T.R. SUPREME COURT
- Law Office
Basis: 2016/8068
Decision: 2016/19513
Decision Date: 27.06.2016
ACTION FOR LABOR CLAIMS – CLAIMS OF ALL APPEAL OBSERVATIONS WHERE THE DECISION IS BASED, WHERE THE DECISION IS BASED ON LAWFUL REASONS, AND ESPECIALLY, NO MISMATCHES ARE FOUND AT THE APPRAISAL OF THE EVIDENCE – H
SUMMARY: According to the legal reasons and the evidence on which the decision is based, and in particular, there was no inaccuracy in the evaluation of the evidence, it was necessary to reject all the unfounded appeals of the two parties and to uphold the procedural and lawful judgment.
(4857 S. K. Art. 41, 46, 57)
Lawsuit and Decision: Plaintiff, collective bargaining agreement difference fee, bonus and additional payment receivable, shift return fee, night premium receivable, underground working compensation, shift increase, meal-supply-additive fee, coal for burning aid, clothing aid, soap and lighting. demanded the payment of wages, social assistance wages, overtime wages, national holiday general and weekend working wages, compensation for violation of the principle of equal treatment and annual paid leave receivables.
The court dismissed the case.
Although the parties’ lawyers appealed during the sentence, the file was examined after the report prepared by the Investigation Judge for the case file was heard, and the need was discussed and considered:
Conclusion: According to the articles in the file, the evidences on which the decision is based, legal reasons and especially that there was no mismatch in the evaluation of the evidence, it was decided by a majority of the votes on 27.06.2016 that all objections of both parties were rejected and the verdict, which was in accordance with the procedure and law, was rejected.
NEGATIVE VOTE
Plaintiff; The subcontractor employer in Eynez Underground Mining, for which the General Directorate of Turkish Coal Enterprises () holds the operating license. 100 TL Collective Bargaining Agreement, stating that he was working within the organization, but that the relationship between the defendants was collusive, therefore he should have the same rights as any General Directorate worker, and that he should also benefit from the provisions of the TİS signed between the Maden İş Union and the Kamu İş Union in accordance with the ILO Convention No. 94. (TİS) difference fee, 100 TL bonus and additional payment receivable, 10 TL shift return fee, night premium receivable, underground working compensation, shift increase, meal-supply-additive fee, fuel coal aid, clothing aid, soap and to be paid jointly and severally from the defendants as an indefinite debt suit, together with the highest interest applied to the deposit, of the lighting fee, social assistance fee, overtime wage, national holiday – general and weekend working wage, compensation for violation of the principle of equal treatment and annual paid leave. decision making;
Defendant …. In summary, both in the reply petition submitted in the file and in the statements given to the court; it was not possible to open the said case as an indefinite debt suit, therefore it requested that the case be dismissed due to lack of legal benefit; The defendant General Directorate argued that the service procurement contract, which is the subject of the lawsuit, should be accepted as the transfer of the workplace, work or rödövans contract.
The court ruled that the out-of-case …., apart from Eynez Ocağı, also produces in Atabacası and Işıklar Ocakları with a separate organization from the General Directorate, that there is no relationship between the partners or managers of this company and the partners or managers of the General Directorate, that the said company is technically and legally independent. citing the fact that he has been working in the mining industry for many years, with …. decided that there was a subcontracting agreement between the parties and therefore the case was dismissed.
Article 168 of the Constitution states that “Natural wealth and resources are under the rule and disposal of the State. The right to explore and exploit them belongs to the State. The State may transfer this right to real and legal persons for a certain period of time.”; In Article 4 of the Mining Law No. 3213, “Mines are under the jurisdiction and disposal of the State and are not subject to the ownership of the supply they are in.” is called. Pursuant to these provisions, the right to operate mines is entirely at the disposal of the State. However, private individuals can also operate mines.
