<%@ Language=JavaScript %> ÇALIŞMA HAYATI

COLLECTIVE BARGAINING SITUATION IN TURKEY

PROTECTIVE AND RESTRICTIVE PROVISIONS OF THE

LEGISLATION WITH RESPECT TO THE ACTIVITIES '.

OF TRADE UNIONS

Turkish Constitution stipulates that everyone is free to become a member of or withdraw from membership of a union and no one is compelled to become a member, remain a member or withdraw from membership ofa union.

Constitution does not allow workers and employers to hold concurrent membership in more than one trade union or employers' association.

Employment in a given workplace may not be made conditional on being or not being a member of a trade union.

Trade union and confederation officials have the right to be reinstated in their former jobs when they cease to hold the office. Shop stewards (trade union representatives) are specifically protected against unfair termination of their employment contract with fast-hearing procedures of the Courts.

No worker may be dismissed on account of his/her participation in the activities of trade unions or confederations outside his/her usual hours of work, or during hours of work with the employer's permission and no \vorker may be subject to discrimination for his/her involvement in trade union activities. The remedy for unfair dismissal is a pa)rment of compensation which may be not less than the worker's total annual wage.

Basic restriction on the activities of trade unions and their confederations has been laid down in the Constitution to the effect that such activities may not be inconsistent with the characteristics of the Republic as defined in the Constitution or with democratic principles. Prohobition of the political activities of trade unions existing in the Constitution and the relevant legislation \vas repealed in 1995 and 1997 respecti\Tely.

The employers' and emplo)rees' organizations may not intervene, directly or indirectly, in the establishment, administration or activity of one another.

Other prohibitions concern the ban on the commercial activities of trade unions and the distribution of their income or revenues among their members without prejudice to the benefits provided in case of a strike or lock-out.

GENERAL PRINCIPLES CONCERNING COLLECTIVE BARGAINING AND

AGREEMENT SYSTEM

In order to be a party to a collective agreement, a trade union should represent at least 10 percent of the workers engaged in a given branch of activity and more than half of the workers employed in the establishment or each of the establishments to be covered by the agreement.

The Ministry of Labour and Social Security keeps the register of union membership and publishes the relevant figures in January and July of each year. These statistics are instrumental in determining the competence of the trade unions before they can start bargaining or call the other party to the bargaining table. Any interested party challenging the accuracy of the figures released by the Ministry may lodge an appeal with the Court of Labour.

A collective agreement may only be valid if it is in writing and may cover one or more establishments within the same branch of activity. In the case of an enterprise having more than one establishment in the same branch of activity, an entel-prise level collective agreement may be concluded.

A collective agreement may be concluded for a specified period ot~ not less than one year and not more than three years except in cases where the work is due to last less than one year. The law does not allow the conclusion of more than one collective agreement for the same period in a single establishment.

Indi\Tidual contracts of employment ma)' not be at \!ariance \\'ith the collecti\'e agreement in force save as otherwise provided in the collective agreement. The provisions of a contract of employment which are more advantageous for the worker continue to apply and the provisions of a collecti\!e agreement that has expired for any reason which are related to contracts of employment continue to be binding until a new agreement enters into force.

Workers who are not members of the trade union part)' to the collecti\'e agreement in a given establishment may benefit from this agreement if they pa)' a monthly solidarity contribution (rate of which is two-thirds of the membership contributions) to the trade union concerned. The consent of the trade union is not recluired in this matter.

PEACEFUL SETTLEMENT OF COLLECTIVE LABOUR DISPUTES ,

In principle, the rihgt to strike and lock-out is recognised as a way of settling the disputes of interest. However, before having recourse to strike or lock-out, bargaining parties may try to settle the dispute through mediation or private arbitration. A Mediator selected or appointed under the related provisions of the law is required to make every effort to bring about a settlement between the parties and make proposals to them. If the parties fail to reach an agreement before the end of the period fixed for mediation, the mediator reports his/her exercise to the competent authority together with his/her conclusions and proposals to bring about a settlement to the dispute.

The parties may also agree to resort to private arbitration at any stage of the collective dispute involving rights or interesets. If the parties agree in writing to resort to private arbitration in a dispute involving interests, the provisions of the legislation governing mediation, strike or lock-out or statutory arbitration may not thereafter apply. The awards of the arbitrator in this case have the same force and effect as a collective agreement.

In disputes concerning the establishments or the activities and services where it is prohibited to call a strike or order a lock-out, any party may apply to the High Court of Arbitration for the settlement of the dispute. Where the right to call a strike or order a lock-out is suspended, the Minister of Labour and Social Security applies to the same Court after the expiry of the suspension period. The awards of the Court are final and have the same force and effect as a collective agreement.

