Press Release Nr: Plenary Assembly 8/15
29/12/2015

JUDGEMENT ON APPLICATION RELATED TO TRADE UNIONS AND COLLECTIVE LABOUR AGREEMENTS
(Click for full text of judgment)

The Constitutional Court, in its Plenary Meeting on 22.10.2014, concluded the case filed for annulment of certain provisions of Law on Trade Unions and Collective Labour Agreements No. 6356.

The Constitutional Court, besides its other decisions rendered under the scope of case, annulled the provision of law which prescribes that union compensation shall be applicable for reasons other than “termination of contract of employment” and that a worker shall have the right to apply to the court as provided in the Article 18 of Labour Law No. 4857 in case of termination of contract of employment for reasons of trade union activities. The Court also annulled the provision of law which prescribes prohibition of strikes and lock-outs in banking services and urban public transportation services.

The Constitutional Court rejected the application for the annulment of provision of law which prescribes a certain percentage of workplace or enterprise level threshold to be authorized to conclude a collective labour agreement. The Court also rejected to annul provision of law which prescribes that a lawful strike means any strike called by workers with the object of safeguarding or improving their economic and social position and working conditions, in the event of a dispute during negotiations to conclude a collective labour agreement and that an unlawful strike means any strike called without fulfilling the conditions for a lawful strike.

A- An Overall Consideration on the Right to Organize Unions and Restricting This Right

In the Constitutional Court’s opinion, right to organize unions, as guaranteed under Article 51 of the Constitution, is an element of freedom of association which is one of the basis of a democratic society. Freedom of association means the individuals’ freedom to establish collective entities to protect their own interests. This freedom provides the individuals the opportunity to realize their political, cultural, social and economic objectives as a social groups. The right to organize union calls for the employees’ freedom of association by forming groups to defend their individual and collective interests and, therefore, it is considered to be an element of freedom of association.

The right to organize unions not only grants the employees and employers the right to establish and become a member to any union that they like but it also guarantees the existence and specific activities of such legal entities. The right to organize unions also covers the right to raise labor disputes, to negotiate and conclude collective agreements and to call for strikes and lock-outs by unions and their upper-level organizations, which are established to protect and develop the economic, social and cultural interests.

The right to organize unions, being a right which may be limited, is subject to regime of restriction of fundamental rights and freedoms in the constitution. The second and subsequent paragraphs of Article 51 of the Constitution include the grounds for restricting the right to organize unions. However, the restrictions on such freedoms shall be imposed by taking into account the criteria cited in Article 13 of the Constitution. Accordingly, the restrictions imposed on the right to organize unions shall be reviewed within the scope of Article 51 of the Constitution and in consideration of the criteria cited under Article 13 of the Constitution.

B- With regards to “union compensation”

Provisions of Law subject to Constitutionality Review

The provisions of law subject to constitutionality review prescribe that, except for the case of termination, if the employer acts in contravention of the union guarantees, an amount not to be less than the employee's total annual wages shall be paid to the employee as “union compensation”; and that the employee has the right to file suit in accordance with Articles 18 of the Labor Law, no. 4857 in the event of the termination of the employment contract for any union-related reason.

Grounds

The court judgment, which requests constitutionality review, states briefly that entitlement to “union compensation” is guaranteed only for the employees meeting the criteria stated under certain articles of Labor Law and that the employees are denied of their right to file a case for reinstatement and to claim “union compensation”. The right to membership to a union cannot be guaranteed unless the employees are protected against termination of the employment contract for union-related reason. Such a practice does not comply with the principles of social state and equality and the fundamental aims and duties of the State. The right to establish and become a member to union is guaranteed under the constitution. Infringement of this right restrains the right to collective labor agreement and right to strike and lock-out and it also prevents the employees from earning a fair wage that is proper to their work. Therefore, the provisions of law subject to constitutionality review are alleged to be unconstitutional.

Court’s Assessment

In the Constitutional Court’s opinion, the provisions of law which guarantee joining a union or to remain a member of or resign from unions at the onset, in the course of or at the termination of employment, constitute important elements of right to organize union.

Article 25 of Law No 6356 titled “Protection of union freedoms” guarantees the freedom of union at the onset, in the course of or at the termination of employment. The employees who are subjected to discriminatory treatment for their union-related activities at any of the stages of employment shall be paid a “union compensation”.

The right to organize unions, which is the most important organizational model for the employees to assert their claims against the employers, is regulated in details under the modern law systems. In this framework, the right to organize unions, which is an integral part of the democratic order, makes sense only if the bans and restrictions on such right are minimized.