According to Article 5 of Law No. 3213, none of the rights of first application, exploration license, discovery and operation license established on mines can be divided into shares and each of them is treated as a whole. Mining licenses and right of discovery are transferable. Pursuant to Article 6 of the same Law, mining rights, citizens of the Republic of Turkey who are competent to use civil rights, companies with legal personality established in accordance with the laws of the Republic of Turkey with the status of being able to mine, state economic enterprises and institutions, subsidiaries and affiliates and other It is given on behalf of a real or legal single person, including public institutions, organizations and administrations. State of Mines and
Since it is at its disposal, the use of the rights related to this is possible with a license to be issued based on the provisions of the Mining Law. Mines are classified in five groups according to Article 2 of Law No. 3213, and mining exploration and operation licenses are given according to these groups.
Turkish Coal Enterprises Institution is an Economic State Entity established on 22.05.1957 with the Law No. 6974, and its activities are carried out in accordance with the provisions of the “Turkish Coal Enterprises Institution Main Statute”. Pursuant to Article 4 of the Institution’s Main Statute, its aims and fields of activity are to evaluate energy raw materials such as lignite, radish bituminous shale, asphaltite in accordance with the general energy and fuel policy of the State, to meet the needs of the country, to make maximum contribution to the national economy, to prepare and follow plans and programs. , to determine the implementation strategies and ensure their realization, to process or operate all kinds of mines related to the activities and to seek them for this purpose, energy raw materials such as lignite, radish, bituminous skewers produced by real and legal persons, and hard coal other than coal sold by the Turkish Hard Coal Authority as FOB and FOW. Buy and sell coke, briquette coals produced by real and legal persons of private administrations and municipalities and their affiliated enterprises, economic state enterprises and establishments, and secondary materials obtained during coking, within the technical specifications and regulation principles to be approved by the Ministry of Energy and Natural Resources. It’s called mac. Main targets; to increase production, to improve coal quality and to minimize production costs. There are 2 Establishment Directorates affiliated to the Coal producing and marketing coal in different parts of the country, and 1 Operation Directorate and 6 Control Directorates working under these Institutions.
The defendant may operate mines from which coal and other energy raw materials are supplied, or may operate mines from which coal and other energy raw materials are supplied, or may purchase and resell energy raw materials produced by real and legal persons. A large part of the public institutions choose to purchase services by tender within the framework of the Public Procurement Law No. 4734 and other tender legislation in order to fulfill the services they are obliged to provide. In the 4th article of the Law No. 4734, the definition of service is made and it is defined as “Maintenance and repair, transportation, communication, insurance, research and development, accounting, market research and survey, consultancy, promotion, printing and publishing, cleaning, food preparation and distribution, meeting, organization, exhibition, protection and security, vocational training, photography, film, intellectual and fine arts, services for computer systems and software services, leasing of movable and immovable property and rights and other similar services” are included in the concept of service. remains. It is understood from the expression “and similar other services” in the article that the services considered in question are not limited in number, and that public institutions and organizations can enter into contractual relations with service procurement tenders for all the services they need but cannot fulfill with their own personnel. Service procurement contracts are not subject to any restrictions other than strict procedural conditions within the scope of public procurement legislation and the cases where the personnel of the administration is insufficient in terms of quality and quantity.
In order for a contract to occur, two statements of will are needed. One of these, which is done before the time, is called an offer (a proposal to make a contract), and the person who makes the offer is called an offeror. The offer is a one-sided and necessary declaration of will. The offer does not necessarily have to be made to someone, but it can also be made 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 can freely determine the content of a contract within the limits prescribed by law.
The rödövans contract is a concept related to mining law. The extraction of the mine within a certain mine site and the delivery of the mined mine to certain places may be the subject of a rödövans contract, subcontractor relationship or service procurement contract. When the recruitment of workers and workplace transfer are added to these, the dimension of the legal relationship becomes more complex. In practice, the legal relationship for the extraction and shipment of minerals is a very common problem. In other words, whether the relationship in question is a rödövans contract, a subcontractor relationship, a service procurement contract, employee supply or workplace transfer may arise as a problem. It is a fact that the aforementioned legal relations have similar aspects to each other.
The dictionary meaning of the French word “redevance” is rent. In this sense, rödövans, which is transferred to Turkish law, means that the owner of the operating license does not lease the right to operate the mine for a certain period of time.
