e-book2011

NEWSLETTER 2011

202

General Service Agreement in the Framework of the New

Turkish Obligations Law

Att. Sedef Üstüner

The Turkish Code of Obligations (“TCO”), which was published in

the Official Gazette dated 04.02.3011 and numbered 27836 and which

will be effective as of 01.07.2011 has a broader scope for provisions on

general service agreements then the current Code of Obligations (“CO”)

numbered 818. The mentioned provisions are stipulated between Articles

393 and 447. If these provisions are evaluated in general, one should

acknowledge that although the provisions are parallel with the stipulations

of the Labor Law and in line with the Labor Law, they include wider

regulations than the CO. Moreover, the field of application has also been

widened. Accordingly, Article 393 and the following provisions would

be applied to the subjects that are not within the scope or covered by the

Labor Law. Also, in cases where it is more beneficial for the employee,

Articles 393 and following would be applied rather than the Labor Law

provisions.

There are more detailed regulations under the title “the Obligations

of the Employee” in the TCO. The most important regulation is Article

396 stipulating the “Obligation of Diligence and Fidelity”. This provision

introduced obligations for the employees, such as keeping confidential

the employer’s secrets and not competing with the employer. In the same

respect, the “Obligation to Deliver and Accountability”, which was not

previously regulated under the CO, has been addressed by Article 397. In

addition, the obligation of the employee to comply with the orders and

instructions of the employer is regulated under Article 399 as a separate

title.

Whereas the “wage” was regulated under the TC as the “the wage

stipulated under the individual or general agreement or as is customary”,

Article 401 of the TCO states that the wage would be in the amount of the

“precedent wage, which should not be less than the minimum wage”. On

the other hand, overtime pay was calculated “in proportion to the wage

Article of March 2011