What is a Lease Agreement?
August 7, 2024
Collusion in law in general:
Transactions that are valid in appearance but not valid in reality, carried out by the parties of a legal relationship knowingly and willingly, by creating a discrepancy between their real will and their statements, in order to deceive third parties, are called collusion.
Interpretation of contracts, collusive transactions: T.B.K. Art. 19
In determining and interpreting the type and content of a contract, the true and common will of the parties is taken as basis, regardless of the words they use by mistake or to hide their true purposes.
The debtor cannot claim that this transaction is collusive against the third party who has earned the receivable by relying on a written debt recognition.
As accepted in many judicial decisions, even if the validity and proof of the apparent transaction are dependent on a form, third parties can prove the allegation of collusion with all kinds of evidence, including witnesses.
The issue of collusion is specifically regulated in labor law
The main sources of our subject are regulated in the Subcontracting Regulation issued based on Article 2 and Article 3 of the Labor Law.
*IN ORDER TO SPEAK OF AN ARTICULATED PRINCIPAL-SUBORDINARY EMPLOYER RELATIONSHIP, FIRST, A VALIDLY ESTABLISHED PRINCIPAL-SUBBOARD RELATIONSHIP MUST BE FOUND.
In this context, the elements of the principal and subcontractor relationship as defined in the law:
- Two separate employers: Having two separate employers, the main employer and the sub-employer,
- The work assigned to the subcontractor must be related to the production of goods and services,
- The work assigned to the subcontractor is a part of the main work or auxiliary work,
It is essential that the employer produces goods and services with his own workers and management organization. However, it is also possible to carry out this work together with another employer, with the reasons and conditions to be explained.
These reasons and conditions are:
The work to be given to the subcontractor by the main employer must either be an auxiliary job related to the production of goods or services, or it must be a part of the main job that requires expertise due to the requirements of the business and the job and technological reasons.
It must be a section. The conjunction with should be understood as and. Because it is written in Article 11 of the regulation that these conditions are required together.
While main job and assistant job definitions are not specified in the Law, it is seen that the said definitions are included in Article 3 of the Subcontracting Regulation. According to this;
Main job: It is the job that forms the basis of the production of goods and services.
Auxiliary work:Work that is related to the production of goods or services carried out in the workplace, but is not directly included in the production organization, is not a mandatory element of production, but continues as long as the main work continues and is dependent on the main work, for example the main work , fabric production, auxiliary work, catering and security work
What is meant here by the expression “auxiliary work” is not any kind of auxiliary work, but auxiliary work “related to the main work”. Therefore, auxiliary work that is unrelated to the main job is not subject to the main employer-subcontractor relationship.
a.The work given to the subcontractor must be auxiliary work related to the production of goods or services:If the work given by the main employer to the subcontractor is auxiliary work, it must be related to the production of goods and services. Since some works that are not related to the production of goods and services, such as roof repair works, whitewashing works, building a guardhouse in the garden, and elevator maintenance, do not relate to the production of goods and services of the workplace, the main employer-subcontractor relationship does not arise.
b.In case the main work is divided and given to the subcontractor, the work given must be a job that requires expertise for technological reasons and the requirements of the business and the job.
In the 6th paragraph of the 2nd article of the Labor Law No. 4857, it is stated that “in a part of the main work, in jobs that require expertise for technological reasons as well as the requirements of the business and the business”, it is stated that a part of the main work given to the subcontractor can only be carried out with expertise due to the requirements of the business and the job and technological reasons. It is stated that it is possible in jobs that require In addition, the subcontractor, who takes part in a part of the main work, cannot divide this work and give it to someone else. (Regulation art. 11/4) Otherwise, there will be no main employer-subcontractor relationship.
Turnkey job:
Although it is necessary for both parties to be employers, it is not sufficient in terms of the principal-subcontractor relationship, which is our subject. If the main job is completely transferred to another employer and only the employees of the employer who receives the job work on that job, the main employer-subcontractor relationship will not exist. In the above-mentioned work, the important point is that in the work given to another employer, the workers of the employer who receives the job work together with the workers of the employer who gives the job. This issue is also included in paragraph a of Article 4 of the Subcontracting Regulation: “The principal employer must also have its own workers working in the production of goods or services at its workplace.” It can be seen that it is expressed as: For this reason, in works carried out on a turnkey basis, the main employer-subcontractor relationship is not established. In works carried out on a turnkey basis, the employer who delivers the work to the other employer is considered the contracting authority and is not the main employer.
4- The sub-employer’s workers must be employed only for this job and in the workplace for this job, which they received from the main employer, and the main employer must also have its own workers working in the production of goods and services in the workplace
In order for the main employer-subemployer relationship to be formed, the sub-employer’s workers must be employed at the main employer’s workplace. If the other employer, who receives work from the main employer, outsources the work to his own workers within his own workplace, the main employer-subemployer relationship does not arise between the employers. Within the framework of the main employer-subcontractor relationship, the work assigned to the subcontractor must be performed at the main employer’s workplace. However, the concept of “work carried out at the workplace” should not be interpreted narrowly. What is meant is “the work belongs to the workplace” rather than the geographical boundaries of the workplace. Is it a subcontractor job or a main-subcontractor?…here, it is not sufficient for the definition of subcontractor work to be defined as subcontractor work, where the employer is not described as subcontractor but is located in a different geographical location. Let’s remember the definition of workplace in the Labor Law. According to this definition, the important thing is to be in organizational unity. If there is organizational unity, it is not subcontracting work. If the employer defined as a subcontractor has economic independence from the workplace defined as the main employer (for example, having its own tax registration, having its own workplace rental agreement, owning or renting production machinery and equipment, etc.), then it is an independent employer. It is not a subcontractor.)
5-Employment of the sub-employer’s workers only for the work received from the main employer
Within the scope of the main employer-subemployer relationship, workers assigned by the sub-employer to work in the main employer’s business must be employed “only” at the main employer’s workplace. In other words, if the workers sent by the sub-employer to the main employer are also sent to work in other workplaces, the main employer-sub-employer relationship does not arise.
6-The work given to the subcontractor must be a job related to the production of goods or services carried out in the workplace, it must be a job that is dependent on the main job and continues as long as the main job continues.
7– The subcontractor must not be someone who was previously employed in that workplace. However, the fact that a worker previously employed in that workplace subsequently becomes a shareholder of a legal entity company or ordinary partnership does not constitute an obstacle to establishing a subcontractor relationship.
