The legislative proposal submitted on 15 October 2018 (the "Proposal") constitutes a motion to amend Article 3 of Law No. 7036 on Labour Courts, published in the Official Gazette dated 25 October 2017 and numbered 30221 (the "Labour Courts Law").
Article 3 of the Law sets out a mandatory mediation requirement as a precondition to the commencement of formal litigation for certain labour law claims. Accordingly, where mediation is prescribed as a precondition, the claimant is obliged to first apply to mandatory mediation and any subsequent application to courts will require that the claimant presents a final mediation protocol demonstrating that the parties were unable to reach an agreement. Pursuant to the Regulation pertaining to the Law on Mediation concerning Civil Disputes, published in the Official Gazette dated 2 June 2018 and numbered 30439 (the "Mediation Regulation"), failing to do so leads to the direct rejection of the lawsuit petition on procedural grounds without any further procedural action or hearing. For more detail on the Mediation Regulation, please refer to our note dated 19 September 2018 on the Mediation Regulation.
The Proposal contains an amendment to Article 3 of the Labour Courts Law in order to make pre-litigation mediation in labour law disputes voluntary.
The content and reasoning of the Proposal
The Proposal begins with the presentation of the definition of mediation and underlines the voluntary nature of mediation as an alternative dispute resolution mechanism. The definition of mediation in Turkish law is in line with international understandings and provides that the term "mediation" constitutes a voluntary alternative dispute resolution mechanism that is carried out as a public service and involves a professionally trained neutral and independent third party who (i) brings the parties together in order to allow them to negotiate towards a resolution; (ii) attempts to enable the parties to understand each other and to resolve their dispute themselves; and (iii) is able to suggest a solution where the parties are unable to proceed if authorised by the parties to do so.
The main argument of the Proposal is based on the idea that mediation can only complement (and not substitute) the absolute sovereignty of the state's judicial power as exercised by courts. Hence, mediation should only be triggered on the basis of the free will and mutual agreement of the parties. The Proposal argues that any mandatory requirement to apply to mediation before initiating formal litigation could deprive individuals of their fundamental right to direct and effective access to the adjudicatory power of independent and impartial state courts.
Another major argument of the Proposal is based on the idea that employers and employees cannot be regarded as equals having the same bargaining power. As such, the Proposal states that mediation is not suitable to labour law disputes.
The Proposal therefore requests the amendment of relevant legislation so that any reference to "mandatory mediation" is changed into "voluntary mediation".
The initial idea behind the introduction of mandatory mediation provisions in labour law disputes was to provide relief to the dense and heavy workload of the courts and to provide the parties with quicker access to legal remedies. Whether the arguments and justifications set forth in the Proposal to amend Article 3 of the Law will be accepted by Parliament in light of the initial rationale behind mandatory mediation remains unknown.
In any case, lawmakers should be mindful that the initial underlying rationale to introduce mandatory mediation have not disappeared and state courts continue to face challenges in rendering effective and qualified judgments due to their intense workload. In this environment, abolishing mandatory mediation without providing an alternative solution to tackle these challenges might not be the best solution.
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.