Important Constitutional Court Decision Regarding Labour Union Rights

The Turkish Constitutional Court ("Constitutional Court") issued a decision ("Constitutional Court Decision") regarding the right to benefit from collective bargaining agreements ("CBA") and the right to unionize, based on an individual application.

The summary of the case and the assessment made by the Constitutional Court is as follows:

1. The applicant ("Applicant") worked as an accounting manager at a workplace where the Turkish Mining Workers' Union ("Union") was organized.
2. The Applicant was also a member of the Union.
3. The Applicant stated that, although she was excluded from the scope of the CBA as a white-collar employee for a certain period of her employment, the employer applied the salary increases stipulated in the CBA to her as well. The applicant further indicated that the employer discontinued this practice after a certain period of time based on the claim that the applicant was a whitecollar worker and was, therefore, excluded from the scope of the CBA, but that being classified as a white-collar worker alone was not sufficient to be excluded from the scope of the CBA and that she was entitled to benefit from the provisions of the CBA in any case.
4. On this basis, the Applicant filed a lawsuit in the labour courts for the salaries owed to her under the CBA.
5. As understood from the Constitutional Court Decision, the relevant labour court of first instance ("Labour Court") ultimately rejected the Applicant's claims, and the regional court of appeal ("Court of Appeal") also rejected the appeal filed against the Labour Court's decision.
6. Again, as understood from the Constitutional Court Decision, the Labour Court's rejected the Applicant's claims based on the grounds that "certain employees may be excluded from the scope of the collective bargaining agreement, it is not mandatory for employees outside the scope to benefit from the rights within the scope of the collective bargaining agreement, and if all employees in similar positions are outside the scope of the collective bargaining agreement, there is no discriminatory behaviour by the employer towards the said employees."
7. It is seen that the Court of Appeal, which rejected the appeal against this decision, also found the reasoning of the Labour Court appropriate.
8. After the decision was rejected by the Court of Appeals and became final, the Applicant filed an individual application with the Constitutional Court on the grounds that her union rights had been violated.
9. The Constitutional Court examined the application and ruled that the Applicant's labour union right, guaranteed under the Constitution, had been violated and that a retrial was necessary. The Constitutional Court cited the following reasons in this regard:

• Under the Labour Unions and Collective Bargaining Agreements Law ("Law"), it is clear which employees are not eligible to benefit from a CBA. Therefore, when assessing whether an employee is covered by a CBA, it is necessary to assess whether that employee is an employer representative and/ or whether they participated in CBA negotiations on behalf of the employer. Otherwise, making the distinction based on whether the employee is a white-collar or a blue-collar employee is not in accordance with the Law or the Constitution.
• When examining the cases of employees claiming receivables based on a CBA, courts must take these distinctions into account, conduct an effective examination, and render their decisions by fully setting forth their reasoning. 10. In accordance with the Constitutional Court Decision, we believe it is beneficial to consider the following points:
• According to the Law, employer representatives and employees participating in CBA negotiations on behalf of the employer cannot benefit from the CBA.
• To date, the labour courts have upheld this prohibition and, in addition, have accepted that the parties may exclude certain other employees from the scope of the CBA within the framework of their freedom to conclude a CBA.
• On the other hand, the interpretation under the Constitutional Court Decision with respect to benefiting from the terms of the CBA is quite rigid. According to this interpretation, it can be argued that the parties have significantly lost their autonomy in concluding CBAs and determining the content of the same, and that the individuals who cannot benefit from CBAs are limited to the employer representatives and the employees participating in CBA negotiations on behalf of the employer as specified in the Law
• While we agree with the view that determining which employees are covered under and which are excluded from based solely on a white-collar/bluecollar distinction is not in accordance with the Law, the interpretation under the Constitutional Court Decision of the legal prohibition on benefiting from a CBA is debatable in terms of its compatibility with the provisions of the Constitution and the Law.
• For this reason, it will be necessary to wait and carefully examine the decisions that both the Constitutional Court and the higher labour courts will make on this matter in the future.
• In any case, it is highly beneficial to always carefully draft the provisions of CBAs and employment contracts and conduct negotiations regarding them with due care and implement workplace practices accordingly. If these steps are not taken, a legal process may ensue, potentially leading to an individual application to the Constitutional Court, and employers will inevitably become parties to such lengthy legal proceedings.

11. In accordance with the Constitutional Court Decision, the re-trial to be conducted by the Labour Court and the reasoning behind that decision will undoubtedly be interesting and worthy of further evaluation.

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.