T.C. SUPREME

22.Legal Department
Mainly: 2016/8080
Verdict: 2016/19525
Decision Date: 27.06.2016

LABOR CLAIMS CASE – THE EVIDENCE ON WHICH THE DECISION IS BASED IS BASED ON LEGAL REASONS AND, IN PARTICULAR, THERE IS NO LACK OF APPRECIATION OF THE EVIDENCE – THE REJECTION OF ALL APPEALS THAT ARE NOT IN PLACE OF THE PARTY – THE APPROVAL OF THE PROVISION

Abstract: according to the evidence on which the decision was based, the legal reasons and, in particular, the lack of accuracy in the evaluation of the evidence, the rejection of all appeals that were not in place by both parties and the provision in accordance with the procedure and law had to be upheld.

(4857 P. K. m. 41, 46, 57)

Litigation and decision: the Claimant, the difference collective bargaining fees, you will receive additional bonuses and reimbursement, shift, return fee premium night receivable, compensation for underground work, shift, hike, eat-food-additive fee, coal yakimlik assistance, clothing assistance, soap lighting and fees receivable, social assistance costs, overtime pay, work weekends and national public holidays, fee, compensation paid annual leave and decided to make the principle of equal consideration against receivables asked.

The court has decided to dismiss the case.

After hearing the report issued by the examination Judge for the case file, the file was examined, the need was discussed and considered.:

Conclusion: according to the articles in the file, the evidence based on the decision and the legal reasons and especially the lack of a hit in the evaluation of the evidence, the rejection of all appeals that are not in place by both parties and the approval of the provision in accordance with the procedure and law were decided by a vote on 27.06.2016.

VOTE AGAINST

Plaintiff; Soma coal enterprises, which is a subcontractor employer in Eynez Underground Mine, where the General Directorate of Turkish coal Enterprises (…) has an operating license, A.P. it works within the body, but it is for this reason that the General Directorate of the relationship between the defendants should have the same rights as workers collusive, also in accordance with ILO Convention 94 Mine Workers ‘Union of Public Workers’ Union, noting that TIS should benefit from the provisions of the agreement signed between $ 100 collective bargaining agreement (TIS) the difference fee of $ 100 will receive reimbursement bonuses and additional 10 pounds the return fee receivable shift, night premium receivable, compensation for underground work, shift, hike, eat-food-additive costs, fuel coal assistance, clothing assistance, lighting soap and fees receivable, social assistance costs, overtime pay, national holidays – work weekends and general fee, paid annual leave compensation and the principle of equal consideration against receivables deposits applied to the highest interest to be paid jointly and severally with the vague claims of the defendant as with the collection to be decided;

The Defendant … both in the response petition he submitted in the file and in the statements he gave to the court in summary; it is not possible to open the case as an indefinite claim, so he requested that the case be dismissed for lack of legal benefit; the defendant … General Directorate argued that the contract for the purchase of services subject to the case should be accepted as a transfer of the workplace, work or rödövans contract.

The court ruled that the non-litigation Soma coal enterprises A.P.citing the fact that the company has been working in the mining sector for many years independently of the technical and legal aspects … and Soma coal enterprises A.P. he decided that there was a sub-employer contract between them and therefore the case was dismissed.

168 of the Constitution. “of course, wealth and resources are under the provisions and savings of the state. The right to search and operate them belongs to the state. The state may transfer this right to real and legal persons for a certain period of time.”; 4 of the Mining Law No. 3213. “mines are under the provisions and savings of the state and are not subject to the ownership of the supply in which they are located.” is called. In accordance with these provisions, the right to operate the mines is entirely in the provisions and savings of the state. However, private individuals can also operate the mines.

5 of Act 3213. according to the article, None of the first application, exploration license, discovery and operating license rights established on mines can be divided into shares, and each of them is treated as a whole. Mining licenses and the right to find are transferable. Article 6 Of The Same Law. according to the article, mineral rights, civil rights of the Republic of Turkey citizens eligible to use, mining and status that can do writing companies legal persons established under the laws of the Republic of Turkey in this regard, the authority in public enterprises and enterprises, subsidiaries, and affiliates, and other public institutions and administrations, including on behalf of a single natural or legal person is given. Since mines are in the provisions and savings of the state, the exercise of the rights related to this is possible with a license to be granted based on the provisions of the Mining Law. Mines, Act 2 of 3213. according to the article, it is classified in five groups, and mineral exploration and operation licenses are also issued according to these groups specified.

