Turkish laws on the right to strike have long been criticised as insufficiently favourable to workers and for providing far less protection than European regulations. Many trade unions and non-governmental organisations have argued that the regulations do not allow them to grow stronger and provide more support to their members. The Law on Trade Unions and Collective Bargaining Agreements 6356, which entered into force on November 7 2012, represented significant progress in this regard. However, some of the most pressing issues were not addressed, resulting in criticisms from international and local union confederations that the law violated International Labour Organisation (ILO) conventions.(1)
In recent years workers have thus embraced a relatively old-fashioned approach to collective bargaining negotiations – workplace occupations.
While there may be various reasons for taking action – for example, the breakdown of negotiations or a desire to prevent subcontracting – workers usually do so out of a sense of desperation and hopelessness, as they believe that trade unions do not provide enough protection during collective bargaining negotiations.
Under the Trade Union Law, a 'double-threshold' system applies for trade unions to be authorised to engage in such negotiations with employers. The first is the 'branch of work' threshold, whereby at least 1% of all company employees working in Turkey must be members of the trade union. The second stipulates that more than half of all employees at a specific workplace should be members of the trade union.
Once a trade union fulfils these criteria, it is authorised to negotiate a collective bargaining agreement. The law envisages three phases of negotiations. In the first round the employer and the trade union have 60 days to conclude an agreement. If parties fail to do so, the law provides for a mediation phase where, upon application by one of the parties, the local labour authorities will appoint an official mediator to conclude a collective bargaining agreement. The mediation phase lasts for 15 days and may be extended by the parties by six more business days.
If mediation fails, members of the trade union may vote for a strike. If the trade union cannot render a strike decision by simple majority vote, its authorisation is annulled. In most cases, trade unions refrain from pressuring members to vote for a strike. One of the main reasons for this is the fact that during a strike, trade unions are liable for workers' salaries. Considering their limited resources, the risk of a heavy financial burden in the case of a long strike is too great for trade unions to support. Over the years, this has prevented trade unions from deciding to strike. Ministry of Labour and Social Security statistics show that the number of strikes dramatically decreased in recent years; by 2012 there were no strikes in the private sector. Since the enactment of the Trade Union Law, an increasing number of workers have joined trade unions, causing the number of strikes to jump to 13;(2) but considering that there are a total of 12,287,238 workers and 1,189,481 trade union members in Turkey, this number is still extremely low.(3)
Meanwhile, some employers have been experiencing more radical action at grassroots level, due to the restraints imposed on trade unions. In recent years, workers have ignored the procedures under the Trade Union Law and seized the initiative by occupying their workplaces – with some degree of success. For instance, in 2012, upon the closure of their factory, textile workers in Istanbul occupied the area in front of their factory.(4) With public support, they are now manufacturing their own textile products, including jerseys for the Cuban and Basque Country football teams.(5) Their success has set an example for others to take such radical action.
However, from a legal perspective, workplace occupation can be problematic. As the Trade Union Law outlines the procedure to be followed during a strike, all other acts are deemed unlawful. The Trade Union Law explicitly identifies occupations and resistance to work as being subject to the same sanctions as unlawful strikes.
In case of an unlawful strike, the Trade Union Law allows both the employer and the trade union to ask the court to determine whether a strike, resistance or occupation is in line with the regulations. If IT is deemed unlawful, the employer is entitled to:
- terminate the employment of participating workers for just cause without compensation; and
- bring a claim for damages against the instigators. In some cases the workers may have started the occupation or strike on their own initiative; in others the trade union may have rendered an illegal strike decision by failing to follow the procedure set out in the Trade Union Law.
Depending on the length of the strike or occupation, the trade union may be liable for significant amounts of compensation to employers. Thus, Turkish trade unions are very cautious on voting to strike or for their members to take action.
Unlawful strikes and occupations also have criminal law consequences. The Penal Code defines crimes against freedom to engage in business and freedom of labour, which carry a sentence of between six months' and two years' imprisonment, or an equivalent administrative penalty. Where police intervention becomes necessary to end the strike or occupation, participants may be accused of additional crimes.
Despite the potentially grave consequences of workplace occupations, more and more workers still choose to initiate them. This clearly indicates the need for traditional collective bargaining procedures and greater protection for workers. Increasing the effectiveness and expanding the scope of the collective bargaining process would be of significant benefit to both parties.
For further information on this topic please contact Tolga Danisman or Can Talaz at Hergüner Bilgen Özeke by telephone (+90 212 310 1800), fax (+90 212 310 1899) or email (email@example.com or firstname.lastname@example.org). The Hergüner Bilgen Özeke website can be accessed at www.herguner.av.tr.
(2) Statistics from Ministry of Labour and Social Security www.csgb.gov.tr/csgbPortal/ShowProperty/WLP%20Repository/csgb/istatistikler/1984_2012_grev
(3) Statistics from Ministry of Labour and Social Security http://www.csgb.gov.tr/csgbPortal/ShowProperty/WLP%20Repository/csgb/dosyalar/istatistikler/2014_temmuz_6856