Labor law is a very dynamic branch of law which is intertwined with daily life. It is very important to evaluate the problems encountered according to the characteristics of the factual events. These assessments are made on the basis of laws and regulations, as well as case-law, agreements, and workplace practices. Agreements show themselves to be personal employment agreements and collective labor agreements ("CLA"). In this month's article, we shed light on the nature of the CLA, which is regulated under the Syndicates and Collective Labor Agreement Law ("SCLAL") numbered 6356, the relationship between the employee and the employer within this scope, and the right to strike.
Characteristics of Collective Labor Agreements
Article 53 of the Constitution gives workers and employers the right to execute agreements in order to regulate their economic, social and working conditions. Within this context, the CLA is an agreement executed between a labor syndicate and an employer syndicate, or an employer who is not a member of any syndicate, in order to regulate issues related to the content and termination of the business relationship. These agreements, which do not have an application area in every workplace, have functions, such as protection, regularity, peace and fair income distribution. In other words, the CLA is an agreement that is formed as a result of the negotiations of the parties in order to ensure their stable and peaceful working lives.
The CLA organizes subjects, such as working hours, breaks, permits, disciplinary rules, occupational health and safety rules, smoking ban, shifts, cafeteria-nursery use, wages, salary increases, the fees for overtime working and national holiday /general holiday working, bonuses, premiums, and any type of monetary social assistance.
The duration of the CLA may be a minimum of one year to a maximum of three years. The term cannot be changed by the parties after signing and cannot be terminated before ist expire date. Two CLAs at the same level cannot be signed in one workplace.
The labor syndicate, as a party of the CLA, represents the employees who work in one or more workplaces of the employer, in the same branch of work1 where the syndicate is authorized to do business, and who are members of the syndicate through the paying of dues. These workers are subject to all rights and obligations regulated by the CLA. Employees who are not members of the syndicate may also benefit from CLA, by paying the solidarity dues, or by obtaining the written permission of the syndicate that is a party to the CLA. The employer pays the dues directly to the syndicate by cutting this amount from the wages of the employees. If the employer does not pay these dues, the highest interest rate applied to bank loans shall accrue.
Persons who are representatives of employers, or who are acting as the employers' attorneys in the CLA negotiations, cannot benefit from the CLA. Furthermore, in practice, the parties may exclude some employees from the scope of the CLA. These people are usually employees, such as managers, chefs, engineers, or office staff. It is also accepted that these persons have already been granted with the rights brought by the CLA due to their work and their qualifications. However, it is contradictory in the doctrine as to whether or not this right arising from Constitution can be eliminated by the will of the subjects in private law.
The Obligation of Employers to Act Equally in CLA Workplaces
Under the Turkish labor law, employers must treat employees who hold the same position equally. It can be alleged that the CLA may cause the employer to treat its employees who are members of a syndicate differently, from those who are not. In order to prevent this inequality, our legislation ordered the implementation of regulations of the CLA for all employers in the workplace, with the exception of the provisions regulating social aids related to money and all kinds of wages. Therefore, by the entry into force of the CLA, the conflicting provisions of the employment agreements shall be replaced by the provisions of the CLA, and the CLA shall be directly applied to the matters that are not regulated in the labor contract. However, if there are provisions in the employment contracts that are more advantageous for the workers, these regulations remain valid. For example, disciplinary regulations introduced by the CLA will apply to all workers in the workplace, even if they are not members of the syndicate, or do not pay solidarity fees. Otherwise, pursuant to Article 5 of Labor Law numbered 4857 ("Labor Law"), employees may claim an appropriate amount of compensation of his/her wages up to four months, and any other rights that he/she has been deprived of.
Prohibition of Syndicate Discrimination
The SCLAL regulates the prohibition of syndicate discrimination in order to ensure the attempt of the workers to become members of syndicates, and to protect this right. Within this scope, the recruitment of employers cannot depended upon the conditions of joining, or being members of a certain syndicate, to continue being a member of a specific syndicate, or withdraw from membership. Likewise, the employer cannot make any distinction between workers who are members of a syndicate and who are not, or between employees who belong to separate syndicates.
