T.C. SUPREME
22.law office
Main: 2016/8068
Decision: 2016/19513
Date of Decision: 27.06.2016
CASE OF LABOR RECEIVABLES – THE EVIDENCE ON WHICH THE DECISION IS BASED, AND THERE IS NO VIOLATION OF THE LEGAL GROUNDS AND, IN PARTICULAR, THE DISCRETION OF THE EVIDENCE – THE REJECTION OF ALL APPEALS THAT ARE NOT IN THE PLACE OF THE PARTY – THE APPROVAL OF THE VERDICT
ABSTRACT: According to the evidence on which the decision is based, the reasons for the legal requirement and, in particular, the lack of accuracy in the discretion of the evidence, the rejection of all appeals that were not in the place of the two parties, as well as the approval of the provision that was in accordance with the procedure and the law, were required.
(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.
Although the parties were appealed by their lawyers during the sentencing period, after hearing the report prepared by the Examining Judge for the case file, the file was examined, discussed and considered as necessary:
Conclusion: According to the articles in the file, the evidence on which the decision is based, the legal reasons and, in particular, the lack of accuracy in the discretion of the evidence, the rejection of all appeals that were not in the place of the two parties and the APPROVAL of the provision that was in accordance with the procedure and the law, on 27.06.2016, the decision was made by a majority of votes.
VOTE AGAINST
Plaintiff; who is a subcontractor employer at the Eynez Underground Mine where the General Directorate of Turkish Coal Enterprises () has an operating license …. it works within the body, but it is for this reason that the defendants ‘collusive relationship between the Directorate-General should have the same rights as workers, 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;
Defendant …. both in the response petition that he submitted to the file and in his statements to the court, in summary; he requested that it be decided to dismiss the case for the absence of legal benefit for this reason, that it is not possible to open the case as an indefinite receivable case; the defendant’s General Directorate argued that the service purchase agreement subject to the case should be considered as a workplace transfer, work or revaluation agreement.
The court, which is out of the case ….’s Eynez Furnace in the furnace and lights outside atabaca to the production of a separate organization from the General Directorate, the directorate general partner or manager of the company found a relationship between partners or managers, technical and legal aspects of the company in question to be working independently for many years in the mining industry with citing …. he decried that there was a sub-employment contract between them and therefore the case was dismissed.
168 of the Constitution. in its article, “Natural wealth and resources are under the provision and savings of the State. The right to search for and operate them belongs to the State. The state may transfer this right to natural and legal persons for a certain period of time.”; 4 of the Mining Code No. 3213. in its article, it also states that “Mines are under the provision and protection of the State and are not subject to the ownership of the supply in which they are located. it is said that “. In accordance with these provisions, the right to operate mines is entirely at the disposal and disposal of the State. However, private individuals can also operate the mines.
Article 5 of the Law No. 3213. according to the article, none of the rights of the first application, exploration permit, decisiveness and operating license of the facilities on the mines may be divided into shares and each of them shall be treated as a whole. Mining licenses and the right of discovery are transferable. 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 the mines are located in the provision and savings of the State, the use of the rights related to it is possible with a license to be issued on the basis of the provisions of the Mining Code. 2 of the Law No. 3213 on Mines. according to the article, they are classified into five groups, mineral exploration and operation licenses are also issued according to these groups specified. Decommissioning and operation licenses are also issued according to these groups.
The Turkish Coal Enterprises Corporation is an Economic State Organization established on 22.05.1957 by Law No. 6974, and its work is carried out in accordance with the provisions of the “Main Status of the Turkish Coal Enterprises Corporation”. 4 Of the Main Status of the Institution. 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, carry out work on improving the quality of coal, and minimize production costs. There are 2 Company Directorates affiliated to coal production and marketing in different parts of the country and 1 Business Directorate and 6 Control Directorates working depending on these Institutions.
The defendant, can operate as coal and other energy mines which provided the raw materials, coal and other energy islettirebi the pits, which provided the raw materials, or the energy produced by natural and legal persons, can buy raw materials and sell it again. Most of the public institutions are going on the way of purchasing services by tender within the framework of the Public Procurement Law No. 4734 and other tender legislation in order to perform the services they are obliged to perform. 4 of the Law No. 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. Service procurement contracts are not subject to any restrictions except for strict procedural requirements within the scope of public procurement legislation and the fact that the personnel owned by the administration are insufficient in terms of quality and quantity.
In order for a contract to occur, two will statements are needed. Of these, the one made before the time is called an icap (proposal to enter into a contract), and the person who makes the icap is also called an icap. Icap is a unilateral and necessary will statement to arrive at. Icap does not necessarily have to be done to anyone, and icap can also be done to the public. According to the Turkish Code of Obligations No. 6098, the validity of contracts does not depend on any form, unless otherwise provided for in the law. Freedom of contract is essential. The parties may freely determine the content of a contract within the limits prescribed by law.