The provisions of law subject to constitutionality review prescribe that employees who fall outside the scope of job security shall not be entitled to a “union compensation” in the event of the termination of employment contract for membership to a union or participation to union-related activity. The basis of the protection of membership to a union is that the employees are protected against discriminatory treatment for union-related reasons and primarily against the termination of the employment contract for such reasons. Therefore, depriving the employees who fall outside the scope of job security of the “union compensation” in the event of termination due to union-related reasons leads not only to restriction of right to join a union and elimination of guarantees for such membership but it also circumscribes and eliminates the guarantees for all union-related rights and freedoms as a whole.

Consequently, the Constitutional Court annulled the provisions of law subject to constitutionality review under this heading by finding them contrary to Article 2, 10, 13 and 51 of the Constitution.

C- Prohibition of strikes and lock-outs in banking services and urban public transportation services

Provisions of Law subject to Constitutionality Review

The provisions of law subject to constitutionality review prescribe that strikes and lock-outs are not allowed in banking services and urban public transportation services.

Grounds

The court judgment, which requests constitutionality review, states briefly that determining the scope of bans on strikes in a way contradictory to international norms constitutes a serious and grave restriction on both the right to strike and freedom of association; that the rights to association, collective bargain and strike are restricted with the said provisions in a manner contrary to democratic social order and the principle of proportionality; that the expression as to “the right to strike may be restricted or banned only for public officials exercising public power” contradicts the Constitution and international agreements that we are party to. Therefore, the provisions of law subject to constitutionality review are alleged to be unconstitutional.

The Court’s Assessment

In the Constitutional Court’s opinion, the right to organize unions, which is the most important instrument for the employees to assert their claims against the employers, is regulated in details under the modern law systems. Therefore, the right to organize unions, which is an integral part of the democratic order, makes sense only if the bans and restrictions on such right are minimized.

The life, security or personal health of the whole or a part of the population may be threatened in the event that the basic services are interrupted. Therefore, strike restrictions in some works and services of essential and basic nature are possible within the frame of constitution. The specific conditions of each country shall be taken into consideration with regards to basic services. In some instances, a strike may be considered to bring heavy damages to society due to its duration and scope.

The services and sectors where the strike may be prohibited are those providing basic public services of vital nature which relate to broad segments of society. Accordingly, strikes and lock-outs may be prohibited in services interruption of which bring heavy damages on the society. Such a prohibition may apply to works and services relating to human health, national defense and security.

The prohibition imposed by the provisions of law subject to constitutionality review does not fall within the scope of activities which effect the public order and social life at the aforementioned level and nature. The fields of services, where the strike and lock-out is prohibited by the said provisions, do not bear vital characteristic or direct effects on human life, they are not related to national defense and security and they do not affect the society as a whole. Therefore, such services do not have a public interest which concerns the society as a whole.

In a democratic society, the restrictions on the fundamental rights and freedoms cannot be expected to exceed the requirements of the aim pursued with such a restriction. In a democratic state of law, regardless of the aim pursued, the restrictions shall not be imposed through methods not specific to such regimes and these restrictions shall not amount to a level which eliminates or heavily obstructs the exercise of a certain freedom.

The prohibition of strike imposed by the provisions of law subject to constitutionality review covers the services which cannot be considered among the basic services and the ban on strike in these services does not comply with the requirements of a democratic social order.

In this regard, the provisions of law subject to constitutionality review do not observe the fair balance between the public interest of the society and the fundamental rights and freedoms of the individual and, thereby, contradicts the principle of proportionality.

Consequently, the Constitutional Court annulled the provisions of law subject to constitutionality review under this heading by finding them contrary to Article 13 and 54 of the Constitution.

D- The provisions of law which prescribe a certain percentage of workplace or enterprise level threshold to be authorized to conclude a collective labour agreement and that an unlawful strike means any strike called without fulfilling the conditions for a lawful strike.

The Constitutional Court rejected the application for the annulment of provision of law which prescribes a certain percentage of workplace or enterprise level threshold to be authorized to conclude a collective labour agreement. The Court also rejected to annul provision of law which prescribes that a lawful strike means any strike called by workers with the object of safeguarding or improving their economic and social position and working conditions, in the event of a dispute during negotiations to conclude a collective labour agreement and that an unlawful strike means any strike called without fulfilling the conditions for a lawful strike.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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