In addition, pursuant to Article 8 of the Labor Law, an employer cannot terminate an employment contract on the basis that the employee is a member of a syndicate, joins syndicate activities, or acts as a representative of the syndicate.
If an employer acts contrary to the prohibition to discriminate, the employees shall be entitled to syndicate compensation in an amount of not less one year's wage.
On the other hand, upon termination of an employment contract due to a syndicate cause, the employee may request his/her reemployment, and irrespective of whether the employer reemploys the worker or not, the employee will be entitled to syndicate compensation. It should also be noted that the fact that the worker does not demand his/her reemployment does not harm his/her request for syndicate compensation.
Upon a blockage of the CLA process, there are two driving forces through which to resolve the conflict. These are legal striking of the workers, and legal lockout of the employers. This article shares information regarding legal strikes, because a lockout is not an applied method, in practice.
A strike is the work stoppage action realized, collectively, by employees in order to cease or hinder the facility at the workplace. If a dispute occurred during the CLA's bargaining period, and if the parties cannot resolve the dispute in a peaceful way, the labor syndicate can take a legal strike decision in order to maintain or improve their economic, social and working conditions; in other words, with the purpose of forcing the employer to accept their demands. This right arises from Article 54 of the Constitution.
The employment contracts of the workers, who do or do not participate in a legal strike, are suspended during the strike.
Employees who work in technical positions that must continue due to their nature, and who ensure the continuity of work or workplace safety, protection of machinery, raw materials and products or animals and plants, must continue working during the legal strike, provided that their position is not related to production or sale, and the employer must employ them.
The employer cannot employ other workers, permanently or temporarily, instead of workers whose employment contracts are suspended due to a legal strike; otherwise, the employer faces administrative fines. These workers herein cannot work elsewhere during the strike.
The employment contract of a worker cannot be terminated due to reasons, such as joining or encouraging the decision, and /or the participation, of a legal strike.
In order to be able to raise the possibility of a legal strike, the demands of the workers shall not go beyond their professional purpose, an authorized workers' syndicate shall make and implement the decision, certain deadlines shall be obeyed, and there shall be no ban in the relevant branch of work. In addition, the strike should be the last option in order to sustain the collective bargaining process.
Actions, such as quitting the job, slowing down the work, decreasing the efficiency, condemnation, striking with a political purpose, and taking collective leave that does not meet the abovementioned requirements, are considered to be illegal. In the event of an illegal strike, the employer may terminate the employment contracts with just cause of the workers who participate in the strike decision and/or strike itself, or who encourage the participation and/or the continuation of the strike. In addition, if any kind of damage occur due to this illegal strike, the employer shall be compensated by the syndicate that decided to strike, or, if the illegal strike was made without any workers' organization, or by the workers participating in the strike. Article 78 of the SCLAL also regulates administrative fines for illegal strikes.
In the Turkish legal system, universal rights arising from the collective labor law are protected by the Constitution. Employees and employers may execute a CLA in order to provide for regularity in working life, and to ensure stability and peace. Employers are obliged to apply the provisions of the CLA, except for those provision related to wages and financial aid, to all workers in the workplace; otherwise, they may have to pay compensation for violating the principle of equal treatment. In addition, employers cannot discriminate between their workers due to their syndicate activities, and cannot terminate employment contracts; otherwise, they may be faced with syndicate compensation. If a dispute occurs during the CLA's process, and if the parties cannot resolve the dispute in a peaceful way, the workers can make a legal strike in order to force their employers to accept their demands that are appropriate for their professional purposes. The employer may terminate the employment contracts of the workers and may demand compensation for losses he/she suffered only if the strike is illegal. All of these arrangements aim to prevent the CLA process from being prolonged and from the misuse of the right to strike; whereas, to seek a conclusion of the process in a healthy manner.
1. Regulation on Branches of Work, published in the Official Gazzette dated 19.12.2012, numbered 28502.
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.