The Turkish coal enterprises institution is an economic State organization established in 22.05.1957 by Law No. 6974 and continues its work in accordance with the provisions of the “main status of the Turkish coal enterprises institution”. 4 Of The Institution’s Main Status. according to the article, the objectives and activities in accordance with policies the state’s overall energy and fuel lignite, bituminous shale radish, asfaltit evaluate energy as raw materials, to meet the needs of the country, to make the maximum contribution to the domestic economy, plans and programs to organize and ensuring implementation of the above activities to identify strategies to follow to handle it sets any mines, and for this purpose, search, real and legal persons which the procurement of lignite, radish, Turkish hard coal bituminous shale raw materials such as coal and energy coal in FOB and with the authority of municipalities and special provincial administrations and sold as fow affiliated enterprises, natural and legal persons of the state economic enterprises and institutions produced by the root, making out with collateral obtained during coal briquette materials, energy and Natural Resources Ministry to buy and sell within the principles and regulation to be approved by the technical specification is called. Its main goals are to increase production, to make efforts to improve coal quality and to minimize production costs. In different parts of the country, there are 2 Corporate Directorates associated with coal production and marketing …and 1 Business directorates and 6 Control Directorates that work depending on these institutions.

The defendant … may operate mines where coal and other energy raw materials are supplied, or he may operate mines where coal and other energy raw materials are supplied, or he may buy and resell energy raw materials produced by natural and legal persons. In order to fulfill the services they are obliged to do, most of the public institutions go on the way of purchasing services by tender within the framework of the Public Procurement Law No. 4734 and other procurement legislation. 4 of law 4734. a service description in the item, “maintenance and repair, transportation, telecommunications, insurance, research and development, accounting, market research and survey consultancy, promotion, printing and publishing, cleaning, food preparation and distribution, meeting, Organization, presentation, protection and security, vocational training, photography, film, intellectual and beautiful art, computer systems, services, software services, and the leasing of movable and immovable property rights and other similar services,” according to the aforementioned definition, remain within the concept of Service. In the article, “and other similar services” from the statement mentioned in the question, they are not a limited number of services, but all services that have not fulfilled their staff with public agencies and institutions they need for the service to enter into contractual relations with auctions that can be understood. Contracts for the purchase of services are not subject to any restrictions, except in strict procedural conditions under the public procurement legislation and in cases where the personnel owned by the administration are insufficient in terms of quality and quantity.

In order for a contract to occur, two will explanations are needed. The one made before them in terms of time is called an icap (a proposal to enter into a contract), and the person who makes it is also called an ICAP. It is a unilateral and necessary statement of will. It does not necessarily have to be done to anyone, but it can also be done to the public. According to the Turkish Code of Obligations No. 6098, the validity of contracts is not dependent on any form, unless otherwise stipulated in the law. Freedom of contract is essential. The parties may freely determine the content of a contract within the limits stipulated in the law.

The Rödövans convention is a concept related to mining law. The extraction of a mine within a particular mine site and the transfer of the mine to certain locations may be the subject of a contract of rödövans, a sub-employer relationship, or a contract for the purchase of services. The size of the legal relationship becomes more complex when the supply of workers and the transfer of the workplace are added to them. In practice, what is the legal relationship to mining and shipping is a very common problem. In other words, it may arise as a problem whether the relationship in question is a contract of rödövans, a relationship with a sub-employer, a contract for the purchase of services, or a contract for the supply of employees or a transfer of the workplace. It is also a fact that the said legal relations have similar aspects to each other.

The dictionary meaning of the French word “redevance” is rent. In this sense, rödövans, which are transferred to Turkish law, are used to express the rental price that the lessee must pay per ton produced each year in exchange for the owner of the operating license leasing the right to operate the mine for a certain period of time. In other words, rödövans is the allocation of a period of time by the right holder to a natural or legal person by contract in exchange for a certain lease, provided that the essence of the right to operate the mining license areas remains within it.

