New Code of Obligations, Employee and Employer Articles
ARTICLE 393- Service contract is an agreement where the worker undertakes to work dependent to an employer for a definite or indefinite term and The employer undertakes to pay a wage according to the work done.
Any contracts where the worker undertakes to give a service as a regular basis as a part-time is also a service contract.
Provisions relating to general service contract apply to apprenticeship contracts as well by analogy, special regulatory provisions are reserved.
B. Establishing
ARTICLE 394- The service contract is not subject to a specific format unless otherwise stated in the law.
If any person does a work, which is possible to be done for a wage and this work is accepted by The employer, a service contract is deemed to be executed between them.
Service contract that is understood to be invalid afterwards, creates all results and terms of a valid service contract until this service relation is eliminated.
C. Worker’s obligations
I. The obligation of personally working
ARTICLE 395- Unless otherwise understood from the contract or requirement of the case the worker is obliged to do the work undertaken, personally.
II. Obligation of diligence and loyalty
ARTICLE 396- The worker is obliged to do the work undertaken diligently and act loyally in protecting legitimate interests of The employer.
The worker is obliged to properly use any machines, tools and equipments, technical systems, facilities belonging to The employer and alongside this to take care of materials handed over to him in order to do the work.
The worker, as long as the service relation, may not serve to any third person for any wage on the contrary of the loyalty obligation and may not engage in competition especially with its employer.
The worker may not use any information learned during doing service, especially including secrets of production and business, on his behalf nor disclose to any third parties. He is obliged to keep secret after termination of service relation to the extent necessary to protect legitimate interests of The employer.
III. Obligation of handing over and accountability
ARTICLE 397- The worker is obliged to immediately deliver any objects and especially moneys received from any third persons during performing the work undertaken to him and to account for.
The worker is also obliged to deliver things obtained due to performance of the service to The employer immediately.
IV. Obligation of overtime work
ARTICLE 398- Overtime work is the work done over normal time of work specified in relevant laws and with consent of the worker. However, if a necessity to perform a work requiring more than normal working time arises, the worker is at a state to perform the work and avoiding is contrary to rules of honesty, the worker is obliged to do overtime work provided to pay proper wage.
Provisions of special laws are reserved.
V. Obligation to comply with regulations and instructions
ARTICLE 399- The employer may issue general regulations regarding performing works and behaviors of workers in the worksite and give special instructions to them. The worker is obliged to comply with these to the extent required by honesty rules.
VI. Worker’s responsibility
ARTICLE 400- The worker is responsible for any losses given to The employer due to his fault.
When determining this responsibility, whether the work is the hazardous, if requires expertise and special training or not and worker’s abilities and qualifications known or likely to be known by The employer are taken into consideration.
D. Employer’s obligations
I. Obligation of paying wage
1. Wage
a. Generally
ARTICLE 401- The employer is obliged to pay the wage determined in his contract or collective agreement, in cases there is no provision, to pay wage of equal to be not less than minimum wage.
b. Overtime wage
ARTICLE 402- The employer is obliged to pay overtime including minimum fifty percent of normal working wage.
The employer may give off instead of overtime wage at a convenient time in proportion with overtime work with the consent of the worker.
c. Taking share from the result of work
ARTICLE 403- If to pay a share from the product, turnover or profit together with the wage has been decided with the contract, this share is determined at the end of accounting period taking legal provisions or generally accepted business principles under consideration.
In cases where giving a certain share to the worker is decided, if no contract is reached in calculating this share, the employer, is obliged to provide information to the worker or for him, to the expert nominated together or appointed by the judge, to allow review of books and records related to operations forming the grounds of such information; if giving a share from the profit has been decided, the employer is obliged to additionally provide year end profit and loss table to the worker.
d. Mediation fee
ARTICLE 404- If payment of a certain fee to the worker by the employer has been decided in exchange for mediation in particular works the worker’s right to claim arises upon a valid transaction has been established with the third person.
In contracts where obligations will be carried out in portions or in insurance contracts the request of wage associated with each part may be decided in writing to be arisen upon the obligation of that potion becomes due or when carried out.