CONSEQUENCES OF STRIKE OR LOCK-OUT

The contract of employment of any worker who supports a lawful strike or urges others to support it, or takes part in such a strike or urges others to take part in it, may not be terminated for that reason.

The rights and obligations under the contracts of employment are suspended until the end of the strike or lock -out except the wages and supplements already due to the workers.

Suspension period is not taken into account in the calculation of seniority severence payment. However, the social security benefits continue to be provided.

During a lawful strike or lock-out, the employer is not permitted to take on any worker in a permanent or temporary capacity or to employ any other person in substitution for a worker whose contract of employment is suspended, Likewise, a worker on strike is not permitted to accept any other employment.

Workers' entitlement to housing which the employel- has placed at their disposal may not be affected.

The l-ight to shike or lock-out may not be exercised contrary to the rules of good faith or in such a manner as to damage society or desh-oy national wealth, The trade union will be responsible for any material damage sustained in the establishment during a strike caused by the deliberate action or negligence of the workers or the union taking part in the strike,

The employers' or employees' organisation is entitled to place lock-out or strike pickets in the establishment to ensure that its decision is respected.

In the event of an unlawful strike, the employer is entitled, without any liability as to notice or compensation, to terminate the contract of employment of any \vorker who is involved in such strike. Any damages resulting from the unlawful strike will be compensated by the trade union or workers concerned.

In the event of an unlawful lock-out, a worker is entitled to tenninate his/her conh-act of employment, without an)' liability as to notice, and may demand all his/her rights and compensation for any damage that he/she has sustained dul-ing the period of the lock-out, without any obligation on the worker's part to do the corresponding work.

The competence to detem1ine a strike or lock-out as unla\\'ful rt~sts with the Coulis of Labour.

COLLECTIVE DISPUTES INVOL VING RIGHTS

In collective disputes involving rights, the legislation does not recognise the right to strike or lock-out as a lawful act for the settlement. In the disputes stemming from the interpretation of a collective agreement in force, either party to the agreement may lodge a suit with the competent labour court requesting an interpretation. In cases of violations of the agreement in force, a suit requesting the execution of the obligation may also be lodged with the competent labour court. Remedies for the failures are provided in the legislation.

STRIKES AND LOCK-OUTS

A trade union that is party to the dispute may call a strike within six working days after the lapse of six-day cooling period starting from the date of notification of the report of the mediator to the effect that mediation proceedings have failed to resolve the dispute. The certificate of competence of the trade union becomes void if a decision to call a strike is not taken within the said time limit or, where strikes are prohibited, application is not made to the High COU1-t of Arbitration. The employer may take a decision to order a lock-out within six working days of the date on which the decision of the workers' union to call a strike is communicated to himlher.

Activities and services as well as establishments where strikes and lock-outs are prohibited are as follows:

-life or property saving;

funeral and mortuary;

exploration, production, refining or purification and distribution of water , electricity, gas, coal, natLual gas and petroleum;

-banking and public notaries;

-firefighting, sanitation and land, sea, railway and other urban public h-ansportation on rail;

-any health institution, such as a hospital, clinic, sanatorium, health centre, dispensary , pharmacy, or establishment for the preperation of vaccine or serum provided that the foregoing may not be deemed to include any establishment manufacturing medicines;

-educational and training or day nursery and old-age retirement homes; cemeteries;

-any establishment run directly by the Ministry of National Defence, General Command of Gendarmeries or Coast Guard Command.

Strike or lock-out is not permissible in any means of land, sea or air transport while the vehicle is engaged in a journey within Turkish tel~ritol-y before reaching its final destination.

It is also not permissible to call a strike or order a lock-out jn time of Y',lar and during a general or partial mobilisation. Where the life of the community is paralysed by a disaster caused by fire, flood, landslide, avalanche or e3.rthquake, the Council of Ministers may make an order prohibiting strikes and loc1:-outs in respect of such areas and branches of employment as it may deem necessary , in view of the situation and for such time as the sitLlation requires.

There strikes and lock-outs are prohibited, any party may apply to the High Court of Arbitration after the mediation process have failed or after six have months elapsed in the case of temporary prohibition.

Any lawful shike or lock-out that has been called, ordered or commenced suspended by the Council of Ministers for 60 days if it is likely to be prejuducial to public health or national security. The decision of suspension may anged before the Supreme Court of Administration. Every effort for the :nt of the dispute during the suspension period should be made by the r of Labour or a mediator designated by the Minister. If the parties have n able to reach an agreed settlement or have not agreed to resort to arbitration during the suspension period, the Minister of Labour refers ute to the High Court of Arbitration for settlement.

Any clause waiving or restricting the right to strike or lock-out included tract of employment is null and void.