Ercüment Erdem Att. Alper Uzun

The Obligations Of The Employer Regarding Occupational Health And Safety

March 2011

According the provisions of the Code of Obligations, the employer is obliged to pay, to treat equally, to supervise, and to protect the employee. This obligation is related to taking occupational measures and is the most important equivalent of the obligation of loyalty of the employee.

In the framework of the obligation of supervision, the employer is obliged to act according to the interests of the employee, to protect and to help the employer, and to avoid behavior that may harm the employee. One of the main obligations of the employer within the scope of the obligation of supervision is to take occupational safety measures.

The concept of occupational health and safety means the provisions aimed to protect the employee from occupational accidents and illnesses. The obligation regarding taking occupational health and safety measures is principally the obligation of the employer.

The main rule regarding this obligation is stated in Chapter 10 entitled “Employment Agreement” in Article 332 entitled “Measures and Workplaces” of the Code of Obligations Numbered 818. According to this provision, the employer is obliged to take necessary occupational measures against the dangers which may occur during work within the framework of the contract and nature of the work, to provide a healthy and appropriate workplace, and, if necessary, to provide a healthy place to sleep.

Employers are obliged to take measures to ensure the occupational health and safety of their employees and to have all of the necessary equipment at the workplace pursuant to Article 77 of Labor Act numbered 4857. Also, pursuant to the same article, employers are obliged to control the measures taken for occupational health and safety and to inform employees of occupational risks that they face, the measures to be taken, and their legal rights and obligations. Employers are also obliged to train them for necessary occupational health and safety issues. The employers must notify the regional directorate in writing within two days of any occupational accident or illness as a requirement of the aforesaid article. Pursuant to the last paragraph of this article, the provisions regarding occupational health and safety also apply to apprentices and trainees.

It is also necessary to mention the Regulation Pertaining to Departments of Health and Safety at Work and the Regulation Pertaining to Common Departments of Health and Safety which entered into force through publication in the Official Gazette of 15 August 2009. These regulations concern workplaces which employ at least 50 employees and concern the formation of departments of health and safety at work or procurement of the service from the common departments of health and safety, and workplace doctors and other personnel to be charged. Besides, they also concern workplaces which employ at least 50 employees where the work is deemed as industrial for the appointment of engineers or craftsmen who are occupational safety specialists.

Pursuant to the provisions of the Regulation, employers are under an obligation to determine, take, follow the application, supervise and develop occupational health and safety measures, to prevent occupational accidents and illnesses, and to provide employees with first-aid and emergency action and preventive and protective health and safety services in order to establish a healthy and safe work environment. For work places which employ at least 50 employees, it is obligatory to form a department of health and safety at work in order to provide these services; to appoint one or more workplace doctors and other personnel if needed; and for workplaces where the work is deemed industrial, to appoint one or more occupational safety experts. Employers may fulfill the occupational health and safety measures wholly or partially by providing these services from common departments of health and safety formed outside of the work place.

The fact that the employer provides these services using experts or institutions outside of the workplace does not eliminate the employer’s liability in this respect.

The decision of 14 September 1999 numbered 1999/4222 E. – 1999/5690 K. of the 9th Civil Chamber of the Court of Appeal states that, “The Labor Act requires clearly that the employer is under the obligation to do what is necessary in order to safeguard the health of its employees and their occupational safety, to meet the conditions in this respect and to provide the necessary equipments.”

In case of death, disability, or occupational illness of an employee resulting from the failure of the employer as to the duty to supervise or in case the necessary safety measures are not taken in the workplace, civil, penal and administrative liability will be imposed upon the employer.