If any contract established between the employer and the third person through mediation of the worker is not carried out fulfilled without any fault of him or the third person does not fulfill its obligations the right aiming the claim of fee terminates. In case of a partly fulfillment only, a proportional deduction is made in the fee.
If obligation of keeping record of calculation of the mediation fee to be paid to him is not imposed contractually, the employer is obliged to give a written calculation including transactions subject to that fee, for each period for which the fee becomes due.
If the need of reviewing the calculation arises the employer is obliged to provide information to the worker or for him, to the expert nominated together or appointed by the judge, to allow review of books and records related to operations forming the grounds of such information.
e. Bonus
ARTICLE 405- The employer may give special bonuses to workers because of certain days such as feasts, new year and birthdays. However workers’ right of requesting premium arises in cases of existence of a contract or working term or unilateral commitment of the employer about this issue.
If the service contract was terminated before the period of payment of such bonus, part of bonus proportional to the worked period is paid.
2. Paying wage
a. Payment term
ARTICLE 406- Unless a practice to the contrary exists the worker’s wage is paid at the end of every month. But shorter payment periods may be determined by service contract or collective agreement.
If a shorter payment period has not been determined or unless a practice to the contrary exists, mediation fee is paid at the end of every month. But if performing the work requires a time more than six months and if mediation fee is decided in addition to the main wage, payment may be left by a written contract to a further date.
It is necessary, in cases where a share from the product is foreseen to be given in addition to the main wage, the product share must be paid as soon as it is determined, and in cases where a share from the turnover or from the profit is decided to be given, within latest three months following end of accounting period.
The employer is obliged to make advance payment in proportion with the service given, in the event that the necessary need of the worker arises and if it is fairly at a state to pay.
b. Protection of the wage
ARTICLE 407- Ministry of Labor and Social Security, Ministry of Finance and Ministry f State in charge with Undersecretariat of Treasury are jointly authorized to compel employers about payment of those to be paid in that month out of wages, premiums, bonuses and any kind of such moneys earned by depositing to a bank account opened specially, by taking into consideration certain elements including tax obligation type subjected to, size of business, number of workers employed, the province where the business is situated, to determine whether the amount of any kind of such moneys earned to deposit will be gross or net after deducting legal deductions. Business owners that are held subject to the obligation of paying workers wages, premiums, bonuses and any kind of such moneys earned by depositing to a bank account opened specially may not pay wages, premiums, bonuses and any kind of such moneys earned of their workers in a way other than by depositing to a bank account opened specially. A payroll slip is given to workers in every payment period. Other procedures and principles regarding payment of those to be paid in that month out of wages, premiums, bonuses and any kind of such moneys earned by depositing to a bank account opened specially are arranged by regulations to be issued jointly by mentioned ministries.
The employer may not setoff its obligation of wage with any debt from worker unless having consent of the worker. But any receivables because of damages proven by a court decision to be caused intentionally by the worker may be setoff with the attachable part of the wage.
Any contracts associated with using the wage in favor of the employer are invalid.
3. Wage in case of prevention of performing the work
a. In case of the employer’s default
ARTICLE 408- If the employer prevents performance of the work with its fault or falls in default in acceptance of the work, the employer is obliged to pay worker’s wage may not request the worker to fulfill this performance subsequently. But any expenses of which the worker is released to incur due to this prevention as well any wages earned or any interests avoided from earning willingly are deducted from such wage.
b. In case that the worker stops working
ARTICLE 409- If the worker may not fulfill to perform the act for a short time compared with the performance period, without any fault due to illness, military service or working or similar reasons, in a long-term service relation, the employer is obliged to pay an equitable wage to the worker for that period, if not met through another way.
4. Attachment, transfer and pledging of worker’s receivable
ARTICLE 410- Worker’s wage may not be attached, pledged and transferred to another person for not more than a quarter. But the amount to be assessed by the judge for family members who are dependent to the worker is not included in this rate. Rights of alimony creditors are reserved.
Transfer or pledging of future wage receivables are not valid.
