Collective Labour Law: Trade Unions and Collective Labour Agreements

Collective labour law governs the collective employment relations between employees, employers and their unions, the conclusion of collective labour agreements and the conditions under which strikes and lockouts are lawful. For employment relationships under private law, the core legislation is Law No. 6356 on Trade Unions and Collective Labour Agreements (Sendikalar ve Toplu İş Sözleşmesi Kanunu); the trade union rights and collective agreement system of civil servants are governed by Law No. 4688. For employers, interference with union organisation, missing deadlines in the authorisation procedure or acts contrary to the legislation on strikes and lockouts can have serious legal and financial consequences.

Contents

• What does collective labour law regulate?
• How are trade unions organised?
• What trade union freedoms and protections do employees enjoy?
• What is a collective labour agreement and what is its effect?
• What conditions apply for authorisation?
• How does the collective bargaining process work?
• How do employees who are not members of the party union benefit from the collective labour agreement?
• Under what conditions are strikes and lockouts lawful?
• What are the consequences of unlawful strikes and lockouts?
• Conclusion

What does collective labour law regulate?

Unlike individual employment law, collective labour law governs the collective employment relations that employees and employers conduct through their unions. This branch of law covers the principles of the establishment, organisation and membership of trade unions; the conclusion, content and effect of the collective labour agreement; and the rules on strikes and lockouts in collective labour disputes. This area is regulated in Law No. 6356, which replaced the former Laws No. 2821 and No. 2822. At constitutional level, the right to form unions is guaranteed in Article 51, the right to collective labour agreements in Article 53 and the right to strike and lockout in Article 54 of the Constitution.

How are trade unions organised?

Trade unions are established on the basis of branches of activity (işkolu); the schedule annexed to Law No. 6356 and the Regulation on Branches of Activity provide for 20 branches of activity. Unions operate in the branch of activity in which they were established; the branch of activity to which a workplace belongs is determined by its main activity, and the Ministry's determination of the branch of activity is subject to judicial review. The Law does not provide for unions organised by occupation or by workplace. Membership of a workers' union is acquired by application via e-Devlet and acceptance by the competent body designated in the union's statutes; if the application is not rejected within 30 days, it is deemed accepted. Withdrawal from membership is likewise notified via e-Devlet and takes effect one month after notification. Employers may also establish employers' unions; an employer who is not a member of an employers' union represents the employer side in the collective bargaining process itself.

What trade union freedoms and protections do employees enjoy?

Employees are free to join a union, not to join or to leave it (positive and negative freedom of association). Recruitment may not be made conditional on joining, not joining or withdrawing from a particular union; termination and discrimination on account of union membership or union activity are prohibited. In the event of a breach of these guarantees, union compensation of at least one year's wages of the employee is awarded. In the event of a termination on union grounds, the employee may bring a reinstatement claim without being subject to the general conditions of job security. If it is established that the termination was based on union grounds, union compensation is awarded irrespective of whether the employee applies for reinstatement and whether the employer reinstates the employee. If the employee applies to the employer for reinstatement within ten working days of service of the final judgment, the employee is also entitled to wages for the idle period of up to four months. On the other hand, even if the employer does not reinstate the employee, the non-reinstatement compensation of four to eight months under Article 21 of Law No. 4857 is not awarded in addition; this sanction is replaced by the union compensation amounting to at least one year's wages. Workplace union representatives enjoy even stronger protection. Their employment contracts may be terminated only for just cause and only if the reason for termination is stated in writing in a clear and precise manner. If the termination is held to be invalid, the wages and other entitlements for the period between the termination and the final judgment are paid; if the employer does not reinstate the representative within six working days despite the representative having applied within six working days, the employment relationship is deemed to continue and the wages and other entitlements continue to be paid for the duration of the representative's term of office.

What is a collective labour agreement and what is its effect?

