The Decision Is Based On The Evidence And The Legal Reasons And Especially The Appraisal Of The Evidence Is Not Unreasonable
T.C. JUDICIARY
22nd Civil Chamber
Basis: 2016/8068
Decision: 2016/19513
Decision Date: 27.06.2016
LABOR CLAIMS LAWSUIT – THERE IS NO INCONSISTENCY IN THE JUDGMENT BASED ON THE EVIDENCE AND LEGAL GROUNDS AND ESPECIALLY IN THE EVALUATION OF THE EVIDENCE – REJECTION OF ALL OBJECTIONS OF THE PARTY – CONFIRMATION OF THE JUDGMENT
SUMMARY: According to the evidence on which the decision is based and the legal grounds and especially since there is no inaccuracy in the appreciation of the evidence, all the appellate objections of the two parties, which are not relevant, should be rejected and the judgment, which is in accordance with the procedure and law, should be approved.
(4857 S. K. Art. 41, 46, 57)
Case and Decision: The plaintiff demanded payment of collective bargaining agreement differential wage, bonus and additional payment receivable, shift return fee, night premium receivable, underground working compensation, shift increase, food-food-solid fee, coal for fuel, clothing allowance, soap and lighting fee receivable, social assistance fee, overtime wage, national holiday general and week holiday working fee, compensation for violation of the principle of equal treatment and annual paid leave receivables.
The court decided to dismiss the lawsuit.
Since the judgment was appealed by the lawyers of the parties within the time limit, the file was examined after listening to the report prepared by the Examining Judge … for the case file, the file was examined, and the necessity was discussed and considered:
Conclusion: According to the writings in the file, the evidence on which the decision is based, the legal reasons and especially the appreciation of the evidence, it was decided by majority of votes on 27.06.2016 to reject all the appellate objections of the two parties, and to APPROVE the judgment, which is in accordance with the procedure and the law, on 27.06.2016.
VOTE AGAINST
The plaintiff stated that he worked for the subcontractor …. at the Eynez Underground Mine, for which the General Directorate of Turkish Coal Enterprises () holds the operating license. General Directorate of Turkish Coal Enterprises (), but the relationship between the defendants is collusive, therefore he should have the same rights as any General Directorate employee, and he should also benefit from the provisions of the CBA signed between the Mine Labor Union and the Public Labor Union in accordance with the ILO Convention No. 94, 100 TL Collective Bargaining Agreement (CBA) difference fee, 100 TL bonus and additional payment receivable, 10 TL shift return fee receivable, night premium receivable, underground working compensation, shift increase, food-food-solidarity fee, fuel coal aid, clothing aid, soap and lighting fee receivable, social assistance fee, overtime fee, national holiday – general and week holiday working fee, compensation for violation of the principle of equal treatment and annual paid leave receivable, together with the highest interest applied to deposits, jointly and severally from the defendants as an indefinite receivable lawsuit;
The defendant …., both in its reply petition submitted to the file and in its statements to the court, in summary; requested that the lawsuit in question cannot be filed as an indefinite receivable lawsuit, therefore the lawsuit should be dismissed for lack of legal interest; The defendant General Directorate defended that the service procurement contract subject to the lawsuit should be accepted as the transfer of the workplace, work or royalty contract.
The Court ruled that there is a subcontracting agreement between the defendant …. and the General Directorate and therefore dismissed the lawsuit on the grounds that the defendant …. has been working in the mining sector for many years in a technically and legally independent manner for many years and that there is no relationship between the partners or managers of this company and the partners or managers of the General Directorate and that the company has been producing in Atabacası and Işıklar Quarries with a separate organization from the General Directorate.
Article 168 of the Constitution stipulates that “Natural wealth and resources are under the sovereignty and savings 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.”; Article 4 of the Mining Law No. 3213 states that “Mines are under the sovereignty and savings of the State and are not subject to the ownership of the land in which they are located.”. Pursuant to these provisions, the right to exploit mines is entirely under the sovereignty and disposal of the State. However, private individuals may also operate mines.