It is used to express the rent to be paid by the lessee per ton produced each year in return for the price. In other words, rödövans is the allocation of a certain period of time to a real or legal person with a contract by the right owner, provided that the essence of the operating right of the mining license fields remains with him.
There is no definition of the rödövans contract in the Mining Law. According to Article 4 of the Mining Activities Implementation Regulation, the agreements made by the license holders with these persons for the whole or a part of the license area in order to provide the right of disposal to third parties or organizations in order to produce and use the minerals in the license areas are called rödövans contracts. Rödövans contracts are a type of contract widely used in mining law practice. A rödövans is an anonymous, atypical, mixed contract that is not subject to any form and imposes debts on both parties. It is called a “rödövans contract” in which the person holding the mining field exploration and operation license has another natural or legal person to operate the mine and receives a certain rental fee in return for each ton of the mine. In accordance with this contract, the natural or legal person who gives rödövans and undertakes the operation of the mine pays the license holder a fee equal to the amount it has committed to pay in advance for each ton of mine it produces. In other words, a rödövans contract can be defined as a contract in which the owner of the mining operation license undertakes to transfer the operating right to the person called rödövans worker for a certain period of time, and the person who takes over this right undertakes to produce a certain amount and to pay the annual rödövans price calculated according to the amount of metal produced. A rödövans or mining lease agreement is defined as “provided that the legal rights and responsibilities of the mining license areas remain with the right holder, to a natural or legal person, in case a period of time is allocated to the real or legal person who undertakes the operation of the mine, to the main license holder, It is also explained as the amount that it undertakes to pay for one ton of mines. The rights of use of the rödövans owner include the authority to engage in mining activities. Based on this authority, the rödövansçı can open quarries, wells and galleries in the mine site and can detect the presence of a mine by drilling and extract the mine he finds. When the produced metals become movable property, they leave the public property of the state and enter the property of the person who produced them. The rödövans worker who extracts ore based on a rödövans contract becomes the owner of the ore he produces.
According to the last paragraph of the 7th article of the Law No. 3213, “In the rödövans agreements of the mining license holders with third parties in some or all of the license areas, the Labor Law arising from the mining activities to be carried out in these areas, administrative, financial and legal related to occupational health and safety. Responsibilities belong to the rödövans owner. However, this does not remove the license holder’s responsibilities arising from the Mining Law.” However, at the point of determination of those responsible, each event should be evaluated within its own conditions and it should be determined who is responsible for the supervision and control of the activities carried out in the field. As a rule, it is accepted that the responsibility of inspection and control of all activities carried out in the field belongs to the license holder together with the rödövanser who took over the operation of the field.
According to the Mining Activities Implementation Regulation, the royalty agreements made by the mining operation license holders with third parties for some or all of the license areas and the amendments made to these agreements are annotated in the mine registry for information purposes in the transfer and transfer transactions, upon the request of the parties. If the parties jointly demand the cancellation of the rödövans contract, these records will be cancelled. General Directorate of Mining Affairs is not a party to rödövans contracts in any way. The debt of the rödövans issuer is to transfer the mining operation permit to the rödövans owner for a certain period of time. The royalty, who obtains the operating permit for a certain period from the person who has the right to operate the mine, gives a share called the royalty fee to the person who transfers the operating permit in return. There may be various forms of payment for the royalty shares paid to the license holder in mining enterprises that produce coal or other ores in return for royalty. Payments per unit produced during the production phase; It can be an increasing, decreasing, fixed percentage or amount, or it can be in the form of a rent paid in advance, in certain periods or from year to year.
In accordance with the mandatory regulation of Article 31 of Law No. 3213, the authority and responsibility to appoint a technical supervisor belongs to the license holder, even if it is operated with a royalty. If there are fixtures, construction equipment, transportation vehicles and operating equipment included in the royalty contract, the area belonging to the license holder in the mining area, their lists are drawn up and their values are shown.