In its normative part, a collective labour agreement (toplu iş sözleşmesi) regulates the conclusion, content and termination of employment contracts; in its obligatory part, it may regulate the mutual rights and obligations of the parties and the implementation and supervision of the agreement. The normative provisions apply directly and mandatorily to the employment relationships within its scope; they replace conflicting provisions of the employment contract, although provisions of the employment contract that are more favourable to the employee remain valid. The provisions of an expired collective labour agreement relating to employment contracts continue to apply as provisions of the employment contract until a new agreement enters into force. As a rule, a collective labour agreement is concluded for a minimum of one and a maximum of three years; after signature, its term may not be extended or shortened, and the agreement may not be terminated before the end of its term. A collective labour agreement concluded for work whose activity lasts less than one year may be shorter than one year; if the work is not completed, the agreement applies until the end of one year. The effect of a transfer of business on the collective labour agreement varies under Article 38 of the Law depending on whether a collective labour agreement is in force at the transferee employer in the same branch of activity. Collective labour agreements may be concluded at workplace level; as an enterprise collective labour agreement for several workplaces of the same employer in the same branch of activity; or, by agreement of the parties, between a workers' union and an employers' union as a group collective labour agreement covering workplaces and enterprises belonging to several member employers. More than one collective labour agreement may not be concluded or applied at the same workplace for the same period.

What conditions apply for authorisation?

To be authorised to conclude a collective labour agreement, a workers' union must meet two separate thresholds cumulatively:

• Branch threshold: the union must have registered as members at least one per cent of the employees working in the branch of activity in which it is established; the statistics published by the Ministry each year in January and July are authoritative.
• Workplace/enterprise majority: on the date of application, the union must represent as members more than half of the employees working at the workplace and, in the case of an enterprise collective labour agreement, at least 40 per cent of the employees working in the enterprise. If more than one union has 40 per cent or more of the employees in the enterprise as members, the union with the largest number of members is authorised.

A workers' union wishing to conclude a collective labour agreement applies to the Ministry for a determination that it is authorised; an employers' union or an employer who is not a union member may also request a determination of the authorised workers' union. The Ministry first issues a positive or negative determination of authorisation; the certificate of authorisation is issued separately after the positive determination has become final without objection or after an objection has been finally dismissed. The workers' or employers' unions to which the determination letter is sent, and an employer who is not a union member, may file an objection with the court within six working days of service, stating specific reasons and evidence; the objection petition must first be registered with the competent authority. The objection suspends the authorisation proceedings until the decision becomes final. In practice, the determination of authorisation and the objection stage form a preliminary procedure that can considerably delay the start of collective bargaining.

How does the collective bargaining process work?

One of the parties must invite the other party to collective bargaining within 15 days of receipt of the certificate of authorisation; if no invitation is made within this period, the certificate of authorisation becomes invalid. Collective bargaining may last no more than 60 days from the first meeting. If no agreement is reached, the dispute must be notified to the competent authority within six working days; otherwise, the workers' union's authorisation lapses. The competent authority appoints an official mediator; the mediator's mandate lasts 15 days and may be extended by up to six working days by agreement of the parties. If mediation also fails, the workers' union may take a strike decision in compliance with the statutory time limits and procedure; the parties may agree at any stage of the dispute to refer it to a private arbitrator. In disputes in which strikes and lockouts are prohibited, an application may be made to the High Arbitration Board (Yüksek Hakem Kurulu) within the statutory period of six working days if no agreement is reached at the end of a postponement period or if the decision in a strike ballot not to strike has become final; if no application is made in time, the workers' union's authorisation lapses. The Board's decision is final and has the effect of a collective labour agreement. Two copies of the signed collective labour agreement are submitted to the competent authority by the party that issued the invitation within six working days; the competent authority forwards one copy to the Ministry.

How do employees who are not members of the party union benefit from the collective labour agreement?

As a rule, the members of the workers' union that is party to the agreement benefit from the collective labour agreement. Employees who are not members of the party union may benefit from the collective labour agreement by paying a solidarity contribution. Benefiting from the collective labour agreement by paying a solidarity contribution takes effect from the date of the request and does not require the union's approval. The amount of the solidarity contribution may not exceed the membership fee; it is also possible to benefit from the collective labour agreement with the written approval of the party union. Furthermore, the President of the Republic may, under certain conditions, extend a collective labour agreement to workplaces in the same branch of activity that are not covered by it. Conversely, not applying the monetary entitlements under the agreement to employees who do not meet the statutory conditions for benefiting from the collective labour agreement does not in itself constitute union discrimination.