According to Article 5 of Law No. 3213, none of the rights of first application, exploration license, exploration and exploitation license established on mines can be divided into shares and each of them shall be treated as a whole. Mining licenses and exploration rights are transferable. Pursuant to Article 6 of the same Law, mining rights are granted in the name of a single natural or legal person, including citizens of the Republic of Turkey who are competent to exercise civil rights, companies with legal personality established in accordance with the laws of the Republic of Turkey, state economic enterprises and their affiliates, subsidiaries and affiliates, and other public institutions, organizations and administrations that are authorized to do so. Since mines are under the sovereignty and disposal of the State, the use of the rights related to these minerals is only possible with a license to be granted based on the provisions of the Mining Law. According to Article 2 of Law No. 3213, mines are classified into five groups and mining exploration and operation licenses are granted according to these groups.
Turkish Coal Enterprises Corporation is an Economic State Enterprise established on 22.05.1957 with the Law No. 6974 and carries out its activities in accordance with the provisions of the “Turkish Coal Enterprises Corporation Main Statute”. According to Article 4 of the Main Statute of the Institution According to Article 4 of the Main Statute of the Authority, its purpose and fields of activity are to evaluate energy raw materials such as lignite, turp 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 formulate plans and programs, to follow up, to determine implementation strategies and to ensure their realization, to process or have operated all kinds of mines related to the activities above and to search for this purpose, to process lignite extracted by real and legal persons, The main objective of the Turkish Coal Corporation is to buy and sell energy raw materials such as turp, bituminous shale and hard coal other than the coal sold FOB and FOW by the Turkish Hard Coal Corporation, as well as coke, briquette coal produced by special administrations and municipalities and their affiliated enterprises, economic state enterprises and institutions, real and legal persons, and secondary materials obtained during coking, within the principles of technical specifications and regulations to be approved by the Ministry of Energy and Natural Resources. The main objectives are to increase production, improve coal quality and minimize production costs. There are 2 Establishment Directorates, 1 Operation Directorate and 6 Control Directorates working under these Directorates, which produce and market coal in different parts of the country.
The Respondent may operate the mines from which coal and other energy raw materials are supplied, may have the mines from which coal and other energy raw materials are supplied operated, or may purchase and resell the energy raw materials produced by real and legal persons. In order to fulfill the services they are obliged to perform, most of the public institutions purchase services through tenders within the framework of the Public Procurement Law No. 4734 and other procurement legislation. Article 4 of Law No. 4734 defines services as follows: “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 art, services for computer systems and software services, leasing of movable and immovable property and rights and other similar services”. It is understood from the expression “and other similar services” in the article that the services listed in question are not limited in number and that public institutions and organizations may enter into a contractual relationship with service procurement tenders for all services that they need but cannot fulfill with their own personnel. Service procurement contracts are not subject to any restrictions under the public procurement legislation, except for strict procedural requirements and the inadequacy of the personnel of the administration in terms of quality and quantity.
In order for a contract to be formed, two expressions of will are required. The one made first in terms of time is called an invitation (proposal to conclude a contract), and the person who makes the invitation is called the maker. An invitation is a unilateral and necessary expression of will. An invitation does not necessarily have to be made to a person, but can also be made to the public. According to the Turkish Code of Obligations No. 6098, the validity of contracts does not depend on any form, unless otherwise stipulated by law. Freedom of contract is essential. The parties may freely determine the content of a contract within the limits stipulated by law.
Royalty agreement is a concept related to mining law. The extraction of ore within a certain mining area and the transportation of the extracted ore to certain locations may be subject to a royalty agreement, a subcontracting relationship or a service procurement contract. When the supply of workers and the transfer of the workplace are added to these, the dimension of the legal relationship becomes more complex. In practice, the legal relationship for the extraction and transportation of minerals is a common problem. In other words, it may be a problem whether the relationship in question is a royalty agreement, a subcontracting relationship, a service procurement agreement or a labor supply or workplace transfer. It is also 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, royalty, which has been transferred to Turkish law, is used to express the rental fee to be paid by the lessee per ton produced each year in return for the mining license holder’s lease of the mining right limited to a certain period of time. In other words, royalty is the allocation of mining license areas by the right holder to a real or legal person for a period of time in return for a certain rent, provided that the right to operate the mining license remains with the right holder.