DISCREPARED SITUATION.-Principal Employer-Subemployer Practice in the Public Sector: Paragraphs 8 and 9 of Article 2 of the Labor Law)
When the mentioned provisions are examined, it is understood that according to the regulation in the 8th and 9th paragraphs of the 2nd article of the Labor Law, the conditions and limitations in the 6th and 7th paragraphs of the same article will not be valid for public sector employers. It is clear that the different practices applied to private sector employers and public sector employers are contrary to the principle of equality in the Constitution. However, in 2017, a very important regulation was made concerning subcontractor workers working in the public sector. Persons employed by contractors in public institutions and organizations, special provincial administrations and municipalities as of 04.12.2017, within the scope of service procurement contracts in accordance with the Decree Law No. 696 and the temporary articles 23 and 24 added to the Decree Law No. 375, Law No. 4734 and other legislation provisions. , the right to transfer to the staff of public institutions and organizations is granted under certain conditions. Again, with the Decree Law No. 696, subparagraph (e) of the 1st paragraph of Article 62 of the Public Procurement Law No. 4734 was amended and it was stated that no service can be procured regarding the employment of personnel in the public institutions and organizations included in the article or no action can be taken that will lead to this result due to its nature.
In addition, according to the jurisprudence of the Supreme Court, if the principal-subcontractor relationship in the public sector is collusive, the provision of this article can be exceeded.
Establishing the Principal Employer-Subcontractor Relationship
Although the contract signed between the main employer and the subcontractor is called a subcontracting contract, a written form is required. (AIY, Art. 9) Although a subcontracting contract is generally a work contract in essence, it is also possible to take different forms. However, it is not possible for the contract between the main employer and the subcontractor to be an employment contract. There is no employment contract between the employee of the subcontractor working within the scope of the main employer-subemployer relationship and the main employer. Within the scope of this relationship, the sole and real employer of the employee is the subcontractor. Article 10 of the Subcontracting Regulation lists the issues that must be included in the subcontracting agreement.
COMBINATION IN THE PRINCIPAL EMPLOYER – SUB-EMPLOYER RELATIONSHIP
Collusion Situations Considered Legal
According to the definition of the Labor Law:
- Restricting the Rights of the Main Employer’s Workers by Hiring them by the Subcontractor. Recruitment is not a problem, it is important that their rights are not restricted.
- Principal Employer’s Former Employee Becoming His Own Sub-Employer
- Dividing the Main Work and Giving it to the Subcontractor Without Certain Conditions In the last sentence of the 7th paragraph of the 2nd article of the Labor Law No. 4857, “The main work cannot be divided and given to the subcontractors, except for works that require expertise for technological reasons and due to the requirements of the business and the job.” The statement is included. It is seen that the limitation in question is also included in the definition of the principal employer-subcontractor relationship in the same article. There is no such limitation in terms of auxiliary works, the limitation only applies to main works.
According to the Subcontracting Regulation, art.12 – Collusion.
1– Whether the work assigned to the subcontractor is an auxiliary work of the main work related to the production of goods or services carried out by the main employer in the workplace,
2-Giving works that do not require expertise due to technological reasons to the subcontractor in a part of the main work related to the production of goods and services carried out in the workplace
3-Subcontracting agreement established with someone who has previously worked in that workplace
4– The main employer’s workers are hired by the subcontractor and they continue to work by restricting their rights.
5– Whether the subcontractor has sufficient equipment and experience suitable for the job,
6- It is a contract that includes transactions aimed at hiding the true will of the parties, such as avoiding public obligations or restricting or eliminating the rights of workers arising from employment contracts, collective bargaining agreements or labor legislation.
The report created as a result of the examination conducted by the Labor Inspectors based on these criteria in the 2nd paragraph of Article 12 of the Regulation can be objected to by applying to the competent Labor Court within 30 business days from the date of notification. The case, which will be heard according to the simple trial procedure, must be concluded within 4 months. In case of appeal against the decision given by the court, the Supreme Court gives a final decision within 6 months. (Labor Law, Art. 3/2) It is mandatory for public administrations to object to these reports to the competent labor courts and to resort to other legal remedies against court decisions. (Regulation Art. 13/1) If the report is not objected to within 30 business days or if the court confirms the existence of a collusive transaction, the registration made on behalf of the subcontractor is canceled; The workers of the sub-employer will be considered the workers of the main employer from the beginning. (regulation article 13/2)
Other Cases of Collusion Accepted in Doctrine and Judicial Decisions
The cases of collusion that may arise in the Principal Employer-subcontractor relationship are not limited to those listed in Article 2/7 of the Labor Law and Article 12 of the Subcontracting Regulation. It is possible to claim and prove the existence of an employer-subcontractor relationship. However, in this case, since there is no legal presumption, the burden of proof falls on the worker.
* The main employer giving orders and instructions to the workers of the sub-employer and exercising the right of management over these workers,
* Payment of workers’ wages,
* Determining the working conditions of workers,
*Deciding on the hiring or firing of workers,
*Cases of disciplinary punishment applied to workers, etc.
The subcontractor’s right to manage is entirely within his/her own authority. The main employer has only supervisory authority. The subcontractor recruits the workers himself and makes employment contracts on his own behalf; gives necessary instructions; pays wages to workers himself; issues payrolls; He pays the SSI premiums and is authorized for dismissal.
Another collusive situation seen in practice is the subcontractor’s workers being employed by the main employer in jobs other than the work agreed with the subcontractor. For example, if the subcontractor worker working as a cleaning worker is employed in the collection business, which is the main job of the bank, The bank, which is the main employer, will be directly responsible.
Although the sub-employers are constantly changing within the scope of the main employer-sub-employer relationship, the fact that the sub-employer workers working within the main employer always remain the same may also be an indicator of collusion. However, it should be noted that workers’ employment with changing subcontractors does not always mean collusion. As a matter of fact, the Supreme Court also states that it is necessary to make a detailed evaluation according to the characteristics of the concrete case.
In cases where the purpose of the parties is to supply workers, if the relationship between them is shown as the main employer-subemployer relationship, then the phenomenon of collusion arises and the workers in question are accepted to be employees of the main employer
The ISSUE OF COMBINATIONis an important and specific issue in labor law that needs to be evaluated. A special collusion in this regard is regulated in the Labor Law, which came into force in 2003. The reason why it is important is that the principal-subcontractor relationship is open to abuse. The reason for the main-subemployer arrangement is that an employer may need another employer for auxiliary work and technological reasons that are not directly related to his own production in the execution of his main activity. The reason why each case must be evaluated carefully and specifically is that if collusion is detected in the main-subcontracting issue, this will impose a very high financial liability on the employer. If collusion is detected in such a relationship, the employer must also comply with the Labor Law (Art. 30–For example, the obligation of the employer with more than 50 workers to employ disabled and convicted workers, Art. 18.. the obligation of reinstatement of the employer with more than 30 workers, etc.). There will be very heavy financial liabilities such as SSI-administrative fines, tax penalties, union responsibilities. In this regard, according to the provision of Article 3 and while the higher judicial remedy was closed regarding the collusion detected by the SSI-Labor Inspectorate, with the amendment made in 2014, these determinations have now become open to higher judicial review.