In the mining law, there is no definition of the rödövans contract. 4 Of The Regulation On The Implementation Of Mining Activities. according to the article, contracts entered into by license holders with these persons for all or part of the license area in order to provide the right to savings to third parties or organizations for the purpose of producing and evaluating mines in the license areas are called rödövans contract. Rödövans contracts are a type of contract commonly used in mining law practice. Rödövans is an anonymous, atypical, mixed contract that is not subject to any form, burdens two parties with debt. A person who has a license to search and operate a mine field is called a “rödövans contract”, which allows another private or legal entity to conduct mining operations and receive a certain rental price in exchange for each ton of the mine that comes out in return. In accordance with this agreement, the private or legal person who gives rödövans and undertakes the operation of the mine pays the license holder the same fee as the amount he undertakes to pay in advance for each ton of mine he produces. In other words, the rödövans contract can be defined as a contract in which the owner of the mine operating license undertakes to transfer the right of operation to a person called rödövansç for a certain period of time, and the person who inherits this right undertakes to produce a certain amount and pay the annual rödövans calculated according to the amount of Mineral royalty or lease agreement, “the area of the mining license by the owner with legal rights and responsibilities in the contract on the condition that it remain private or legal person, allocation for a while, in the case of private or legal person undertaking the operation of the mine, mainly produced by the holder of the licence for mining undertakes to pay the amount that each ton” is described as. The rights of the rödövansman include the authority to conduct mining activities. Based on this authority, the rödövansçi can open January, Wells and galleries in the mine site and detect the presence of mines by drilling and extract the mine it finds. When the mines produced become securities, they come out of the public ownership of the state and fall into the ownership of the person who produced it. Based on the Rödövans contract, the mining company owns the ownership of the ore it produces.

7 of law 3213. according to the last paragraph of the article, “the administrative, financial and civil responsibilities related to the Labor Law, occupational health and safety arising from mining activities to be carried out in these areas belong to the rödövansç in the rödövans contracts that mining license holders have made with third parties in some or all of the license areas. But this does not eliminate the license holder’s responsibilities arising from the Mining Law.”However, at the point of determining those responsible, each event must be evaluated within its own conditions and determine who is responsible for the supervision and control of its activities in the field. As a rule, it is considered that the responsibility for supervision and control of all activities carried out on the site belongs to the licensee together with the rödövansçi who takes over the operation of the site.

According to the regulation on the implementation of mining activities, rödövans contracts entered into by mine operating license holders with third parties for some or all of the license areas and changes made to these contracts are commented on the mine register for informational purposes in the transfer and transfer transactions at the request of the parties. If the parties together request the cancellation of the rödövans contract, these records will also be abandoned. The General Directorate of Mining Affairs is in no way a party to rödövans contracts. The debt of the rödövans issuer is to transfer the mine operating permit to the rödövanscu for a certain period of time. In return, the rödövansçı who receives the operating permit for a certain period of time from the person who has the right to operate the mine gives a share called the rödövans fee to the person who transfers the operating permit. In mining enterprises that produce coal or other ores in exchange for Rödövans, there may be various forms of payment of rödövans shares paid to the licensee. Payments per unit produced during production; it can be an increasing, decreasing, fixed percentage or amount, as well as in advance, in certain circuits, or in the form of a rent paid from year to year.