There is no definition of royalty agreement in the Mining Law. According to Article 4 of the Regulation on the Implementation of Mining Activities, royalty agreements are the contracts made by the license holders with these persons for all or part of the license area in order to provide third parties or organizations with the right of disposal for the purpose of producing and evaluating the mines in the license areas. Royalty agreements are a widely used type of contract in mining law practice. Royalty is an anonymous, atypical, mixed contract that is not subject to any form and imposes obligations on both parties. A “royalty agreement” is a contract whereby the holder of a mining site exploration and exploitation license outsources the mining activity to another private or legal person and receives a certain rental fee for each ton of ore extracted in return. Pursuant to this contract, the royalty grantor, the private or legal person undertaking the operation of the mine, pays the license holder a fee equal to the amount it has previously undertaken to pay for each ton of mine produced. In other words, a royalty agreement can be defined as a contract in which the mining license holder undertakes to transfer the right to operate the mine to a person called royalty taker for a certain period of time, and the person who takes over this right undertakes to produce a certain amount of production and to pay the annual royalty fee calculated according to the amount of mine produced. A royalty or mining lease agreement is also described as “the amount that the private or legal person undertaking the operation of the mine undertakes to pay to the original license holder for each ton of mine produced, in the event that the mining license areas are allocated by the right holder to a private or legal person by contract for a period of time, provided that the legal rights and responsibilities remain with the right holder”. The royalty owner’s exploitation rights include the authorization to carry out mining activities. Based on this authorization, the royalty owner may open pits, shafts and galleries in the mining area and determine the presence of minerals by drilling and extract the minerals found. When the minerals produced become movable property, they cease to be the public property of the state and become the property of the person who produced them. The royalty owner who extracts minerals based on the royalty agreement owns the ore produced.
According to the last paragraph of Article 7 of Law No. 3213, “In the royalty agreements made by mining license holders with third parties in some or all of their license areas, the administrative, financial and legal responsibilities related to the Labor Law, occupational health and safety arising from the mining activities to be carried out in these areas belong to the royalty holder. However, this does not eliminate the license holder’s responsibilities arising from the Mining Law.” However, at the point of determining the responsible parties, each case 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 obligation of supervision and control of all kinds of activities carried out in the field belongs to the license holder together with the royalty holder who takes over the operation of the field.
According to the Regulation on the Implementation of Mining Activities, royalty agreements concluded by mining license holders with third parties for some or all of their license areas and the amendments made to these agreements are annotated in the mining registry for information purposes in transfer and transfer transactions upon the request of the parties. In case the parties jointly request the cancellation of the royalty agreement, these records shall be canceled. The General Directorate of Mining Affairs is not a party to royalty agreements in any way. The royalty grantor’s obligation is to transfer the mining permit to the royalty holder for a certain period of time. In return, the royalty owner, who receives the operating license for a certain period of time from the person who has the right to operate the mine, gives a share called royalty fee to the person who transfers the operating license. In mining enterprises that produce coal or other ores in return for royalty, royalty shares paid to the license holder can be paid in various payment forms. Payments may be in the form of a fixed percentage or amount per each unit produced during the production phase; increasing, decreasing, fixed percentage or amount, or in the form of a rent paid in advance, in certain periods or yearly.