Under what conditions are strikes and lockouts lawful?

A lawful strike is a strike decided and carried out by the authorised workers' union in compliance with the statutory time limits and procedure after official mediation has failed in a dispute arising during the conclusion of a collective labour agreement. The strike decision must be taken within 60 days of service of the mediator's final report; the date of implementation must be notified to the other party at least six working days in advance. Within six working days of the announcement of the strike decision, at least one quarter of the employees working at the workplace may request a strike ballot; if an absolute majority of those voting vote against the strike, the strike may not be carried out. Upon notification of the strike decision, the employers' union or an employer who is not a union member may take a lockout decision in accordance with the statutory procedure. During a lawful strike, the employment contracts of those participating in the strike are suspended; except for the exceptions provided for in the Law, the employer may not hire employees to replace striking employees and may not terminate their employment contracts on the ground of their participation in the strike.

Strikes and lockouts are not permitted in life and property rescue work in particular, in funeral services and cemeteries; in urban mains water, electricity, natural gas, the production, refining and distribution of petroleum and in petrochemical work starting from naphtha or natural gas; in workplaces operated directly by the Ministry of National Defence, the Gendarmerie General Command and the Coast Guard Command; and in fire services and hospitals operated by public bodies. Furthermore, strikes and lockouts are not permitted on sea, air, rail and road transport vehicles that have not completed their journey at their domestic destinations. The President of the Republic may prohibit strikes and lockouts in places affected by natural events that significantly impair general life and in workplaces where he deems it necessary, for as long as the situation continues.

The President of the Republic may postpone a lawful strike or lockout that is detrimental to public health or national security for a period of sixty days; during the postponement, mediation continues for the resolution of the dispute. If no agreement is reached at the end of this period, either party may apply to the High Arbitration Board within six working days; if no application is made, the workers' union's authorisation lapses.

What are the consequences of unlawful strikes and lockouts?

In the event of an unlawful strike, the employer may terminate for just cause the employment contracts of employees who participated in the strike decision, encouraged the strike, participated in the strike or encouraged others to participate in or continue the strike. The workers' union that took and implemented the strike decision is liable for the material damage resulting from an unlawful strike; if the strike was carried out without a union decision, the employees who participated in the strike are liable. In the event of an unlawful lockout, employees may terminate their employment contracts for just cause; the employer is obliged to pay the wages and other entitlements for the lockout period even though no work was performed, and to compensate any other damage incurred. Either party may request the court to determine whether a strike or lockout that has been decided or is being carried out is unlawful; where necessary, the suspension of the strike or lockout by way of interim injunction may also be requested. Because of the serious consequences, a legal assessment of the specific case should be carried out before steps such as termination or claims for compensation are taken.

Conclusion

Collective labour law establishes the legal framework for union organisation, collective labour agreements and collective labour disputes. The process is shaped by the two-tier authorisation requirement, the procedure for the determination of authorisation and objection, the mandatory effect of the collective labour agreement and the strict rules on time limits and form for strikes and lockouts; missing deadlines can have serious consequences ranging from the lapse of authorisation to liability for compensation.

For employers, the basic principle is not to engage in discriminatory treatment on account of union membership and union activity and to base decisions that could give rise to such an impression on objective, consistent and documentable grounds. A breach may result in union compensation amounting to at least one year's wages. Early legal assessment is therefore important at every stage, from the determination of the branch of activity to objections against authorisation and from collective bargaining strategy to strike and lockout proceedings.

GEMS Schindhelm advises employers on all matters of collective labour law – from the determination of the branch of activity to authorisation and objection procedures, and from collective bargaining to strike and lockout proceedings and their legal consequences. This article is for general information purposes only and does not constitute a legal opinion or legal advice; each dispute must be assessed separately in light of the specific circumstances of the case and the legislation in force.