Before moving on to some precedent decisions, it should be noted that there are many different decisions regarding similar events that have been made and are still being made among the decisions of both the BAM and the Supreme Court of Appeals. For this reason, there are many applications regarding the right to a fair trial in accordance with Article 36 of the Constitution.
Precedent decisions:
1-Reinstatement lawsuit-compulsory mediation-obligation to apply together to the main-sub-employer-Collusion
In claims for normal labor receivables, due to joint and several liability, a mediation application can be made against one or both of the main or sub-employers in accordance with Article 2 of the Labor Law, and if there is no agreement or on issues where there is no agreement, a lawsuit can be filed. If the plaintiff has allegations such as collusion, organic and functional connection or co-employment between employers, the mediation application must be made against all employers deemed to be related in this way.
However, in accordance with Article 3 of Law No. 7036, mediation and litigation processes differ in reinstatement requests. Namely,
Labor Law.art.20. A mediator must be consulted within the scope of compulsory litigation requirement mediation within one month from the notification date of reinstatement and termination. If a lawsuit is filed without making an application and the case is rejected due to procedural reasons, a mediator must be consulted within two weeks from the ex officio notification of the final rejection decision.
According to Article 3 of the Labor Courts Law No. 7036, Paragraph 15. If there is a main or sub-employer requesting reinstatement, employers are required to participate in mediation negotiations together and their wills are in harmony in order for the agreement to be realized.
There were different BAM decisions on these issues.
In a decision, if there is a principal-subcontractor relationship… Pursuant to Law No. 7036, paragraph 15, the principal and subcontractor must attend the meeting together only if there is an agreement, but since there is no agreement in the case, it is decided that there is no need for joint participation. It has been accepted that only the sub-employer should be consulted during the mediation phase, and that the main employer should be included in the case after the lawsuit is filed against the sub-employer (by exceeding the mediation case requirement for the main employer in accordance with the provision of Article 15). Moreover, in the decision, although the number of workers of the sub-employer was below thirty and no claim of collusion or an organic-functional connection between the employers could be detected, the number of 30 workers, which is the requirement for a reinstatement lawsuit, was accepted to be above thirty, based on the total number of workers of the sub-employer and the main employer. Applying to mediation is considered mandatory for both employers only in case of agreement, and if the application of one of the employers is considered sufficient in case of disagreement, this will result in the restriction of the right of defense regarding the solution process at the mediation stage for the employer who has not applied. If there is collusion, an evaluation should be made accordingly and the number of workers should be determined. If there is no collusion, the reinstatement case should be rejected because the number of workers of the subcontractor is below 30 people.(Ankara Regional Court of Justice 6th Civil Chamber File No: 2021/3606 Decision No: 2022 /626)
However, Article 20 of the Labor Law No. 4857 is clear and the case should have been rejected due to procedural reasons since there was no joint application to the employers. In this case, the plaintiff employee already has the right to apply to the main and sub-employer together within 15 days.
On this issue, the Supreme Court of Appeals 9.H.D. The Unification Decision No. 2021/9540 E, 2021/14240 K, dated 13.10.2021 (due to the dispute between the Regional Courts of Justice) decided exactly like this, and the decision is valid if the application is made to a single employer. It is stated that it is not possible to include the other employer in the case during the trial, and that the plaintiff must conduct the mediation process against both employers, with the plaintiff being rejected due to procedural reasons, and in accordance with Article 20.
*In case of collusive employership or an organic connection between employers in reinstatement requests, is there an obligation for these employers to apply to mediation together and how is liability determined in the case?
According to the decision to unify the jurisprudence above, it is mandatory to apply to the main and sub-employer together in reinstatement cases. If the application is made only to the sub-employer and the case is filed only against the sub-employer, it is not possible to finalize the case by including the main employer in the case if it is understood that the main employer is also present during the trial. Since the case was filed without the mandatory mediation process for both employers, it should be rejected due to the lack of a lawsuit requirement.
However, if there is no agreement after the mediation process against both employers, and collusion is detected between the employers during the case, according to the precedent decision below, the worker should be reinstated to the main employer in whom collusion was detected, but both employers should be held responsible for the financial consequences of reinstatement.
It is known that under normal circumstances, in a reinstatement lawsuit filed by a subcontractor employee without any allegation of collusion, the main employer must be named as the defendant together with the subemployer, the reinstatement will be made to the subemployer, but the parties will be held jointly and severally responsible for the financial responsibilities of the reinstatement.
For this reason, the court stated that the relationship between the defendants was collusive and that the plaintiff was an employee of the defendant from the very beginning, and since the reinstatement of the defendant to the main employer’s workplace was in accordance with the content of the file, the defendant’s appeal objections regarding this aspect were not deemed appropriate. However, while it should have been decided that both defendants should be held jointly responsible for the financial consequences of reinstatement, it was not appropriate for the court to decide to reject the case filed against the defendant subcontractor due to hostility due to an erroneous evaluation. (22 hd.03.03.2016 T, 2016/2553 E, 2016 /6381 K)
Other precedent decisions,
Since a special case of collusion is regulated in labor law and if collusion is detected, it will lead to heavy financial liabilities for the employers with whom collusion is detected, a few decisions are shared below stating that this issue should be examined meticulously.
The main issues emphasized in the decisions are a comprehensive investigation of this issue, if necessary, careful evaluation of all workplace and commercial records of the employers, contracts between them, tender agreements and statements of witnesses, which employer keeps the worker’s records, the main employer’s responsibility for the work other than inspection and surveillance. It is necessary to evaluate the work as a whole, whether the worker is employed or not, the scope of work in which the worker is employed, and whether the employers have created structures that would harm the labor rights of the workers by conducting reconnaissance in the workplaces.
