Right to unionise
The right to unionise is not specific to employees. Employers also have the right to establish or to join an employer association which will represent them in various situations, such as in collective bargaining negotiations, on national and international labour platforms and before non-governmental organisations. The main function of employer associations is to represent employers in collective bargaining negotiations. Such representation is optional for employers under the Law on Unions and Collective Bargaining Agreements (6356), although it is compulsory for employees. However, employer associations should take progressive action to increase their membership.
The establishment, organisation and operation of employer associations are regulated under the same legislation that governs employee unions. Law 6356 sets down the rules for establishing an employer association as well as the membership provisions and rights of employer associations. Accordingly, being deemed an 'employer' is sufficient to become a member of an employer association. The law imposes no limitations on the type of legal entity to be formed, the capital requirements, work type or number of employee members. However, certain limitations are imposed on who can be an establishing member of an employer association (these are the same limits as are imposed on employee unions). For instance, employers convicted of immoral or dishonourable crimes cannot be an establishing member of an employer association. Similar to the legal establishment of employee unions, administrative government approval is not needed to form an employer association, which may be established by declaration to the relevant administrative authority only.
The major purpose of establishing an employer association is to create a professional, or at least an experienced, organisation which can represent members' collective interests during the collective bargaining process.
The Turkish Confederation of Employer Associations (Türkiye Isveren Sendikalari Konfederasyonu (TISK)) is the major player in Turkish industrial relations on the employer's side. TISK has 23 distinct employers' associations as its members, representing more than 9,200 enterprises. However, only around half of all employer associations are members of TISK at any given time. The most popular employer associations are in the textile, metal and pharmaceutical industries. These industries also have the highest level of unionisation among their employees.
Although there are around 50 employer associations for different industries in Turkey, employers often choose not to become members of employer associations since they do not believe in their benefits and have doubts as to their effectiveness. In short, membership of an employer association is not a popular choice among Turkish employers. This is unsurprising, as only around 10% of the entire workforce is unionised.
In general, employers choose not to be represented by an employer association since many do not believe that their needs and priorities can be considered and protected successfully by a third party. Another reason that employers refrain from becoming union members is to avoid sharing their business details and targets, since the organisation will have other employer members which are competitors from the same sector. Further, some employers prefer not to appoint even professional consultants during collective bargaining negotiations. The negotiation process can be hampered by this lack of unionisation, as it prevents mutual understanding between the parties in reaching a collective bargaining agreement.
In addition, employers may find it unnecessary to join an employer association since such organisations do not generally exercise their legal right to strike, which is similar to the right held by employee unions. Neither type of union uses its right to strike extensively for the benefit of its members. Nowadays, employee unions prefer to use tools such as stopping overtime, organising protests or seeking the support of global associations, which is particularly effective for global entities with subsidiaries in Turkey. As the right to strike is not commonly used by employee unions, its counterpart, the lock-out, is also rarely used. For this reason, employers may believe it is unnecessary to belong to an entity which will organise and support their lock-out decisions.
On the other hand, compared to employee unions, the bargaining power held by employer associations is insignificant. In Turkey, most collective bargaining negotiations centre on the monetary provisions for the proposed agreement. Unfortunately, the workforce's desire to reach a collective bargaining agreement speedily is usually focused on the provisions relating to financial benefits. Social benefits or worker safety regulations are considered secondary issues, at best. As the financial provisions directly relate to the employer's budget and financial constraints, employer associations do not generally take the initiative at this stage, leaving it to the employer as the decision-making body.
The recent collective bargaining negotiations between Birlesik Metal-Is (a metal industry union) and MESS (a metal industry employer association) illustrate this scenario.
As mentioned above, the unionisation rate in the metal industry is significantly higher for both employees and employers. Thus, in the recent negotiations MESS bargained on behalf of 42 workplaces belonging to its employer members. Even with this high number of workplaces, which granted MESS strong standing against Birlesik Metal-Is, the wide range of employers caused difficulties in the negotiations which were challenging to overcome in order to reach a mutually acceptable proposal for all employers. The negotiations took more than six months and a mutually acceptable agreement could not be reached. Finally, Birlesik Metal-Is decided to strike in January 2015. While MESS was still considering and discussing the lock-out option with its members, the government used its power under Law 6356 to postpone the strike. Following this decision, each MESS member started to bargain individually with Birlesik Metal-Is in order to resolve its own issues while continuing to conduct business without interruption – an essential component of being a viable business. However, other employers began to consider reducing production capacity or ceasing activities as a result of the difficult situation. Eventually, MESS could not prevent the overall dissolution of its members, as it could not reach a mutually acceptable collective bargaining agreement for them.
The Mess scenario shows that more effective and stronger employer associations are needed in Turkey. Employers should take concrete steps to make this happen. However, employer associations also need to increase their reputation and penetration among employers, to understand what is essential to employers and to be aware of business trends in order to find modern solutions for employers, while representing them as part of an employer association.
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 protected] or [email protected]). The Hergüner Bilgen Özeke website can be accessed at www.herguner.av.tr.
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