I. COLLECTIVE LABOUR AGREEMENT COMPETENCE OF UNIONS AND ITS CONDITIONS
In the simplest and broadest sense, a union is a private law legal entity that employees or employers can freely establish to protect and develop their common benefits in their work relations within the framework of Trade Unions and Collective Labour Agreement Code ("Code") numbered 6356. Unions represent an organization that is freely and discretionally formed for the purpose specified in the Code, which a minimum number of persons with a certain title can establish and join.1 One of the most important actions carried out by unions to protect and develop the common benefits of their members is the conclusion of a collective labour agreement.
Under Turkish law, the conditions for forming unions and concluding collective labour agreements are regulated under the Code, which determines the persons who can be a party to the collective labour agreement. While there is no difference regarding the existence of a union legal personality in terms of the employer regarding the persons who may be a party to the collective labour agreement, only the employee unions can be a party to the collective labour agreement in for the side of the employee.
To conclude a collective labour agreement, the existence of two parties who have collective bargaining capacity, in other words, the existence of two parties whom the Code deems competent to conclude a collective bargaining agreement is necessary. In addition to the capacity requirement, a competence condition is also stipulated for the employee union that will be a party to the collective labour agreement. In this respect, to fulfill the competence requirement, the employee union must meet (i) the one percent competence condition in the branch of activity (ii) ensure the majority in the workplace. This situation is referred to as the "double threshold" in doctrine.
i. One Percent Competency Requirement in the Branch Of Activity
Article 41 of the Code titled "Competence" requires the condition that an employee union with the capacity to conclude a collective labour agreement has a member of at least one percent of all workers working in the branch of activity of the collective labour agreement, or in other words in which the union is established. In the doctrine, this situation is referred to as a "branch of activity threshold".
According to article 41/5 of the Code, the statistics published in the Official Gazette in January and July every year by the Ministry of Labor and Social Security ("Ministry") are taken in the determination of the branch of activity threshold. In the mentioned statistics, the number of members of the unions in each branch of activity and the total number of workers in that branch are given and the relevant statistical data are valid until the new one is published.
However, for a union applying for authorization to conclude a collective labour agreement, the statistics at the date of application will be applied and the data to be published later will not affect the related union.
ii. Ensuring the Majority in the Workplace
The employee union who wants to be a party to the collective labour agreement at the workplace must have registered as a member more than half of the workers working in the workplace, as well as providing the condition of one percent competence in the branch of activity. The critical issue that creates contradictions in practice is that the said expression is mistakenly understood to be one more than half. Since the expression specified in the Code is "more than half", for example, if there are 101 employees, it will be sufficient for the union to have 51 members to fulfill the majority condition in the workplace.3
The employee union that wants to be a party to the collective bargaining on the enterprise level must register forty percent of the workers as members. Article 41 of the Code regulates that in the case of enterprise collective labour agreements, the workplaces shall be considered a whole in calculating the forty percent majority. However, in case several unions have members of forty percent or more in the enterprise, the union having the largest number of members shall be authorized to conclude a collective labour agreement.
iii. Determining Competence
When the workers union who wants to conclude a collective labour agreement has the required number of members, it makes an application to the Ministry, requesting the Ministry to determine that it is competent to conclude a collective labour agreement.
Following article 42 of the Code, that the status of the union on the date of application to the Ministry shall be taken as a basis in determining the competence of the union. Upon determining that the workers' trade union is competent (positive determination of competence), the Ministry shall communicate the determination letter to other workers' trade unions constituted in the same branch of activity and to the employers' trade union or the employers not belonging to such unions who shall be a party to the agreement within six working days. If the trade union does not have the competence (negative determination of competence) the notification shall only be communicated to the applicant party
iv. Objections to Competence
The parties who have notified the competence determination letter issued and notified by the Ministry have the right to object to this competence. According to article 43 of the Code, the objection to competence must be made within 6 (six) business days from the notification of the determination letter. It is clearly stated in the Code that the procedure to determine competence will be suspended until the decision regarding the objection is finalized.4
According to the Code, unions can be a party to collective labour agreement under certain conditions. One of these conditions is that the union with collective bargaining capacity must be competent to conclude a collective labour agreement. For the union to be competent, it is required to provide certain membership rates specified in the Code in the branch of activity it is affiliated with and within the workplace or enterprise, it wants to conclude a collective labour agreement with. Unions that provide this can apply to the Ministry to determine their competence to conclude collective labour agreements and obtain a certificate of competence, and after this determination, they can start collective labour agreement negotiations. However, all these processes should be carried out within the periods specified for each step in the Code. Otherwise, the competence of the unions may be lost.
1 – NARMANLIOĞLU,Ü.: "İş Hukuku II – Toplu İş İlişkileri", April 2016, İstanbul p.47
2 – SUR, M.: "İş Hukuku Toplu İlişkiler", Turhan Kitapevi Yayınları, Ankara 2020, p.293-294
3 – BAŞBUĞ, A: "Toplu İş Sözleşmesi Yapma Yetkisindeki Temel Sorunlar ve Sendikal Haklara Olumsuz Etkisi", İş ve Hayat Volume 2 (2017): 59-76 p.61
4 – BULUN TOKKAŞ, S.: "Toplu İş Hukukunda Yetki Tespiti", Private Code Department Master's Thesis, June 2017; ENGİN, E. Murat, "6356 Sayılı Yasa'da Toplu İş Sözleşmesi Yetkisi", Çalışma ve Toplum, Volume.4, Issue.39, Year.2013, p.127
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