Theoretically, labor law is divided into two sections: individual labor law and collective labor law.
Individual labor law regulates the relationship between the employee and the employer, the legal framework of its establishment and termination. Collective labor law, on the other hand, is concerned with the relationship between employee, employer and the unions, and regulates the structure of the unions, conditions of their establishment, the collective bargaining process with the employers, as well as the fundamental and sensitive rights at unionized workplaces, such as strikes and lockouts.
With the new legislation wave in Turkey as a result of the European Union accession process, the laws regulating the labor law section became a significant topic for the legislative authority, as well.
First, regulations of individual labor law were amended through Labor Law No. 4857 in 2003. These amendments were also intended to minimize the informal economy in Turkey, especially informal employment salaries. However, amendment of collective labor law regulations has been more difficult, since enactment of a new collective labor law requires a consensus of unions and employers' confederations, as well regulating bodies of the government. After long negotiations and discussions, which were suspended many times, on 18 October 2012, the new Law on Labor Unions and Collective Bargaining Agreements No. 6356 has been enacted and entered into force on 7 November 2012. With this new piece of legislation, a new chapter in Turkish collective labor law has begun.
Until this new law, Turkish scholars generally divided the historical development of unionization in Turkey into three periods. The first period began following the establishment of the Republic of Turkey with the legalization of labor unions, through the adoption of Law on Employees' and Employers' Labor Unions and Union Associations No. 5018, in 1947. In this period, unionization became legitimate for the first time in Turkey, and employees started to form labor unions and became members of these unions. This was a period of experimentation for the unions, and in these years, unionization was very premature and the legal framework was limited.
However, in the second period, between1963- 1983, unionization developed. The development of unionization was, in fact, the result of the transformation of the country's employment profile from agriculture-dominated to that of an industrial-dominated one. First, the Constitution 1961 granted broader rights and freedoms to unions. Soon thereafter, Law on Labor Unions No. 274 and Law on Collective Bargaining Agreements, Strikes and Lockouts No. 275 were adopted in 1963, and with the regulations of these Laws, the legal framework was expanded. The most important development in this period was that the right of collective bargaining with striking power was accepted, and unionization was supported through such regulations adopted with the new legislation. During this period, unions discovered their powers over employees, and some fraction groups at unions tried to abuse the unions' powers, which created a negative prejudice with the public. The second period of the unionization development was ceased through the 1980 military invention, which also prohibited collective bargaining between the years of 1980-1984.
The third period may be considered as a period of deterioration for labor unions and unionization. In line with the constitutional amendments in 1982, Laws No. 274 and 275 were repealed, and Law on Labor Unions No. 2821 and Law on Collective Bargaining Agreement, Strike and Lockout No. 2822 were adopted by the temporary military regime. The regulations enacted in these Laws restrained many activities of labor unions and the rights and freedoms of, mostly, the employees. Since unionization was perceived solely as a political issue during that period, for some branches of work, establishment of a labor union was banned, and the framework of the right to strike was limited. In addition to these legal restrictions, Turkey's fundamental structural problems, such as informal economy and unemployment rate, affected unionization negatively, as well. These negative effects on unionization have been mostly criticized by the International Labor Organization (ILO). However, over the years, Turkish lawmakers' approach to unions changed in line with the change in unionization with the effect of legal boundaries and the ILO's pressure.
Recently, the new wave in Turkey changed to support unionization, and in light of this approach, the newly adopted Law No. 6356 brought many new regulations, which aim to remove the traces of the former restrictions. Therefore, hereafter, this may be considered as a fourth period in unionization in Turkey.
Through the provisions of Law No. 6356, establishment of a labor union became easier. In this regard, a real or legal person who has legal capacity can establish a labor union. The former Law did not allow legal persons to establish labor unions, and also stipulated that the founder of a labor union must be actively working in the branch of work (tr. işkolu) in which the labor union was to have been established.
Law No. 6356 also lowered the age for membership in a labor union from 16 to 15. In addition, the new legislation brought an exception to the prohibition of multiple union memberships. Pursuant to the new regulation, if an employee is working in the same branch of work at the same time, but for different employers, there is no prohibition for him/her to be a member of two or more labor unions. This provision is especially important for part-time or temporary employees.
Application for union membership has become easier and standardized, as well. Union membership used to be applied to through a notary public, and upon submission of the related document to the union. However, that system had numerous issues, and fraud was easily committed through applications via notary public. In the past, there were many criminal lawsuits filed against officials of labor unions and notaries due to falsified membership documents. Additionally, the former system was costly for many employees and more bureaucratic, as well as being more complicated. The new Law's system for union membership is completely different and in line with technological developments. According to the new system, employees will apply for membership to labor unions via internet; through the related government internet site, i.e."e-devlet." Since a personal password will be required for such applications, it is assumed that fraud will no longer be possible. Resignation from the membership of a labor union will be made via "e-devlet," as well.