Pursuant to Article 31 of Law No. 3213, the authority and responsibility of appointing a chief scientific supervisor belongs to the license holder even if the mine is operated with royalty. If there are fixtures, work machines, transportation vehicles and operating installations in the mining area belonging to the license holder but included in the royalty agreement, their lists should be drawn up and their values should be shown. The license holder must deliver all of the tools and machinery shown in the list to the royalty agent. The royalty holder, on the other hand, is under the obligation to pay the royalty fee, to use the mine in accordance with the purpose of the facility and to operate it in a good manner. In this context, the royalty owner who destroys the mine reserve by not operating the mine in a rational and rational manner is liable to the license holder. The royalty owner may not change the method of operation of the leased property without the consent of the lessor, in a manner that may have an effect after the expiry of the lease term. The royalty owner may not carry out indiscriminate exploration and mining activities in the mining area, and may not carry out activities in the mining area in such a way as to eliminate the subsequent utilization of the mining area. The royalty owner is under the obligation to maintain the mine and make minor repairs. In this context, the royalty owner shall maintain the mine site, shafts and galleries in good condition and take safety measures. Otherwise, the royalty owner who fails to take adequate measures shall be liable to the license holder for the damages caused thereby. With a royalty agreement, the whole or part of the mining licensed area may be given to someone else. In the royalty agreement, the licensed miner is obliged to provide all the necessary environment for the royalty holder to operate the mine in the field.
If the mining license holder has more than one mining site, it may grant the right to operate each mining site to different persons in return for royalty. In such a case, it is not contrary to the provision of indivisibility of rights into shares in Article 5 of the Mining Law. This is because the right to operate the mine, which is valid for each mining site, is not divided into shares and given to different persons for operation. The mining license is valid for the mining license area in a certain region. In other words, there is a mining license, an exploration license and a mining operation license for each mining site. An operating license is the authorization certificate granted for the execution of operating activities. What is transferred to the royalty owner is only the right to operate. The Mining Law prohibits the division of this operating right into shares.
Under a royalty agreement, the royalty owner may operate one mining site while the mining right holder operates other mining sites. In this case, if there is complete independence between the parties, the provisions of the royalty agreement and the transfer of workplace, if any, shall apply. On the other hand, if, despite the signing of the royalty agreement, the main management authority in the relationship between the license holder and the royalty holder is with the license holder, and the royalty holder does not have its own business organization and legal independence in the mine leased by the royalty holder for production, a worker supply relationship shall be in question, and this relationship shall be deemed invalid as it is contrary to the law, and the persons who appear to be the employees of the royalty holder shall be deemed to be the employees of the license holder in whose business organization they are actually included.
In the leasing of the right to operate in the mining area (royalty agreement), the royalty holder operates the mine on its own behalf within the framework of the conditions specified in the agreement. If the royalty owner cannot operate the mine on its own behalf and is fully dependent on the license holder in terms of production, operation and organization, then it is not a royalty, but a subcontracting relationship or a tender. Therefore, the royalty agreement cannot be arranged in such a way as to completely eliminate the independence and initiative of the royalty owner. Determining the minimum production amount and the fee per ton in the royalty agreement does not render the legal relationship as royalty. In the royalty agreement, the royalty owner may hire and fire as many workers as he/she wishes, manage the production process as he/she wishes, create shifts, and determine the working conditions, provided that they do not violate the law. What is important in royalty is to extract a certain quality and quantity of ore within certain time frames and deliver it to the desired locations.
Since the royalty agreement does not mean the transfer of the mining license, there is no obligation to execute the transfer agreement in the presence of an authorized officer at the General Directorate of Mining Affairs. The mining license holder (miner) and the person who will operate the field with royalty (royalty agent) can make the royalty agreement in ordinary written form or in the form of a notary public.
If it is concluded that the royalty holder does not carry out the mine production activity independently and that the license holder has the management authority over both the production and the workers, it is not royalty or service procurement, but labor supply. If it is understood that the management authority over the production activity and the workers belongs to the person who takes over the mine with the royalty agreement, in other words, if the royalty holder is legally independent in the mine production work it has received from the license holder and the mine production work is included in the mine production organization of the license holder, neither the supply of workers nor the relationship of two independent employers between the contracting parties is in question.
The royalty holder or the company that leases a mining license must have the competence and expertise to mine and operate the mine. Accordingly, if the royalty holder does not have the competence and expertise to operate the mine, the legal transaction is considered collusive. There is a lessor-lessee relationship between the mining license holder and the royalty owner. The lessor is independent in what it leases. For this reason, the royalty owner must have legal, administrative and technical independence in the leased mining area.
