Law Of Trade Unions And Collective Bargaining Agreements Has Entered Into Force

November 2012

Scope and Objective of the Law

The new Law No. 6356 on Trade Unions and Collective Bargaining Agreements (the “Law”) was published in the Official Gazette dated 07.11.2012 and entered into force upon publication. The law regulates the procedures and principles regarding the establishment, management, operation, inspection, running and organization of employee and employer’s unions and confederations. The Law further establishes the procedures and principles for entering into collective bargaining agreements between employees and employers in order to mutually determine their economic and social status and working conditions and for settling disputes amicably and resorting to strike and lock-out.

A new situation regarding the union rights and freedoms emerged with the amendment made to the Turkish Constitution in 2010 with the Law numbered 5982. As a result of these Constitutional amendments, it became inevitable for the laws on the collective labour relations to be re-evaluated in a more liberal manner.

The amendments that were made with a more liberal approach in the articles have been rendered incoherent amongst the non-amended articles of these statutes. In addition, since the partial amendments that were made do not offer coherence, it could not succeed in the solution of the problems encountered in practice. Therefore, the necessity to legislate a long-termed law, which will take the labour relations system a step further in accordance with the current concerns, and at the same time which will bring substantial solutions to working life has arisen.

The Reforms Brought by the Law

The Law re-regulates union rights and freedoms, right of collective bargaining and free labour negotiations by taking into account international norms and on the basis of principles of a liberal and democratic society. In preparing the Law, the European Union and International Labour Union “ILO” norms, the structural problems of the working life, the judicial precedents and criticisms in the doctrine, were taken into consideration.

The union rights and freedoms, free collective bargaining and the resolution ways of the collective bargaining disputes have played a significant role in the relations between Turkey and ILO from 1932 when Turkey became a member to ILO, until today. The union rights and freedoms and the process of liberated collective bargaining are re-regulated under the Law by taking into account the ILO Convention No. 87 and 98. The issues of establishment of a union, membership to a union, being a manager in the union, union assurances, union activities, the operation and inspection of unions, free collective bargaining, the solution of labour disputes and level of collective bargaining agreements are regulated in parallel with the Conventions No 89 and 97. Within the Law, many provisions of the Revised European Social Charter are taken into consideration including mainly Article 5 on the right to organize and Article 6 on the right to bargain collectively and to strike.

Framework contract and group collective bargaining agreements are defined for the first time with this Law. The Law regulates the establishment, organs, activities and operation of trade unions in addition to collective labour bargaining agreements level, free collective bargaining, resolution of labour disputes and signing of collective bargaining agreements.

In accordance with the Convention No. 87 which provides a liberal internal-organization for unions, the Law has given unions priority in the regulation of the establishment and organization of their activities. In this regard, numerous points will be regulated under bylaws of the unions.

The number of line of businesses is reduced and re-regulated pursuant to world-wide practices. The determination of line of businesses is no longer a prejudicial issue in the competence disputes. This change was done in order to overcome the problems faced by the unions in the determination of competence. Procedures of becoming a member to unions and resigning from the unions are no longer subjected to notarization. Moreover, the number of documents required in the establishment of unions is reduced and the declaration of the founders is taken as a basis. The restrictions made in the organisation of the activities of unions within the Law numbered 2821 were removed and the authority regarding the organisation of the activities is left to the organs of the unions or to their bylaws.

The law re-regulates the free collective bargaining regime and the right to conclude collective bargaining agreements, on the basis of a free and democratic society pursuant to the reaction given to international norms by the Turkish business life. In this section, new regulations with respect to collective bargaining regime are brought, especially concerning the resolution of labour disputes. While regulating these issues, ILO Convention No.87 and 98 and the norms of the European Union are taken into consideration. In the preparation of the Law, demands of the parties, judicial precedents and criticisms in the doctrine were taken into account as well. Therefore, in this section of the Law, substantial amendments are made at the right of concluding collective bargaining agreement, strike and lock-out. The group collective bargaining agreement, which had found an application area with the case law before, is defined in the new Law and its scope of application is widened. Therefore, now, it is possible to sign collective bargaining agreement with more than one party in a line of business. The matter of multiple collective bargaining agreements arising with the transferring of a workplace to another employer, that occupied the judiciary mostly, is re-regulated. This issue was regulated in order to resolve the problems in determining the agreement which shall apply in cases where more than one collective bargaining agreement emerges.

Under this purpose, the line of business threshold, which continuously brought Turkey to the agenda of the ILO, is decreased to 3%. The principle requiring for more than half of the employees of a workplace to be member to the union is preserved, however, with respect to enterprises, the threshold is decreased to 40%. Besides, competence, negotiation and mediation process in the collective bargaining agreements is re-regulated.

With these new regulations, unions are foreseen as an active party in all the levels of collective bargaining. The ordinary mediation phase, which used to consist of three methods, is reduced to one. However, pursuant to the Law, the parties can still resort to voluntary reconciliation. The use of voluntary reconciliation and mediation has replaced the private arbitrator mechanism, which was not used frequently, even though was part of Turkish law. Thus, workload of the High Board of Arbitration is reduced.

The matter of strike and lock-out, which was subject to the intervention of the government frequently, is re-regulated. The lawful strike and lock-out is re-defined in accordance with the Constitutional amendments of 2010. The prohibition of strike is restricted. Prohibitions of strike and lock-out are restricted by the essential public services showing vital nature. With this Law, union rights and freedoms, free collective bargaining right and the resolution of the labour disputes are re-regulated in compliance with the universal principles.

Conclusion

Law No. 6356 was prepared in accordance with the norms set forth by the European Union and The International Labour Organization and in consideration of the structural problems of working life, as well as criticisms in the doctrine. It abrogated Trade Union Law No. 2821 and Collective Bargaining, Strike and Lock-out Law No. 2822. The Law aims to regulate activities of the employee and employer’s unions and confederations and it also aims to determine issues related to collective labour agreements. The Law provides the establishment principles, the organs, the revenues and auditing principles of the employee and employer’s unions and confederations, sets provisions regarding the membership to these organizations, provisions about the activities of these union organizations and general principles of collective bargaining agreement and strike and lock out; the running of confederations and designates the issues related to collective labour agreements.