The recent strikes that occurred in the Turkish metal industry have raised questions about whether these strikes were “legal” or “illegal”, and what the employers’ rights would be, when faced with such cases.
The Law and Legislative History
The (previous) Law no.2821 on Trade Unions and Law no.2822 on Collective Agreements had first been brought into effect right after the 1980 coup d’état and the subsequent referendum and promulgation of the new Turkish Constitution, in 1982. Almost three decades later in 2010, the Constitution was amended extensively generally expanding rights and freedoms. Article 54 of the Constitution entitled “The Right to Strike and Lockout” was also amended, and most importantly, the prohibition under subparagraph 7 regarding general, politically motivated and solidarity strikes and similar protests was lifted .
The (current) Law no. 6356 of Unions and Collective Agreements (the “Law”) came into force on 07.11.2012 repealing the previous ones. The preamble of the Law remarked that the previous laws had been unable to carry forward unionism and structure collective agreements with the newly expanded union rights and freedoms in the amended constitution. Furthermore past amendments in the previous laws had created a disjointed legislation, which was unable to resolve the problematic issues arising in practice. The preamble also emphasized that the “traveaux preparatoire” for the Law took into account the ILO norms, Turkey’s position regarding its EU membership, the structural problems of the working environment, judicial precedents and theoretical criticisms. Accordingly, the provisions of the Law were drafted with the ILO Conventions no. 87 and 98, as well as Articles 5 and 6 of the (Revised) European Social Charter in mind.
Definition of the “legal strike” under the Law
Under Art.58.2, “legal strike” has been defined as strikes that takes place during disputes arising during the collective agreements negotiations in order to protect or increase economic and social status and working conditions of the workers. Art. 58.3 further states that any strike that does not fulfil these conditions, would be illegal. Therefore, despite repealing the prohibitions under Art.54.7 of the Constitution in 2010, the Legislator does not seem to have followed through with the same spirit when drafting the Law. On the contrary, the reasoning of Art.58 specifically states that “it is not possible to view politically motivated strikes and solidarity strikes as a legal tool for work disputes. Occupying the work place, CLIENT ALERT – June 2015 2 go-slows, decreasing productivity and other protests will also mean breach of the workers’ duty of loyalty and duty to perform their work”.
The Effect of International Agreements and Court of Appeal precedents
Article 90 of the Turkish Constitution provides that (only for cases related to the fundamental rights and freedoms) in the event of a conflict between provisions of national laws and those international agreements that Turkey is a party to, the provisions of the international agreements shall apply. Accordingly, even if the Law limits legal strikes to those made during the negotiations of collective agreements; as long as the protests are peaceful, short term, and proportional, they may be deemed “legal”.
Based on the above, recent Court of Appeal precedents2 provide that those protests in the work place for the purpose of protection and betterment of workers’ economic and social interests are considered to be part of their democratic rights under international norms; that according to the Section 6/4 of the European Social Charter, European Convention on Human Rights and ILO rules, those short term protests the nature of which is the use of a democratic right are included in the right to collective action and will not be deemed illegal as long as they comply with the principle of proportionality, and that a collective action that does not result in irreparable damages would not give the employer the right to terminate employment contracts with just cause. This means that, in the event that employees go on a strike outside the negotiation process of a collective agreement, the Courts shall take a deeper look at the circumstances, proportionality and extent of the strike before ruling it “illegal” outright.
Employers’ rights under the Law when faced with an “illegal” strike
According to Art.71.1 of the Law, in the event that a strike does not fall under the definition of a “legal strike” the employers could at any time request the court to declare that the current strike is illegal. The court is expected to render its decision within one month, and if such decision is appealed then the Court of Appeal also has one month to pass judgment, such judgment being final and binding. The important point here is that, if the court does declare that the strike was illegal, then the employer would have the right to terminate the employment contracts of those employees who have participated in the decision to strike, encouraged the strike, participated in the strike or encouraged others to join or continue the strike, with just reason (Art.70.1). If the employer suffered damages as a result of the illegal strike, and if the strike decision was taken without involvement of the employee union, then those employees participating in the strike shall reimburse these damages (Art.70.2).
On the other hand, according to Art.25 of the Law entitled Guarantee of Freedom of Association, terminating contracts for reasons of membership in trade unions or participating in union activities (antiunion reasons) is prohibited and would result in liability for the employer: the court may order them to pay “union compensation” which shall not be less than the annual wage of the worker in question. If dismissed due to anti-union reasons, the worker is entitled to sue the employer as per the provisions of the Labour Law no.4857, and if the court determines that the dismissal is in fact due to anti-union reasons, it will rule for payment of union compensation whether or not the employer reinstates the dismissed worker. In any case, the worker may still claim union compensation without filing an action against the employer. There are also administrative fines under the Law in case the 3 employers fail to abide by the Law (as do the workers and unions).
In light of the above, when faced with what seems to be an illegal strike, employers are advised to wait for the finalised court declaration for “illegality” before taking steps against the workers in terms of their employment contracts, or take into account the “union compensation”, administrative fines, in addition to the expected production problems and possible unrest in the rest of the work force.