——
(Supreme Court 22nd HD, Article No: 2017/14764,Decision No: 2018/28000 ,Date:24.12.2018)
- MUVAZAA
- CONTROVERSIAL PRINCIPAL EMPLOYER AND SUB-EMPLOYER RELATIONSHIP SHOWN AS SERVICE PROCUREMENT
- THE EMPLOYEE WILL BE CONSIDERED AN EMPLOYEE OF THE PRINCIPAL EMPLOYER FROM THE ESTABLISHMENT OF THE EMPLOYMENT CONTRACT
- BECAUSE THE PRINCIPAL EMPLOYER IS A PUBLIC EMPLOYER, THE WORKER WHO IS CONSIDERED TO BE AN EMPLOYEE OF THE PRINCIPAL EMPLOYER HAS THE RIGHT TO ADDITIONAL PAYMENT
SUMMARY: Although the plaintiff’s work from the beginning of his employment until 2011 was employed within the scope of the general cleaning service procurement tender, he was employed as a clinic and deanery secretary, and was not employed in the job subject to the tender; therefore, the relationship between the defendant University and the non-litigation subcontractor It is understood that it is based on collusion. However, in 2011, although the plaintiff was employed in the job subject to the tender, he was employed under the instructions and control of the main employer due to the existence of documents showing that his payroll records were kept in the civil servant list, his annual leaves were given by the defendant University, the Selçuk University Meram Faculty of Medicine personnel information form was prepared, and a defense request and warning was given by the University. Accordingly, it is seen that the service purchase agreement is fake for the plaintiff, therefore, starting from the date of employment, the main employer will accept the defendant as a University employee and pay additional payments.
While the claim should have been accepted by taking into account the statute of limitations, the rejection of the request on the grounds that he was not a public worker was inappropriate.
9.H.D.2017/2694 E, 2020/13144 K, date 22.10.2020
In the concrete case, the period in which it was determined by the court decision that the defendant University had engaged in collusive transactions covered the dates 01/06/2008-31/05/2010, the plaintiff started working on 12/06/2013 after this period, and a new collusion was introduced in the tenders made after the collusive period. Although it was stated that the existence of collusion could not be proven, the decision was made without considering the fact that each tender period should be evaluated on its own and without sufficient research.
It should be noted that each tender contract should be evaluated in its own period and conditions. For this reason, the fact that the previous tender contracts were not established in accordance with the law or were collusive does not indicate that the subsequent ones were not established in accordance with the law or were based on collusion. The contract made later must also be evaluated in terms of legality and collusion. For this reason, final judicial decisions stating that the previous contracts made by the defendant were not in accordance with the law or were collusive will only be binding on the tender periods that were determined to be collusive, and the collusion investigation should be conducted again in terms of subsequent tender periods.
For the reasons explained above, the tender contracts covering the plaintiff’s working period, which must be made by the Court, should be included in the file and it should be examined whether there is a final judicial decision regarding the existence of collusion for the said tender periods. If there is no final judicial decision regarding the tender contracts made regarding the plaintiff’s working period, the tender for the period By determining the scope and evaluating each tender period individually as explained above; a) Whether the work performed can be considered within the scope of the main work,
b) Whether the work to be done requires expertise for technological reasons,
c) A conclusion must be reached after determining whether the main employer workers and subcontractor workers work together in the same job and, if necessary, by obtaining a report from expert experts to determine this issue, whether the main employer – subcontractor relationship has been established in accordance with the procedure.
9.H.D,2021/9266 E., 2021/15280 K. 02.11.2021 T
-In the concrete case, the court ruled that the defendant and the non-suit … A.Ş. Since there is a final court decision stating that there is a collusive business relationship between the plaintiff worker and the defendant worker from the very beginning, the plaintiff worker was deemed to be a worker of the defendant … in the decision numbered 2016/130 and decision number 2017/430 of the 24th Labor Court, it was decided to reject the case in terms of the company … Since it has been confirmed that it has been given and that there is no collusion on the part of this company; It was decided to partially accept the case, stating that the period during which the plaintiff worked at … company should be excluded, and therefore, the date of starting to work at … company was taken as basis for the plaintiff worker, who should have been considered a Municipality worker from the beginning.
In the concrete dispute, even if the court decision is correct in terms of the period in which the contracts determined to be based on collusion by the finalized inspector report are valid, according to our Department’s practice, if the main employer-subcontractor relationship established for a tender period is invalid or based on collusion, this does not have any consequences in terms of the previous and subsequent tender periods. . Each tender contract should be evaluated in its own period and conditions. In other words, the fact that the previous tender contracts were not established in accordance with the law or were collusive does not indicate that the subsequent ones were not established in accordance with the law or were based on collusion. The contract made later must also be evaluated in terms of legality and collusion. For this reason, final judicial decisions stating that the contracts made by the defendant are not in accordance with the law or are collusive will only be binding on the tender periods determined to be collusive, and the collusion investigation must be conducted again in terms of the previous and subsequent tender periods. Accordingly, based on the final determination of collusion by the Court, it is not correct to accept the collusion without any examination within the tender periods outside the determination period.
SUPREME COURT H.G.K. E. 2018/9-678, K. 2021/1110, T. 28.9.2021
* REQUEST TO DETERMINE THAT THE PRINCIPAL EMPLOYER AND SUB-EMPLOYER RELATIONSHIP IS CONTROVERSIAL (As a result of collusion, sub-employer workers may be deemed to be employees of the principal employer from the beginning and may become members of the organized union at the main workplace and affect the sector statistics. – Even though there is no regulation regarding the objection to the collusion detection report of the institution, the union whose aim is to protect the rights of its members is in this direction. There is a Current Legal Benefit in Requesting Determination/The Resistance Decision Should Be Reversed)
* COLLECTIVE ACTION (Pursuant to 6100 SK Art. 113, Associations and Other Legal Entities Can File a Lawsuit to Determine the Rights of the Relevant Parties or to Remedy the Unlawful Situation in order to Protect the Interests of Their Members or Members or the Section They Represent) – There is no Legal Regulation on the Possibility of Objecting to the Institution Report Confirming the Absence of Collusion /That the Union, whose Establishment Purpose is to Protect and Promote the Rights and Interests of its Members, has a Legal Benefit in Requesting the Determination of Whether the Principal-Subemployer Relationship is Collusive)
* UNION’S OBJECTION TO THE INSTITUTION’S COMBINED DETERMINATION REPORT (Subcontractor Workers Operating in Different Business Lines Due to the Collusive Principal Employer Subcontractor Relationship Will Be Considered Workers of the Principal Employer from the Beginning – As a result of being counted as Workers of the Principal Employer, the Workers Become Members of the Organized Union in the Workplace Where the Main Work Is Performed, Affecting the Statistics of the Business Line and the Threshold Exceedance Situation Can Be Found/The Union Has a Legal Benefit in Requesting a Determination Against the Collusion Detection Report)
4857/m.2
6100/m.106,113
SUMMARY :The case concerns the request for determination made by the union that the relationship between the main employer and the subcontractor is collusive.
Since subcontractor workers operating in a different business line as a result of a collusive main employer subcontractor relationship will be considered employees of the main employer from the very beginning, they will be able to become members of the organized union in the workplace where the main work is done, and due to the change in the workers’ line of business, they will even affect the statistics of the next line of business and the status of exceeding the threshold.
