NEWSLETTER-2020-metin

349 LABOR LAW Procedure for Overseas Recruitment In addition to the procedure regulated under the related bilateral labor force treaty, as per Article 4 of the Overseas Recruitment Regu- lation 1 , the Turkish Employment Agency and private employment agencies, which are permitted by the Turkish Employment Agency to provide intermediary services for finding employees, are authorized to intermediate for employers who wish to recruit Turkish employees for their overseas companies. Companies may take employees to work at overseas companies after preparing and obtaining approval of the documents listed under Article 5 of the Overseas Recruitment Regula- tion and the overseas employment contract by the Turkish Employ- ment Agency. In practice, standard form contracts related to overseas recruitment prepared by the Turkish Employment Agency are executed between the employer and the employee. Applicable Law to Overseas Employment Contracts In the case of overseas recruitment, applicable law provision in overseas employment contracts is usually designated as the foreign law in which the employment will take place. Although the parties determine foreign law as the applicable law, if a dispute arising out of an overseas employment contract is taken to the Turkish courts and the Turkish courts are competent to hear the case, the Act on International Private and Procedural Law (“AIPPL”) shall be applied due to the element of foreignness established by overseas recruitment. As per Article 27 of the AIPPL, employment contracts are subject to the applicable law designated by the parties, provided that the mini- mum protection arising out of the mandatory rules of the employee’s habitual work place are reserved. In cases where the parties did not designate an applicable law, the law of the habitual work place of the employee shall govern the employment contract. If the employee is temporarily working abroad, such work place will not be deemed as the habitual work place. In cases where the employee is consistently working in several countries without working habitually in one state, the employment contract is subject to the law of the state where the main work place of the employer is located. What is meant by the 1 Published in the Official Gazette dated 16.02.2008 numbered 26789.