The remittance contract is a concept related to mining law. The extraction of the mine within a certain mining area and the shipment of the mined mine to certain places may be the subject of a revaluation agreement, a sub-employment relationship or a service purchase agreement. The jul-ture of the legal relationship becomes more complicated when the provision of workers and the transfer of the workplace are added to them. In practice, what is the legal relationship for the extraction and shipment of minerals is a very common problem. In other words, it may be a problem whether the relationship in question is a jul-ture agreement, a sub-employment relationship, a service purchase agreement, a labor supply agreement, or a workplace transfer. It is also a fact that the mentioned legal relations have similar aspects to each other.
If it is concluded that the remittant does not independently carry out the mine production activity, and that the management authority over both production and workers is in the license holder, it is not the remittance or the purchase of services, but the supply of workers. jul. Dec January JUL-2009, the Company’s management authority over the production activity and workers is understood to belong to the person who took over the mine by the revaluation agreement, that is, the revaluation agent is legally independent of the mine production work that he has received from the license holder, if the mine production work is included in the mine production organization of the license holder, there is neither the supply of workers nor the relationship between the contract parties and two independent employers.
The remittance person or company that rents a mining operating license must have a mining and operating qualification and expertise. Accordingly, if the realtor does not have the mine management competence and expertise, the legal action is considered invalid. There is a relationship between the mine license holder and the decommissioner between the lessor and the lessor. The lessor is independent in what he rents. For this reason, legal, administrative and technical independence must be present at the mine site rented by the realtor.
From the witness statements heard within the scope of the file, from the service purchase agreement and attachments that are the subject of the case contained in the file, from the employees, ….Octoberalthough some of the tools and equipment are covered by the company, the actual necessary tools and equipment are covered by the company and the work is not given to the sub-employer during the conclusion of the collective bargaining agreement, 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 officials themselves, if they are dealing with them in January, in the absence of personnel, engineer January 3, except that only control them and the checks they did, and did not descend on the stove, orders, and instructions out of the case …. what they received from the authorities, ….’s eynez in which the accident occurred outside the furnace, lights, and even before that it was geventepe stove atabaca the mines were, however due to the end of production in geventepe is closed, the workers who work there, the work of these three have been transferred to the furnace, and whether the three in question are still in January, workers could be subject to temporary assignments and postings with a change of venue, when it starts to work ….it is not clear which january they will work in, which worker will work where ….what they say is decided by him personally, ….it is understood that the company does not have any authority to choose which employee it will work with, and the powers granted to it do not exceed the limits of supervision and coordination.
The name put by the parties to the contract does not matter. Its legal nature should be determined by looking at the content and application of the contract. ”General Directorate of Aegean Lignite Enterprise Directorate Eynez Underground Coal Production Business Service Purchase Agreement” should be concluded with the acceptance that it is a revaluation agreement in the face of the explanations made above.
In order for a legal relationship to be a sub-employment contract or relationship, the constituent elements of this relationship must coexist. dec. A sub-employment contract is not a type of contract that must be accepted in the absence of other contracts. Therefore, the existence of a contract, whether it is a service purchase, retraining and sub-employment contract, is possible with the presence of its constituent elements. Although it was decided that there was a sub-employer relationship between the defendant and the company dec was notified in the concrete case, it is not possible to accept such a relationship considering the elements of the sub-employer relationship. 2/6 of the Labor 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.”
Article 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) Within the meaning of the Labor Code, there should be two employers, one of which is the main one and the other is the subordinate one,
2) The job assigned to the sub-employer must be an auxiliary job or a part of the main job related to the production of goods or services that the main employer conducts at the workplace,
3) Only a certain part of the main job, not the entire one, should be given to the sub-employer,
4) Part of the main job assigned to the sub-employer must be a job that requires expertise for technological reasons, as well as for the needs of the enterprise and work,
5) The main employer must employ an employee in the sense of the Labor Code in the other part of the main job that he has given to the sub-employer.
In the case that is the subject of the lawsuit, the job given to the sub-employer is the job of producing coal from the Eynez underground fields. The production job in question is assigned to the sub-employer as a whole. The main employer does not employ workers in the coal production business in question. There is no dispute about this, and the current situation is also recognized by the court. Therefore, the two main constituent elements of the subordinate-employer relationship or contract do not exist in the concrete case.
We do not agree with the majority opinion, considering that the decision made by the Court should be overturned due to the statements made above. 27.06.2016
