another organizational structure.
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Besides, the current workplace of the worker (phsically) will not change. As a matter of fact, only the employer title shall be changed as a result of the transfer, and the people and places within the definition of worker and workplace will continue to remain same.
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Finally, in terms of the nature and continuity of the work with the employees whose contracts have been transferred, the workplace or the workplace department should continue their activities.
If workforce is the determining element of workplace identity, the transfer of the workforce can be considered transfer of the workplace. For example, in an advertising agency, fashion house, consultancy, computer software, research and development activities, skilled workmanship and creativity are at the forefront. In such cases, the workforce characterizes the workplace or part of the workplace, determines its identity, and the transfer of the workforce is considered to be the transfer of the workplace under Article 6 of the Labor Law.
In conclusion; in the light of the above explanations, some basic criterias must be considered while determining whether there are workplace transfer or not, such as; the value of transferred elements, whether the employer title has changed or not, scope of change in physical conditions of the workplace and the nature of the work