31 of law 3213. even if it is operated with rödövans in accordance with the mandatory regulation of the article, the authority and responsibility for appointing a Fenni supervisor belongs to the license holder. If there are fixtures, construction machinery, transportation vehicles and operating facilities included in the rödövans contract, the area belonging to the license holder in the mining area should be removed from the lists and their values should be shown. The license holder must deliver all the tools and machines shown in the list to the rödövansçi. The Rödövansçı is under the debt of paying the rödövans, using the mine in accordance with the purpose of the facility and operating it well. In this context, the rödövansçi, who destroys the mineral reserve by not operating the mine in a rational and rational manner, is responsible to the licensee. Without the permission of the lessor, the renter may not change the operating procedure of the lessor in such a way that the effect can be seen after the end of the lease term. Rödövansçı may not engage in indiscriminate exploration and mining activities in the mine site, and may not engage in activities in such a way as to eliminate subsequent use in the mine site. The rödövansci is under the obligation to maintain the mine and make minor repairs. In this context, rödövansçi maintains the mine site, wells and galleries well and takes safety measures. Otherwise, the rödövansçı who does not take adequate measures shall be liable to the licensee for the damages caused by this. In accordance with the Rödövans contract, all or part of the mine-Licensed Site may be granted to someone else. In the Rödövans contract, the licensed miner must provide all the environment necessary for the rödövansch to operate the mine in the field.

If the mine license holder has more than one mine site, he can grant the right to operate each mine site to different people in exchange for rödövans. 5 of the mining code in such a case. it does not contradict the provision of indivisibility of rights to shares in the article. Because the right to operate the mine, which applies to each mine site, is not divided into shares and granted to different people to operate. A mine operation license is valid for a mine license area in a particular region. In other words, for each mine site there is a mine license, a Exploration License and a mine operation license. A business license is a document of authority issued for the execution of business activities. Transferred to the rödövansçı, it is only the right of operation. Here, the division of this right of operation into shares is prohibited by the Mining Law.

According to the Rödövans contract, the rödövansist can operate one mine site, while the owner of the right to mine other mine sites can operate. In this case, if there is full independence between the parties, the provisions on the transfer of the workplace shall apply if there are rödövans contract and conditions. However, if the license holder has the actual management authority in the relationship between the license holder and the rödövansçi, if the rödövansçi does not have its own business organization and legal independence in the mine that the rödövansçi has hired to produce, the labor supply relationship is in question, and since this relationship is illegal, people who appear to be workers of the rödövansçi are considered employees of the license holder with whom they are actually involved in the business organization.

In the lease of the right to operate on the mine site (rödövans contract), the rödövansçi operates the mine on his behalf in accordance with the conditions specified in the contract. If the rödövansçi cannot operate the mine on its behalf, if it is fully dependent on the licensee in terms of production, work and organization, then it is not about the rödövan, but about the sub-employer relationship or tender. Therefore, the rödövans Convention cannot be regulated in such a way as to completely eliminate the rödövans ‘ independence and initiative. In the Rödövans contract, the determination of the minimum production amount and the wage per ton does not cease to be rödövans in the legal relationship. In the Rödövans contract, the rödövansist can take as many workers as he wants, manage the production process as he wants, create shifts, determine working conditions, provided that it is not against the law. It is important to carry out the shipment of a certain quality and quantity of Mines to the desired places by extracting them within certain periods of time.

Since the Rödövans contract does not mean the transfer of the mining license, the transfer contract is not required to be made in the presence of an authorized officer in the General Directorate of Mining Affairs. They can make a contract with the mine license holder (miner) and the rödövansla who will operate the field (rödövansci) in writing if they want, in the form of editing in a notary if they want.

If it is concluded that the rödövansç does not carry out the mine production activity independently, and that the license holder has the authority to manage both production and workers, it is not the rödövans or the purchase of services, but the supply of workers. If it is understood that the management authority over the production activity and workers belongs to the person who took over the mine under the rödövans contract, in other words, if the rödövansci is legally independent in the mine production business that he has received from the license holder, and the mineral production business is included in the mineral production Organization of the license holder, there is no supply of workers or two independent employer relations between the parties to the contract.

A person or company who leases a mine operating license must have the competence and expertise to mine and operate. Accordingly, if the rödövansçi does not have the competence and expertise of mining operations, legal action is considered muvazaali. Between the owner of the mine license and the rödövansçi, there is a relationship between the lessor and the lessor. The lessor is independent in what he rents. For this reason, legal, administrative and technical independence must be found in the mining area rented by the rödövansçi.