5. Per piece or lump-sum paid work
a. Assigning a task
ARTICLE 411- If the worker undertakes to perform work for an employer only per piece or lump-sum work, the employer is obliged to give sufficient work to him.
The employer, in the event that if he is at a state not to give per piece or lump-sum work as stipulated in the contract or in case that business conditions require so temporarily, pays the wage to the worker on time basis. In such case, if the wage to be paid on time basis is not stipulated in the contract or service contract or collective agreement, the employer is obliged to pay a wage equivalent to the average wage previously paid per piece or on lump-sum basis.
The employer, who is unable to provide work per piece or on lump-sum basis or on time basis, is obliged at least to pay the wage he would pay on time basis in performing work on time basis in accordance with provisions of falling in default in acceptance of performing work.
b. Wage per unit
ARTICLE 412- In the event if the worker undertakes to work on per piece basis or lump-sum basis, the employer is obliged to advice wage per unit before starting each work.
The employer who does not give such an advice is obliged to pay the unit price determined for the same or a similar work previously.
II. Work tools and materials
ARTICLE 413- Unless otherwise provided with an agreement or there is no local practice, the employer is obliged to supply any tools and materials required for this work.
If the worker agrees with the employer and specifies its own tools and materials for performance of the work, unless otherwise provided contractually, the employer is obliged to make an adequate payment to the worker in return to this.
III. Expenses
1. Generally
ARTICLE 414- In the event that the employer employs the worker out of the worksite with any kind of costs required to perform such work, is also obliged to pay any expenses necessary for his living.
In a service contract or collective agreement executed in writing expenses stipulated to meet by the worker personally may be foreseen to be paid to the worker in daily, weekly or monthly sums on a lump-sum basis. But this payment may not be less than the amount to meet necessary expenses.
Any agreements stipulating that necessary expenses will be met personally by the worker are invalid.
2. Transportation vehicles
ARTICLE 415- If the worker uses a transportation vehicle provided by the employer or by him in order to perform the works based on an agreement with the employer, usual costs required to operate and for maintenance of the vehicle are met by the employer to the extent used for the service.
If the worker uses its motor vehicle by an agreement with the employer, the employer is additionally obliged to pay the tax, compulsory liability insurance premium related to this vehicle and an appropriate compensation for wear and tear of this vehicle to the worker to the extent used in work.
If the worker uses other transportation vehicles and animals belonging to him by an agreement with the employer, the employer is obliged to pay usual costs required to use and for maintenance of these to the worker to the extent used in work.
3. Payment of expenses
ARTICLE 416- Any receivable of the worker due to expenses incurred are paid together with the wage for each time, if a shorter period is not determined or no local practice exists.
If the worker suffers regular expenses in order to fulfill his obligations resulting out of the contract, he will be paid an adequate advance in regular intervals to be at least once a month.
IV. Protecting worker’s personality
1. Generally
ARTICLE 417- The employer is obliged to protect worker’s personality and to behave respectfully during service relationship and to ensure an organization in the worksite based on honesty principles, to take necessary measures for workers not to come to psychological and sexual abuse and those who have suffered such abuses not to suffer any further damage.
The employer is obliged to take any kind of measures and to keep tools and vehicles available required to ensure occupational health and safety in the worksite; workers as well are obliged to observe any kind of measures taken regarding occupational health and safety. Indemnifying the death of worker, injuring bodily integrity, or any damages depending on violation of personal rights due to any act of the employer contrary to the law and contract including above provisions, are subject to provisions of liability resulted because of being contrary to the contract.
2. When working in household organization
ARTICLE 418- If the worker works in household organization together with the employer, then the employer is obliged to provide adequate food and a proper shelter.
If the worker fails to fulfill performance of work without his default due to illness or accident the employer is obliged to meet the care and treatment of the worker for two weeks if employed for up to one year and not entitled to benefit from social insurance supports. For every service year of the worker the said period is increased by two days for each service year provided this term not to exceed four weeks.
The employer is obliged to fulfill the same obligations in case of worker’s pregnancy or giving birth.
3. When using personal data
ARTICLE- The employer may use any personal data pertaining to the worker only to the extent related to his aptitude to work or necessary for performance of service contract.
