Focus: Legal Barriers to Freedom of Association and Collective Bargaining

Abstract

10 | International Union Rights | 23/3 FOCUS | TURKEY Legal Barriers to Freedom of Association and Collective Bargaining Turkey’s current legal protection of trade union rights remains a long way from compliance with international norms. Labourers are divided into ‘workers’ and ‘public officers’. The Law on Trade Unions and Collective Bargaining (Law 6356) regulates the trade union rights and freedoms of workers. The Law on Trade Unions and Collective Bargaining of Public Officers (Law 4688) regulates the trade union rights and freedoms of the public officers but provides public officers very limited rights of association, collective bargaining and strike. Besides, the parties to the collective bargaining under Law 4688 do not have to reach an agreement and the final decision is given by the Government. If the parties disagree, the public officers have no right to strike. This legal rule - enacted in 2012 - provides no rights to association, collective bargaining or strike for public officers to protect their interests. Therefore, the following analysis of these rights will focus on the Law on Trade Unions and Collective Bargaining (Law 6356). Freedom of Association: only sector-based unions can be formed The right to form a trade union and freedom of association are assured in Article 51 of the Turkish Constitution. However, Law 6356 was enacted with a limited scope in contrast with international norms. Article 3 says that a ‘trade union is formed to operate in a certain sector’. This regulation contradicts Article 2 of Convention 87 of the ILO Convention 87 which accepts the ‘liberty’ principle on the matter of the freedom of association. Additionally, the ILO Committee on Freedom of Association (CFA) assessed Article 2 of Convention 87 and stated that workers can form a trade union with reference to the sector, profession or regional and other criteria. Moreover, Law 6356 Article 2 does not allow trade unions to organise themselves under umbrella organisations like federations or others, other than confederations. This is also in contradiction with the liberty principle in Article 7 of Convention 87. Collective Bargaining Rights The most important discrepancy in Law 6356 is that while it only permits the formation of trade unions in the sectors, the collective bargaining system is organised on the basis of the workplace or business. Apart from the workplace and business in the collective bargaining, it was not defined on the scale of country, industry and sector (Articles 33-4). This certainly violates ILO norms (Convention 98, Article 4). One of the most important obstacles in Turkey for trade union association and collective bargaining is the legal restrictions and thresholds to have authority for collective bargaining. There are two major problems in Turkey in the system of authorisation. The first obstacle is having the majority in the country and then in the workplace and business, as the law requires. The prerequisite for collective bargaining rights is union membership of 1 percent of workers in respective sector in the country. After the trade union achieves this condition, if more than half of the workers working in the same workplace become members of this trade union, collective bargaining can be signed for the workers in this workplace. If the company has more than one workplace or branches, the union must also organise 40 percent of all the workers in all these workplaces. If a trade union cannot ensure these conditions, it has no authority for collective bargaining. For instance, according to the data from July 2016, there are almost 3,079,761 workers work in Sector 10 (Education and Commerce Offices). A trade union in this sector has to have at least 30,790 members working in this sector for a collective bargaining in any workplace. Otherwise, even if all 20,000 workers from a single workplace of 20,000 workers are in membership this trade union still has no legal power for collective bargaining. The second is that collective bargaining power is given by the Ministry of Labour and Social Security – a political institution. The processes determining if a trade union meets those thresholds are controversial. These are implemented by the Ministry. If an employer or another trade union in the same sector objects to the processes to be performed by...