However, since a certain infrastructure is required for this new application and resignation system, the former system (notarized membership documents) will continue to be applied until 7 November 2013.
Contrary to the expectations of labor unions, the new Law only reserves the existing assurance of the union representatives and freedom of union membership; but did not expand its limits. Accordingly, employers cannot terminate the labor agreement of a union representative without just cause. The termination of a union representative's labor agreement is only possible if there is just cause for such termination, and the reason for the termination should be explicitly stated in written form.
As to the freedom of union membership, it is regulated that employees cannot be recruited considering their memberships in a labor union. Also, they cannot be obliged to join, or refrain from joining, a labor union, or to remain a member of, or to resign from a labor union. These issues had been regulated in the former legislation, as well. The new regulation depends on the burden of proof. According to the new legislation, the burden of proof rests with the employer, if the employee claims that the agreement was terminated due to labor union-related reasons. If the employer can prove another reason for the termination, then the burden of proof shifts to the employee.
As a criticized issue in the new legislation, employees who are working in a workplace with less than 30 employees may not benefit from extra rights granted to employees on the grounds that the employment agreement has been terminated for labor union-related reasons. Since the provision is unclear in this aspect, its interpretation by the Turkish Court of Appeals is assumed to clarify the discussions.
Another important amendment is with respect to the amount of solidarity fee (tr. dayanışma aidatı). By paying this fee, the employees, who are working in the workplace, but are not members to the authorized labor union, can benefit from the provisions of the collective bargaining agreement. Since the solidarity fee is less than the membership fee, employees may prefer not to become members of the labor union, and just pay the solidarity fee in order to benefit from the collective bargaining agreement. However, this system makes it harder for the authorized labor union to obtain authorization for the next term, and jeopardizes the continuance of the collective bargaining agreement. For this reason, the request and intention of many labor unions was to abandon the solidarity fee system. The lawmakers pursued the employees' monetary benefit for the long-term and preserved the solidarity fee. However, according to the new legislation, the solidarity fee is not a fixed amount, and is to be specified in every union's bylaw and cannot exceed the membership fee. In this way, both sides' benefits are more or less preserved.
Another major problem of the former legislation was the authorization criteria of labor unions for collective bargaining agreements. A double-threshold system has been in place for the past 30 years, and as the threshold levels (especially the threshold for branches of work) were relatively due to the penetration of unionization in Turkey, minor and even mid-sized labor unions, generally, could not obtain authorization, and in small workplaces, collective bargaining agreements could not be concluded. The new legislation aimed to reduce the negative effects of these thresholds through several new regulations.
As mentioned above, the first threshold is the "branch of work threshold" (tr. işkolu barajı). In order to meet the branch of work threshold, a labor union must hold a certain percentage of the total employees in the country who are working at that branch as its members. This percentage had been established as 10, which had been criticized, especially by the labor unions, as being too high. The request and intention of the labor unions was to completely remove such threshold. However, employers and employers-confederations' suggestion was that at least 5% of the branch of work threshold should remain in the new legislation. After negotiations by both parts, this threshold was lowered to 3%, with the provision regulated through Law No. 6356. Also, through the provisional articles, a transition period is now regulated. In this regard, the threshold will be applied as 1% for some unions, which carries specific properties, until 1 July 2016, and 2% until 1 July 2018.
In line with this amendment, the number of the branches of work has been decreased to 20, and the scope of some branches has been amended. In the former legislation, 28 branches of work were accepted. With the decrease in the number, the authorization of small labor unions became easier.
The second threshold to be met for conclusion of a collective bargaining agreement has not been amended with the new legislation. According to this threshold, a union must have at least one more than half of the employees in a workplace as its members. Although the percent has not changed, since the application and conditions of membership to a union became easier, and the solidarity fee option has lost its appeal through the new amendment, more employees will be able to become union members. In line with this amendment, a union can become authorized to conclude collective bargaining agreements by earning more members.
A new threshold is regulated in Law No. 6356, as well, which may be referred to a "business place threshold." If a union has membership of more than 40% of the employees of a business, it becomes authorized to conclude a collective bargaining agreement, as well. However, business-wide collective bargaining agreements are very exceptional, and this percentage can only be applied to employers who have separate workplaces that are in the same branch of work.
In conclusion, Law No. 6356 provides an opportunity for unions to expand their activities, which may also have positive input on the struggle with the informal economy. With these regulations, the traces of the former restricting provisions may be removed. Of course, it could not be considered as enough of a dramatic increase in the unionization rate; however, the steps that have been taken seem promising for unionization in Turkey.
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