No-poaching Agreements in Turkey

No-poaching agreements have been one of the hot topics on the Turkish Competition Authority’s (Authority) agenda in recent years. Labour markets are considered as input markets where employees provide the workforce. Agreements between competitors, which aim to or have the effect of preventing employee transfer (i.e., no poaching) or fixing employee wages/fees and conditions are generally considered as by-object violation of Article 4 of Law No. 4054 on Protection of Competition (Law No. 4054). Under the Turkish competition law regime, there are no specific guidelines on horizontal agreements that address competition in labour markets. However, case law confirms that factors regarding workforce or labour such as wages and salaries are subject to antitrust scrutiny. In recent years, the Turkish Competition Board (Board) has intensified its scrutiny of labour markets for no-poaching and wage-fixing agreements in Turkey.

In TV Production (28.07.2005; 05-49/710-195), the Board remarked that if the TV producers, who are parties to the pre-investigation of the Board were to fix the wages of actors/actresses by way of an agreement, this would amount to fixing of purchasing prices, aiming to prevent competition. In Private Schools (03.03.2011; 11-12/226-76), the Board noted that non-binding principles adopted by the Turkish Private Schools Association that prohibit the direct job offers to a teacher employed by a member from another member may be deemed as an anti-competitive decision of an association of undertaking. Moreover, in Private Hospitals (24.02.2022; 22-10/152-62), the Board concluded that certain private hospitals in Samsun and Bursa have engaged in no-poaching agreements, preventing transfer of their personnel towards each other and that amounted to a by object violation. In that context, the Board also detected that human resources departments of certain private hospitals in Bursa have also engaged in meetings, where they discussed and fixed minimum and maximum wages by way of setting wage tranches.

Overall, the Board remarks that the agreements aiming to prevent transfer of employees may indirectly result in fixing of personnel wages/fees and vice versa and explains that that no-poaching agreements have no fundamental difference from customer or market allocation, with the exception that the former is on the buyer side and the latter on the seller side.

For more information on no-poaching agreements in Turkey, please feel free to reach out to ELIG Gurkaynak at +90 212 327 1724 or through gonenc.gurkaynak@elig.com.