For this reason, although there is no legal regulation regarding the objection against the Institution’s determination report stating that there is no collusion, the plaintiff union, whose founding purpose is to protect and improve the rights and interests of its members, has a current benefit worth legally protecting in filing a community lawsuit to determine that the main employer-subcontractor relationship is collusive. Since it had to be accepted, the decision to resist had to be overturned.
First Instance Court Decision:
With the decision of Konya 2nd Labor Court dated 17.02.2017 and numbered 2016/666 E., 2017/123 K.; In the Labor Law No. 4857, the right to object is regulated in case of detection of collusion, there is no right of objection regarding the determination that there is no collusion, it cannot be said that the legislator made incomplete regulations while making the regulation, the plaintiff Union has no legal interest in filing a lawsuit, and within the framework of general provisions, Konya Public Hospitals It was decided to reject the case on procedural grounds on the grounds that it was not possible for the plaintiff Union to claim that the service procurement contracts, which came into force as a result of the tender made in 11 health facilities affiliated with the General Secretariat of the Union, were collusive.
Regional Court of Justice Decision:
The plaintiff’s attorney filed an appeal against the above-mentioned decision of the Konya 2nd Labor Court within the prescribed period.
It was decided to reject the plaintiff’s application for appeal on the grounds that there was no violation of the law in terms of procedure and substance in the factual and legal evaluation of the first instance court.
Special Chamber Reversal Decision:
The plaintiff’s attorney requested an appeal within the prescribed period against the above-mentioned decision of the 8th Civil Chamber of the Ankara Regional Court of Justice.
With the decision of the 22nd Civil Chamber of the Supreme Court of Appeals (Closed) dated 25.10.2017 and numbered 2017/40952 E., 2017/22871 K.; “…Article 106 of the Code of Civil Procedure No. 6100 states that the court may be requested to determine the existence or non-existence of a right or legal relationship or whether a document is fake or not, through a declaratory lawsuit, and that the person who files a declaratory lawsuit is legally entitled to file this lawsuit, except for exceptional cases specified in the law. It has been regulated that there must be a current interest worth protecting and that material facts alone cannot be the subject of a declaratory suit.
In order for the plaintiff to have a legal interest in the immediate determination of the legal relationship, the plaintiff must first face a current and serious threat to a right or legal situation. This threat is often revealed by the defendant’s behavior. The fact that this threat may pose a danger to the plaintiff depends on the fact that the legal status of the plaintiff is in doubt due to this threat and that this issue is likely to harm the plaintiff.
In Article 26 of Law No. 6356, it is stated that unions have the authority to file lawsuits on behalf of workers and employers in disputes arising from working life, legislation, customs and traditions, and to pursue the case filed for this reason. In the mentioned case, there is a collective representation of the unions (ŞAHLANAN, Fevzi: Trade Unions Law, Istanbul 1995, p.225).
According to Article 113 of the Code of Civil Procedure No. 6100 titled “Community Action”, “Associations and other legal entities, within the framework of their status, in order to protect the interests of their members or members or the segment they represent, on their own behalf, to determine the rights of the relevant parties or to eliminate the unlawful situation or may file a lawsuit to prevent future violations of the rights of those concerned.”
According to these explanations, it is known that the union has some rights and powers in the case under investigation, in determining whether the workers are employed collusively or not, whether the majority is achieved in the workplace, determination of authority, business line determinations and signing of collective bargaining agreements, and the stages of filing a claim against member workers. Considering these circumstances, although the plaintiff does not have the right to object to the labor inspector report, it must be accepted that there is a current legal interest in filing such a lawsuit within the framework of Articles 106 and 113 of the Civil Code. The decision was annulled on the grounds that “while the court should have made a decision based on the merits of the case, the decision to reject the case on procedural grounds with a written justification was erroneous and required reversal…”.
Decision to Resist:
With the decision of Konya 2nd Labor Court dated 19.02.2018 and numbered 2017/1216 E., 2018/149 K.; The decision to resist was made by repeating the previous reasons.
Appeal of Resistance Decision:
The decision to resist was appealed by the plaintiff’s attorney within the time limit.
DISPUTE:
Dispute brought before the General Assembly of Law through resistance; In the concrete case, whether the plaintiff Union has a legal interest in objecting to the determination that the relationship between the defendant Ministry and the non-suit subcontractor is not collusive, and whether the case should be rejected on procedural grounds, depending on the conclusion to be reached from this.
REASON:
Considering the nature of the dispute subject to resistance, the concepts and legal regulations regarding the subject should first be explained; Afterwards, the concrete dispute should be evaluated.
Detection of Collusion in the Principal Employer-Subcontractor Relationship and Objection to This Determination
The principal employer-subcontractor relationship is regulated in Article 2 titled “Definitions” of the Labor Law No. 4857 (Law No. 4857/Labor Law).
Pursuant to the said article, “… Another employer who receives 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, in jobs that require expertise due to the requirements of the business and the business and for technological reasons, and employs the workers assigned for this job only in the job they have received in this workplace. The relationship established between the employer and the employer is called the principal employer-subcontractor relationship.
1According to this provision, in order to talk about the existence of the main employer-subcontractor relationship; There must be two separate employers, there must be a business related to the production of goods or services, workers must be employed only within the scope of work received from the main employer, and the parties must not enter into an collusive relationship. If the main employer-subcontractor relationship is established in accordance with the law, the main employer; The sub-employer workers will be responsible together with the sub-employer for the obligations arising from the Law, the employment contract and, in case there is a collective labor agreement to which the sub-employer is a party, to the sub-employer workers.
In accordance with Article 4 of the Subcontracting Regulation (Regulation) issued in accordance with the Labor Law No. 4857, in order to establish the main employer-subcontractor relationship; The main employer must also have its own workers working in the production of goods or services in the workplace, and the work given to the subcontractor must be an auxiliary work of the production of goods or services in the workplace. In case the main work is divided and given to the subcontractor, the work given must be a job that requires expertise due to the requirements of the business and the job and technological reasons. On the other hand, the subcontractor must employ the workers assigned for the work undertaken only in the work they have undertaken in that workplace. In addition, the subcontractor must not be someone who was previously employed at that workplace. However, the fact that a worker previously employed in that workplace subsequently becomes a shareholder of a legal entity company or ordinary partnership does not constitute an obstacle to establishing a subcontractor relationship.
As can be seen, in the articles of Law No. 4857 regulating the sub-employer relationship, the main employer-sub-employer relationship is defined, some prohibitions and limitations are introduced, and with these prohibitions and limitations, in general, in cases of collusion, it is stipulated that these workers will be considered the workers of the main employer from the beginning.