Special provisions of law are reserved.
V. Penal clause and acquaintance
ARTICLE 420- Any penal clause included in the service contract only against the worker is invalid.
The release agreement related to the worker’s receivable from the employer must be in written form, to have at least one month period have passed starting with the date of termination of the contract, the type and amount of receivable subject to release must be clearly described, the payment must be thoroughly done through the bank. Any release agreements or release forms that do not contain these elements are absolutely invalid.
Any release agreements that do not contain that the right is paid in the true amount or any other payment documents containing release statement have the conclusion of a receipt limited to amounts contained therein. In this case even, to make payments through bank is compulsory.
Provisions of second and third paragraphs apply also all damage claims arisen out of service contracts including those remaining lack of support and possible to be claimed by other relatives of the worker.
VI. Holidays and leaves
1. Weekly holidays and leave to seek employment
ARTICLE 421- The employer is obliged to give one day holiday on Sundays as a rule and if conditions do not allow this a full day vacation to the worker.
The employer, in case of termination of the service contract for an indefinite period, is obliged to give to the worker a leave to seek employment two hours a day within the advance notice.
When determining the leave hours and days fair interests of the worksite and the worker are taken into consideration.
2. Annual leave
a. Term
ARTICLE 422- The employer is obliged to give paid annual leave for minimum two weeks to workers and for three weeks to workers younger than eighteen years and workers older than fifty years old if worked at least one year.
b. Deduction
ARTICLE 423- In the event that the worker fails to perform service for a period more than one month within one service year due to his fault the employer may deduct one day for every full not worked month from the term of paid annual leave.
In the event that the worker does not fulfill obligation of performing his work for maximum three months period in a year due to any reasons without his fault but for reasons depending on his personality including illness, accident, performing any public duty or legal obligation, the employer may not make any deduction from the term of paid annual leave.
The employer may not make any deduction from the term of paid annual leave of the female worker who cannot fulfill obligation of performing her work for maximum three months in a year due to pregnancy or giving birth.
No arrangement contrary to provisions of second and third paragraphs in a manner to create a provision to the expense of the worker may be done through service contracts or collective agreements.
c. Taking leave
ARTICLE 424- Paid annual leaves are given wholly as a rule, however may as well be given by dividing into if agreed by both parties.
The employer determines dates of paid annual leaves considering desires of the worker to the extent possible to match with the interests of the order of worksite or the house.
d. Payment
ARTICLE 425- The Employer is obliged to pay the wage related to the term of paid annual leave prior to the worker’s starting the leave beforehand or as a down payment.
The worker may not waiver from his right of paid annual leave as long as the service relationship continues in return to any money or other benefits to be taken from the employer.
In the event that the service contract is terminated due to any reason, the wage in connection with any entitled but not used annual vacation by the worker will be paid to him or other holders of the right to be calculated over worker’s wage on the date of termination. The prescription period associated with this wage starts on the termination date of the service contract.
VII. Certificate of service
ARTICLE 426- The employer is all the times obliged to provide a certificate of service containing type and term of work upon request of the worker.
In case that the worker explicitly requests, the certificate of service states the worker’s skill in performing the works and his attitudes and behaviors.
The worker or new employer employing the worker who suffers any loss due to not providing certificate of service in time or the certificate with incorrect information may claim damage from the previous employer.
E. Industrial and Intellectual proprietary rights
ARTICLE 427- Provisions of special laws apply about worker’s and employer’s rights on service inventions, earning these as well other industrial and intellectual proprietary rights.
F. Assignment of service relationship
I. Assignment of the whole or part of the worksite
ARTICLE 428- When the whole or part of the worksite is assigned to another through a legal procedure, any service contracts existing in the worksite or part of the worksite on the date of assignment pass to the assignee including all rights and obligations.
For worker’s rights depending on length of service the date of starting work at the assigning employer is taken as basis.
In case of assignment in accordance with above provisions, the assigning and assignee employers are jointly and severally responsible for any debts already due on the assignment date and required to be paid on the assignment date. But, the responsibility of the assigning employer is limited to two years from the date of assignment.
