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
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
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.
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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.