On the other hand, in accordance with Article 19 of the Turkish Code of Obligations (TBK) No. 6098, which contains a regulation in line with the article 18 of the repealed Code of Obligations (Code) No. 818, in determining and interpreting the type and content of a contract, the parties may make decisions by mistake or in order to hide their real purposes. Regardless of the words they use, their real and common will is taken as basis, and the debtor cannot defend that this transaction is collusive against the third party who has won the receivable by relying on a written recognition of debt.
So, collusion; It can be defined as the parties’ agreement to deceive third parties and to create an appearance that does not comply with their real will and does not have any effect or effect between them. In other words, if the parties who declared their will agreed that the declaration of will would not produce any results and only wanted to create the appearance of a real legal transaction, collusion is mentioned.
Whether the parties wish to create only an appearance or to carry out a second secret transaction, the apparent transaction does not, in principle, produce any results since it does not comply with the real will of the parties. In collusion, the apparent transaction’s lack of any legal consequences is due to the common will of the parties.
In our law, determining the collusion relationship is generally a matter that belongs to the court and requires trial. In general, in a dispute brought before the court, it decides whether there is collusion upon the request of the parties or as a result of a detailed trial conducted on its own initiative in accordance with the procedure. This rule is also valid in labor disputes and, more concretely, whether the main employer-subcontractor relationship is collusive or not.
The reason why the court is responsible for determining and deciding on collusion is the need to conduct a trial on a difficult issue such as the detection of collusion and the importance of the legal consequences resulting from collusion (Y., Ejder: Objection Case Against the Labor Inspector Report Determining that the Subcontracting Relationship is Collusion, Cement Employer Magazine, January 2009, p.7).
Indeed, in case the subcontractor relationship is found to be unlawful, the sanction envisaged concerns many other issues such as individual labor relations, collective labor relations and social insurance (Aydınlı, İbrahim: Subcontractor (Subcontractor) Relationship and Collusion Problem in Turkish Labor Law, 5th Edition, Ankara 2021, p. 353).
In the second paragraph of Article 3 of the Labor Law, “Sub-employer who receives work in accordance with the sixth paragraph of Article 2 of this Law; He/she is obliged to make a notification in accordance with the provision of the first paragraph, together with the written subcontracting agreement and necessary documents received from the main employer for the registration of his/her workplace. Documents belonging to this workplace, which is registered by the regional directorate, are examined by labor inspectors when necessary. If a fraudulent transaction is detected as a result of the examination, the reasoned inspector report regarding this determination is notified to the employers. Employers may object to this report to the competent labor court within thirty business days from the date of notification. (Amended fifth sentence: 16/9/2014-6552/1 art.) The case to be heard upon objection shall be concluded within four months according to the simple trial procedure. In case of appeal against the decision given by the court, the Supreme Court gives a final decision within six months. It is mandatory for public administrations to object to these reports to the competent labor courts and to resort to other legal remedies against court decisions. “If the report is not objected to within thirty business days or the court approves the detection of a collusive transaction, the registration process is canceled and the workers of the sub-employer are deemed to be the workers of the main employer from the beginning.” It is possible to say that the authority given to labor inspectors by the regulation is a limited and exceptional authority.
In addition to the mentioned provision, the 2nd paragraph of Article 12 of the Subcontracting Regulation regulates the issues to be taken into consideration in the collusion examination; In the 13th article titled “Actions to be taken as a result of the examination”; “(1) As a result of the examination of the principal employer – sub-employer relationship by labor inspectors, the reasoned inspector report and the minutes kept regarding the detection of collusion are notified to the employers by the Provincial Directorate of Labor and Employment Agency. Employers may appeal to the competent labor court within thirty business days from the date of notification. The case to be heard upon objection shall be concluded within four months according to the simple trial procedure. In case of appeal against the decision given by the court, the Supreme Court gives a final decision within six months. It is mandatory for public administrations to object to these reports to the competent labor courts and to resort to other legal remedies against court decisions.
If the report is not objected to within thirty business days or the court approves the detection of a collusive transaction, the registration process is canceled and the workers of the sub-employer are deemed to be the workers of the main employer from the beginning.
It should be particularly noted at this stage that the authority given to the labor inspector regarding whether the subcontracting relationship is collusive; It has certainly not eliminated the right of those who have a legal interest (for example, the parties to the subcontracting agreement and the subcontracting workers, relevant unions, etc.) to file a lawsuit alleging that the subcontracting agreement is fraudulent. For this reason, those with legal benefits continue to have the right to file a collusion lawsuit according to general provisions (Y., p. 8).
Unions’ Right to Bring Collective Action and Community Action
Included in Article 51 of the Constitution of the Republic of Turkey No. 2709; “Employees and employers have the right to establish unions and higher organizations without prior permission, to freely become members of them and to freely withdraw from membership in order to protect and develop the economic and social rights and interests of their members in their labor relations.
No one can be forced to become a member of a union or to withdraw from membership.
The right to establish a union can only be limited by law for reasons of national security, public order, prevention of crime, general health and morality, and protection of the rights and freedoms of others.
The forms, conditions and procedures to be applied in exercising the right to establish a union are specified in the law.
(Repealed fourth paragraph: 7/5/2010-5982/5 art.)
The scope, exceptions and limits of the rights of public officials who do not qualify as workers in this field are regulated by law in accordance with the nature of the service they provide.
“The statutes, management and operations of the union and its parent organizations cannot be contrary to the fundamental characteristics of the Republic and the principles of democracy.” The right to establish a union is explained in detail with the provision.
As stated in the said provision, the aim of unions is to protect and develop the economic and social rights and interests of their members in labor relations. The same regulation is included in the 2nd article of the Trade Unions and Collective Labor Agreement Law No. 6356 (Law No. 6356/STİSK).
Trade unions are an important part of freedom of association, which is the freedom of individuals to come together by forming collective formations to protect their own interests. Freedom of association provides individuals with the opportunity to achieve their political, cultural, social and economic goals as a community. The right to union also requires the freedom of employees to come together and organize in order to protect their individual and common interests (Turkish Republic decision of the Constitutional Court dated 18.09.2014 and Application number 2013/8463, §31, 32).
In the first paragraph of Article 11 of the European Convention on Human Rights (ECHR); “Everyone has the right to peaceful assembly and association. This right includes the right to form unions with others and to join unions in order to protect their interests.
According to the European Court of Human Rights (ECHR), freedom of association in the first paragraph of Article 11 of the European Convention on Human Rights is a form and a special aspect of the freedom of association (ECHR, Belgian National Police Union/Belgium, App. No: 4464/70, 27.10). .1975 §38; Doğru, Osman/Nalbant, Atilla: European Convention on Human Rights Statement and Important Decisions, Volume 2, Ankara 2013, p.453).