II. Assignment of the contract
ARTICLE 429- The service contract may be assigned permanently to another employer only upon obtaining written consent of the worker.
Upon the procedure of assignment, the assignee becomes the employer part of the service contract including all rights and obligations. In such a case, for worker’s rights depending on length of service the date of starting work at the assigning employer is taken as basis.
G. Termination of the contract
I. For contracts with definite term
ARTICLE 430- Any service contract with definite term automatically terminates at the end of term without requiring any notice of termination unless otherwise provided in the contract.
If any service contract with a definite term continues implicitly after expiry of the term, turns to a contract with indefinite term. However in the event that an essential reason exists service contracts with a definite term may be established one after the other.
Either of the parties may terminate any service contract with a term longer than ten years after expiry of ten years by observing a notice of termination of six months. The termination shall take effect only at the beginning of the month following this term.
If the contract has been decided to be terminated after notice of termination and both parties have not served any notice, then the contract becomes a contract with indefinite term.
II. For contracts with indefinite term
1. The right to terminate, in general
ARTICLE 431- Either of the parties is entitled to terminate any service contract with indefinite term, in compliance with terms of termination.
2. Term for notice of termination
a. In general
ARTICLE 432- Prior to termination of any service contracts with indefinite term the case is required to be notified to the other party.
The service contract, from the date of delivery of the notice of termination to the other party two weeks after for the worker with the length of service up to one year, four weeks after for the worker with the length of service from one year up to five years and six weeks after for the worker with the length of service more than five years will be terminated.
These terms may not be shortened, but may be increased with a contract.
The employer may immediately terminate the service contract by paying the wage for the term for notice of termination beforehand.
Terms for notice of termination must be necessarily the same for both parties, if different terms are stipulated in the contract, the longer term for notice of termination applies for both parties.
In cases where the service contract is suspended the term for notice of termination will not operate.
b. During trial period
ARTICLE 433- The parties may stipulate in the service contract a trial period provided not to exceed two months. If a trial period is stipulated then the parties may terminate the contract without indemnity and without being obliged to the term for notice of termination.
Worker’s rights for worked days including wages etc are reserved.
III. Protection against termination
ARTICLE 434- In cases that the service contract is terminated by misusing the right of termination the employer is obliged to pay an indemnity equal to three times of wage for the term for notice of termination to the worker.
IV. Immediate termination
1. Conditions
a. Fair causes
ARTICLE 435- Each of the parties may terminate the contract immediately for rightful reasons. The party terminating the contract is obliged to advice the reason for termination in writing.
All circumstances and conditions where the party who terminates the contract is not anticipated to continue the service relationship according to rules of honesty are deemed rightful reasons.
b. Inability of the employer to pay
ARTICLE 436- In case that the employer falls in a state unable to pay the worker, if rights arisen out of the contract are not secured within a reasonable period, may immediately terminate the contract.
2. Conclusions
a. In termination with a rightful cause
ARTICLE 437- If causes for rightful termination have been arisen due to non-observance of any party to the contract, that party is obliged to compensate the loss caused by taking all rights based on the service relationship under consideration.
In other cases the judge considers all conditions and circumstances and freely evaluates material conclusions of termination with rightful reason.
b. In termination without a rightful cause
ARTICLE 438- If the employer immediately terminates the service contract without any rightful cause, the worker, in case that the term of contract is not observed for contracts with indefinite term, and in case that the term of contract is not observed for contracts with definite term, may claim the amount to be entitled in the event that these terms would be observed.
The amount saved by the worker in service contract with definite term due to termination of the contract and the amount obtained or willfully avoided from obtaining from another work is deducted from the indemnity.
The judge, by taking all these conditions and circumstances under consideration, may decide to pay additionally an indemnity of which the amount to be freely determined by him to the worker; however the amount of indemnity may not be more than six months’ wage of the worker.
c. Worker’s failure to start working or leaving the work unfairly
ARTICLE 439- In the event that the worker fails to start working or suddenly leaves the work for unfair reasons, then the employer is entitled to claim an indemnity equal to a quarter of one month’s wage from the worker. The employer is as well entitled to claim indemnification of its additional losses incurred.