From the witness statements heard within the scope of the file, from the service Purchase Agreement and annexes that are the subject of the case contained in the file, … workers, Soma coal enterprises A.P.although the defendant … General Directorate is not authorized to hire and replace the employee, the management right over the company workers is not exercised by…, the company workers are not employed outside of the work specified in the contract, some of the tools and accessories are covered by … , essential tools and equipment are met by the company, and collective bargaining is not given to the employer during the construction of the bottom of the work, already in the absence of such a claim by the plaintiff, the plaintiff in the statement of the witnesses the defendant didn’t give orders or instructions to the authorities, if they are dealing with them in January, in the absence of personnel, engineer, except that is only from January 3 … control them and the checks they did, and did not descend on the stove, out of the case A. the Soma coal enterprises orders and instructionsP. Soma coal Enterprises, Inc.P.apart from the Eynez quarry where the accident occurred, there were lights and Atabasi quarries, even before the Geventepe quarry, but the geventepe quarry was closed due to the end of production, the workers working there were transferred to these three quarries, the workers working in these three quarries could be replaced with temporary assignments and transfers, when they started work, Soma coal enterprises A.P.it is not clear which quarry they will be working on., which worker will work where Soma coal enterprises A.P.he said he personally decided that Soma coal enterprises A.P.it is understood that the government has no authority to choose which employee to work with, and that the powers granted to it do not exceed the limits of supervision and coordination.

The name placed by the parties to the contract does not matter. The legal nature of the contract should be determined by looking at its content and application. ” … General Directorate Aegean lignite Enterprise Directorate Eynez underground fields coal production service Purchase Agreement ” should be concluded with the acceptance that the rödövans contract is in the face of the above explanations.

In order for a legal relationship to be a sub-employer contract or relationship, the constituent elements of this relationship must coexist. A sub-employer contract is not a type of contract that must be accepted in the absence of other contracts. For this reason, the existence of a contract, whether it is a service purchase, rödövans or a sub-employer contract, is possible with the presence of its constituent elements. Although it has been decided that there is a sub-employer relationship between the defendant and the notified company in the concrete case, acceptance of such a relationship is not possible given the elements of the sub-employer relationship. 2/6 of the Labour Code No. 4857. according to the article, “An employer, for the production of its goods or services in the workplace or in a section of the work auxiliary work in the nature of the business of the business and work in jobs that require expertise for technological reasons, and that it receives that are running for this job designated by the other workers just in the workplace with the employer the employer is the relationship between the relationship between the employer and subcontractor he got the job is called.”

3 Of The Sub-Employer Regulation. according to the article, sub-contractor, the employer in the workplace, or the work carried out related to the production of goods or services of the business and help the business in a section of the nature of field work in jobs that require expertise for technological reasons, the workers just for this job designated natural or legal person or unincorporated organizations and institutions that is running from the workplace; the lower isverenlik agreement made in writing between the employer and the bottom with the principal employer of the contract which contains the points mentioned in Article 10; the real work, the work that forms the basis of the production of goods or services conducted in the workplace and the principal employer also an auxiliary or a main section on the production of goods or services of the business and the nature of the business giving to other employers with jobs that require expertise for technological reasons, the actual work itself refers to the natural or legal person or unincorporated organizations and institutions that the worker is running.

In order for a legal relationship to be a sub-employer relationship according to these regulations;

1) in the sense of the labor law, there must be two employers, one of whom is the main and the other is the lower,

2) the work given to the sub-employer must be an auxiliary work or part of the main work related to the production of goods or services carried out by the main employer in the workplace,

3) only a certain part, not all of the actual work, should be given to the sub-employer,

4) part of the actual work given to the sub-employer must be a job that requires expertise for technological reasons, as well as the requirement of the business and work,

5) the main employer must employ workers in the sense of the labor law in the other part of the main work that he has given to the sub-employer.

The business assigned to the sub-employer in the case subject to the lawsuit is the business of producing coal from the Eynez underground fields. The production job in question was given to the sub-employer as a whole. The main employer does not employ workers in the coal production business in question. There is no debate on this issue, and the current situation is also accepted by the court. Therefore, the two main constituent elements of the sub-employer relationship or contract are not present in the concrete case.

Because of the above statements, we do not agree with the majority opinion that the decision made by the court should be overturned. 27.06.2016