End of the dispute over the regulation of collective agreements

With the amendment made in 2016, clause () of section 3 of the Regulations has been amended as follows.

“Council Minister: one of the de facto ministers of departments responsible for dealing with disputes arising out of the Trade Unions Act and Supreme Court Collective Bargaining Agreement No. 6356. the Minister of the Council, who is trained in the ministry of the minister who serves the most“,

In the trial against this regulation, the 10th chamber of the Council of State decided to annul it for the following reasons:

The Minister of the Superior Council of Arbitration, established pursuant to Article 54 of Law No. 6356 (as it stood at the date of the dispute), meets at the ministry of the most senior minister of the departments of the Supreme Court charged with dealing with disputes arising under this Act, and Although the principle of seniority will be determined on the basis of seniority in the presidency of the Supreme Court in accordance with Article 31 of Law No. 2797, a regulation that goes beyond the provisions of the aforementioned law has been taken with the amendment of the law, which is the subject of the case.In the election of the Minister of the Interior and the Board of Directors, it is expected that the period actually spent in the department will be taken as the basis,

In the present case, the modification of Law No. 6356 (as it stood on the date of the dispute) and the modification of the regulations which are the subject of the lawsuit, which are contrary to the provisions of Article 31 of the Law No. has been decided.

NOTE: The sentence appearing in the aforementioned paragraph after the annulment decision of the 10th Chamber “in the ministry of the minister who actually serves the most among the ministers” modified as.

TR

DENITAY

NARROW SKILLS COMMITTEE

BASE NUMBER: 2021/3773

DECISION No: 2022/772

APPEAL (DEFENSE): Ministry of Recruitment and Social Security

(Mlga Ministry of Family, Care and Social Services)

VEKL: Law. M.Atty. Nuray Kken

WOMAN PARTY (COMPLAINANT): Mer Hicri Tuna Maviehir Mah. Aziz Nesin Bulvar No:97/48 Karyaka/ZMR

SUBJECT SUBJECT: It is requested that the decision of the tenth chamber of Dantay, dated 01/04/2021 and numbered E:2016/1223, K:2021/1516, be reviewed and canceled on appeal.

SREC JURISDICTION:

Object of the complaint:

It was requested to cancel article 1 of the regulation amending the regulation on the request for a mediator and an arbitrator in the collective agreement published in the Official Journal of 04/03/2016 and numbered 29643.

Summary of the Chamber’s decision:

With the judgment of the Tenth Chamber of Dantay of 01/04/2021 and E:2016/1223, K:2021/1516;

In Section 54 of the Trade Unions and Collective Agreements Act No. 6356, Section 54 of the Act (as it stood at the date of the dispute), the establishment and operating principles of the Supreme Arbitration Commission, which was created for this purpose to settle disputes arising from the collective agreement, are regulated; It has been begun to rule that the Superior Council of Arbitration will meet under the ministry of the most senior of the ministers of the departments of the Supreme Court responsible for hearing disputes arising from this law,

In Article 57 of Law No. 6356, the procedures and working principles of the Superior Council of Arbitration; Indemnities to be paid to the ministers and to the members of the High Council of Arbitration and to the experts and rapporteurs to be appointed in this Council; the salaries to be paid to surveyors and tankers and the procedural arrangements to be applied in the special arbitrator’s review of labor disputes over profits; It was indicated that the qualifications, selection, salaries and assignment of mediators will be governed by regulations to be submitted to the Ministry, with the approval of the Ministry of Finance,

The regulation on referral to a mediator and an arbitrator in the collective agreement, which was prepared on the basis of the aforementioned Article 57 of Law No. 6356, entered into force by being published in the Official Gazette of 07/12/2013 and numbered 28844,

In clause () of Section 3 titled “Definitions” of the Agreed Regulations, while the Minister’s Superior Arbitration Committee of the Council was organized to be voiced by the Minister, the Regulations Amending the Regulations on the Application to a Mediator and Arbitrator in the Collective Agreement published in the Official Journal of 04/03/2016 and numbered 29643. unions and Collective Bargaining Agreement No. 6356 of the Supreme Court of Appeal, which is under the department of the Minister who actually serves the most.” has been amended as

In article 31 of Law No. 2797 on the Supreme Court, it is regulated how the seniority of the first deputy ministers of the Supreme Court and of the ministers of the departments will be determined; “In determining the seniority of first deputy ministers and ministerial ministers, seniority in the office of the Supreme Court is taken as the basis.” the rule has been included,

On the other hand, article 36 of law no. 6770 of 18/01/2017, published in the Official Journal of 27/01/2017 and numbered 29961, and article 54 of the law on trade unions and agreements collective numbered 6356. contained in paragraph . “in the ministry of the most senior minister” the phrase “in the ministry of the minister with the most ministerial mandates” Noting that the trial must take place in accordance with the legal provisions in force on the date of the dispute, even if they have been amended accordingly;

The Minister of the Superior Council of Arbitration, established under Article 54 of Law No. 6356 (as it stood at the date of the dispute), meets under the Minister of the most senior Minister of the departments of the Court supreme In accordance with article 31, although it is the rule that it is determined according to seniority in the Presidency of the Court of Cassation, a rule which goes beyond the provisions of the The law mentioned above has been made with the amendment of the regulations, which is the subject of the case, and it was determined that the time actually spent in the ministry of the department would be taken as a basis in the election of the minister of the Council,

In the present case, the modification of Law No. 6356 (as it stood on the date of the dispute) and the modification of the regulations which are the subject of the lawsuit, which are contrary to the provisions of Article 31 of the Law No. has been decided.

APPLICABLE SDD:

In the Chamber’s decision, which is the subject of the appeal, the defendant administration

Although the decision was reversed by reference to Article 31 of Supreme Court Law No. 2797, the article of the regulations, which is the subject of the lawsuit, was not 6356 on trade unions and collective agreements; In addition, article 36 of the law numbered 6770 and of 18/01/2017 published in the Official Journal of 27/01/2017 and numbered 29961 and the first paragraph of article 54 of the law numbered 6356. “under the ministry of the senior minister” of the phrase “among the ministers, in the ministry of the one who has the longest term of ministry” It is argued that with this change in the law, the article of the regulations that is the subject of the lawsuit became compatible with the underlying law, therefore, the case was left without resolution and the decision of the House should be canceled.

DEFENSE PROFIT:

No defense was given by the plaintiff.

DANITAY TETKK DNCES OF RIGHTS:

It is considered that the decision of the Chamber should be affirmed with the dismissal of the request for appeal.

ON BEHALF OF TRK MLLET

After hearing the explanations of the investigating judge and examining the documents in the file, the decision was taken by the Council of the Administrative Affairs Chambers of the Council of State:

LAW ASSESSMENT:

The final decisions of Dantay’s litigation chambers are reviewed and overturned on appeal.

“a) To be supported for work other than duty and authority,

b) Take a decision contrary to law,

c) It is possible in the presence of one of the grounds of “the existence of errors or shortcomings likely to affect the decision in the implementation of the procedural provisions”.

The decision under appeal was in accordance with procedure and the law, and the allegations made in the appeal motion were not deemed to require reversal of the decision.

DECISION OUTCOME:

For justified reasons;

1. The dismissal of the appeal of the defendant administration,

2. APPROVAL of the decision of the tenth chamber of the Council of State, dated 01/04/2021 and E:2016/1223, K:2021/1516, which is the subject of an appeal, concerning the cancellation of the settlement which is the subject of the case, due to the aforementioned fact,

3. It was decided unanimously on 07/03/2022.

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