If the employer has not suffered any loss or the loss suffered is less than a quarter of one month’s wage of the worker, then the judge may reduce the indemnity.
If the right to claim indemnity did not end through setoff, the employer is obliged to use this right within thirty days following failure of the worker to start working or leaving the work through a lawsuit or legal proceedings. Otherwise the right to claim indemnity ends.
V. Death of the worker or the employer
1. Death of the worker
ARTICLE 440- The contract will automatically terminates upon death of the worker. The employer is obliged to make a payment at the amount of one month’s wage, if the service relationship had continued more than five years at the amount of two months’ wage of the worker to the workers survived spouse and minors if not applicable to persons dependent to the worker starting from the date of death.
2. Death of the employer
ARTICLE 441- In case of death of the employer his heirs replaces him. In this case, provisions associated with assignment of service relationship realized upon assignment of the whole or part of worksite, apply by analogy.
If the service contract has been established weightily by taking employer’s personality into consideration, it automatically terminates upon his death. However, the worker may have claim an appropriate indemnity from employer’s heirs for the damage incurred because of termination of the contract before its term.
VI. Conclusions of termination of the contract
1. Debts to be due and payable
ARTICLE 442- Upon termination of the contract all debts arisen out of the contract becomes due and payable.
The moment of being due and payable may be postponed until six month in relations if the debt undertaken by a third person through the mediation of the worker will be performed partly or wholly after termination of the service contract; until one year in relations containing periodical performances and until two years in insurance contracts or performance of which is extended until a period more than six months by a written agreement.
In cases where giving a share from the product as soon as the product share is determined and in cases where a share from turnover or profit, such share becomes due and payable latest at the end of three months following accounting period.
2. Obligation of returning
ARTICLE 443- In case that the contract terminates, each of the parties is obliged to return belongings that were taken from the other party or from any third person on behalf of the other in connection with the service given.
The employer is especially obliged to return motor vehicles and traffic permission certificates, charges and costs to the extent being more than its unpaid receivables.
Right of retention of the parties is reserved.
VII. Prohibition of competition
ARTICLE 444- The worker with the capacity to act may undertake in writing not to compete against the employer in any form else, especially not to open a competing business enterprise on his name, to work in another competing business enterprise or other than these to enter into a relationship of interest with a competing business enterprise after termination of the contract.
Condition of prohibition of competition will be valid only if the service relationship provides the worker to acquire information about customer circle or production secrets or business activities done by the employer and as well using this information is at the capacity to cause a significant loss of the employer.
2. Restricting
ARTICLE 445- The prohibition of competition may not contain unfair restrictions to compromise worker’s economical future in an appropriate form for time and types of works and term of prohibition may not be more than two years except specific cases and conditions.
The judge may limit prohibition of competition by freely evaluating all conditions and circumstances as well by taking counter performance of the employer into consideration in a justly manner for the scope or time.
3. Consequences of any violations
ARTICLE 446- The worker violating the prohibition of competition is obliged to pay all losses suffered by the employer as a result of such violation.
If violation of prohibition is connected to a fine and save otherwise provided in the contract the worker may be released from its obligation in connection with the prohibition of competition by paying the stipulated amount; however the worker is obliged to correct any loss exceeding this amount.
The employer may as well request to stop violation, in addition to payment of penal condition and additional loss possible to arise, provided to keep the right explicitly reserved, if the importance of its violated or compromised interests and the worker’s act vindicates it.
4. Ending
ARTICLE 447- The prohibition of competition ends when it is determined that the employer has no real interest in maintaining this prohibition.
If the contract is terminated by the employer without a rightful cause or by the worker with a reason attributable to the worker, the prohibition of competition ends.
THE SECOND DISTINCTION
Marketing contract
A. Definition and establishing
I. Definition
ARTICLE 448- Marketing contract is a contract where the marketer undertakes to constantly to mediate performing any kind of operation on behalf of the employer owning a business enterprise or if there is a written contract to perform operations stipulated in such contract and the employer undertakes to pay a wage in return to this.
