Points of discussion
The main aim of a collective bargaining agreement is to develop the employment rights and benefits of employees in the workplace contractually. It is undisputed that unions have more strength and bargaining power than individual employees. Once a collective bargaining agreement is reached, as a general rule, only union members can benefit from its privileges and provisions. However, there is an exception to this rule for non-member employees who pay a solidarity fee to a union.
Solidarity fees are regulated under the Law on Trade Unions and Collective Bargaining Agreements (6356). The goal of this law is to create an alternative for the employee who does not wish to be a union member for several possible reasons (eg, the employee may have a different world or political view from the union). In Turkey (as in many other countries) unions and union confederations are established in parallel with political philosophies (eg, leftists, rightists and liberals). The law gives non-union member employees the opportunity to benefit from a collective bargaining agreement, even if the employees do not agree with the political direction of the union, but wish to benefit from the collective bargaining agreement's privileges and be under its protective umbrella. The solidarity fee is freely determined by the union, but cannot exceed the membership fee amount and must be paid by non-member employees on a monthly basis.
Law 6356 was enacted in 2012. Previously Laws 2821 and 2822 regulated union relations and collective bargaining agreement negotiations. Pursuant to these laws, a solidarity fee could be a maximum of two-thirds of the amount of a union membership fee. This provision was heavily criticised by the unions. They complained that this fee discouraged employees from becoming union members and encouraged them instead to pay just the solidarity fee, as non-members could receive all the benefits of the collective bargaining agreement at a lesser cost than union members. Unions also argued that, in the long run, solidarity fees would reduce a union's potential fee income, as members could simply pay the solidarity fee and opt not to become union members to avoid paying a higher membership fee. Law 6365 enables unions to set the solidarity fee, which cannot exceed the normal union membership fee.
The employer is responsible for deducting the solidarity fee on a monthly basis and sending it with any membership fees to the union, based on the list of member employees that the union provides to the employer. Neither the union nor the employer has the right to reject any application for a solidarity fee (ie, if a non-union member employee would like to benefit from the collective bargaining agreement by paying the solidarity fee only and not become a union member, this request should be accepted). Further, a non-union member employee that pays a solidarity fee should benefit from all collective bargaining agreement provisions like a regular union member, such that any provisions to the contrary contained in the collective bargaining agreement and/or in any side protocols or agreements between the employer and union, will be deemed invalid.
The solidarity fee raises a number of issues:
- Under Turkish law, unions must first obtain an authorisation certificate from the Ministry of Labour in order to commence collective bargaining agreement negotiations. The authorisation certificate is granted only to unions that exceed what is known as the 'double-layer' threshold. The first threshold that must be met concerns employees in the workplace. More than half of the employees in the workplace should be members of the applicant union (this threshold ratio decreases to 40% for collective bargaining agreements defined as enterprise collective bargaining agreements, which are applicable to more than one workplace that belong to the same employer).
- The union applying for the authorisation certificate should exceed the 3% threshold set for its work sector. However, taking into account the historically low membership levels of Turkish unions, the law grants a two-stage transition period that allows for a 1% threshold until July 1 2016 and a 2% threshold until July 1 2018. Work sectors are limited and listed as 20 types of work regulated under Law 6356, which is based on Labour Authority statistics. The membership numbers of each union are published in the Official Gazette.
Exceeding the second threshold is extremely difficult for some unions, especially in fields of work where unionisation rates are low. The unionised work force is only 10% of the entire work force on average. For this reason, and to strengthen their position in relation to employers, unions want to increase their membership as much as possible, as this plays a significant role in the union receiving an authorisation certificate to enter into a collective bargaining agreement. The employees that pay a solidarity fee are not counted as members, so the unions have criticised this group of employees due to their unsuitability for meeting the double-layer thresholds for authorisation at workplace and work sector levels.
Some unions allege that it is hard for them to deal with two groups of employees (ie, union members and non-union members) in the same workplace and that this third group creates additional problems, especially because member employees are starting to question the necessity of being a union member if solidarity fee-paying workers can receive the same benefits without being union members. Unfortunately, due to their financial, social and strategic inadequacies, unions in Turkey offer their members only the chance to have a collective bargaining agreement. Unions cannot offer any further social benefits like pension programmes and job training. For this reason, unions refrain from opening further discussions with their members and potential members about why employees should become union members versus the alternative as solidarity fee-paying, non-union members.
Further, non-member employees can benefit only from a collective bargaining agreement which is in force. Applications to request solidarity fee membership do not apply retroactively. This rule could create major problems, especially during the collective bargaining agreement renewal period. The length of collective bargaining agreement negotiations is set at 60 days under Law 6356. In practice, most collective bargaining agreement negotiations take around four to five months. However, it is common practice, and allowed by law, that parties to the collective bargaining agreement agree to enforce it retrospectively so that employees may be entitled to receive the rights and benefits agreed on under the collective bargaining agreement during the negotiation period. This method is not applicable to non-member employees that pay a solidarity fee. Although they may agree to pay union fees for the negotiation phase, unions do not accept this and limit the application of the collective bargaining agreement to its written terms. This issue has been handled by the Court of Appeal in several precedential cases, which confirmed and upheld the validity of the unions' approach and application of collective bargaining agreement benefits and provisions.
The problem with the solidarity fee is not the nature of the fee itself, but the lack of effectiveness and sustainability of union activities in Turkey. If union activities can be carried out on a competitive and preferably widely enforceable level among union members, the controversies surrounding a solidarity fee will end, as non-members will opt to become full union members because union benefits will outweigh any anticipated benefits that may be associated with paying a solidarity fee.
For further information on this topic please contact Tolga Danisman or Bige Göksel at Hergüner Bilgen Özeke by telephone (+90 212 310 1800) or email (email@example.com or firstname.lastname@example.org). The Hergüner Bilgen Özeke website can be accessed at www.herguner.av.tr.
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