must be made. The license holder must deliver all the tools and machines shown in the list to the rödövansian. The rödövans owner is under the obligation to pay the rödövans fee, to use the mine in accordance with the purpose of the facility and to operate it well. In this context, the rödövans dealer who destroys the mineral reserve by not operating the mine in a rational and rational manner is responsible to the license holder. The rödövans man cannot change the operating procedure of the leased property in such a way that the effect can be seen after the end of the lease term, without the permission of the lessor. The royalty cannot engage in random exploration and mining activities in the mining area, and cannot operate in a way that will eliminate the subsequent use of the mining area. The rödövanscı is responsible for maintaining the mine and making minor repairs. In this context, the rödövansçı maintains the mine site, wells and galleries well and takes safety precautions. Otherwise, the rödövans owner who does not take adequate precautions will be liable to the license holder for the damages he has caused in this way. With the rödövans contract, the whole or part of the mining licensed area can be given to someone else. In the rödövans contract, the miner holding the license has to provide all the necessary environment for the rödövanser to operate the mine in the field.
If the mining license holder has more than one mining area, he can give the operating right of each mining area to different persons in return for rödövans. In such a case, it is not contrary to the provision of indivisibility of rights in Article 5 of the Mining Law. Because the right to operate the mine, which is valid for each mine site, is not given to different people to be divided into shares and operated. The mining operation license is valid for the mining license area in a certain region. In other words, there is a mining license, exploration license and a mining operation license for each mining site. Business license; It is a certificate of authority given to carry out business activities. Transferred to the rödövans owner is only the operating right. Here, the division of this operating right into shares is prohibited by the Mining Law.
With a rödövans contract, a rödövans owner may operate a mine site while the owner of the mine right may operate other mine sites. In this case, if there is complete independence between the parties, and if there are rödövans contract and conditions, the provisions of the workplace transfer are applied. On the other hand, despite the signing of the rödövans contract, if the license holder has the main management authority in the relationship between the license holder and the rödövans owner, and if the rödövans worker does not have his own work organization and legal independence in the mine hired for production, there is a labor supply relationship and this relationship is invalid as it is against the law. Persons who appear to be the workers of the rödövans are deemed to be the workers of the license holder with whom they are actually involved in the work organization.
In the leasing of the operating right in the mining area (rödövans contract), the rödövans worker operates the mine on his own behalf within the framework of the conditions specified in the contract. If the rödövans owner cannot operate the mine on his own behalf and is fully dependent on the license holder in terms of production, work and organization, then the subcontractor relationship or tender is mentioned, not the rödövans. Therefore, the rödövans contract cannot be drawn up in a way that completely eliminates the independence and initiative of the rödövans player. In the rödövans contract, the determination of the minimum production amount and the wage to be paid per ton does not remove the legal relationship from being rödövans. In the rödövans contract, the rödövans worker can hire and fire as many workers as he wants, manage the production process as he wishes, create shifts, and determine working conditions, provided that it is not against the law. The important thing in rödövans is to extract the metal of certain quality and quantity within certain time periods and to ship it to the desired places.
Since the rödövans contract does not mean the transfer of the mining license, there is no obligation to make the transfer contract in the presence of an authorized officer at the General Directorate of Mining Affairs. They can make a rödövans contract with the mining license holder (miner) and the rödövans man who will operate the field with rödövans, in written form if they wish, or in the form of an arrangement in the notary public.
If it is concluded that the rödövans owner does not carry out the mining production activities independently and that the management authority over both the production and the workers is in the license holder, the employment of workers will be in question, not rödövans or service procurement. If it is understood that the management authority over the production activity and workers belongs to the person who took over the mine with the rödövans contract, in other words, if the rödövans worker is legally independent in the mine production business he has received from the license holder, and if the mine production is included in the mine production organization of the license holder, neither the procurement of workers nor the contracting parties. There are two independent employer relations.
The royalty person or company that leases a mining operation license must have the competence and expertise in mining and operating. Accordingly, the rödövansman’s mining operation
If there is no competence and expertise, the legal action is considered to be fake. There is a relationship between the lessor and the lessor between the mining license holder and the royalty. The lessor is independent in what he rents. For this reason, the rödövans man must have legal, administrative and technical independence in the mining area he rents.