Establishing
ARTICLE 449- Marketing contract contains the term of contract, termination, authorizations of the marketer, how to pay wages and expenses, if the place of settlement of one of the parties is in a foreign country the law to govern and the competent court.
Matters stipulated under the preceding paragraph are not specified by the parties in the contract, provisions of the law and customary conditions of service apply.
B. Obligations and authorization of marketer
I. Obligations
ARTICLE 450- Marketer is obliged to visit customers in accordance with the instruction given, unless a rightful reason arises obliging him not to comply with such instruction; unless the employer allows may not perform any transaction on its behalf or any third party’s behalf, nor may mediate.
If the marketer is authorized to perform any transaction, is obliged to comply with prices and the conditions stipulated in the instruction; unless the employer consents may not perform any change on these.
The marketer is all the time obliged to provide detailed information regularly, to convey any received orders to the employer immediately and significant events regarding customer circle.
II. Guarantee
ARTICLE 451- Any contracts stipulating that the marketer will be responsible for customer’s failure to pay or fulfill any other obligations or the marketer will meet any costs to incur in order to collect the receivables partly or wholly are by no means null and void.
The marketer may, if he performs transactions with his own customer circle, in the event that the customers fail to perform their obligations, undertake to meet the loss suffered by the employer not to exceed a quarter in each transaction, provided to determine a proper additional commission.
Marketers performing mediation in insurance contracts, in the event that the lawsuit or executive proceedings are started due to any premium is not paid wholly or partly in order to collect the same, may undertake in written form that they will meet at most half of expenses they have done.
III. Authorizations
ARTICLE 452- Unless otherwise stipulated by a written agreement, the marketer is authorized solely in mediating operations.
If the marketer has been given authorization to perform any operations his authorization covers any and all normal legal operations and acts required to execute these operations; unless a special authorization is given, he may not collect money from customers and change payment days.
C. Special obligations of the employer
I. Area of business
ARTICLE 453- If the marketer is given authorization to have business activities in a specific marketing area or within a specific customer circle and a written contact has not been done on the contrary the employer may not give to any other the authorization to have business activities in the same area or circle; however he may make operations with third persons.
If there is any reason to change the provision of the contract about marketing area or customer circle, the employer may change the said provision, even if there is a period of notice in the contract, without complying with this provision; however marketer’s right of indemnity and to terminate the service contract for fair cause are reserved in this case.
II. Wage
1. Generally
ARTICLE 454- The employer is obliged to pay a wage to the marketer formed from only a specified amount or a commission together with this amount.
Any written contract in connection with stipulation that the wage will be wholly or as a major part formed of commission will be valid only if the commission decided becomes an appropriate compensation of marketer’s business activity.
The wage to be paid for trial period may be decided freely. However the trial period may not exceed two months.
2. Commission
ARTICLE 455- If conducting business activities in a specific marketing area or within a specific customer circle has been given only to him, then marketer may request to pay a determined or customary commission for all business activities done by him or by the employer in this area or circle.
If conducting business activities in a specific marketing area or within a specific customer circle has been given only to the marketer and some others the marketer is paid commission for any business activities done or mediated only personally by him.
At the moment where the commission becomes due and payable if the value of work done may not be yet precisely determined the commission is paid firstly for customary minimum value, and outstanding amount is paid latest when the work carried out.
3. Preventing marketing activities
ARTICLE 456- Performing marketing activities by the Marketer becomes impossible without any default of him and paying the wage to him becomes necessary contractually or by law in this case even, the wage is determined according to fix wage and appropriate indemnity due to loss of commission. However if the commission is less than one fifth of the wage not to pay any indemnity due to loss of commission may be decided in writing.
The marketer is obliged to carry out any works in the employers business he will be able to carry out and expected to him to carry out upon request of the employer, if despite being unable to carry out marketing activities without any default of him has received his entire wage.
III. Expenses
ARTICLE 457- If the marketer carries out business activities on the account of more than one employer at the same time, unless otherwise decided in writing, all employers are obliged to share marketer’s expenditures of the marketer equally.
