In recent years, effects and dynamics such as the acceleration of technological developments and the pandemic have started to change traditional ways of working around the world. Accordingly, we have started to talk about different forms of employment and different employment relationships and of course we have started to discuss them on a legal basis.
In this article, we will examine "freelance work", which is one of the forms of work that we have started to hear a lot in recent years but whose legal consequences we cannot clearly define, and the types of work of the future:
Freelance work;
"Freelance work" is used as a synonym for "self-employment". The most frequently hesitated issue regarding freelancing is whether the freelancer has the status of a worker or an independent employee.
The Turkish Code of Obligations defines "Service Agreement" as an agreement in which the employee undertakes to perform work for a definite or indefinite period of time dependent on the employer and the employer undertakes to pay wages to the employee according to the time or work performed.
Accordingly, the elements of the traditional employment relationship are determined as follows;
- Perform
- Wage
- Dependency
Among these concepts, it is important to focus on the element of dependency in order to explain the most important issue that distinguishes freelance work from traditional employment relations.
In the traditional employment relationship, the employee performs his/her work as dependent and under the supervision and control of the employer and in accordance with the employer's instructions. As a result of this, the place of work, working hours, production tools and equipment are determined by the employer, and the economic risk and even the occupational health and safety risk and responsibility are also belongs the employer. This situation is also accepted and expressed in the judicial decisions in the same manner1, and it is underlined in the jurisprudence that the determination of whether there is an element of dependency in atypical employment relationships such as freelance work shall be perform according to "the employee's work within the scope of the employer's work organization".2
Freelance working, as we have mentioned, is originally used in the sense of "self-employment". In practice, it is appearing as a new form of work that may be involved in the completion of a specific job such as writing, editing, translation, computer programming, etc.
In freelance working according to the acceptance in judicial decisions;
- There is independence between the parties,
- The employee will be able to perform the work its has undertaken at its own risk, wherever and whenever he/she wants,
- The employee is free to accept or reject the work,
- There is a weak dependency relationship between the person who wants the work to be done and the employee,
- The supervision and instruction authority of the employer is quite limited,
- It is a short-term relationship and the relationship between the employer and the employee will end by doing the job,
- The employee works within the scope of its own organization. In this form of work, as a rule, the employee is an independent worker on its own behalf.3
With all these aspects, freelance work differs from the traditional employee-employer relationship.
In the precedent disputes regarding freelance work, it is understood that such disputes generally focus on whether the employee works dependent on the employer and whether the employer should make the insurance notifications.
At this point, in the interpretations made in the precedent decisions; it is stated that an assessment should be made according to the characteristics and nature of the relationship between the parties, and it should be determined whether the relationship exceeds "independent work on behalf of itself" and whether it has gained the status of "dependent on the employer with a service agreement", in other words; it should be examined whether there is a work between the employee and the employer that exceeds independent work on behalf of the employee and has gained the dimension of a service agreement. At the point of determining this, the criteria are listed as follows in judicial decisions:
- Whether there is an agreement between the parties,
- Whether the work performed is a specific work i.e. work contract (eser sözleşmesi), or whether it is within the scope of routine work regularly performed in connection with the work activities of the employer,
- How control and supervision is carried out,
- How rectification is ensured in case of work that is not approved by the employer,
- Whether the employee has an obligation to provide information and answers,
- How the time period for the performance and deadline of the work is determined between the parties,
- Whether there are sanctions in case the work is not done or delivered on time,
- Whether the employee works regularly every day and how many hours per day,
- The reason for the termination of the relationship between the parties,
- Whether the employee has a work organization of his/her own, even in the form of working from home, and whether he/she employs other people,
- Whether the employee can refuse the work without risk of relationship breakdown,
- How the wage is determined between the parties, whether it is a royalty wage or a monthly wage, whether there is any additional payment other than the determined wage.4
In the review conducted by considering all of these criteria; it is stated that the existence of freelance work shall be accepted if it is concluded that the work is carried out by people who are not bound to any employer or company with long-term agreements and who work for certain tasks or services that are not permanently employed.
Considering all of the developments such as increasing digitalization and "freelancing" through digital platforms, automation of routine tasks by developing artificial intelligence technology and thus increasing remote working, it shows that freelance working will be an important working model of the future, and that traditional business relationships may evolve in this direction.
However, it is important to remember that; while the freelance working model offers flexibility and independence, it carries with it many legal problems and uncertainties, and traditional labour law concepts and regulations seem to be insufficient.
For example, since the freelance workers are independent, the development of social assurance systems is an important requirement for the future. In this sense, it is also observed that in some countries alternative social assurance systems have started to be established for freelance workers.
Therefore, it should be noted that in terms of freelance working model, which is predicted to be one of the important working models of the future, updating the legal regulations in line with the needs is of critical importance in order to ensure the legal security of both the employee and the employer parties.
Footnotes
1 The Court of Cassation General Assembly of Civil Chambers, Merit No. 2022/10-1252, Decision No. 2024/72, dated 7.2.2024
2 The Court of Cassation 10th Civil Chamber, Merit No. 2019/1184, Decision No. 2021/6935, dated 24.5.2021
3 The Court of Cassation 10th Civil Chamber, Merit No. 2023/11282, Decision No. 2023/12585, dated 7.12.2023
4 The Court of Cassation General Assembly of Civil Chambers, Merit No. 2022/10-1252 Decision No. 2024/72 dated 7.2.2024
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