From the witness statements heard within the scope of the file, from the service procurement contract and its annexes, which are the subject of the case in the file, that the workers are not employed in …., the defendant General Directorate is not authorized to recruit and replace the worker, the management right over the company workers is not exercised by the company workers in the contract. Although it was not employed outside of the specified works, even though some of the tools and equipment were covered by the company, the actual necessary tools and equipment were covered by the company and the work was not given to the subcontractor during the collective bargaining agreement, the plaintiff did not have any claim in this regard anyway, the plaintiff witnesses told the defendant authorities in their statements. that they did not give orders and instructions, that they did not have any contact with them, that there were no personnel in the quarry, that there were only 3 engineers outside the quarry, that they also carried out inspections and controls, that they did not go down to the quarry, that their orders and instructions were out of action…. We mentioned again that, apart from the Eynez Quarry where the accident took place, there are Işıklar and Atabacası Quarries, even the Geventepe Quarry, but it was closed due to the end of production in Geventepe, the workers working there were transferred to these three quarries. They said that the workers working in the three quarries could be relocated through temporary assignments and transfers, that it was not clear when they started to work in which quarry belonging to …., which worker would decide where …. It is understood that , does not have any authority on the subject, and that the powers granted to , do not exceed the limits of supervision and coordination.
The name given by the parties to the contract is not important. The legal nature of the contract should be determined by looking at the content and implementation of the contract. In the face of the explanations given above, it is necessary to come to a conclusion by accepting that the “General Directorate of Aegean Lignite Enterprise Directorate Service Procurement Contract for Coal Production from Eynez Underground Fields” is a rödövans contract.
In order for a legal relationship to be a subcontractor agreement or relationship, the founding elements of this relationship must coexist. A subcontractor contract is not a type of contract that should be accepted in the absence of other contracts. For this reason, the existence of a contract, whether it is a service procurement, rödövans or subcontractor contract, is possible with the presence of its founding elements. In the concrete case, although it has been decided that there is a subcontracting relationship between the defendant and the notified company, such a relationship is not considered possible considering the elements of the subcontracting relationship. Article 2/6 of the Labor Law No. 4857. According to the article, “An employer who takes a job in auxiliary works related to the production of goods or services carried out in the workplace or in jobs that require expertise due to the necessity of the business and the job and technological reasons and employs the workers he has assigned for this job only in the work he/she takes in this workplace. The relationship established between the employer is called the principal employer-sub-employer relationship.”
According to Article 3 of the Subcontracting Regulation; A subcontractor is a real or legal person or legal entity that takes a job from an employer in auxiliary works related to the production of goods or services carried out in the workplace or in jobs that require expertise in part of the main work due to the necessity of the business and the job and technological reasons, and employs the workers assigned for this job only in the work they have taken in this workplace. impersonal institutions and organizations; subcontracting contract, the contract made in writing between the main employer and the subcontractor, containing the issues specified in Article 10; The main job is the real employer, who gives the job that constitutes the basis of the production of goods or services, and the auxiliary works related to the production of goods or services carried out in the workplace or the jobs that require expertise in a part of the main work due to the necessity of the business and the job and technological reasons to the other employer, and who also employs workers in the main job. or legal person or institutions and organizations that do not have legal personality.
According to the aforementioned regulations, in order for a legal relationship to be a subcontractor relationship;
1) Within the meaning of the Labor Law, there must be two employers, one being the main and the other subordinate,
2) The work given to the subcontractor must be an auxiliary work or a part of the main work related to the production of goods or services carried out by the main employer at the workplace,
3) Not all of the original work, but only a certain part of it should be given to the subcontractor,
4) Part of the main work given to the subcontractor, the necessity of the business and the technological
It must be a job that requires expertise,
5) The main employer must employ workers within the meaning of the Labor Law in the other part of the main work given to the subcontractor.
The job given to the subcontractor in the case subject to the lawsuit is the job of producing coal from Eynez underground fields. The production work in question was given to the subcontractor as a whole. The main employer does not employ workers in the coal production business in question. There is no discussion on this issue and the current situation is accepted by the court. Therefore, the two basic constituent elements of the subcontractor relationship or contract are not present in the concrete case.
We do not agree with the majority opinion, considering that the decision given by the Court should be reversed due to the explanations above. 27.06.2016