Again, according to the ECHR, the phrase “to protect their interests” in the first paragraph of Article 11 of the ECHR guarantees the freedom of the ECHR to protect the professional interests of union members through union activities (ECtHR, Belgian National Police Union/Belgium, App. No: 4464/70, 27.10.1975 §39; Doğru/Nalbant, p.453).
The most important activities related to working life of unions, which operate to protect the interests of their members, are also evident in the field of litigation. First of all, unions, as legal entities, have active and passive litigation capacity according to general provisions (T., A.Can/Savaş Holy, Burcu, Collective Labor Law, Istanbul 2019, p.142).
According to the 2nd paragraph of Article 26 of the Law on Trade Unions and Collective Labor Agreements No. 6356, “Organizations represent workers and employers in disputes arising from working life, legislation, customs and traditions; Unions are authorized to file a lawsuit on behalf of their members and heirs regarding their rights arising from the employment contract and employment relationship and their social security rights upon their written applications and to pursue the case in the case filed for this reason.
As can be understood from the text of the article, there are two different types of lawsuits: collective lawsuit rights of unions and confederations and individual lawsuit rights representing the members of unions.
In this sense, unions can be plaintiffs and defendants; There is an anonymous and collective representation, rather than a concrete representation of specific members. Here, the interest sought to be protected by the type of lawsuit in question is not the personal interests of one or more union or confederation members, but the common interests of working life (Şahlan, Fevzi: Collective Labor Law, Istanbul 2020, p.248).
In terms of procedural law, in cases that generally concern the common interest of many people, if the interest in question is harmed, filing separate lawsuits by all stakeholders will be harmful in terms of procedural economy and may lead to different decisions in cases filed on the same issue. In addition, it will lead to unnecessary loss of time and expense. For this reason, in order to protect the interests of a community with common interests, a lawsuit is filed on behalf of the community or on behalf of that community, and the lawsuit that aims to benefit the community of stakeholders, rather than the plaintiff who filed the lawsuit, from the results of this case is called a community lawsuit (Şahlan, p. 251).
In our community litigation law, as stated in Article 113 of the Code of Civil Procedure (HMK) No. 6100, “Associations and other legal entities, within the framework of their status, in order to protect the interests of their members or members or the segment they represent, on their own behalf, to determine the rights of the relevant parties or to eliminate the unlawful situation.” or may file a lawsuit to prevent future violations of the rights of those concerned.”
According to the justification of the article, through community litigation, it is ensured that the social interest is protected and an expansion is created in the concept of legal interest in a narrow and technical sense.
Community litigation expands the ability of unions to file a lawsuit as a collective representative; The subject of such a lawsuit extends to the individual rights of union members. Since unions are one of the legal entities specified within the scope of Article 113 of the Civil Code, they can file a lawsuit on behalf of their members according to this article. The lawsuit filed is related to the interests of its members, and unions determine the rights of their members with this type of lawsuit; They may demand that the illegal situation regarding their members be remedied and that future violations of their members’ rights be prevented (Şahlan, p. 250).
Declaratory Action and Legal Benefit
The declaratory suit is a tool that can be used in cases where there is concern, distrust and concern in the legal relationship. Doubts and hesitations about the legal relationship can be resolved with this case. Determination cases provide social benefit by ensuring the stability of rights. The purpose of this case is to eliminate legal uncertainty, that is, to make legal relations certain for the parties (to ensure legal certainty) and thus to ensure legal peace (Kuru, Baki/Budak, A. Cem: Determination Cases, 2nd Edition, 2010, p. 68). , 69).
The determination case is in Article 106 of the HMK;
“(1) Through a declaratory action, the court is requested to determine the existence or non-existence of a right or legal relationship or whether a document is fake or not.
(2) The person who files a declaratory lawsuit must have a current interest worth legally protecting in filing this lawsuit, except for the exceptional cases specified in the law.
(3) Material facts alone cannot constitute the subject of the determination case.” organized as follows.
Based on this provision, in order for the court to enter into the merits of the declaratory case and make a decision about the plaintiff’s request, in addition to the general case conditions in procedural law, the subject of the case must be related to a right or legal relationship and the plaintiff must have a legal interest in filing a declaratory case.
It should be noted that the existence or non-existence of all kinds of legal relations and rights can be subject to a determination case: many legal relations such as debt relations, family law relations, real rights, inheritance rights, intellectual rights, naming rights. On the other hand, a declaratory lawsuit filed to determine relationships that are not a legal relationship but are merely material facts will not be heard. Again, it is not possible to subject abstract legal issues that are not related to a concrete event to a declaratory suit (Kuru/Budak, p. 81).
The second special condition of the determination case is that the plaintiff must have a legal interest in immediately determining the legal relationship.
In civil procedure law, legal interest means the principle that in order for a lawsuit to be filed in court, the plaintiff must have an interest in filing this lawsuit and seeking legal protection from the court. The plaintiff must have an interest that is justified (protected) by the legal rules in filing a lawsuit as of the date of filing the lawsuit, and he must need a court decision to obtain his right.
Legal interest is one of the conditions of the lawsuit, and the plaintiff must have a legally protected interest in filing a lawsuit. This condition is one of the general case conditions regarding the subject of the case, and is considered among the positive case conditions, as its existence is necessary in order to examine the merits of the case and make a judgment on the merits. For this reason, interest is also called the condition for the case to be heard (being legal, admissible) (Hanağası, Emel: Davada Interest, Ankara 2009, p.19-21).
In the justification of Article 114 of the Code of Civil Procedure No. 6100, titled “Conditions of the case”, it is clearly emphasized that “… In subparagraph (h) of the first paragraph of the article, it is a condition of the case that the plaintiff has a legal interest in filing a lawsuit. The purpose of the legal benefit mentioned here is, In other words, if the plaintiff is not currently in a position to need a court decision to obtain legal protection for his subjective rights, it is not possible to say that he has a legal interest…” has been given.
In a case, it is clear that observing the principle of interest (legal benefit) as a condition of litigation will be in line with the purpose of the trial and the principle of procedural economy.
Based on this principle, the court should automatically consider whether there is a legal interest in a case or not, at every stage of the trial, within the framework of the evidence, events or facts submitted by the parties to the case file. Thus, a guarantee is provided against people abusing their right to sue by filing unfair lawsuits (Pekcanıtez, Hakan: Civil Procedure Law, Vol.II, 15th Edition, Istanbul 2017, p. 946-949).