Any agreements regarding the expenditures are included partly or wholly in fixed wage or commission are absolutely invalid.
IV. Right of retention
ARTICLE 458- Due and payable receivables resulted from marketing relationship, and in case that the employer becomes insolvent, the marketer has the right of retention on movable properties, negotiable instruments and on moneys collected from customers based upon the authorization to collect in order to secure any receivables not become due and payable yet.
The marketer may not retain any vehicles and transportation documents, price tariffs, records and other documents related to customers.
D. Termination
I. Special term of termination
ARTICLE 459- If the commission forms minimum one fifth of the wage and are influenced from important seasonal fluctuations, the employer may terminate the contract of marketer who continues working with him since the end of previous season in observance of two months’ notice of termination during the new season.
The marketer as well, under the same conditions may terminate the contract against the employer who employed him till the end of previous season and continuing to employ subsequently during the period by starting of the following season in observance of two months’ notice of termination.
II. Special consequences
ARTICLE 460- In case that the contract terminates a commission is paid for all operations done personally by the marketer or mediated to do, as well for all orders conveyed to the employer until the end of the contract without considering the time of acceptance and performance.
In case that the contract terminates, the marketer is obliged to return samples and models, price tariffs given to him to carry out marketing activities, records related to customers and other documents to the employer. However the right of retention of the marketer is reserved.
THIRD DISTINCTION
Home Service Contract
A. Definition and working conditions
I. Definition
ARTICLE 461- Home service contract is the contract under which the worker undertakes to carry out the work given by the employer at worker’s own home or another place to be determined, in person or together with family members in return to a wage.
II. Notifying working conditions
ARTICLE 462- The employer notifies any properties specific to that work remaining out of general working conditions when giving any new work to the worker; notifies in writing any materials to be supplied by the worker, if any, the amount of payment to be done to him in order to supply this material and the wage to be paid for this work.
If the price to be paid for material and the wage to be paid for the work has not been notified before giving any work, customary price and wage applied in these works are paid.
III. Special obligations of the worker
ARTICLE 463- The worker is obliged to start work in time, to complete the work in determined time and to deliver the result of work to the employer.
If the work is performed defective with the default of the worker, the worker is obliged to correct any error possible to correct at its own cost.
2. Material and tools of work
ARTICLE 464- If the material and tools of work are supplied by the employer, the worker is obliged to use these by due care, to account for it, moreover to deliver remaining materials and tools of work to the employer as well.
If the worker determines material or tools of work delivered to him to be defective when the worker performs the work, informs the case immediately to the employer and waits for his instruction before continuing the work.
If the worker causes any materials and tools of work delivered to him to become unusable with his default, he is responsible against the employer for the fair value on the day of becoming unusable.
IV. Special obligations of the employer
1. Acceptance of the product
ARTICLE 465- The employer inspects the product manufactured and delivered by the worker, notifies the worker of any fault within one week from the date of delivery. If no notice is done during proper term, the product is deemed to have been accepted in its existing state.
2. Wage
a. Payment
ARTICLE 466- Wage of the work done is paid fortnightly if the worker works continuously or once a month with the consent of worker; if worked intermittently on every delivery of the product.
A statement of account is given to the worker on each payment. The statement of account also includes deductions, if any, and the reason of it.
b. In case of prevention of work
ARTICLE 467- In the event that the employer employing the worker continuously falls in default in acceptance of work or the worker is prevented from working due to causes arisen out of the worker’s personality and without having any fault of him, in accordance with provisions about payment of wage in case of prevention of performance of work, the employer is obliged to pay his wage. The employer, in other cases, is not obliged to pay any wage in accordance with these provisions.
V. Termination
ARTICLE 468- If any work is given to the worker for the purpose of trial, the contract is deemed to have been established for period of trial.
In the event that the worker is employed by the employer continuously, unless otherwise decided, the contract is deemed to have been done for an indefinite period; in other cases the contract is deemed to have done for a definite period.
B. Applying general provisions
ARTICLE 469- In cases where no provision exists regarding marketing contracts and home service contracts, general provisions of service contracts apply.