From the witness statements heard within the scope of the file, from the service procurement agreement and its annexes, which constitute the subject of the lawsuit, it is clear that the workers were not employed at …. the defendant General Directorate is not authorized to hire and replace workers, the right of management over the company workers is not exercised by the defendant General Directorate, the company workers are not employed other than the works specified in the contract, although some of the tools and equipment are provided by the company, the actual necessary tools and equipment are provided by the company and the work was not subcontracted during the collective labor agreement, In their statements, the plaintiff witnesses stated that the defendant authorities did not give them orders and instructions, that they did not deal with them, that they did not have any personnel inside the quarry, that they only had 3 engineers outside the quarry, that they carried out inspections and controls, that they did not go down to the quarry, that they did not give orders and instructions to the defendant … . that apart from the Eynez Quarry where the accident occurred, there were also Işıklar and Atabacası Quarries, and even previously there was a Geventepe Quarry, but Geventepe was closed down due to the end of production, that the workers working there were transferred to these three quarries, that the workers working at these three quarries could be subject to relocation through temporary assignments and transfers, that when they started work, it was not clear which quarry belonging to …. ‘s quarries, that …. itself decides which worker will work where, that …. does not have any authority to choose which workers …. will work with, and that the powers granted to …. do not exceed the limits of supervision and coordination.
The name given to the contract by the parties is not important. The legal nature of the contract should be determined by looking at its content and application. In view of the above explanations, it is necessary to conclude by accepting that the “Service Procurement Contract for Coal Production Work from Eynez Underground Fields of the General Directorate of Aegean Lignites Operation Directorate” is a royalty contract.
In order for a legal relationship to be a subcontracting agreement or relationship, the constituent elements of this relationship must be present together. A subcontract 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, royalty or subcontracting contract, is possible with the presence of its constituent elements. In the concrete case, although it has been decided that there is a subcontracting relationship between the defendant and the notified company, it is not possible to accept such a relationship when the elements of the subcontracting relationship are taken into consideration. According to Article 2/6 of the Labor Law No. 4857, “The relationship established between an employer and another employer who takes work from an employer in auxiliary works related to the production of goods or services carried out in the workplace or in a part of the main work that requires specialization for technological reasons due to the necessity of the business and work and employs the employees assigned for this work only in this workplace is called the principal employer-subcontractor relationship.”
Article 3 of the Subcontracting Regulation According to Article 3 of the Subcontracting Regulation, a subcontractor is a real or legal person or institutions and organizations that do not have legal personality, who takes work from an employer in auxiliary works related to the production of goods or services carried out in the workplace or in a part of the main work that requires expertise due to the necessity of the business and work and technological reasons, and employs its employees assigned for this work only in this workplace; subcontracting agreement is the contract made in writing between the main employer and the subcontractor and includes the matters specified in Article 10; the main work refers to the work that constitutes the basis of the production of goods or services, and the main employer refers to the real or legal person or institutions and organizations that do not have legal personality who employ workers in the main work and who assigns auxiliary works related to the production of goods or services or works requiring expertise for technological reasons due to the necessity of the business and work in a part of the main work to the other employer.
According to the aforementioned regulations, in order for a legal relationship to be a subcontractor relationship;
1) There must be two employers within the meaning of the Labor Law, one being the principal and the other being the sub-employer,
2) The work subcontracted 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 in the workplace,
3) Only a certain part of the main work should be subcontracted, not all of it,
4) A part of the main work given to the subcontractor must be work that requires specialization due to the necessity of the business and work and technological reasons,
5) The main employer must employ workers in the other part of the main work given to the subcontractor within the meaning of the Labor Law.
In the case subject to the lawsuit, the work given to the subcontractor is the work of producing coal from the Eynez underground fields. The said production work was given to the subcontractor as a whole. The main employer does not employ workers in the coal production work in question. There is no dispute on this issue and the current situation is accepted by the court. Therefore, the two basic constituent elements of the subcontracting relationship or contract are not present in the concrete case.
Due to the explanations made above, we do not agree with the majority opinion, considering that the decision of the Court should be reversed. 27.06.2016
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