When evaluating whether there is legal benefit in terms of a declaratory action, three conditions are required to be fulfilled:
A right or legal situation of the plaintiff must be threatened by a current (current) danger. It is accepted that the threat in question is generally the result of the defendant’s statements or behavior. At the same time, the danger posed by the threat to the plaintiff must be of a current nature.
Due to this threat, the plaintiff’s legal situation must be in doubt and this issue must be of a nature that could harm the plaintiff. As stated before, declaratory action should be resorted to in cases of anxiety, distrust and concern experienced in legal relations. It should be noted that this is not any kind of threat regarding the plaintiff’s legal status; However, a declaratory lawsuit may be filed due to a threat that is believed to cause harm.
The declaratory judgment, which only has the effect of a final judgment and does not authorize compulsory enforcement (cannot be enforced), must be capable of eliminating this danger. Although the judgments given as a result of the declaratory action are final, they do not give the plaintiff the authority to execute. For this reason, it can be concluded that the plaintiff has a legal interest in filing a declaratory suit in cases where the declaratory judgment is the most appropriate and most convenient to eliminate the plaintiff’s legal uncertainty.
Accordingly, when the declaratory judgment does not provide any benefit to resolve the legal uncertainty that the plaintiff is in and it is necessary to file one of the other types of lawsuits for the desired legal protection, it cannot be said that the legal benefit requirement is fulfilled (Gürsel, Principle: Detection of Unilateral Fundamental Change in Working Conditions by Judicial Decision and This legal Results, Young Approaches in Labor Law III, Koç University Young Approaches to Law Conference Series No.7 Labor Law, 2018, 201, 202).
As a matter of fact, in cases where the plaintiff can file a performance action, it is accepted that, as a rule, there is no legal benefit in filing a declaratory action. The main reason here is that the performance action consists of two parts: determination and performance; Since the verdict to be given as a result of the performance action also includes a determination, filing a separate determination case for the same right/legal relationship would be contrary to procedural economy. In summary, if what is sought by a declaratory suit can be completely obtained by a performance action, it is concluded that the plaintiff has no legal interest in filing a declaratory suit.
Request for Determination in the Community Case:
Associations and other legal entities that may file a lawsuit within the scope of Article 113 of the Code of Civil Procedure No. 56.6100 may request a determination as to whether a right or legal relationship exists. In fact, it can be said that the declaratory action, which is generally regulated in Article 106 of the HMK, is a specially regulated form of the community case (Taşpolat Tuğsavul, Melis: Community Cases within the Framework of Collective Legal Protection, Istanbul University Social Sciences Institute Private Law Department Doctoral Thesis, Istanbul 2016, p. 208).
In this sense, if there is a legal interest in determining the existence or non-existence of a right or legal relationship, unions can also file a community lawsuit that includes a request for determination.
Evaluation of the Concrete Incident:
In the concrete dispute, the plaintiff Union filed a lawsuit against the main employer, the General Secretariat of the Public Hospitals Association, and the subcontractor, Merdan Sağlık Bilgi İşletme A.Ş. An application was made to the defendant Ministry of Labor and Social Security to determine that the contracts regarding the “data preparation control operator service procurement” signed between the Ministry of Labor and Social Security for 11 health facilities were fraudulent, and as a result of the examination carried out by the Labor Inspection Board of the Ministry of Labor and Social Security, the relationship between them was fraudulent. A report was prepared stating that there was no
The Plaintiff Union canceled the inspector report stating that the relationship between the main employer and the sub-employer is invalid since the conditions specified in Article 2 of the Labor Law are not present, the sub-employer workers who are members should be considered as the main employer’s workers and accordingly, there is no collusion and the relationship between the two. He requested that it be determined that he was collusive.
First of all, it should be noted that, if it is determined that the relationship between the main employer and the sub-employer is collusive, as stated in the Labor Law, the sub-employer workers will be deemed to be the workers of the main employer from the beginning of the employment relationship, and accordingly, the real employer of the workers will be determined.
In addition, the aim may be to restrict the financial and social rights of workers by pretending to be subcontractor workers. Even if there is no such purpose, it is possible that the financial and social rights of the workers remain at a lower level than the workers of the main employer due to the collusive main employer-sub-subemployer relationship.
On the other hand, the existence of collusion in the relationship between the main employer and the sub-employer may bring to the agenda the right of the sub-employer workers to benefit from the collective labor agreement to which the main employer is a party.
As it is known, in a valid subcontractor relationship, subcontractor workers are not members of an organized union in the workplace where the main work is carried out in a different business line. If collusion is detected, the union has the opportunity to make the workers in question members (Özkaraca, Ercüment: Collective Labor Relations, Evaluation of the Supreme Court’s Labor Law and Social Security Legal Decisions 2014, 2nd Edition, Istanbul 2017, p. 252).
In addition, if it is determined that the relationship between the main employer and the sub-employer is collusive, the sub-employer workers will be considered as the main employer’s workers, so the branch of business they are subject to may change, and thus the scope of the union’s organizing activities will expand.
Again, a change in the branch of business in which workers work as a result of the detection of collusion may have consequences that may affect the statistics of the next branch of business, and even the threshold exceedance of unions in a branch of business (Özkaraca, p. 252). In the concrete case, the plaintiff Union filed a collective lawsuit with the aim of determining the rights of its members, eliminating the unlawful situation regarding its members and preventing the violation of its members’ rights in the future, with the lawsuit at hand alleging that the contracts made between the main employer and the subcontractor in the workplaces where the workers who are its members work are collusive. .
According to the material and legal facts explained above, although there is no legal regulation to object to the detection report stating that there is no collusion, the plaintiff Union, whose aim of establishment is to protect and develop the rights and interests of its members, is not aware of the collusion of the main employer-subcontractor relationship. It should be accepted that there is a current interest worthy of legal protection in filing a lawsuit to determine that the
During the discussions held at the General Assembly of Law, it was put forward that the Labor Law does not provide for an objection in case collusion is not detected, that at this stage the plaintiff Union does not have the right to object to the report stating that there is no collusion and has no legal interest in filing the case at hand, therefore the decision should be approved with the reasons given in the decision to resist. , this opinion was not adopted by the majority of the Board for the reasons explained above.
In this case, while it is necessary to comply with the Special Chamber’s reversal decision, which was also adopted by the General Assembly, it is against the procedure and law to resist the previous decision. Therefore, the decision to resist must be overturned.
CONCLUSION :For the reasons explained;
The appeal objections of the plaintiff’s attorney are accepted and the decision to resist is REVERSED in accordance with Article 371 of the Code of Civil Procedure, for the reasons given in the reversal decision of the Special Chamber, and Article 373/1 of the Code of Civil Procedure No. 6100. It was decided by majority vote on 28.09.2021 to send the file to the court of first instance in accordance with the article.
