The right of forming trade unions is one of the most important and indispensable fundamental rights, especially for employees. However, the recognition of this right is not effective unless the employees are protected from being subject to discrimination by an employer due to their union membership. For this reason, special guarantees to be explained below were set forth by the Act of Trade Unions and Collective Labour Agreements (“Union Law”) numbered 6356 and these are collected under three headings.
- Guarantee of Freedom of Trade Union
Article 25 of the Union Law, within the context of ‘prohibition of discrimination’, briefly regulates that no discrimination can be made because of employees’ membership or non-membership of a union, or activity or non-activity in a certain union. In fact, the provisions to be written in violation of this guarantee in the employment agreement has no effect and are considered legally invalid.[1]
In the relevant article, which was organized as nine paragraphs in total, it was regulated that the employees who are members of a trade union shall not be discriminated in the course of recruitment and during the continuation of the work with respect to working conditions or termination of employment.
Besides, as well as the right to taking part in the trade union, the right to participate in union activities has been preserved. According to the third paragraph, participation in the activities of trade union outside working hours or during working hours with the consent of employer cannot give reason to dismissal of the employee or termination of the employment contract. Otherwise, the union compensation may be awarded as regulated in paragraph four of the Article. The compensation shall correspond to at least workers annual wage.
The fifth paragraph of the article regulates the termination of the employment contract for union reasons and references 20 and 21 of the Turkish Labour Act numbered 4857. (‘TLA’)
Accordingly, employees have the right to file a lawsuit based on the provisions of TLA, and also, if it is proved that termination of the employment contract is caused by union discrimination by the employee, the above-mentioned union compensation can be ordered independent of necessity of application of the employee and employer’s granting or refusing him approval to restart work. However, it should be noted that in such a case, the compensation stipulated in Article 21 of the TLA will not be awarded.
As set out in the 6. Paragraph of the Article, the burden of proof on lawsuit to be filed with the claim that the termination of the employment contract is based on a union reason, lies with the employer. However, if the employee claims that the termination is not based on the reason suggested by the employer, this time the burden of proof will be reversed.
Even though, on the claims of being discriminated other than termination lies with the employee, if the employee demonstrates a strong likelihood of such a violation, the burden of proof that the alleged violation has not emerged shall rest on the employer in accordance with the paragraph seven of the Article.
- The Assurance of Workplace Union Representative
In addition to the above-mentioned assurances, a representative of the workplace union is provided with some additional special guarantees. These guarantees, arranged in five paragraphs in Article 24 of the Law, will be valid as long as the employee has the title of workplace representative.
First of all, the employment contract of the workplace union representative can only be terminated if there is a just cause, which is a justified reason that is more severe than the valid reasons provided for in the TLA. As a matter of fact, the representative whose employment contract has been terminated will be able to request to be reemployed regardless of the number of employees and term of employment based on the specific job security provided in the paragraph, by claiming that there is no just cause.[2]
In the event that the representative is decided to reinstated in his/her employment, although there is no consensus in the doctrine about the effect of this decision on the termination of the employment contract, to our opinion, the termination will disappear as if it has never been made, regardless of whether the employee is started or not, and the employee will be able to claim the full wage and all other benefits even if he/she do not offer his/her performance. This means “absolute return to work” in the collective labour law literature.[3]
Therefore, if the employee whose representation has expired is wanted to be dismissed, a new termination shall be made, and the employee will have the right to sue a new re-employment lawsuit.
A strong guarantee has been provided by paragraph 4 compared to Article 22 of TLA, that the workplace of the representative cannot be changed, and the working conditions cannot be altered substantially by the employer unless there is a written consent. Thus, changes without the written consent of the representative will not be valid, and even if the employee does not work at the proposed job, he / she may request wages and other rights from the employer during this period.[4]
Finally, it was stated in the last paragraph of the article that union administrators can benefit from the guarantees granted to the union workplace representative.
- Assurance of the Trade Union Manager
In addition to the guarantees afforded to the workplace representatives, additional assurances were provided to union managers with Article 23. The first of these is ‘the suspension of the employment contract’, which is in brief, employment of employee’s being remain suspended in the event of employee leaving his workplace on account of being assigned as a union manager.
Furthermore, the employee who is a union manager, has been given a special right to terminate the contract of employment, on the date he/she leaves workplace without complying with the notification period or without waiting for the expiry of the contract and shall be entitled to receive severance pay.
The employer is obliged to reinstate the employee in his/her employment upon employees’ application if his/her duty ends for the reasons of the termination of the legal personality of the union, the manager’s voluntary resignation, or not being re-elected, or not participating in elections. Otherwise, the employment contract will be deemed to have been terminated by the employer and it will be possible for employee to apply to the provisions of labour-job protection of TLA and file reemployment lawsuit. Also, the employee may be entitled to compensations such as union compensation, notice pay, and severance pay.
Except for the cases mentioned above, the employee whose union management ends is entitled to severance pay, but there is no responsibility imposed on the employer to reinstate the employee in his/her employment.
In conclusion, in order the freedom of membership to the union to be functional, besides the recognition of the right to gain and maintain union membership, protection of this right against employers is also very important. Therefore, the legislator has provided separate assurances to union membership, union office representative and union manager in the relevant part of the law.
[1] BASKAN, Esra: 6356 Sayılı Kanun Çerçevesinde İş Sözleşmesinin Sendikal Nedenle Feshi, Ankara 2013, 60.
[2] SUR, Melda: İş Hukuku Toplu İlişkiler, B.5, Ankara 2015, 62 et al.
[3] İnciroğlu, Lütfi:Yeni Sendikalar ve Toplu İş Sözleşmesi Kanunu’nda İşyeri Sendika Temsilcisinin Güvencesi, Çalışma ve Toplum, 2013/1
[4] Sur, 65.